Archive for February, 2013

Paralegals not likely to “disappear.”

Wednesday, February 27th, 2013

The topic of the “disappearing” paralegal is in the news a lot these days. It is a topic discussed on the American Association for Paralegal Education listserv with the goal of adjusting paralegal education to make sure that the paralegal profession remains not only viable, but flourishes. One of the best comments I have read so far on the topic though comes from Vicki Voison, the “Paralegal Mentor.” I often refer to Vicki and comment on things she writes here, but this time I’m going beyond referring and commenting, to re-posting her entire piece:

Will Paralegals Disappear? The Paralegal Mentor Says “No”!

by Paralegal Mentor

Recent headlines on the Internet have been alarming:

  • Paralegal Jobs are Vanishing….
  • Rise of Technology Causing Paralegal Jobs to Disappear?
  • Recession, tech killing middle-class jobs…
  • Paralegal jobs being overtaken by technology…
  • As technology evolves, jobs disappear…

Instead of allowing these dire, attention-grabbing headlines to create a profession-wide panic, let’s give some common sense thought to these predictions.

Background Information:

As recently as 2010 the U.S. Department of Labor, Bureau of Labor Statistics, predicted there will be an 18% growth rate in paralegal jobs through 2020 and that this is one of the fastest growing professions.

In contradiction to that, The Associated Press released a report in January 2013 stating that 5 years after the start of the Great Recession, millions of middle-class jobs have been lost world-wide and will never return. Additionally, millions more are likely to vanish.

Further, the report states that, “Year after year, software that runs computers and an array of other machines and devices become more sophisticated and powerful and capable of doing more efficiently tasks that humans have always done.” The analysis refers to jobs that are routine and repetitive in the service sector and examples used are paralegals, meter readers and travel agents.

In August 2012, The ABA’s House of Delegates approved updates to the Model Rules of Professional Conduct to acknowledge that information is stored digitally as well as in paper files, clients communicate electronically as well as by phone calls, and email isn’t the only method of electronic communications.

New commentary language added to Rule 1.1 (the duty to provide competent representation) requires lawyers to keep abreast of the benefits and risks associated with technology, according to new commentary language added to Rule 1.1 on the duty to provide competent representation.

It is insulting that the work of a paralegal would be classified as a “routine and repetitive” job, similar to those of a meter reader. The American Bar Association defines paralegals as performing specifically delegated substantive legal work for which a lawyer is responsible. Working as a paralegal is not just a job, but a career. It’s doubtful meter reading can be considered a career.
The reality:

Paralegal jobs will not be obliterated by technology. Instead, technology will change paralegal jobs, as well as paralegal responsibilities and skill requirements. But what’s new?

From the time this profession emerged in the 1970’s, paralegals have had to deal with change. The unwritten rule has always been that you either kept up or you were out of a job.

From the manual typewriter to the good old Selectric to today’s desk tops, iPads, laptops, and smart phones, paralegals have accepted new challenges and met expectations. Often it is the paralegal who introduces the new technology to their employers and then trains the staff to use it.

One more thing: the legal field will always require the human touch. Software cannot soothe clients, decide what must be done, or run by itself. Software cannot deal with court staff. Software cannot be relied upon to be correct. A good example is your spell check! The training and expertise of the paralegal, as well as the ability to deal with people, will always be needed.

What should you do?

Don’t be frightened by these headlines. Instead, do what you have been told to do over and over again:

  • Observe trends in the industry. If business is slow in your focus area, take necessary steps ensure you will have a job, perhaps in another specialty area.
  • Never stop learning; take advantage of CLE opportunities.
  • Pursue professional certification.
  • Become an expert in your focus area.  This will require work on your part which might include pursuing advanced certification, returning to college, and keeping up with new rules and case law.
  • Be the one establishing systems and routines that will help your employer.
  • Watch for new technology, adopt it, and learn it. Never — ever — refuse to use it.
  • Prepare a great resume and keep it up to date.
  • Use social media. It’s here to stay, folks, and it’s a great networking tool, as well as an excellent way to learn about new trends, technology and tools.

The bottom line? Remember that headlines are designed to grab your attention. Lately, they have caused paralegals to fear for their future.

