Archive for September, 2013

Supervising Paralegal Sexual Relations

Wednesday, September 25th, 2013

Back in 2009 I made the statement, “Certainly both attorneys and paralegals must refrain from becoming engaged in an intimate relationship with a client during the course of the professional relationship” in a post on whether a paralegal see client socially after legal relationship ends. Of course one makes such statements never thinking that someone might ask you to back them up with law. Sure enough, four years later I’ve been asked to do so by an attorney who had pointed out that another attorney’s paralegal appears to have formed a relationship with a client. The attorney responded by saying something like, “I wasn’t able to spend as much time on research as I would have like, “What she does outside the office is no business of mine.” A response to the first attorney’s question could not be general, i.e., based on the Model Rules of Professional Responsibility because each state has its own set of rules. I did not have time to fully research the question, but here’ what I came up with over the weekend. What are your thoughts?

Your exchange with _________ raises two issues. One is the basic issue of whether the paralegal’s possible involvement with a client is unethical, but he also claims that the relationship is “none of my business.” It is best to address each of these issues separately. Both are a bit more difficult to address in California than in some other jurisdictions because of the way the California Rules of Professional Responsibility are written.

The California Rules do not have a specific rule that clearly states an attorney’s responsibility for the conduct of his employees such as that in the Model Rules:
Rule 5.3 Responsibilities Regarding Nonlawyer Assistance
With respect to a nonlawyer employed or retained by or associated with a lawyer:

(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or …
However, the Legal Information Institute at Cornell University School of Law makes this comparison of the California Rules to the Model Rules:
Although California does not have a direct counterpart to MR 5.1, CRPC 1-120 and CRPC 3-110 impose certain supervisory duties on lawyers and partners. CRPC 1-120 provides that “[a] member shall not knowingly assist in, solicit, or induce any violation of these rules or the State Bar Act.” Moreover, CRPC 3-110 prohibits a member from “intentionally, recklessly, or repeatedly fail[ing] to perform legal services with competence.” “Competence” means “to apply the 1) diligence, 2) learning and skill, and 3) mental, emotional, and physical ability reasonably necessary for the performance of such service.” The Discussion to CRPC 3-110 specifies that “[t]he duties set forth in rule 3-110 include the duty to supervise the work of subordinate lawyer and non-lawyer employees or agents.” Although CRPC 3-110 is a prohibition against acting incompetently, inferentially it imposes a duty of competent performance.

When comparing the rules as to liability, CRPC 3-110 can be read to impose greater liability than MR 5.1…. For example, California courts have imposed liability on lawyers with supervisory duties whether or not the lawyer had knowledge of the specific conduct and whether or not the lawyer could take remedial action. See, e.g., In the Matter of Hindin (Review Dept. 1997) 3 Cal. State Bar Ct.Rptr. 657 (involving the failure of an associate to file appellate papers and another associate leaving a courtroom prior to the court calling and hearing the motion); Trousil v. State Bar (1985) 38 Cal.3d 337, 211 Cal.Rptr. 525, 695 P.2d 1066 (secretarial errors delay the mailing of a settlement check); Crane v. State Bar (1981) 30 Cal.3d 117, 177 Cal.Rptr. 670, 635 P.2d 1163 (lawyer’s staff contacts individuals represented by another lawyer). [Emphasis added.]
Indeed, an attorney’s duty to supervise and educate legal staff is fairly well engrained in California law:
The attorney is the professional responsible for supervising the work of his or her legal assistants. (Vaughn v. State Bar (1972) 6 Cal.3d 847, 857, 100 Cal.Rptr. 713, 494 P.2d 1257.) “[E]ven though an attorney cannot be held responsible for every detail of office procedure, he must accept responsibility to supervise the work of his staff.” (Ibid.; see also Spindell v. State Bar (1975) 13 Cal.3d 253, 260, 118 Cal.Rptr. 480, 530 P.2d 168 [“An attorney has an obligation to adequately supervise his employees….”]; ABA Model Rules Prof. Conduct, rule 5.3, com. [“A lawyer should give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation of the client, and should be responsible for their work product”].) Thus, Valdez was responsible for supervising Lui’s work and is responsible for Lui’s work product, including his mistake in calendaring the OSC hearing. (Cf. Zamora v. Clayborn Contracting Group Inc. (2002) 28 Cal.4th 249, 259, 121 Cal.Rptr.2d 187, 47 P.3d 1056 [assuming error of legal assistant attributable to counsel]; Alderman v. Jacobs (1954) 128 Cal.App.2d 273, 276, 274 P.2d 930 [assuming error of secretary attributable to counsel].) Hu v. Fang, 127 Cal. Rptr. 2d 756 (2002.)

