Posts Tagged ‘elder client’

Client Grief and Paralegal Professionalism

Tuesday, March 8th, 2011

Those familiar with The Empowered Paralegal: Working with the Elder Client are aware that it focuses on the premise that elder law is a dual-natured creature and in many ways is quite unlike any other area of law. Substantively the law is law – statutes, cases, rules, and regulations – all of which must be researched, analyzed, understood and applied. Unlike any other type of law, however, elder law is not about something a client is going through, such as a divorce, bankruptcy, a real estate transaction, or even a criminal charge. Elder law is about whom and what the client is – an elderly person. The book seeks to enhance understanding of elder law clients, the laws applicable to them, and the issues they and their families face.  One of those issues is the grief felt by family, friends, and even the legal team, when a client dies or is dying. Thus, a understanding of how people view death, dying, and aging, including an understanding of how that people’s perspective differ depending on cultural, educations, religious, and personal backgrounds, is essential to paralegal professionalism for paralegals that work with the elder client and families.

This point was reinforced for me when I browsed through the first issue of Freelancer, a monthly e-zine from the National Association of Freelance Legal Professionals, a new professional association discussed in a previous post. It includes an article by Tina Johnson, a paralegal in a Minneapolis law firm. The article, entitled “The D Factor: Dealing with Death and Clients’ Emotional Up and Downs.” I can’t print the entire article here, of course, but here’s a link and here’s a particularly pertinent excerpt:

Certified grief counselors we are not, but we certainly display professionalism by treating clients with tact, empathy and compassion and by ensuring client confidentiality. Calming fears and soothing worries, paralegals must be prepared to deal not only with the legal aspect of things, but with the relational aspect as well.

It is not surprising to know that many times the paralegal is the go-to person the client contacts when they just need someone to talk to such as the grieving surviving spouse who is going through the mourning process and finds it very difficult to function on a day-to-day basis. In my experience, these clients often do not open mail or follow through on requests made by the law firms as part of the probate administration process. By talking and listening to the client, paralegal can reassure, support and encourage the client and provide as much assistance as the client needs.

So, assuming the link works, take a few moments to read Tina’s article, and a few more to check out the entire issue of Freelancer.

Disclosure: There is a link between the National Association of Freelance Legal Professionals and the Organization of Legal Professionals. I am on the OLP Advisory Council, although frankly the organization seems to do quite well without any assistance from me.

Handling Unethical Attorney Conduct: An Example

Monday, December 13th, 2010

From time to time I’ve done posts here on the dilemma paralegals face when working for an attorney who is engaged in unethical conduct. Often a certain amount of judgment is required as to whether the conduct requires the paralegal to report the conduct. I write about this in The Empowered Paralegal: Effective, Efficient, and Professional. There I emphasize,

If you do decide to report, I do suggest obtaining legal advice first from an attorney outside of the one in which you work. Remember that attorney has a firm obligation to keep what you tell her confidential. That attorney can advise you regarding protections to which you may be entitled, the proper authority to which you should report and the correct procedures for reporting. Generally, you will receive immunity from being sued by your employer for slander and libel, and you may be entitled to certain protections against on-the-job retaliation under “Whistleblower” laws. She will help you analyze the situation to determine whether you have the necessary facts, have properly interpreted the facts and validate your decision regarding the proper balancing of interest and integrity.

In fact a paralegal is well advised to seek independent legal advice from an outside attorney in determining whether to report.

I write about this again now because of a proceeding brought against six attorneys in Maine by the  Board of  Bar Overseers. Having practiced in Maine for over thirty years, I am familiar with many of the player in this drama, but the reason I am writing about it here is that the matter involved the theft of $300,000 from an elderly client (of particular interest to me because of the recent publication of The Empowered Paralegal: Working with the Elder Client, wherein I discuss such dangers) which theft was discovered by the attorney’s legal secretary who may very well have been a full paralegal.

The attorney (a member of one of the largest and most prominent firms in Maine) who stole the money has been disbarred for life and served two years in federal prison. The present proceeding is against six members of the firm’s executive board. The Board of  Bar Overseers is alleging they failed to properly supervised and report with regard to the incident. The full story is reported in the Portland Press Herald here and here. However, this is the allegation most pertinent to this post:

According to Davis [Bar Counsel representing the  Board of Bar Overseers – Hi, Scott!], Warren should have begun a thorough investigation of Duncan’s billing practices immediately after his legal secretary came forward with concerns about suspicious checks. Instead, Davis alleges, Warren accepted a false explanation from Duncan and told secretary Ellie Rommel not to seek legal advice from her private attorney.

