The Empowered Paralegal

The Sinclair Community College paralegal program in Dayton, Ohio had an interesting project for the Fall 2010 Quarter. As part of the project student Amanda J. created a blog entitled, “Attorneys Gone Wild: Lawyer/Paralegal Misconduct.” The entries appear to end when the quarter ended, so I’ve not added the blog to the blogroll here, but it is interesting to see a paralegal students perspective on legal ethics and the misconduct of lawyers and paralegal. The next-to-last entry spins off a post from this blog regarding a Florida jury verdict in favor of a paralegal who sued her former employer. She comments:

A Florida jury found in favor of a paralegal who entered into a contract with her supervising attorney to receive a portion of the earnings from the attorney’s fees.

If you have been paying attention in Legal Ethics, this is fee-sharing or fee-splitting and is prohibited for non-lawyers. The paralegal goes to court, knowing she has committed unethical behavior, will be fired, and will be known in the community for her unscrupulous behavior, yet still pursues the case which ultimately results in her supervising attorney being disciplined.

I find it strange that two legal professionals can go to court, both having committed unethical behavior and only one is disciplined. Even though the lack of a paralegal ethical code protects me from court discipline, I would like to have the confidence that any non-lawyer with whom I work is under the same rules and guidelines as any lawyer with whom I work.

If Amanda J. is still reading this blog now that her project is done, she’s likely to be interested in the views of practicing paralegals on this, so feel free to comment.

Warning to my students: I like the concept of this type of project as an educational tool, so be prepared!

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There’s another new blog in the paralegal neighborhood entitled “Paralegal Hell.”  You may have noted the blogger’s comment to my last post about a new blog, “Paralegals on Trial,” but I have removed the comment because it identified the blogger. In an email to me, Paralegal states that the blog helps her relieve stress. She notes, “I do have a sarcastic bite to my blog, but if you read the actual conversations I have with my clients, you will understand why.”

The blog does provide an interesting read and will likely provide stress relief for paralegals who follow the blogger’s candid reports of some of the most frustrating aspects of legal work for all involved in the profession. Many of those frustrations come from clients, making client management a significant topic in my first two books and a frequent topic in workshops and seminars.

While I’m sure to read the blog on a regular basis, there is some danger to relieving stress by reporting office occurrences, even anonymously, on the internet, as reported in previous posts on this blog.  Consider this for example,

ABAJournal.com has a post dealing with an attorney in trouble because of posts on her blog which states in part,

A former Illinois assistant public defender’s blog musings about her difficult clients and clueless judges has landed her in trouble with disciplinary officials.

Kristine Ann Peshek has been accused of revealing client confidences, allegedly for describing her clients in a way that made it possible to identify them. Peshek referred to her clients by either their first names, a derivative of their first names, or by their jail identification numbers, according to the disciplinary complaint filed on Aug. 25. The Legal Profession Blog noted the accusations.

Peshek counters that she would never have posted information that she believed would lead to identification of a client, absent the client’s permission or unless the information is a matter of public record. She tells the ABA Journal she is in the process of hiring a lawyer.

This is, of course, a problem not only for attorneys, but for their paralegals. Less obvious it the fact that it is a problem that extends well beyond blogging to Facebook and other social networks, emails with friends and family and off-line conversations. It is one thing to talk about a difficult, exciting, or interesting “day,” and another to talk about a difficult, exciting or interesting case or client. The latter requires extreme care and in most instances the best advice is “Don’t.” Keep in mind that later the well-known “Monday morning quarterbacks” may be judging whether your musing have cross the line with regard to confidentiality. They will be doing so with the benefit of hind sight and often without the proper context.

It is true that confidentiality is not broken if the client gives permission or the information is part of a public record. But there will be questions:  Do you have a record of the client’s permission? Was the permission given independently with complete knowledge of the facts, circumstances and consequences? Did the client have time to consider all this before giving permission? Was the client influenced by his dependent relationship with you? Was ALL of the information you revealed part of the public records? And many more. The best way not to cross the line is not to come near it.

For more on problems with mixing your professional life and social media see Lynne Devenney’s post “Social Media 101: Mojitos and Mourning Don’t Mix on Facebook” on her blog, Practical Paralegalism.

One good aspect of the blog is that the blogger manages to maintain the sarcasm, while making it clear she still enjoys her career. Another is that the blogger takes an occasional serious turn such as her excellent post on payday lenders. While it will be better if clients do not read most of the posts on her blog -one may recognize themselves and get angry, all clients should read the post on payday lenders.

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I had a very few minutes to browse yesterday, and thanks to Chere Estrin of The Estrin Report the time was well spent. She pointed me to Paralegals on Trial, a fairly new blog that focuses on the humor often accompanying the trials and tribulations of a paralegal career. The humor is there and the professional paralegal will see it, thus making them and their careers much more pleasant. This blog will help. It’s motto is “Get a laugh on the way to getting it done.”