Don’t fall for this! Instead, study and interpret the materials yourself so that you can make wise decisions. Then follow the steps above so your career will continue to move in the right direction: forward.
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© 2013 Vicki Voisin, Inc.  Do you want to use this article in your newsletter, ezine or Web site? You can, so long as you include this entire blurb with it:

Vicki Voisin, “The Paralegal Mentor”, delivers simple strategies for paralegals and other professionals to create success and satisfaction by setting goals and determining the direction they will take their careers. Vicki spotlights resources, organizational tips, ethics issues, and other areas of continuing education to help paralegals and others reach their full potential. She is the co-author of The Professional Paralegal: A Guide to Finding a Job and Career Success. Vicki publishes Paralegal Strategies, a weekly e-newsletter for paralegals, and hosts The Paralegal Voice, a monthly podcast produced by Legal Talk Network.

More information is available at www.paralegalmentor.com where subscribers receive Vicki’s 151 Tips for Your Career Success.

NYCPA and City Bar Justice Center: Pro-Bono Volunteer Opportunity

Monday, February 25th, 2013

I’ve post here frequently about the value of volunteering and pro bono work to individual paralegals, the paralegal profession, and the communities the paralegals serve. Today I’ve just enough time to pass this opportunity from NYCPA on:

Dear Volunteers:
You are invited to participate in a Superstorm Sandy Helping Legal Handbooks Project as per the details below:                
  • Volunteers to apply stickers to multiple Superstorm Sandy Helping Legal Handbooks.
  • Before these legal handbooks can be mailed to the victims of the hurricane, an error in the handbooks must be corrected.
  • These legal handbooks are in great need in the areas hard-hit by the storm.
  • We will coordinate one mailing project date and time according to the majority of the available volunteers.
Potential Volunteer Dates: February 27, 2013, February 28, 2013, or March 01, 2013
Times: 10:00 AM to 1:00 PM or 1:00 PM to 4:00 PM
RSVP: This event is open to New York City Paralegal Association members and non-members. Please send an E-mail to the Pro-Bono Chairperson at probono@nyc-pa.orgwith two potential volunteer dates and times, your contact information (Full name, address, and cell phone number).The Pro-Bono Chairperson will confirm the date and time of the mailing project and provide you with the address and time of the project. Please do not go down to the mailing project without receiving a registration time and date. If you have questions you can leave a message at 516-851-4007.

I’m not through talking about writing

Saturday, February 16th, 2013

We in the post-secondary education business spend a great deal of time trying to teach our students to write right. It is unfortunate that they are woefully unable to do so as a result of their high school education.  Fortunately or unfortunately, depending on your perspective, there are plenty of examples of how to write wrong to use to illustrate a point. Just this week in my Law of Business Organizations class we talked fairly extensively about the need to write simply and concisely. So it is quite opportune to see this post from Lowering the Bar:

Australian Experts Report First Known Quintuple Negative

A person whose native language is said to be English created the following sentence recently:

The grounds of appeal announced on Monday state Justice Sifris erred in not finding Mr Goldberg was wrong in failing to set aside the summonses.

A brisk debate sprung up as to whether the sentence contained five negatives or only four, but all the experts did agree that it sucked.

The sentence appeared in an article about an appeal by two Australian journalists who had been served with subpoenas requiring them to disclose sources. A magistrate (that’s Mr. Goldberg) ruled that the subpoenas were proper, and on appeal the reviewing judge agreed. The sentence above was written in an effort to explain what happened next. If you follow all the twists and turns, it seems to lead to the right place, but “the journalists say the magistrate should have quashed the subpoenas” gets you there a lot faster.

To be fair to the reporters, they were probably just repeating what lawyers told them, but still.

Scientists operating the Large Hadron Collider reported last June that they had seen evidence of a sextuple negative, but said that if this did happen it lasted only a few fractions of a second before self-destructing.

I don’t normally include another blog’s complete post in my posts here, but Kevin Underhill writes so well about bad writing that I couldn’t resist the opportunity to illustrate both bad writing and good writing at the same time.

Which brings us to another post – this one from ABAJournal.com about a melee at a high school that states, “Thursday’s ruckus began during the first lunch period when one student through a milk carton at another.” (Emphasis added.)

Limited Practice Licenses and Access to Justice – Updated

Wednesday, February 13th, 2013

This topic seems to have become “hot” over the last few days. As noted in my previous post, the California Bar Journal for February contains an article indicating that the California State Bar is giving the concept some thought. A current discussion thread on the AAfPE discussion forum responds to concerns expressed by one member that Washington’s states efforts might actually be bad for paralegal (“icing them out.”) The general consensus is that with paralegal and paralegal education representation on the state board charged with moving the issue forward, it is likely to be good for paralegals. Janet Olejar informs the thread, ” truly appreciate the support this listserve is providing from Bob, Pat, Steve, and others. Especially important are the leads I’m receiving from Dr. Barbara Scheffer and Michelle Ryan to understand what is being accomplished in other states and countries to register or license paralegals/technicians. Please keep these leads coming. You can access documents and the LLLT Board minutes at the www.wsba.org website. Look for the folder under the Boards tab. (Emphasis added.) Other posts refer us to an article from the NY Times last week, “A Call for Drastic Changes in Educating New Lawyers” that includes this:

Paula Littlewood, a task force member and the executive director of the Washington State Bar Association, put it this way to her colleagues: “There’s a time for incremental change and a time for bold change. This is the time for bold change.”

