Posts Tagged ‘Ethics’

The Researching Paralegal: “This Is So Wrong on So Many Levels”

Monday, April 6th, 2015

I’ve often posted here about attorneys’ obligation to supervise paralegals, arguing that they owe that duty to the paralegals as well as the public. So, I’ve been intending to write about the story of a paralegal and lawyers involved in the case of Bubba the Love Sponge Clem, but have not found the time and energy to do so. Fortunately, my procrastination has paid often as Celia E. Elwell, The Researching Paralegal,” has not only posted a link to Tom Feher’s good post about the story, but has added commentary that raises both the supervision issue and the need for ethical education of paralegals. She also gave her post a title that I could use here, making my job even easier. So here’s the basics of the the story from Feher’s post on Lexology.com, “Florida lawyers face disciplinary charges after representing ‘Bubba the Love Sponge Clem’”:

Reports at the time suggested that, on the evening after the media-focused defamation trial started, the defense firm’s paralegal spotted plaintiff’s counsel at a local bar near his home. She contacted lawyers at her firm, returned to the bar with a friend, and sat down next to opposing counsel. Over the next two hours, the paralegal is reported to have lied about where she worked, flirted with opposing counsel and ordered drinks, including buying defense counsel a vodka cocktail and shots of Southern Comfort. She also stayed in touch with the three lawyers from her firm, sending them more than 90 texts and emails over the course of the evening. Later, opposing counsel’s lawyer stated that it was clear that the paralegal was in an undercover role and was making sure “all the parties knew exactly what was transpiring virtually every minute.”

Shortly after she first reported what was going on at the bar, a call was made by one of the lawyers to an acquaintance in the police department and an officer was posted outside the bar to wait for the plaintiff’s lawyer’s departure. When he eventually left, the paralegal convinced him to drive her car several blocks from a parking garage to a new parking space. As he did, he was arrested for DUI. The next morning, defense counsel touted the arrest to the media. Bar charges (a disciplinary complaint, not the tab for cocktails) accused the three lawyers of being involved in what appeared to be using the paralegal to set up opposing counsel.

The attorneys’ ethical violations didn’t end there as you can discover with a full reading of Feher’s post via the link provided above. But out focus is on the paralegal. That’s where I’ll let Elwell take over with an excerpt from her commentary “This Is So Wrong On So Many Levels:”

There has been a long, ongoing discussion in our profession about whether paralegals should have a certain level of paralegal education or whether it is sufficient to have experience alone. This article makes a good argument that, one way or another, in-depth education in legal ethics is critical for paralegals and all support staff. This subject deserves, and needs, special attention.

Being Too Influential

Monday, June 4th, 2012

ABA Journal.com recently posted an article entitled, “Staff of Reclusive Heiress Coerced Her Out of $44M in Gifts, Executor Says,” regarding an action brought against nurses, doctors, a hospital, a lawyer and an accountant for reclusive heiress Huguette Clark claiming they coerced or influenced her out of more than $44 million in gifts. I know nothing more about the facts of the case and whether or not Clark was unduly influenced by these people. However, the article raises some issues addressed here previously and at least one that has not yet been the focus of a post here, although it is discussed extensively in The Empowered Paralegal: Working with the Elder Client.

One previously discussed issue is the role of a paralegal as a “watchdog” both in general and with regard to practices within ones own law firm. That is, it is incumbent upon the professional paralegal to see can be seen and sometimes notice what is not there to be seen, make an appropriate record and when necessary “do the right thing.” Another is how a paralegal should handle ethical violation on the part of an attorney.

Not previously discussed and thus the focus here is the danger that legal professionals might unduly influence their clients without intending to do so. Consider this excerpt from Working with the Elder Client:

Avoiding unintentional undue influence by the legal professional

The importance of the various methods of making advance decisions is that the client can make the decision that best suits their own beliefs. Having a living will or an advanced health care directive does not compel a client to choose an approach in opposition to their own beliefs. It simply allows them to make the decision rather than leave it to someone else, someone who may not share their beliefs. Establishing a “fair” estate plan, must be done using the client’s conception of fairness, not ours.

We must be careful in discussing these options with clients that we do not judge their decisions or let them feel we do not approve of their decision. As noted previously, the elderly, especially those who are seriously ill, can be particularly vulnerable to outside influences. While many people become less concerned about what others think of them as they grow older, some others suffer from loss of a sense of self that can make them more susceptible to such influence. Our role is to assist the client in determining and effectuating their wishes, not to judge, shame, or persuade the client to our way of thinking.

