Archive for September, 2012

How Long Does It Take to Whistle?

Sunday, September 30th, 2012

ABAJournal.com has a post entitled, “Paralegal Blows Whistle on Ex-Boss, Says Cash Went in Book on Shelf; Lawyer Suspended for One Month,” that is interesting for a number of reasons all of which relate to an issue which has been a frequent topic here recently – paralegals dealing with unethical conduct on the part of the attorneys for whom they work. (In fact I’ve now made it a sub-category of its own, “Whistleblowing” under “Ethics.”)

In this instance the conduct was fairly clearly unethical:

The paralegal was a witness for the prosecution in the attorney discipline case, testifying that Kersenbrock didn’t deposit a number of client retainers into her trust account when she worked for the attorney between 2005 and 2010. Instead, Kersenbrock put retainer checks into her law firm operating account and put cash retainers into a drawer or in books on her bookshelf, then spent them when she needed money, the paralegal testified.

While I like to use these reports as lessons for paralegals, it appears the real lesson here is for attorneys. This is because the paralegal did not “blow the whistle” until after she was no longer employed by the attorney. While there is not nearly enough information in the story (or in the court’s opinion) to justify being judgmental, it does take some of the luster out of “doing the right thing.” It begins to look like the whistle is being blown only as retribution against an attorney who sacked the paralegal. In this instance, the paralegal not only testified against the attorney, but actually filed the complaint that lead to the ethical investigation of the attorney. It maybe, however, that the sacking was the result of the paralegal’s objections to the attorney’s unethical action, but that does not appear likely. According to the Court’s opinion:

Anderson worked for Kersenbrock as a paralegal from 2005 to 2010. Anderson testified Kersenbrock received retainers in most of her cases. She stated Kersenbrock did not deposit any retainers into the client trust account early on in her employment. About fifty to fifty-five percent of the retainers were checks, and forty-five percent were made by cash.

Just to be perfectly clear, if the conduct is unethical in 2010 after the employment ended, it was unethical in 2005 – 2010 while the employment continued. The decision on whether to blow the whistle on attorney ethical violations is a whole lot harder to make when one’s job is still on the line.

 

Paralegal Supervisor Saga Ends

Wednesday, September 26th, 2012

Imagining a new job is a wonderful pastime, if you’ve time to pass. But creating imaginary jobs can land you in jail. posts here. Those posts generally dealt with the problem of determining what it took to be “certified” as either a paralegal or paralegal supervisor in that parish. Those adventures appear to have come to an end with a guilty plea by Aaron Broussard to federal corruption charges. Unfortunately, it appears it will end without an answer to the certification questions unless someone is willing to stop by the parish offices, read the “Jefferson Parish Executive Pay Plan” and other documents, and report back to us.

According to WWLTV, Broussard met with other officials to “Karen Parker, a woman Broussard would marry eventually, a job.” Normally that in itself would not constitute corruption, but this is:

“Broussard specifically wanted to have other Parish officials, including Wilkinson, be the individuals who hired Parker, because he knew that once he took over the position of Parish President, he could not hire Parker, and there would be increased scrutiny as a result of their romantic relationship,” says the factual basis.

During the meeting, all three men agreed to get Parker a job as a paralegal supervisor at the parish attorney’s office. It was also understood by the men that the position created just for Parker would be unnecessary.

OK, so they create an unnecessary position and hire Parker for it. But I’m still  confused. Did they also change the Executive Pay Plan to include the position or was there already such a position in the pay plan? If it was already in the pay plan, what was the job description for the position? Was it for a paralegal who  could also supervise other standard employees ( a Paralegal/Supervisor) or a person that could supervise paralegals? If they created the position and put into the Pay Plan, why was “Her starting salary was $48,000 – “higher than the salary range allowed for the position of Paralegal Supervisor under the Executive Pay Plan for Jefferson Parish?”

Finally, while everyone now agrees “Parker, despite holding position she was unqualified for, was trying to collect overtime/comp pay claiming that she working from home – a violation of parish rules,” we still are no further along in our quest to find out what those qualifications were and what it means to be “certified” as having those qualifications.

