What Is Adequate Supervision?

A situation reported in the New Haven Independent looks to be a case of inadequate supervision of a paralegal by an attorney. The setup is sort of complicated but here’s the short version. A paralegal is acting as an “advocate” for a teacher at a termination hearing in front of a local board of education. The teacher accessed school records over the internet to obtain allegedly confidential student information “to give to her paralegal for use in her case” thereby perhaps violating federal privacy law. (I know something about these laws, but this is not the place for my opinion on that issue, so I’ve included the standard waffling language.) According to the report,

The disclosure that the Farina legal team had the confidential test information from fourth-grade students at the Murphy school came from Mica Notz, Farina’s paralegal, who is acting as her advocate at the hearing. Notz, who is not an attorney, has sought the data for months.

But that’s not all:

A subpoena had been issued but not properly served, Rose said. So the matter was in legal limbo when Farina went into the data base…

As the afternoon session began, Notz created more pandemonium when she declared that Connon, whose role is equivalent to an administrative judge, had personally interviewed 14 teachers at the Murphy school as potential witnesses for the school district. Connon said he had done no such thing and that she had accused him wrongly.

Attorney Rose, who represents the district, immediately told the committee he was the interviewer. Logically he would have to be; he is calling witnesses and presenting the evidence for termination. But even after Rose openly declared he had gone to the school to interview these witnesses, Notz did not believe him. She said she had an email from a state union official who identified the lawyer as Connon. She would not step back from her belief until she checked further, she said….

Nor was it clear if Notz would face investigation. The actions of the paralegal raise questions.

I agree that these events raise questions, but I’m not so sure that Notz’ conduct is what should be investigated – at least not that conduct alone. Here is where the real questions arise:

At this hearing the firm’s leader, Eugene Axelrod, was not at her side. On Friday a young attorney named Robert Mollen sat at the table. Mollen did not intervene as Axelrod has. Nor did he try to keep Notz in check as Axelrod has. She was on her own. (Emphasis added.)

I’ve posted recently on a paralegal’s right to adequate supervision. One difficulty is the confusion among the bar regarding what a paralegal is and what a paralegal can do, a topic that has been discussed here often. (It may be that in this instance there was also inadequate supervision of the young attorney.)

Many problems that arise from a law office’s use of paralegals could best be avoid through adequate training not of the paralegals, but of the attorneys. The attorneys need to know what the role of a paralegal is, what the attorney’s duty of supervision is, other ethical issues that can (and do) arise from utilization of paralegals, and how attorneys and paralegals work together as a legal team.

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4 Comments

  • […] posts here have discussed the duty an attorney owes ethically to supervise paralegals working with that attorney. In one post, I argued it is a duty owed not only to the […]

  • Mica Notz says:

    I find it disconcerting that this post is still live and active on your site when it clearly demonstrates your lack of knowledge as it pertains to representation by Paralegals in the legal community. A school board hearing, just like a DOL hearing – as are many other legal forums – are conducted as Quasi Judicial. That being said, in the State of Connecticut paralegals are given the authority, without legal supervision to represent clients in these types of forums. Therefore, to declare a wrong doing or lack of supervision, as you have done in your article, is nothing more than a glorified story to fit your personal agenda to discredit hard working and dedicated paralegals.

    As for the misuse of student records, the newspaper you were quoting unfortunately only provided half the story. The student records were never in the possession of the paralegal, they were obtained by the client and submitted as evidence on her behalf in a sealed envelope. When opposing counsel opened them to view them, he disclosed their content to the Paralegal by way of questioning her on them and thus, the School Board’s attorney erred, not the Paralegal. It should be noted that following this hearing, the Paralegal, who by right, was audio taping the hearing, was able to submit the audio recording demonstrating that event.

    You further indicate that the Paralegal acted in such a way to draw criticism when she declared that the hearing officer attorney had been involved in interviewing potential witnesses. Given that there was direct communication from a Union official indicated that information – how would you have handled the situation differently. To then indicate that when the School Board’s attorney claimed it was him and therefore that should have resolved the issue, is even more puzzling. Any seasoned attorney knows that the same attorney representing a client, should not be the same attorney performing the investigation – because that attorney who performs the investigation can and may be called as a witness. When the paralegal called the School Board’s attorney as such a witness, he refused to give testimony. Given that this was a Quasi Judicial forum, the School Board refused to produce their attorney as a witness. Clearly a conflict of interest was at hand, but not on the part of the Paralegal.

    Your article and opinions appear to be wholly inaccurate in many instances and given that I am not one to judge another individuals competence (yet you sure do not seem to give that same courtesy) I will conclude by saying your article leaves one to wonder why you set out to discredit paralegals who are putting themselves out there every single day to attempt to do a common good.

    In common courtesy, I will ask that you post the above comments. If you feel that these comments are not appropriate for your website, then I ask that you remove your initial article from your website.

  • R. E. Mongue says:

    Anyone who reads this blog regularly knows that it is hardly my agenda to “discredit hard working and dedicated paralegals.” Indeed, most of the blog is devoted to increasing the recognition and respect given to paralegals and the paralegal profession.