Hers is one state that is not waiting. It has established a board to create a program for limited-license legal technicians, the first in the country. Within a year, the board is expected to lay out the educational and professional framework for the technicians. They will have more training and responsibility than paralegals but will not appear in court or negotiate on their clients’ behalf.

“The consuming public cannot afford lawyers, and the profession needs to figure that out and own it,” Ms. Littlewood said. “Our hope is to provide more access. The second point is that you have these folks out there doing unauthorized practice, which is harming the public. The hope is to bring them under the tent.”

And I’m trying to join the concept of limited practices license with access to justice in Mississippi through a comment to Judge Larry Primeaux’ excellent post on a recent symposium at Ole Miss on Poverty and Access to Justice.

All in all the topic has suddenly become “hot.” I am hopeful that paralegals and paralegal associations throughout the country join in the discussion while it is still on the front burner. If states move forward with limited practice licensing, it will be best for the profession if paralegals are at the head of that movement.

Update: A reply by Kristen to my comment on Judge Primeaux’s blog post provides a link to an article entitled, “The Washington State Limited License Legal Technician Practice Rule: A National First in Access to Justice,” that is well worth reading. Thanks, Kristen!

Another State Considers Licensing for Limited Practice

Wednesday, February 13th, 2013

This blog has often suggested that it would be worthwhile for the U.S. to consider licensing paralegals for limited practice, perhaps modeled on the system in Ontario Province in Canada (See the “Canada” category.) Recently Washington state  established a board charged with investigating the possibility, a board that is moving forward with paralegal help as Brenda Cothary, President of the Washington State Paralegal Association was appointed to the board. Janet Olejar, a member of the American Association for Paralegal Education was also appointed to that board.

Now another state is considering limited-practice licenses.  The February issue of the California Bar Journal includes an article entitled, “State Bar to Look at Limited-Practice Licensing Program.” Unfortunately since this is a state bar initiative, the article casts the efforts in terms that I think somewhat misses the point. While there is recognition of the fact that such licensing would help resolve access to justice issues, e.g., “Trustee Heather L. Rosing said those who can’t afford the services of a licensed attorney are often forced to turn to non-lawyers because of cost,” but the bar seems primarily interested in improving the “State Bar’s regulatory function” and creating “an avenue of employment for law school graduates and legal technicians who haven’t passed the bar, board members said. Engaging in limited practice might be an avenue to eventually becoming a qualified lawyer.”

This focus on the bar and law students is not the best approach. The fact is that many paralegals are quite able to assist members of the public in a limited way and have no desire to becoming lawyers. The goal should be to match those competent persons with the people who need them in a way that protects the public. Improving the regulatory function of a state bar association or providing work for law students who can’t pass the bar should come fairly far down the list of priorities.

Critical and Analytical Thinking – A Paralegal Example

Monday, February 4th, 2013

Last week a law professor lamented to me that it seemed students were less and less willing to engage in true critical thinking, perhaps reflecting the role models of some of our more prominent politicians. He pointed out that the legal profession was a service industry, one in which the primary tools are the ability to read with comprehension, write clearly and concisely, and think analytically and critically. This, of course, applies to paralegals as well as attorneys, and is the focus of much of the instruction here at the Ole Miss B.P.S. program. A recent LinkedIn exchange provides a good example of both side – remarkably non-analytical and non-critical thinking by one paralegal and good, solid analytical and critical thinking by another. Note how the second paralegal, Blake Ferger, keys in on language that indicates bias, seeks facts rather than accept conclusions, deals with the primary source and “the actual legal definition,” applies the law objectively to the facts, and even reads the footnotes – all things that are to be expected of a professional paralegal:

First Paralegal: Kidnapping and sex with a minor not grounds for deporting illegal immigrants