 

Memories – Another Obstacle to Understanding

Monday, September 24th, 2012

In The Empowered Paralegal: Effective, Efficient, and Professional we discuss extensively barriers to communications and understanding that can affect our ability to work optimally with our clients: cultural, generational, educational, and similar barriers. We also discuss ways to remove those barriers and manage communication to maximize understanding. I later apply those same concepts to the elder client in The Empowered Paralegal: Working with the Elder Client specifically dealing with some of the problems caused by the natural changes in memory that come with aging. Now a post in ABAJournal.com indicates that, regardless of age, memories can change with each recall according to a study by Donna Bridge, a postdoctoral fellow at Northwestern University Feinberg School of Medicine.

While I had not previously given this much thought, now that it is pointed out I do recall observing this phenomenon many times during the course of my legal career. The ABAJournal.compost quotes Bridge as saying in a press release, “A memory is not simply an image produced by time traveling back to the original event—it can be an image that is somewhat distorted because of the prior times you remembered it. Your memory of an event can grow less precise even to the point of being totally false with each retrieval…Maybe a witness remembers something fairly accurately the first time because his memories aren’t that distorted. After that it keeps going downhill.”

In a more general sense this can obviously be a trial in any legal action, civil or criminal, and when providing other services to clients. It is another barrier to communication and understanding. So it is incumbent upon us as legal professionals to work on ways to manage the effects of this phenomenon. As with other barriers we start be recognizing it as a problem. This will lead to more practical actions. Minimizing the times a client has to tell her story (first to the paralegal, then to the junior attorney, then to the senior attorney, then to the expert, then at the deposition, then in trial testimony…) We all already attempt to get the client or witness as soon as possible after an incident to record their statements before those statements are given to a police officer, an insurance adjuster, etc. This adds to the importance of both getting that first statement and recording it for the benefit of review by the client/witness before they need to re-count the incident again. Perhaps it would be best to write out our notes from a client interview, have the client verify that we got it right, and have that account available in full both to inform others of the incident without the client having to tell the incident again and to refresh his memory before the next rendition. (Although I can see some downsides to this.)

Any thoughts on this?

I Guess I Should Learn to Tweet!

Saturday, September 15th, 2012

From time to time I get emails informing me this blog has been chosen as a “top blog” by an organization or website, usually offering a badge to post on the site that links back to their site. Having grown up with a certain disdain for badges. I usually ignore them. But today Chere Estrin paid attention to one, so I figured I should also.

This one is from a website called “Paralegal411.” It does have some useful information, although I have grounds to quibble since the University of Mississippi paralegal program is not on its list of top paralegal programs. Of course even the Princeton Review, Forbes, and U.S. News and World Report‘s rankings of colleges are often challenged based on the criteria used by those organizations. I did not locate “Paralegal411’s” criteria for ranking programs. It does mention the ABA Approval list, but not the AAfPE Institutional Member list. (I’ve posted elsewhere on the advisability of relying solely on the ABA list.) Yet, the site itself cannot rely solely on the ABA list because (1) it names only a few schools and the ABA list has a lot of schools, and (2) the list includes George Washington University which is not on the list, noting that “The Georgetown paralegal program is approved by the American Association for Paralegal Education (AAfPE), the International Paralegal Manager’s Association (IPMA), and the National Federation of Paralegal Associations (NFPA).”

In any case, I could find the criteria for including blogs. Basically it’s a matter of popularity based on the number of pages linking to the blog and – here is my downfall – the number of Twitter followers. I don’t Tweet, so I lose points. So I guess I should learn to tweet. (And I should learn whether “tweet” is capitalized or not.) I haven’t basically because I haven’t figured out how to say anything really meaningful in 140 characters. As you can see from this post and the others on the blog, I can be pretty long-winded. It may be my age (61). But also I’ve never figured out what I would tweet that anyone would want to “follow” or why people “follow” tweets like “Why am I awake?” today’s tweet from the #4 blog on the list.

Despite this “Paralegal411” basically gets it right. The top three blogs are from Lynne DeVenny, who has recently ridden paralegal fashion to the top (I’m not much of a fashion buff. At the moment I’m just happy I get to stop wearing the outfit in the picture even though I had to become a cyborg to do it,) Chere Estrin, and Vicki Voison, blogs on my own RSS feed and the subject of frequent mention here. Number 4 is Haley Lobs Law Bomb, a blog I had never read before but will be adding to my Paralegal/Legal blogroll along with Paralegal Illuminati today so you can.