By the way does it seem to you that the Carolinas are particularly active states for paralegal bloggers?

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We’ve spoken here previously about some of the perils of internet use in the law office. Today I am passing on a story from ABAJournal.com entitled, “Ethics Officials Seeing More Cases from Lawyers’ Online Foibles.” It is about lawyers, but is just as applicable to paralegals:

Lawyers who are more circumspect in person are making online mistakes that are landing them in trouble with ethics officials.

James Grogan, chief counsel of the Illinois Attorney Registration and Disciplinary Commission, recalls an early case that got the attention of bar counsel in more than one state, the National Law Journal reports. Steven Belcher, a temporary lawyer at a St. Louis law firm who was licensed in three states, was helping defend a wrongful death case when he decided to e-mail a picture of the deceased to a friend, the story says. The body of the overweight man was pictured lying naked on an emergency room table. Belcher added his own commentary.

The result was a 60-day suspension, the story says. “It got our eyebrows up,” Grogan told the publication. “We thought, ‘Wow, are we going to see more of these?’ Well, I think it’s clear we are starting to see more.”

The story notes an increase in interest in the issue. Bar associations and bar counsel hold seminars on online ethical mistakes, and the ABA Commission on Ethics 20/20 will consider whether existing ethics rules adequately address online transgressions.

“It’s not as if lawyers never misbehaved before,” the story says. “But now they’re making the same old mistakes—soliciting for sex, slamming judges, talking trash about clients —online, leaving a digital trail for bar counsel to follow.”

Susan Gainen’s Lawyerist.com post, “6 Rules for Protecting Confidential Information” (brought to my attention by Lynne Devenney at Practical Paralegalism) is well worth the read in this regard. Her first two rules are:

1. Your conversations. Never talk about clients or client business outside of the office. The guy at the table next to you knows EXACTLY who you are talking about because his client is on the other side of the deal.

2. Your tweets or blog posts. Tweeting or blogging about your work are very smart business development tools, but they are also fraught with peril. Robert Ambrogi lists 16 good reasons to Tweet, but notes: “Before you post to Twitter, consider the consequences. A casual tool such as this makes it easy to unwittingly create an attorney-client relationship or overstep an ethical rule. Even with only 140 characters, you can easily get yourself in hot water.”

The point is that “online” is “outside the office” even if you are sitting in the office when you blog, tweet, email, or otherwise reveal information. Unless your system is secure, even internal communications may be exposed to the “outside.”

Update:

Just an additional thought from Steve Lohr’s story in the New York Times on the Library of Congress archiving Twitter messages:

Knowing that the Library of Congress will be preserving Twitter messages for posterity could subtly alter the habits of some users, said Paul Saffo, a visiting scholar at Stanford who specializes in technology’s effect on society.

“After all,” Mr. Saffo said, “your indiscretions will be able to be seen by generations and generations of graduate students.”

People thinking before they post on Twitter: now that would be historic indeed.

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The holiday break has provided an opportunity to catch up a bit on various discussion forums and comments to posts on some of the blogs I frequent. Perhaps it is just the holiday spirit catching up with some participants, but the threads often seem to turn to discussions of the lack of civility on the part of many of the persons posting comments. This lack of civility – from simple name-calling to outpourings of pure vitriol – is common on political and news blogs and does not speak well of the state of political discussion in our country today, not only because it emphasizes what divides us rather than what binds us together, but because it seems to arise out of an inability of those persons to make their case based on facts, evidence and sound reasoning. This is bad enough when practiced by the general public, but of greater concern when it appears in legal and paralegal forums and blogs such as Paralegal Today and Above the Law. Indeed, the increasing lack of civility within the legal community has led some federal district courts to sponsor seminars dealing with the topic!

One problem with this lack of civility is that it the posts become a public record. Certainly, everyone who posts on the internet should be aware that anything they post on the internet can ultimately affect their careers. Several posts on this blog have dealt with this danger. However, it seems to me that the greater danger to those persons stems from what they say rather than where they say it, because what they say about others and how they say it, says much more about them, even if the say it anonymously. Those who will “make it” as paralegals are those paralegals who are professional. Persons who cannot not be civil when making a point are simply not professional. Those who hide behind the veil provided by internet discussions are even less so.

Professionalism is not just a way of behaving on the job. It is an attitude – a state of being. It requires the ability to work with others civilly. It requires the ability to listen to and communicate with others in a way that ones message gets through to them. It requires the ability to state your point clearly, concisely and rationally. It requires personal integrity even when there is no chance of “getting caught.” It often requires the ability to conduct self-examination and introspection. Those persons who cannot control what they say on discussion forums, need the latter in order to achieve the rest and become professionals.

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