If Rommel had listened to that advice, Davis alleges, “Duncan’s misconduct would have remained hidden, covered up and never properly reported by any of the firm’s board members as they were required to do.”

But Rommel continued to blow the whistle and consulted with attorney Daniel Lilley, whose interaction with Verrill Dana forced the firm to bring in outside auditors, Davis wrote.

Hence my modification of my original advice: a paralegal in this position should consult an outside attorney not only if they decide to report, but in determining whether a report should be made. This case, whether or not the allegation is true, demonstrates the folly of seeking that advice within the firm.

Release Party Invitation

Thursday, September 30th, 2010

Today is the official release date for The Empowered Paralegal: Working with the Elder Client. Despite my Oxford, Mississippi, connection, the release party will not be of the John Grisham variety. We start with the Philosphy Forum Series on the OleMiss Campus for a lecture entitled “The Authority of Empathy,” then one of the local establishments for a quick pint and other nourishment with the local bar association followed by the 6th Annual Japan Foundation Film Series: Japanese Films of the 1960’s event showing “The Fort of Death.” Feel free to join in the fun

Or you could spend your time productively by ordering a copy of the book. (I know this is simply blatent self-promotion, but what’s the point of having a blog if I can’t plug my own stuff.)

The Empowered Paralegal: Working with the Elder Client
by Robert E. Mongue

2010 • $38.00 • 328 pp • paper • ISBN: 978-1-59460-795-0 • LCCN 2010025542

Order now with 10% Internet Discount

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Elder law is a dual-natured creature and in many ways is quite unlike any other area of law. Substantively the law is law – statutes, cases, rules, and regulations – all of which must be researched, analyzed, understood and applied. Unlike any other type of law, however, elder law is not about something a client is going through, such as a divorce, bankruptcy, a real estate transaction, or even a criminal charge. Elder law is about whom and what the client is – an elderly person. The Empowered Paralegal: Working with the Elder Client enhances understanding of elder law clients, the laws applicable to them, and the issues they face.

The Empowered Paralegal: Working with the Elder Client examines the many influences on elder clients and their families, the deeply personal perspectives which result from those influences, and how they affect the decisions elder law clients make. It focuses on awareness and understanding of the elder client, explaining in clear language the dual nature of the elder client, the physical and psychological changes that occur as we age, and the practicalities of accommodating these changes when working with elderly clients. It also examines:

  • Issues surrounding competency, as well as the need for and methods of documenting competency in the file.
  • Dealing with the client’s family, including conflicts of interests, confidentiality and undue influence.
  • Perspectives, many culturally or religiously based, on aging, death, and dying.
  • Intestacy, estate planning basics, and the use of basic estate planning tools to meet client goals.
  • Advanced directives and other means of planning for end-of-life decisions.
  • Social Security, SSI, Medicare, Medicaid and other public benefit programs and laws directly affecting the elderly.
  • Elder abuse and the conflicts that may arise between the attorney/client privilege and mandatory reporting statues.
  • Ethical dilemmas faced by the professionals who work with the elderly.

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“Mongue’s book does not cover the ho and the hum of regular ‘how-to’ paralegal books. In fact, what he covers should be taught in every school regardless of specialty, profession or even age. Here, Mongue deals with our feelings about aging and the myths, stereotypes, cultural prejudices and extrapolations to the general population based upon personal experience. He draws you in as he explains behavior and the aging process and teaches you how to react as a result. As it turns out, much of what we think about the elderly is wrong, wrong, wrong.” — Chere Estrin, Editor-in-Chief of KNOW, The Magazine for Paralegals and SUE, For Women in Litigation; Chairperson of the Board, The Organization of Legal Professionals (OLP)