It is likely ____________l is maintaining that the paralegal’s conduct is none of his business because most of it occurs outside of the office. While my quick research did not turn up law in California that directly addresses this aspect of this issue, logically it makes no sense. The law is clear that the attorney is responsible for seeing that the ethical standards are met because of the connection to the client, not a connection to a particular place or a particular time of day. For example, would he claim it none of his business if his paralegal was posting client confidential information on her person Facebook page from her home after work hours?

Thus, if the paralegal’s conduct is unethical, it is indeed the attorney’s business. Again, this is a bit more difficult to answer in California than in some jurisdictions. There is no separate governing body with disciplinary powers over paralegals. (The major paralegal professional associations each have an ethical code of conduct, but they have no governmentally sanctioned authority to discipline paralegals for violations.) Instead, discipline is handled as indicated in the cases cited above by disciplining supervising attorneys for ethical violations committed by their employees. Thus, we normally look to the standard of conduct imposed on the attorney, it being his obligation to give his assistants “appropriate instruction and supervision” on that standard.

As with the previous discussion, the California Rule is more leans more favorably to the attorney than the rules in other jurisdictions:
Rule 3-120 Sexual Relations With Client
(A) For purposes of this rule, “sexual relations” means sexual intercourse or the touching of an intimate part of another person for the purpose of sexual arousal, gratification, or abuse.
(B) A member shall not:
(1) Require or demand sexual relations with a client incident to or as a condition of any professional representation; or
(2) Employ coercion, intimidation, or undue influence in entering into sexual relations with a client; or
(3) Continue representation of a client with whom the member has sexual relations if such sexual relations cause the member to perform legal services incompetently in violation of rule 3-110.
Some of the discussion of this rule seems applicable to any case of a relationship between a member of a legal team and a client, e.g., “Often, based upon the nature of the underlying representation, a client exhibits great emotional vulnerability and dependence upon the advice and guidance of counsel. Attorneys owe the utmost duty of good faith and fidelity to clients.(See, e.g., Greenbaum v. State Bar (1976) 15 Cal.3d 893, 903 [126 Cal.Rptr. 785]; Alkow v. State Bar (1971) 3 Cal.3d 924, 935 [92 Cal.Rptr. 278]; Cutler v. State Bar (1969) 71 Cal.2d 241, 251 [78 Cal.Rptr 172]; Clancy v. State Bar (1969) 71 Cal.2d 140, 146 [77 Cal.Rptr. 657].)”
In general prohibitions on such relationships focus on two perspectives: (1) the possibility that a vulnerable client will be “taken advantage of” by a legal professional, and (2) the probability that the legal professional’s objectivity and judgment on behalf of the client. (This being the logic, it appears, behind Rule 3-120(B)(3).)

This issue has been the subject of an article in the California Bar Journal. That article concludes (as do most other writings on this topic regardless of the jurisdiction,) “Both the California Rules of Professional Conduct and the ABA Model Rules of Professional Conduct prohibit lawyers and clients from engaging in “sexual relations” unless they predated the representation. Even then, however, other ethics rules may apply to the extent that sexual involvement may adversely impact the attorney-client relationship.”