It is often difficult to gauge our own prejudices and the way they affect our demeanor and approach to client. It is important that we reflect carefully on our own preferences. For example, it is my belief that options for making decisions regarding end-of-life healthcare can be arranged in a descending order, i.e., that the first is better than the second, the second better than the third, and so on.

I view these options as belonging to one of three categories. In the first, the client makes as many health care decisions for himself in advance as he can and designates someone to make only those decisions which were not anticipated in advance. In the second, the client makes no decisions in advance except the designation of the person or persons who will make necessary decisions on her behalf. Finally, there is the option of taking no action. In this instance, the client should understand that taking no action is itself making a decision. The client decides to allow someone designated by state law to make the decisions on her behalf. However, throughout the discussion we must keep in mind that the paralegal’s role is to inform (and for the attorney to advise), not to convince or persuade, a client even unintentionally…

As discussed extensively in Working, it is often difficult to tell when a client is being unduly influenced by outsiders. It can be even more difficult when we ourselves are involved, even when that involvement is nothing more than the very provision of legal services for which our clients have turned to us.

Seeking Whistleblower Status Based on Ethics Violations May Leave You Blowin in the Wind

Monday, January 23rd, 2012

In a series of posts on handling unethical conduct by the attorney for whom you work, I’ve emphasized the advisability of reaching out to others rather than attempting to handle the situation on your own. While other paralegals and paralegal associations can be quite helpful, I’ve advised getting legal advice from an attorney outside of your firm (indeed, I’d shoot for attorneys that do not even deal with your firm on a regular basis.) One advantage of going to an attorney is that you are protected by the attorney/client privilege.

In those posts I’ve pointed out that there may be some protection in “Whistleblower statutes.” A recent post on ABAJournal.com</em>illustrates how nebulous that protection can be and how important it is to get competent, objective, outside advice. The story itself involves an attempt to use whistleblower status by an attorney, but the principle of the case would apply to paralegals as well:

A federal judge has dismissed a suit by an associate who claims he was fired from his personal injury law firm for refusing to participate in an unethical referral scheme.

An illegal discharge claim can’t be premised on a violation of legal ethics rules, according to the Dec. 29 opinion by Judge John Heyburn II of Louisville, Ky. The ABA/BNA Lawyers’ Manual on Professional Conduct summarizes the decision.

…Heyburn said the allegations did not support a claim of illegal discharge. Employees in Kentucky can be fired at will, and the state allows a public policy exception based only on constitutional or statutory provisions, he said.

Gadlage had said his firing violated the public policy against lawyer conflicts of interest expressed in Kentucky Supreme Court rules. But a public policy from a court rule is insufficient to support a wrongful discharge claim in Kentucky, Heyburn said.

“This is not a pretty business that Mr. Gadlage has seen and fought against in his own way,” Heyburn wrote. “Unfortunately, Kentucky does not afford him a legal remedy in these circumstances.”

While this may not be the last word on the topic, even in Kentucky, the analysis seems valid based on the law in several states I’ve reviewed.

Cleaning Up Facebook Leads to Sanctions

Wednesday, November 9th, 2011

In a previous post I noted this admonition from an analysis by H. Christopher Boehning and Daniel J. Toal of  a recent article published in the Delaware Law Review, in which attorney Margaret DiBianca ” identified a number of these novel ethical issues:

Upon learning that a client’s social networking site contains information that is potentially harmful to a claim or defense, a lawyer may be tempted to advise the client to remove the harmful content. To do so, however, would risk running afoul of Rule 3.4 (a), and incurring sanctions for spoliation of evidence.

Failure to heed that warning (although the events recounted here likely occurred before the warning appeared in the article) has indeed lead to significant sanctions for an attorney (and the attorney’s client) who directed his paralegal to direct his client to “clean up” his Facebook page. The sanctions? Well, they totaled $722,000 (to be paid presumably out of a $5,000,000 judgment the client had obtain against the defendant in the proceeding in which the sanctions were issued. Here’s more:

”According to a September 1 order from Judge Hogshire, the spoliation began in March 25, 2009, when Murray received a discovery request for the contents of Lester’s Facebook account. Attached was a photo of Lester wearing a ‘I [heart] hot moms” t-shirt, and holding a beer can with other young adults.
Murray instructed a paralegal to tell Lester to ”clean up” his Facebook page because, ”we don’t want blowups of this stuff at trial,” the assistant, Marlina Smith, said in a disposition. She emailed that message to Lester the next day.
On March 26, 2009, according to the judge’s order, Murray came up with a scheme to take down or deactivate Lester’s Facebook account so that he could respond that he has no Facebook page on the date the discovery request was signed.
When defense attorneys filed a motion to compel, Murray instructed Lester to reactivate the account. But in a December 16 2009, deposition, Lester denied deactivating the account.
Murray is also accused of withholding the email from Smith instructing Lester to clean up his Facebook page when he was ordered to produce it shortly before the trial began. Murray falsely claimed after the trial that the omission was the paralegal’s mistake, according to the court order.”