“[A]n insightful guide that any legal professional who works with an older population will find extremely useful. Mongue brings his extensive expertise both as a practicing lawyer and a paralegal instructor to the table, and illustrates his points with interesting examples. He discusses the complexities of the law in regard to aging in a clear, direct style that readers of all experience levels will appreciate. This book is a must-read and a valuable desk reference for anyone who interacts with elder clients.” — Lynne J. DeVenny, Co-Author of Workers’ Compensation Practice for Paralegals and blogger at Practical Paralegalism

Communicating with the Elder Client

Wednesday, August 4th, 2010

An essential component of client management is ensuring that communications with the client are understood by the client. When communicating with elder clients it is often necessary to adjust communications to accommodate diminished hearing or vision. In general, simply increasing volume is not a good answer because it increases the volume of the sounds a person can hear as well as those he or she
cannot. As stated above this is one problem with the use of hearing aids. If a client is having difficulty distinguishing speech or other desired sound from background or other undesired sound, simply increasing the volume of all sound will not help, and may make the problem worse. Finally, shouting and other means of raising volume can lead to confidentiality problems. It increases the chance that the conversation will be overheard by other persons. This is especially true when we must meet our client outside of the office—in their home, a hospital, nursing home, or other assisted living facility.

If the solution implemented to accommodate the loss of hearing is increased volume, then we must also adopt some means of maintaining confidentiality. Sound-proofing rooms is quite expensive but provides the additional benefit of screening out distractions. Certainly we should consider rugs (well secured so as not to create a tripping hazard) and wall décor that deaden sound. However, we can take simpler steps such as conducting conferences in rooms detached from waiting rooms and other high traffic locations. In addition, we can follow the
lead of therapists and use “white noise”machines outside of conference rooms.

Fortunately, simply raising the volume is not the only and often is not the best way to accommodate our clients’ diminished hearing. Gerontologists inform us that there are ways to communicate that compensate for much loss of hearing. Many of the techniques are helpful in ensuring understanding of our communications with any client. Those methods include:

• Face the person and maintain eye contact. This minimizes distractions and provides non-verbal clues as to what is being said as well as directing the sound at the listener.
• Sit somewhat close to and at eye level with the listener. Large, fancy conference tables are nice, but it may be better to sit next to the listener rather than across the table. Placing the client at the end of the long side of the table and sitting at the closest point on the short side allows closeness without the need to turn uncomfortably to the side to maintain eye contract. Watch the client’s body language for signs that you are too close for their comfort.
• Do not cover your mouth or face with your hands or objects such as papers while speaking. This muffles and deflects the sounds and creates an unnecessary distraction.
• Speak slowly and clearly but not in an exaggerated way.
• Minimize distractions, especially background noises. Again, sound proofing a room can be excessively expensive, but distractions can be minimized by holding conversations away from high-traffic areas, using “white noise” machines, and décor that deadens sound. Sometimes it is as simple as remembering to close the door. “White noise” machines can be purchased in sizes that fit in a briefcase and brought to out-of-office meetings with the client.
• Speak in a lower tone of voice. This is not as counter-intuitive as it may seem. We are not talking about lowering volume but tone of voice, thus conveying our words in frequencies within the listener’s ability to receive. Speak as you normally would in terms of cadence and modulation.
• Especially important information should be repeated often and in different ways. If the client fails to catch the point due to sound distortion, distraction, background noise or the like when it is stated one way, they may understand the same point when it stated a different way.
• Speak from a checklist or agenda so that points are made in a clear, systematic way. Provide the client with a written checklist of the topics covered and/or specific information conveyed such as items they must bring with them to the next meeting.

I suggest you literally put yourself in the place of the client. Sit in your conference room at different times of day and listen to the background noise. Do this not from the seat you normally take, but the seat or seats normally assigned to clients. Sit outside your conference room and listen for indications that conversations can be overheard. Conduct conversations with earplugs that
deaden, but do not eliminate sound. Ask the other person to try the techniques listed above in various ways and settings to see how they work from the perspective of the listener with diminished hearing capacity. Accommodating our clients’ diminished hearing capacity is generally not difficult if we make ourselves aware of it and implement reasonable steps in response to it. It helps not only the client but the entire legal team. Effective and efficient communication among the members of the team is essential in order for any
member of the team to be able to perform at his or her best.

(Excerpted from The Empowered Paralegal: Working with the Elder Client scheduled for publication by Carolina Academic Press in September, 2010. Internal footnotes omitted.)