    It is important to keep several points in mind here:

    1. At this time the only generally accepted definition of paralegal in the United States is “a person, qualified by education, training or work experience who is employed or retained by a lawyer, law office, corporation, governmental agency or other entity and who performs specifically delegated substantive legal work for which a lawyer is responsible.” Thus, anyone engaged in legal practice but not retained or employed by a law office, etc., is not actually a paralegal, at least as the term is used in my comments on this blog. (This is true even though my personal opinion – as enunciated repeatedly here- is that paralegals ought to be licensed separately from lawyers and allowed to engage in limited practice of law without supervision.) As of 2010 paralegals in Connecticut were still required to “work under the supervision of a lawyer who assumes responsibility for their professional conduct. Lawyers are formally encouraged by state rules to support paralegals in obtaining continuing education.” http://www.paralegaledu.org/connecticut/

    If a paralegal works for a law office, etc., he or she is entitled to adequate supervision and the Bar Rules in most jurisdiction require that attorneys give that supervision. In Connecticut Rule of Professional Conduct 5.3 stated that lawyers must directly supervise their assistants and are responsible for their assistants’ conduct. (I cannot access the rule today. The link is not working.) This person, if actually a paralegal hired by a law firm, corporation, governmental agency or other entity, it appears, did not appear to have that adequate supervision. And in fact, according to the Superior Court of Connecticut, Mica Notz was “the senior paralegal of the law firm representing the plaintiff.” http://caselaw.findlaw.com/ct-superior-court/1533221.html

    It should also be noted that my post does not make any emphatic judgments, but addresses what the situation “looks to be” given “A situation reported in the New Haven Independent.”

    2. While there may be an exception of which I am not aware as I have not delved deeply into Connecticut law, Connecticut Practice Book Sec. 2-44A(a)(3) prohibits (unless done by a licensed attorney) drafting “any legal document or agreement involving or affecting the legal rights of a person.” Section 2.44A(a)(2) prohibits “giving legal advice or counsel to persons concerning or with respect to their legal rights or responsibilities or with regard to any matter involving the application of legal principles to rights, duties, obligations, or liabilities.” Unless there is an exception, these sections would appear to apply here. http://www1.ctbar.org/sectionsandcommittees/committees/UPL/08-01.pdf. Thus, although paralegals working for law firms may indeed advocate at quasi-judicial proceedings, they appear to do so under the auspices of (and under the supervision of) the law firms for which they are working at the time.

    3. Obviously any legal analysis is dependent on the facts to which the analysis is applied. If the facts change the analysis is likely to change. At the time of my original post the facts being analyzed were those that appeared in the story, which included

    A. “The disclosure that the Farina legal team had the confidential test information from fourth-grade students at the Murphy school came from Mica Notz, Farina’s paralegal, who is acting as her advocate at the hearing.” Note that this indicates that “the Farina legal team” had the information, not that only Farina had it.

    B. “At this hearing the firm’s leader, Eugene Axelrod, was not at her side. On Friday a young attorney named Robert Mollen sat at the table. Mollen did not intervene as Axelrod has. Nor did he try to keep Notz in check as Axelrod has. She was on her own.”

    Whether the attorney for the school board should have interviewed the witnesses is a separate question. While I most often used someone else to conduct investigatory interviews, it would be odd for the attorney presenting a witness not to have interviewed the witness beforehand to determine whether they could actually help or hurt the case and prepare for their examination. How, for example, could Farina’s legal team prepare for her testimony if they did not talk to her first?! The real issue as framed by the story in the paper is that an accusation of conflict of interest was made based on hearsay from someone with an interest in the proceedings. It is likely that I could have raised this issue prior to the hearing to get confirmation before making a public accusation. However, that is not always possible so it may have been necessary to raise the issue as it was raised. However, the story goes on to say the accusation continued even after the person accused personally denied it and a member of the bar, “openly declared he had gone to the school to interview these witnesses,” because “Notz did not believe him.” Relying on private emailed over in-person public statements by at least one person who could lose their law license for making false statements, seems a bit unwise to me. There is little in the common good that can come of a public statement by one legal professional that another legal professional is lying based on nothing more than an unverified statement from a person with an interest in the proceeding. Nor is there much common good in creating “pandemonium” at a public proceeding. A personal opinion, yes, but we are allowed to hold and state such opinions.

    4. The statement, ” Clearly a conflict of interest was at hand, but not on the part of the Paralegal” is odd as there is nothing in my comment or the story on which it is based to suggest that Ms. Notz has a conflict of interest!

  • Mica Notz says:

    I am sorry for not being more specific. This particular hearing was conducted under the regulations of a Quasi-Judicial proceeding – However, this particular hearing was a Due Process hearing and the law is silent regarding representation by non-attorneys as it pertains to Due Process. The CT Bar was contacted prior to this hearing to ensure that this understanding was accurate and permission was provided by not only the Bar, but by the School Board and their Legal Counsel. A Due Process Hearing is not a formal or legal hearing. For instance, the Board of Education members are decision makers even though none are an attorney. Hearing Officers are impartial and are not required to be an attorney, etc. This is the same for other Due Process hearings, such as Loudermill Hearings. Given this forum was not a legal proceeding as defined by your references, there could not have been a violation or suggestion of a unsupervised paralegal. Lets assume however that there was some validity that supervision was required. The paralegal was being supervised by a Certified Attorney as you noted in your original article. Although intervention was noted to not have taken place by the supervising attorney during the discussions of the student records, as noted in the previous post, there was no intervention necessary because it was the Certified Attorney who disclosed the student records. We all know how hard it is to rely on a newspaper report for accurate information, but it is very frustrating when your name appears to be slandered and you are portrayed in so many words as having committed a wrong (i.e. suggesting I am practicing law) when no such conduct occurred. Thank you for allowing me to clarify this information so that in the future, the general public knows the full and accurate facts as they pertain to myself and this particular article.

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