The rest is here from JDJournal.com, but this is enough to bring me to the second point of this story that is worthy of comment:

 “Murray [the attorney] falsely claimed after the trial that the omission was the paralegal’s mistake, according to the court order.”

On second thought, it is probably not in need of comment as it seems to speak volumes all by itself.

Passing the blame

Tuesday, September 27th, 2011

In a story about another case of attorney/paralegal embezzlement of client funds, TampaBay.com reports,

A paralegal and her attorney boss spent about $70,000 of clients’ money on shopping sprees, lavish lunches and vacations. They got caught. Each blamed the other for being primarily responsible.

And these two were friends! We will likely never know the extent of each person’s responsibility here. Certainly, the attorney has ultimate responsibility because she’s the attorney, but the paralegal does have a past that indicates she may not be entirrely at fault:

…Lausburg had been implicated in crimes before. In 2005, she pleaded guilty to forgery and uttering a forged instrument after she was accused of forging the signature of a circuit court judge. At that May 2010 hearing, Andrews said Lausburg was “at least as culpable if not more culpable than Ms. Miller.”

The story raises many issues. There is always, I suppose, the potential that an attorney will at least attempt to blame a paralegal for misconduct or even missed deadlines that are really the attorney’s fault. However, there are steps paralegals can do to protect themselves:

1. Do your jobs and do them well. Do it with integrity at every step.  Document what you do;

2. Do NOT become even tangentally involved in unethical or criminal conduct;

3. Do quit a job if you are being asked to or told to engage in serious unethical conduct or any criminal conduct. (The “serious” is there only because I consider “Tell the client I’m not in” to be unethical – it is a lie, but I would not advise a paralegal to quit his job over it;)

4. Do report serious unethical behavior and criminal conduct to the proper authorities (unless prohibited by the rules governing client confidentiality; and,

5. Do consult with an independent attorney before deciding to do  or not do numbers 3 and 4.

 

When a client emails from work…

Wednesday, September 14th, 2011

According to ABAJournal.com (in a story brought to my attention through the KNOW: The Magazine for ParalegalsLinkedIn Group forum) the ABA Standing Committee on Ethics and Professional Responsibility has issued an opinion that under the ABA Model Rules of Professional Conduct if a client is emailing his or her lawyer from a work computer or an employer’s electronic device, there’s a good chance that the communication could be intercepted by the employer. This in turn may impose a duty on the lawyer to warn the client “of the potential confidentiality concern.”

This opinion is, of course, only an opinion and it is based on the Model Rules, which may not be applicable to your state. However, it appears well reasoned. While the opinion and the rules themselves apply directly only to the attorney member of the legal team, this is of particular concern for paralegals because in many instances the paralegal is the primarly liason between the client and the law office. This means it will be the paralegal, not the attorney who will have the primary indication that the client is emailing from her workplace and should be warned of the confidentiality implications.

When this happens it is likely that the paralegal will have an inclination to so warn the client. However, “warn” appears to be a form of “advise” and paralegals cannot give legal advice. So, the correct step would be for the paralegal to bring the matter to the attention of the attorney. Alternatively, the law office could have a standard policy together with standard language to address this issue. If would be best to inform the client of the potential problem at the intial interview and request that all email be done through non-work devices and servers. In the event that the client “forgets” there can be a standing direction from the attorney to the paralegal to remind the client via the standard warning language.

Another Problem with Social Networks – Not Using Them Enough!