Hard to believe but a U.S. federal appellate court has stopped the deportation of an illegal immigrant convicted of kidnapping , ruling that it’s not necessarily a crime of moral turpitude.
The decision, issued by the 9th Circuit Court of Appeals, is a 27 page opinion that is, in all honesty, quite hard to grasp. “This undoubtedly appears to be a difficult question at first glance,” it reads. “Kidnapping is a serious crime, and our instincts may be that it would meet the moral turpitude definition. Even for serious offenses, we must look to the specific elements of the statute of conviction and compare them to the definition of crimes involving moral turpitude.”
What? The definition of moral turpitude is: A phrase used in Criminal Law to describe conduct that is considered contrary to community standards of justice, honesty, or good morals. Attorneys can be disbarred for moral turpitude but, it appears, convicted illegal immigrants can’t be deported.
The case involves Javier Castrijon-Garcia who entered the United States illegally in 1989 and is the father of three American-born anchor babies. He has twice been convicted for driving with a suspended license and in 1992 pleaded guilty to attempted kidnapping. He received a suspended sentence of 300 days in jail and 36 months of probation.
Years after the kidnapping case, the Department of Homeland Security (DHS) earmarked Castrijon-Garcia for removal. He appealed but an immigration judge found that he was deportable because the kidnapping conviction is a categorical crime of moral turpitude. The Board of Immigration Appeals, the government’s final authority on immigration matters, agreed noting that it had previously listed kidnapping as an example of a crime of moral turpitude and that California’s penal code also defined it as involving moral turpitude.
But the 9th circuit disagreed, writing in its decision that precedent dictates that “non-fraudulent crimes of moral turpitude almost always involve an intent to harm someone, the actual infliction of harm upon someone, or an action that affects a protected class of victim.” The type of “simple kidnapping” that this illegal immigrant committed doesn’t necessarily involve such evil intent and harm therefore it doesn’t constitute moral turpitude, according to the San Francisco-based court.
The ruling orders the Board of Immigration Appeals, which is part of the Justice Department, to “conduct a modified categorical analysis” of the illegal immigrant’s crime. But the BIA has already determined that kidnapping is a serious enough crime that merits deportation, so the court seems to be ordering the BIA to make an exception or change the criminal code.
A few years earlier the 9th Circuit reversed a lower court ruling calling for the deportation of a Mexican immigrant convicted of having sex with a minor. In that ruling, the 9th Circuit claimed that while the crime violated state law and was unwise and socially unacceptable, having sex with a minor wasn’t base, vile or depraved enough to warrant deportation.

 

Blake Ferger • I would be interested to know the actual full circumstances of these cases. The phrase “anchor babies,” which has no basis in reality, is a huge flashing red warning that the author has an anti-immigrant ideology. For instance, was the kidnapping of one of the alien’s own biological children? Was the alien who had sex with a minor barely him/herself an adult? These are the kind of facts that would explain apparently unjust decisions which the author is attempting to exploit for outrage.

Anyone know of factual, unbiased background on the above cases? From somebody not pimping the “9th Circuit commie Californians LOL” angle?

Blake Ferger • Interesting, thanks. Well, as is usual with appellate decisions, it is short on facts and long on technicalities. The upshot appears to be, though the 9th Circuit was politer than this, that the Board of Immigration Appeals engaged in sloppy, lazy lawmaking (not surprising to anyone familiar with them), and rather than “ordering the BIA to make an exception or change the criminal code,” the 9th Circuit has actually told them to try again and do the job right this time.

The author was too lazy him- or herself to pull the actual legal definition of moral turpitude from the decision: “The Immigration and Nationality Act does not define the term ‘crime involving moral turpitude,’ but ‘courts and the BIA have generally defined [it] as comprising crimes that are inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general…. Such crimes are of two types: those involving fraud and those involving grave acts of baseness or depravity.” (Grave baseness or depravity is things in the realm of murder, rape & incest.) The California kidnapping statute in question requires neither fraud nor grave acts of baseness or depravity. It might seem weird that “kidnapping” could not involve that, but as an example, the decision cites the upheld kidnapping convictions of angry black students who compelled university administrators to walk with them for a few hundred yards to address their complaints of a coach beating a black football player in the middle of a game. When this is the kind of kidnapping that is covered by the statute, then it is impossible to say with certainty that it qualifies under the federal standard of moral turpitude.

Lots of other interesting stuff in there, like footnote 8: “Only the Fifth Circuit has decided whether kidnapping is categorically a crime involving moral turpitude, holding that it is not. Hamdan v. INS, 98 F.3d 183 (5th Cir. 1996) [interpreting a Louisiana simple kidnapping statute similar to the California statute at issue].”

In short, the decision is only hard to grasp if you avoid reading the actual decision and instead stick to the sensationalistic headline.

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The COA opinion is here