If there is a problem with the list, it’s that it contains some blogs on which there been no activity for several months. For example, I recently removed “Paralegal Hell” from my blogroll because there have been no posts since last December. Melissa H. (now Melissa K.) of “Paralegalese” not only stopped posting in May, has quite regrettably for the profession left the paralegal profession. I’ve kept the link to her blog anyway because much of what is there is quite helpful.

Be that as it may, I’m giving in. It’ll probably take some time, but I’ve resolved to learn to Tweet. Maybe over the winter break. The only problem will be the embarrassment that could arise if on next year’s list, I’m still losing points because while I’m tweeting, no one is following!

Oh, and here’s my badge: paralegal schools

A Complaint Free World!

Friday, September 14th, 2012

ABAJournal.comhas a post entitled, “Working with a Whiner” based on an article in the Wall Street Journal.I’m always interested in this type of article because they are helpful to me in preparing my students for internships and working in “the real world.” This one was good for more reasons though than its tips, e.g., “When a co-worker gripes about the boss, respond with this remark: ‘It sounds like you and he have something to talk about.’ Or ask this question: ‘What’s going well for you?'”

First, while I’ve been accused by some of being overly idealistic with my “One File at a Time” post on managing workload, at least my basic concepts and the name “The Empowered Paralegal are firmly based in reality, while the name of the group offering the tips is ” A Complaint Free World.” Now that is idealistic to the point of utopian!

More seriously, however, I was taken by the real prescription for constructive solutions:

One complainer and her boss managed to work out a constructive solution. Joan Curto, a national accounts manager for a pharmaceutical company, used to complain about the heavy travel needed for her job, the story says. Her then-boss, Trevor Blake, asked her what she planned to do about it. “Come to me with a solution,” he said.

Curto told the Wall Street Journal she was irritated at first. Then she developed a plan: She would travel to meet customers with the highest sales potential. A pharmacist could be hired to contact the others. Sales increased and Curto was able to spend more time at home.

Those of you who have read The Empowered Paralegal: Effective, Efficient, and Professional will have noted already that this confirms the basic theorem of that book:

It is a proactive rather than reactive approach. It seeks to understand and manage even those aspects of practice that the paralegal cannot control. This principle involves taking a rational empowered approach.

While the specifics were different in each of the chapters, in each chapter of this book we identified the areas of concern, analyzed each aspect of that concern, set priorities that addressed those concerns, sought a greater understanding of the area of concern, investigated solutions and barriers to those solution, and established procedures for implementing solutions and removing or overcoming barriers to those solutions. We did so in a direct, rational and professional way. We did so in a way that honored our own need to be efficient, effective and empowered, and honored the interrelationships and responsibilities of the first principle.

When a paralegal applies these principles, that paralegal becomes empowered. The empowered paralegal is an essential member of the legal team in any office. In particular, the empowered paralegal not only survives, but thrives in the American law office.

Jerry O’Neil Won by Losing!

Thursday, September 13th, 2012

When I last did a post about Jerry O’Neil, an “Independent Paralegal” in Montana, in 2010 he had just won a skirmish in a long-running “war” with Montana authorities over UPL.  Of course as I noted in that post, here technically can be no such thing as an independent paralegal since every generally accepted definition of paralegal in the United States requires that the paralegal be supervised by an attorney. However, O’Neil’s saga is still an important one for the paralegal profession.

Now Richard Hanners of Hungry Horse Newsreports that O’Neil says he won the war even though he lost every battle!

In my 2010 post I wondered aloud about what O’Neil’s qualification were to call himself a paralegal, independent or otherwise. Hanners’ report answers that questions and more:

O’Neil said he “officially” began his career as an independent paralegal in 1984 when he registered his business as Kalispell Mediation Services. He also became licensed to practice law as a lay advocate on the Blackfeet Indian Reservation that same year.

A staunch libertarian who believes in less government and more freedom, O’Neil’s problems with the state’s lawyers and judicial branch began in February 2001 when Flathead County District Court Judges Ted Lympus, Katherine Curtis and Stewart Stadler wrote to the Commission complaining that O’Neil was “engaged in the unauthorized practice of law.”

According to the Montana Supreme Court in their 2006 ruling on the case, O’Neil never attended law school, was never licensed to practice law in Montana, had never sat for the state bar exam and “has not met the Montana Supreme Court’s character and fitness requirements.”

