The Empowered Paralegal

A Florida jury has found in favor of a paralegal had an oral contract with her attorney for a bonus based on a percentage of attorney fees she generated. This is an interesting case on several levels.

One is the contract level, of particular interest because I’m teaching contract law this semester. The jury found there was a contract for 2004 but not for 2005, but of course there is no explanation why they so found and we do not have enough facts from the news report to come up with anything other than pure speculative theories.

On the level of ethics, there is the issue of an attorney sharing fees with non-lawyers, something prohibited by the Rules of Professional Ethics. If the attorney made this contract, which she continues to deny, it is clearly a violation of the rules. Presumably the paralegal knows the rules of professional ethics and consciously agreed to engage in conduct that violates those rules simply because it benefited her. I’m not sure I’d want to based a legal case on that! Even if you win, you lose your ethical reputation. By the way, did the paralegal have an obligation to report the offer of a bonus based on sharing of legal fees to the proper authorities when it was made

Also on the ethical level, is this an instance that illustrates a problem with the concept of a paralegal being regulated through the ethical rules governing their supervising attorney. Given the court ruling under the present system their is no penalty to the paralegal for entering into the unethical agreement or for failing to report the attorney’s unethical conduct. The entire penalty goes on the attorney even though the paralegal was clearly engaged in the same unethical conduct. It is difficult for paralegals to claim the status of a separate profession and the respect of being a professional under these circumstances.

There is, of course, also much to be said about the paralegal – attorney relationship and the necessity for clear (and in this case written) communications. There is not enough time to deal with this one here today. The topic is touched upon here and in The Empowered Paralegal.

Finally, combining the contract and ethical levels, the court ruling that the attorney cannot defend against the alleged contract on the basis that it violates the rules of ethics is an interesting application of the concepts of malum in se versus malum prohibitum, estoppel, and quasi-contract. (Recognizing, however, that there may be a difference between laws governing act such a gambling and the like, and “mere” ethical rules.)

In any case, you can find more on the case here and here with commentary on the first report of the case by Lynne DeVenney of Practical Paralegalism here.

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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.

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In her comment to yesterday’s post on Honesty Lynne DeVenney of Practical Paralegalismcorrectly notes:

A great way to avoid telling whole or partial untruths, and still protect your attorney when he or she needs some “do not disturb” time to meet deadlines, is to simply say, “Mr. Jones is not available at this time.  May I help you or take a message?”

The professional paralegal knows how to manage a client in this manner.  Such client management should begin with the initial interview.  Make it clear your office represents many clients and you have a system for seeing that each case is treated with the utmost of professional care. When you and the attorney are working on that client’s case, it (and they) will receive undivided attention.  In turn, when you or the attorney are working on another client’s case, it must also receive undivided attention. Remember this means you cannot take calls or allow other interruptions when you are interviewing the client!

While establishing means for communication to the client, explain your office procedures, including rules, for communications from the client such as when must the client communicate with you, e.g., if he is contacted by an adjuster or investigator, if there is a change in her medical condition or simply once a week at a set time;  when to expect responses from you or the attorney to calls or other communications, e.g., within twenty-four hours, only between 2:00 and 4:00 p.m.; and when a client should acknowledge communications from you.

Of course, this  means the client must be called back. When the client isn’t called back (whether by you or the attorney), the client calls you back. Some clients call back sooner and more often than others. Some are impatient. Some are down right testy and rude. Have some pity on the person at the front desk and make things easier for yourself at the same time.  Establish rules and policies for calling back. More important, establish mechanisms for calling back and let the client know what those mechanisms are.

Instruct the receptionist, or if your calls go directly to your voicemail leave an informative outgoing message, on how calls will be returned. For example, the receptionist might say “Ms. Forest will be returning clients calls between 2 and 4 this afternoon, can I schedule a telephone appointment for you then?”  Any general rules your office makes about managing phone calls should include provisions for both protecting your and your attorney’s time and time for returning the calls.

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The following comments are excerpted from a post on South Carolina Trial Law Blog, :

Dear Attorney:
You could make my job easier and I could be a more effective employee by considering the following:
1. Not everything is an emergency. Please prioritize my work.
2. Return phone calls the same day.
3. Do not micro-manage me, you hired me for my brain and ability to do the job.
4. Do not ask me to lie to the client or anyone else, if you don’t want to take a call. (I have a solid rule: Lie to me, because I won’t lie to your wife when she calls.)
Sincerely,
Your overworked Paralegal

Effective communication with the you attorney is an important component of paralegal professionalism. The topic is covered extensively in The Empowered Paralegal. One comment on the SCTL blog puts it this way:

I think it boils down to training and communicating. The attorney trains the paralegal. Then it’s time for the paralegal to train the attorney. Attorneys forget that paralegals can’t read their minds. Trust me were good! Most of the time, we can read your mind, but every once in awhile we need to meet with you! Once a system is developed for communicating and meeting everything flows — sort of like that VISA commercial (where everyone uses the credit card and all is flowing nicely. Watch out for the one paying with cash).

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