Head on over to Lynne DeVenny’s blog, Practical Paralegalism for her post, “Paralegal Do-Over: What Would You Tell Lindsay to Wear to Court?” While Lindsay is a tough case, this exercise is a good one since it is an example of the tact required quite often by paralegals in preparing clients for court appearances. Good post, Lynne.
Posts Tagged ‘client’
Last Thursday’s Biloxi-Gulfport Sun Herald includes “4 tips to make your divorce easier for your divorce attorney, yourself‘
By Nancy Perry of divorce360.com. The advice is all pretty good, but I was struck by tip four:
4. And lastly, put on your junior paralegal hat.
There are many things you can do rather than pay your attorney’s paralegal to do it. By helping with the workload, it will not only keep you involved in your case, but it will save you money. The best example is preparing discovery responses and marital asset inventories. You should gather the documents, copy and organize them and have them ready to go to the paralegal well before the due date. This will save the paralegal a lot of time rather than you handing over a pile of mixed up papers and expecting her to sort through them and make heads or tails of them. Also, spreadsheets are a great way to list and organize the marital assets.
Now those of you who have read either of The Empowered Paralegal books know that I am a big advocate of making the client an integral part of the legal team. Also, I agree that the client, as part of the legal team, should do the things suggested in this “tip,” but not as a junior paralegal. This is the role of a client who has been integrated into the legal team as a fully functioning and well managed member of that team in order to allow the paralegal to utilize his or her valuable time in the way that he or she can most effectively utilize that time in his or her role as a member of that legal team. We need not, and ought not, to blur the distinction role of each member of the them. Rather, as discussed extensively in The Empowered Paralegal: Effective, Efficient and Professional, the paralegal ought to manage the client in a way that make the distinctive roles of each member clear, but integrates them into an effective team. After all, it makes little sense to advise a client “You should gather the documents, copy and organize them and have them ready to go to the paralegal well before the due date.” If the client does not understand what discovery is, what documents are required, how the documents will be utilized, etc. It is not uncommon for attorneys and paralegals to simply assume such understanding on the part of client. As discussed in TEP and previously here it is a mistake that hinders client management to make that assumption.
Well, my new book is off to the printer. Over the next couple of days I’m hopeful I’ll have some reviews to pass on. One question that arises is why I chose the elder client as the topic for this book. Here’s the story behind that decision:
The Empowered Paralegal: Working with the Elder Client
My first “real job” was working as a janitor in a hospital in western Massachusetts. Being new to the staff I often found my self assigned the wing of the hospital that cared for elderly patients. This was a wing in which no one on the staff wanted to work. The patients were generally senile and generally dying. They were all, of course, “old” and no one was anxious to be around old, senile or dying people.
Many of these patients were tied to their beds. Many had little or no sense of where they were. Some would repeat phrases or individual words endlessly. Often the repeated word was, “Nurse.” Almost all had constant needs – the need to be cleaned, the need to roll over, the need to be acknowledged.
As I moved from room to room mopping and dusting, morning after morning, two things came to mind. First, these people, being elderly and approaching the ends of their lives even if they were not –at that moment – dying, had a good number of commonalities. Second, however, each of them was different. Each had their own particular instance of whatever disease or ailment brought them to the hospital even if many of the other patients had the same disease or ailment. More importantly, each had his or her own personality and, if not suffering from constant dementia, their own approach or perspective on their current state, their future, and their approaching death.
One of the advantages of being a janitor is that, unless there is a specific need, you are largely invisible. Being unnoticed, you can observe not only the patients but their families and the medical staff. Here to, I found commonalities. But among families, I saw remarkable differences not only in personalities and temperaments, but in their approach to the current status, the future and the approach to the end of life of their loved ones. The broadest, most superficial commonalities arose from the mere fact that those loved ones were elderly and in the hospital. Other commonalities appeared to arise from cultural, religious, educational, and economic factors.
Our area did not have a lot of diversity. However, there was enough to see that common elements of the perspective of second generation Italian-Americans from the northern-New England “Yankees” of my mother’s family and the French/German influence on my father’s family. The Protestant perspective was not much different from the Catholic, although the differences were perceptible. There were common factors in the approaches of the poor, distinguishable from those of the middle class, which were equally distinguishable from the rich (although the truly rich seldom found it necessary to die in the public hospital.) Perspectives changed with the level of education. Combining these factors with differences in attitudes that existed between generations within each family resulted is a multitude of individual emotional and intellectual reactions to illness, aging, disability, dementia and death.