So where  is the “win?” At the end of a long line of loses:

O’Neil got his day in court in 2004, but following a two-day trial, Lake County District Court Judge Deborah Christopher, sitting in for Lympus, Curtis and Stadler, found O’Neil in contempt for engaging in the practice of law when not authorized to do so and permanently enjoined him from engaging in the practice of law “until such time as he becomes duly authorized.”

The Montana Supreme Court upheld Christopher’s ruling in 2006. O’Neil took his case to federal district court in Missoula and lost, and then appealed his case to the Ninth Circuit Court of Appeals and lost again. But things changed after that, he notes.

O’Neil has long claimed that state law on the authorized practice of law was “unconstitutionally vague” and that it restricts economic freedom by giving the state bar association a monopoly.

In a complete turnaround, the Montana Supreme Court on April 20, 2010, dissolved its Commission on the Unauthorized Practice of Law, noting that “we conclude that this court is not authorized either directly or through a Commission to regulate the ‘unauthorized practice of law.’” It also concluded that “what constitutes the practice of law, not to mention what practice is authorized and what is unauthorized is, by no means, clearly defined.”

O’Neil, according to the report continues to practice in Montana. The position of the U. S. DOJ in 2009 is also interesting:

O’Neil notes that he had an ally in his cause — the U.S. Department of Justice’s Antitrust Division, which he had contacted about his case. They wrote to the Montana Supreme Court on April 17, 2009, to comment on the Commission’s proposed revisions to rules on the unauthorized practice of law.

“Consumers generally benefit from competition between lawyers and non-lawyers,” Acting Assistant Attorney General Scott Hammond wrote. “We are concerned that the Commission’s proposal, by identifying broad categories of activities that may constitute the practice of law … will unduly restrict non-lawyers from competing with lawyers.”

Some issues do not go away. In Ontario, Canada, paralegals can be licensed to limited work independently. Yet there continues to be at least some controversy because both are regulated by the Law Society, originally comprised of and for lawyers. And there continue to be some “turf wars.” Yet, one wonders (i.e., I wonder) whether there some merit in have a set of written parameters for the battle such as exist in Ontario rather than the open field that exists in Montana or the very, very closed field we have in other states.

 

Arizona Paralegal Speaks at DNC

Saturday, September 8th, 2012

According to the Arizona Business Journal, a Phoenix paralegal was among the speakers at the Democratic National Convention.  Mark Sunnuck reports:

Stacey Lihn — a paralegal for the Gallagher & Kennedy PA commercial law firm in Phoenix — said without “Obamacare” her daughter, Zoe, would have reached lifetime medical coverage caps from insurance providers.

Gallagher is one of the largest Phoenix-based commercial law firms.

The Affordable Care Act (i.e. Obamacare) restricts health insurers from denying coverage after certain financial and treatment thresholds have been surpassed.

Zoe Lihn was born with congenital heart defects and had surgery 15 hours after she was born. She’s also had other surgeries and treatment.

Lihn said she worries about changes to health care policy that could impact future coverage if Mitt Romney defeats Barack Obama this November.

“My family needs President Obama to be reelected,” she said….See her DNC speech here.

 

Managing Stress the NFPA Way

Friday, September 7th, 2012

I’m just now making  my way through the August/September 2012 issue of NFPA’s Paralegal Reporter which you can subscribe to here. I subscribed during a special offer. I don’t know if the offer is still special, but the Reporter is well worth the regular subscription price. This issue has a number of good articles including one on Cloud technology, Estate Planning in the  Digital Era, Retaliation in the Workplace, and Medicaid: Estate Recovery and others. I was particularly interested in “Stress Management, A Plan for Working Paralegals.” The article works off the same premise as The Empowered Paralegal: Effective, Efficient, and Professional, i.e., that stress in best managed by managing your work (and personal life), rather than allowing it to manage you. While TEP discusses time, workload, workspace, client, and attorney relationship management, this article focuses on time management. It has quick, concise, clear suggestions for ten steps to follow and suggests following them for 28 days to establish their bona fides: 1. Assessing How You Spend Your Time, 2. Scheduling, 3. Setting Reasonable Goals, 4. Prioritizing, 5. Evaluating Tasks Once, 6. Learn to  Say No, 7. Delegating, 8. Limiting Interruptions, 9. Investing Time (an interesting concept), and 10. Maximizing Rewards.

Check it  out. I best the time it saves will outweighs the time it takes to read it!