A 2002 panel of attorneys sponsored by the University of Virginia School of Law reinforces this position, stating, sex between a client and lawyer can pose significant dangers to both the client and the lawyer. The client is often the vulnerable person in the relationship and can even personally depend on the lawyer, especially in family law or domestic relations cases. The lawyer “needs a certain amount of emotional distance” to keep his client’s interests in mind as well.
If the paralegal is used as a clerk or secretary, there may not be much risk. However, if the paralegal is used to communicate with the client, conduct legal research, engage in legal analysis, drafting motions or agreements, etc., she is subject to the same probability of lack of objectivity and poor independent judgment as the attorney.

So, the bottom line is that __________ is quite wrong in stating that the paralegal’s involvement with his client is none of his business either in the sense that there is nothing ethically wrong with the conduct or that it is not his responsibility.

LLLTs in Your State?

Tuesday, September 10th, 2013

As the Washington state LLLT (Limited License Legal Technician) program continues to progress, now gathering input on the best questions to ask on qualifying exams, I will be moderating a panel on LLLT programs, their impact on the paralegal profession, and the impact on paralegal education at the AAfPE National Conference in November. We are fortunate to have on the panel a member of the Washington state panel instituting the LLLT programs there, a member of the task force investigating the possibility of an LLLT program in Oregon, and a member of the Law Society of Ontario, Canada, the governing body for paralegals licensed in that jurisdiction under a similar program. As moderator, I’d like to have information about other states considering LLLTs available. I know that California and New York are both looking into the concept. If you are involved in or simply know about efforts in your state to implement or even investigate the possibility of implementing an LLLT program, please  let me know.

Standard Provide Paralegal Fulfillment.

Monday, September 9th, 2013

From ISAF Regional Command South in Kandahar, Afghanistan, comes a profile of Cpl. Natasha Hunter, a paralegal, Staff Judge Advocate, 4th Infantry Division. I’ve posted several times on members of our military serving as paralegals, especially in overseas positions. Their stories are always inspiring. Those that achieve in these positions share some common traits, but each is unique. Here’s some of the story on Cpl. Hunter:

“I’ve known her the entire time she has been in, and I’ve been working with her for almost two years,” Stewart said. “She is driven and has the internal drive. She always wants to succeed and to do better – a perfectionist. It’s something you either have or you don’t,” says Capt. John Stewart, trial counsel, SJA, 4th Infantry Division.

Standards are what bring Hunter fulfillment in her job…Hunter’s strength is derived from her relationships and passion for standards.

“She wants to do the right thing all the time,” said Sgt. Maj. Mark Cook, sergeant major, SJA, 4th Infantry Division. “She goes out and looks for the right thing. It’s built in; it’s her character to do the right thing for herself and others. That’s what makes her strong.”

And for those of us who complain about conditions where we work: “The toughest part is being away from family and friends, but that is part of my obligations, my duty,” Hunter said, looking at the pictures resting on her desk of her mother, two younger sisters, and a 2-year old Jack Russell Terrier named Pita.

Advising Divorcing Parents

Friday, September 6th, 2013

Judge Larry Primeaux writes an excellent blog now entitled, “The Better Chancery Practice Blog.” While directed towards chancery practice in Mississippi his litigation checklists, case analysis, and cautions on the use of rules and statutes, ought to be mandatory for any  legal professional. In a recent post, however, he gave advice that while directed to legal professionals was really for the benefit of divorcing/divorced clients and, more important, for the benefits of their children. I realize that paralegals cannot give legal advice, but this advice is primarily non-legal. In any case, it can be put into a brochure distributed to clients and explained by the paralegal. As Judge Primeaux says, “You are in a unique position to influence your clients to do a better job in making it easier and healthier for the children in these situations.” I’m fairly sure he won’t mind, so I’m passing on the advice verbatim:

Here are a few suggestions for the custodial parent:

  • Reassure the child that you will be okay while he or she is away. A child I spoke with years ago told me she did not want to go visit with her dad because she was worried that her mother would be lonely and sad without her. Remember that children have seen their parents sad, crying, upset and emotional during the heat of the divorce. They feel it is their responsibility to try to fix it. The custodial parent can alleviate the child’s concern by assuring him or her in the few days leading up to visitation that the parent has plenty to do, and will be happy to see the child go off for an enjoyable visit.
  • Let the non-custodial parent participate in the children’s lives. The transition to visitation is much easier when the non-custodial parent is not a stranger who drops in every other weekend. Encourage the children to call the other parent, to send birthday and holiday cards, to Skype every now and then, to call with news like good grades or a smiley face for good behavior in school. Let the children invite the other parent to school and church programs, sports, and award presentations.
  • Leave the visitation schedule free for visitation. Never schedule outings, events, or even sports activities during the other parent’s visitation without his or her permission.
  • Be flexible in scheduling. Both parents should yield to the other’s reasonable requests for rescheduling due to family reunions, weddings, family holidays, and the like. If the non-custodial parent can only schedule Disney World with the children during the first week in July, why shouldn’t the custodial parent give up her July 4 holiday for some other time?
  • Make exchanges amicable. Leave the drama at home when it comes time to exchange the children for visitation.
  • Share school pictures. Get extra copies for the children to give to the non-custodial parent, the grandparents and other members of the family. The little wallet-sized and 4×6 sizes are not that expensive. Get a few copies of the order forms to give to the other parent and family so that they can order as many and whatever size photos they want.
  • Listen to the children’s experiences when they return home. Show interest in their experiences, and encourage them to share their enthusiasm, but never pry into what is going on in the other home or use the children as spies.
  • Understand that parenting styles are different, and that’s okay. The children may come home with wide-eyed tales of being able to stay up to midnight, or to watch a scary movie, or being able to eat popcorn in bed. Reassure them that the rules can be different in different places, and the important thing is that they honor the rules set down by each parent.

While the primary benefit of this advice is the children, as the judge also notes there are benefits to the law office as well, “Clients remember that kind of help when their friends ask who they would recommend in their own divorce situations.”

 

Paralegal Access to Justice Programs

Wednesday, September 4th, 2013

On accepting his appointment as Senior Counselor for Access to Justice in the Department of Justice where he will lead a newly launched initiative aimed at improving access to civil and criminal legal services, Laurence Tribe stated, “Access to justice for all is at the core of our nation’s values.” The DOJ initiative recognizes a need to “enhance the delivery of legal services to the poor and middle class, and identify and promote alternatives to court-intensive and lawyer-intensive solutions.”[1]

One alternative to lawyer-intensive solutions is the effective utilization of paralegals. The attractiveness and efficacy of this alternative is evidenced by the recent proliferation of paralegal-intensive access-to-justice programs by bar associations, legal clinics, and educational institutions. These programs exist throughout the country.  Examples include:

•           In South Florida, Catholic Charities Legal Services enlists pro bono paralegals to hold free Friday walk-in clinics to help Haitians apply for temporary protected status after the recent hurricane.

•           Lake County, Illinois, where the local bar association uses specially-trained paralegal studies students to assist in providing free legal services for people petitioning the court for guardianship of a minor child.

•           The New York City Paralegal Association provides pro bono services for the Safe Horizon Domestic Violence Law Project.

Each of these programs demonstrates how access to justice can be improved through wise utilization of paralegals. Since one attorney can supervise several well-trained paralegals, more people gain access to legal services and justice.

 

I am interesting in compiling a list of such programs along with information about them. If you are participating, have participated, or simply know about such a program please contact me either by comment here or email and let me know.



[1] “Tribe named Senior Counselor for Access to Justice,” Harvard Law School News and Events, February 26, 2010,  http://www.law.harvard.edu/news/2010/02/26_tribe.senior.counselor.html (Last accessed May 14, 2010