Yet, it appeared to me that medical service providers had only one approach that they applied to all of the patients and, if they paid any heed to the families at all, to those who loved and, except for the duration of their hospitalization, provided care for them. Caught up in the science of medicine – the machines, the charts, the new techniques, perhaps combined with a need to depersonalize the patients in order to remain objective, the approach was often one of intellectual superiority, of knowing better than the patient or their families what the patient wanted or needed, of knowing better than the patient or their families when, how, and where it was better for the patient to grow old or die. Patients appeared to be just patients, not necessarily people in the sense of individual persons.
Thus the only perspective that mattered was that of the medical providers. It is not that they did not care, often deeply, for their patients. It appeared simply that they believed there was only one way to care for the patients, regardless of the individual perspective and personality of the patient – their way. I was in high-school at the time, convinced that I was going to become a doctor myself, so my focus was on the medical profession. It was not until a decade later as I began the practice of law that I realized the legal profession was often afflicted with the same narrowness.
In my last year of high school Elizabeth Kubler-Ross published On Death and Dying beginning the long process of changing the medical profession’s perception of the “right” way to care for the dying patients. Since then great progress has been made not only in the medical profession’s approach to death and dying, but in the approach to aging and the elderly with new research assisting in the understanding of the elderly in terms of medicine, sociology, law and many other aspects of society. It is my hope in this book to digest and present much of that knowledge for the paralegal – the person in the law office most involved in interacting with the client – so that the paralegal will be empowered to best meet the needs of the elderly client and to manage that client as part of the legal team.
Melissa H. at Paralegalese posts today about lawyers being too intelligent to be liked in “Nobody Likes a Know-It-All.” Meanwhile, Vicki Voison, The Paralegal Mentor, has an ode to the study of Latin and a compilation of many of the Latin terms and phrases that form a good part of the legal lexicon. Both are worth the read and, I contend, the two are likely connected.
I agree with Vicki on the benefits of the study of Latin for those considering the legal profession both because of the Latin contain in law and because the rigors of analysis required for the study of Latin is also useful for the study of law. My own exposure to the language began as an altar boy and continued through the conquest of Gaul in high school. However, while it is essential that both lawyers and paralegals know and understand the many Latin legal terms, use of those terms when speaking with clients is likely to be a mistake. As Melissa says,
But those attorneys (and anyone else, for that matter) who have a deep desire to share their intellectual prowess with others for no reason other than to prove how smart they are probably need to work on toning it down a bit.
I especially encourage paralegals to drop Latin (an other legal jargon) when speaking to clients. Sure, the use of such phrases between the paralegal and attorney act as good shorthand, allowing quick and effective coverage of complex topics. But the client is quickly lost when slogging through a swamp of legal jargon and Latin phrases. This is one of many barriers to client understanding and full participation on the legal team. If you must use a Latin legal phrase, remember that it has an English translation that might actually be understood by a client, making client management easier. The paralegal can, and should, use the English translation or explain the Latin phrase when speaking to the client, acting literally as a interpreter between the attorney and the client. Melissa puts the point well:
Knowledge and education are wonderful things when they serve clients’ needs, and therefore the firm’s needs. But empathy, understanding, and the ability to communicate on the client’s level are also necessary parts of meeting these goals.
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.
I am not aware of any actual relationship between paralegals and vampires but I am told that in today’s market it is important to work in vampires on a fairly regular basis. Certainly there will be times when even the most paralegals will confront clients and attorneys that the paralegals will referred to as “blood-sucking so and so’s” or worse. The danger is in when and how this reference is made.
For example, if an attorney practices long enough it is almost inevitable that she will face ethical and malpractice complaints, many, if not all, of which will be unjustified. It is important that there be adequate and comprehensive records to document the client file. A client may allege that they called twenty times in two weeks with no response. A telephone call log showing he called three times, each of which received a response within twenty-four hours even if the responsive phone calls resulted only in repeated busy signals not only deflates that claim but cast doubt on any other complaint they make.
Written memos to the file are also important. Even though such memos, like emails, are informal, each such memo and email must be written with an eye towards the possibility that it could be read by a judge or jury in a malpractice case, by Bar Counsel or the next attorney to handle the case. Be especially careful what you say about your client. Convey the fact that your client is a confrontational, uncooperative, stubborn and drunk moron, but be careful and diplomatic about how you do it.
ABA Journal.com posts on a case I’ve been following in the Washington Post:
A credulous paralegal is facing a potential two-and-a-half-year federal prison term after apparently being duped by a convicted child molester into participating in a bizarre alleged scheme to “coerce or fool” the victim into recanting via a faked defamation suit that briefly resulted in a $3 million judgment.
Not a lot of comment or commentary on this one. Certainly the professional paralegal manages their clients without becoming involved with them whether that involvement is romantic as discussed in a previous post or entanglement in their life circumstances. The paralegal must remain objective.
There has been a great deal of talk about “empathy” in our judicial system recently. As a paralegal you can, and should, empathize with the client, but do not become attached or involved with the client on a personal basis. This is akin to the concern about biases coloring your ability to remain objective. Similarly, sympathy rather than empathy can make you less than objective.
The ABA Journal relates a true story about a young associate that raises an issue applicable as well to paralegals:
Federal Judge Boots Law Firm from Case for Hiring the Wrong Associate
Applying what some might consider an unduly strict interpretation of conflict-of-interest standards, a federal magistrate judge in Massachusetts has disqualified Lichten & Liss-Riordan from continuing to represent the plaintiff in a five-year-old Fair Labor Standards Act case.
Although associate Sarah Getchell, who was recently hired by the firm, says she doesn’t have any recollection of working on the case when she was a first-year associate in the Boston office of opposing counsel Seyfarth Shaw, Judge Robert Collings disqualified the firm in an Aug. 10 ruling and said its client will have to get new counsel, reports Massachusetts Lawyers Weekly.
It is essential that a paralegal keep aware of potential conflicts of interest, especially when moving from one firm to another (and the good ones often find the opportunity to move.) The NFPA Code of Ethics states:
1.6 A PARALEGAL SHALL AVOID CONFLICTS OF INTEREST AND SHALL DISCLOSE ANY POSSIBLE CONFLICT TO THE EMPLOYER OR CLIENT, AS WELL AS TO THE PROSPECTIVE EMPLOYERS OR CLIENTS.
EC-1.6(b) A paralegal shall avoid conflicts of interest that may arise from previous assignments, whether for a present or past employer or client.
EC-1.6(d) In order to be able to determine whether an actual or potential conflict of interest exists a paralegal shall create and maintain an effective recordkeeping system that identifies clients, matters, and parties with which the paralegal has worked.
EC-1.6(e) A paralegal shall reveal sufficient non-confidential information about a client or former client to reasonably ascertain if an actual or potential conflict of interest exists. EC-1.6(f) A paralegal shall not participate in or conduct work on any matter where a conflict of interest has been identified.
EC-1.6(g) In matters where a conflict of interest has been identified and the client consents to continued representation, a paralegal shall comply fully with the implementation and maintenance of an Ethical Wall.
The means of effectuating an ethical wall vary depending on the circumstances, but the NFPA definition of “Ethical Wall” provides a good foundation for determining what means are necessary:
“Ethical Wall” means the screening method implemented in order to protect a client from a conflict of interest. An Ethical Wall generally includes, but is not limited to, the following elements: (1) prohibit the paralegal from having any connection with the matter; (2) ban discussions with or the transfer of documents to or from the paralegal; (3) restrict access to files; and (4) educate all members of the firm, corporation, or entity as to the separation of the paralegal (both organizationally and physically) from the pending matter. For more information regarding the Ethical Wall, see the NFPA publication entitled “The Ethical Wall – Its Application to Paralegals.”
It is well established that ethical codes are not legally enforceable against paralegals, but as seen in this story they can be enforced against the firms for which the paralegal works. One can expect that those firms will then take some action with regard to the paralegal. Regardless, mindfulness of potential conflicts of interest and building ethical walls when appropriate are, as Wilfrod Brimley says, “The right thing to do.”
In general it is best not to assume that your client understands anything, including the importance of meeting deadlines and following through on commitments. In most cases it simply is not enough to explain to a client, for example, what interrogatories are and that they must be answered within thirty days. You will also need to explain to them what that means in terms of the overall scheduling of the timely completion of the Answers. In order for you and the attorney to draft, review, correct, revise and fill in gaps in the answers, the client must get initial information to you by a date far short of the thirty days. Set dates for completion of each task the client must complete.
It is human nature to delay unpleasant tasks. It is likely that left on their own the clients will treat each deadline as many treat filing taxes. Just as many people rush to the tax preparer on April 14th with a shoebox full of receipts and tax forms, clients will wait until day twenty-nine to start answering interrogatories due on day thirty. When you meet with the client to explain the interrogatories, give them an instruction sheet that repeats your explanation and instructions including the specific dates for completion of any task you assign to them. Write this information down for them before they leave. Again, your office may have or you can develop standardized checklists or forms for this purpose. (Some clients may protest that they came to you to do the work and do not understand why they have to do so much. This can be avoided by a clear explanation during the initial interview with appropriate reminders during the process that they are an essential part of the litigation team with their own role to fill.)
Once the client leaves immediately enter the date for your follow-up reminders to the client on your calendar. Do not assume the client is out there somewhere faithfully doing exactly what you told them to do. Send a reminder in writing and set a date for a follow up telephone call. If you send an email or leave a voice mail message, ask that they respond with an update on the status of their progress so you know they got the message and can make a file note. This seems like a lot work, but much of it can be systematized and it serves several functions which I cover in a later post.
One reader of this blog arrived here as a result of a Google search that asked, “can paralegal see client socially after legal relationship ends?” Here are some thoughts on the topic:
It is likely that you will not find a direct answer to this question in any of the various professional association Codes of Ethics such as the NFPA Model Code of Ethics and Professional Responsibility, but the answer can be derived from such codes as it can be derived for attorneys from the ABA Model Code. In general, since there are no paralegal code of ethics enforceable in the same way as the attorney’s bar rules are enforceable against attorneys, regulation of paralegal conduct is derivative of the rules governing attorneys. So, it is appropriate to look to rules governing attorneys and the advice given to them on issues such as this based on those rules.
Certainly both attorneys and paralegals must refrain from becoming engaged in an intimate relationship with a client during the course of the professional relationship. There are several reasons for this, including:
- Such a relationship can affect the objectivity of the members of the legal team
- The lawyer and paralegal may be taking advantage (even if not consciously) of the already existing special relationship with the client – on in which the client is dependent upon the lawyer or paralegal
- In most instances legal proceeding are stressful and traumatic placing the client in the position of not being able to make objective decisions about intimate relationships with others involved in those proceedings
- Such a relationship can affect the expectations of the client
For these reasons and others dating clients during the professional relationships is not permitted as it violates the Code provisions requiring objectivity and the like. For example, the American Academy of Matrimonial Lawyers advises :
D. Lawyers and Clients Should Maintain an Appropriate Professional Relationship.
Sometimes friendships and even romances develop between lawyers and clients. Many lawyers have close personal friendships with former clients. But because of the intense emotional nature of a divorce, it is usually best for lawyers and clients to defer establishing a social relationship until after the case is over. Romantic relationships are not advisable as they interfere with a lawyer’s objectivity and affect a client’s expectations. A divorce lawyer and a client should never have a sexual relationship during the case.
This does not, however, settle the question as to whether a paralegal can ethically date a client once the professional relationship is over. While the issue of objectivity may be eliminated, there is still the question of whether the client has gained enough distance from the professional events to make a free, knowing and independent decision to enter into the romantic relationship. Keep in mind that the lawyer and paralegal must not only avoid a direct violation of the specific rules of conduct, but also ” avoid impropriety and the appearance of impropriety.” NFPA Model Code EC-1.3(b).
Finally, keep in mind that whatever the rules of conduct may provide, your employer’s vision of what constitutes “the appearance of impropriety” should be considered. Should the client again need legal services make sure you advise your attorney of the romantic relationship before the client engages the services of the attorney. It may affect the lawyer’s decision on whether or not to take the matter, and whether to assign you as a paralegal on that matter.