Wednesday, August 17th, 2011

Through posts from Patti’s Paralegal Page and Lawyerist.comI read “Ethical Bounds of Using Evidence From Social Networks” at Law.com. While much of the article covers well-tred ground (especially by Lynne DeVenny of Practical Paralegalism. But this article by H. Christopher Boehning and Daniel J. Toal includes analysis of  a recent article published in the Delaware Law Review, in which attorney Margaret DiBianca ” identified a number of these novel ethical issues.” In essence the article points out that given the prevalence of social networking, it may be a violation of an attorney’s ethical obligations of competent representation, diligent representation, and preservation of evidence not to become of aware of evidence available on social network sites for all parties to litigation. For example, they point out, ”

Preservation of evidence. Under Rule 3.4 (a) (1) of New York’s Code of Professional Conduct, a lawyer may “not suppress any evidence that the lawyer or the client has an obligation to reveal or produce.” The duty to preserve relevant evidence — including “computerized information” — attaches upon the reasonable foreseeability of litigation.

Upon learning that a client’s social networking site contains information that is potentially harmful to a claim or defense, a lawyer may be tempted to advise the client to remove the harmful content.[FOOTNOTE 12] To do so, however, would risk running afoul of Rule 3.4 (a), and incurring sanctions for spoliation of evidence.[FOOTNOTE 13]

A lawyer cannot, however, attempt to preserve that which he does not know exists. This is yet another reason why lawyers should familiarize themselves with clients’ online activities — to ensure compliance with the rules of discovery.

Since checking the internet for possible evidence is typically a paralegal’s job, take a moment to click through and read the entire article. Then make an addition to your case startup checklist!

Do Not Do This.

Tuesday, June 28th, 2011

I’ve done several posts here on the paralegal’s responsibility when  confronted with “bad” (unethical) behavior by the attorneys for whom they work and make several suggestions as to how to handle that responsibility. Today I’m simply going to copy a post from ABAJournal.com and say, “Don Not Do This.” Ever. No matter what.

Rising Star’ in NJ Bar Charged in Hit-and-Run; Legal Assistant

Initially Took the Blame for Crash

 

If it even begins to sound like a good idea, call or email me.

Not Doing Nothing -The Paralegal Voice on Ethics and Professionalism.

Monday, June 13th, 2011

It’s been awhile, I know. But I’ve not been doing nothing. Two children graduated (one in Providence and one from grad school at NYU – both summa!). So we drove from Mississippi to Providence, then to NYC, then back to Providence, then up to Maine where I’ve been holed up in a cottage re-charging while indexing and doing final edits on The Empowered Paralegal Professionalism Anthology, editing a student’s Masters thesis, conducting an online course, working on The Empowered Paralegal Cause of Action Handbook,etc. What I have not been doing (obviously) is posting here. However, with the Anthology behind me, I’m likely to get back to regular posting.

In the meantime there are a whole lot of people who really have not been doing nothing and I’m just catching up with what they’ve been doing. As usual Vicki Voisin, The Paralegal Mentor, and Lynne Devenny of Practical Paralegalism top the “active” list with blog posts, newletters, speaking engagement, etc. However, the item you should catch if you haven’t already, is the latest edition of their The Paralegal Voice:

Ethics and professionalism are essential to becoming a successful paralegal. On this edition of The Paralegal Voice, co-hosts Lynne DeVenny and Vicki Voisin welcome paralegal, Camille Stell, Director of Client Services for Lawyers Mutual, who provides ethics tips for paralegals, talks about how paralegals can assist attorneys in the area of client communications and what paralegals can do every day to maintain the highest level of professionalism.

This is an important topic and Lynne and Vicki handle it well!

 

When the client marries at age 85 and in ill health…

Wednesday, March 9th, 2011

A number of posts here lately have dealt indications that our elderly clients are being abused and the paralegal’s role in being aware of those indications. The most recent post noted that on occasion the issue arises out of conduct of the attorney with regard to the client. As if to emphasize my point, there’s this from Legal Profession Blog today:

A story posted today at SFGate.com describes a recent California disciplinary action:

A veteran Pacifica attorney is facing disbarment for allegedly duping an 85-year-old client into giving her $339,000, entering into a sham marriage with him and ignoring his will by having him cremated after his death.

Linda Lowney “took advantage of a lonely, sick old man” and thwarted his intent to transfer his estate to his nieces, Judge Pat McElroy of the State Bar Court said Friday.

She ordered the immediate suspension of Lowney, who has practiced law since 1978 and had no disciplinary actions on her record. The disbarment could be appealed to the state Supreme Court, but Lowney’s attorney, Jonathan Arons, said Tuesday he had little hope that such an appeal would succeed, despite his disagreement with the ruling.

“I think they (the court) misunderstood the relationship,” Arons said. “This was a marriage.”

The attorney was 54 when she married a man who was “85 and in poor health.”

According to SFGate:

Lowney also sued for a share of Tollefsen’s estate. A state appeals court ruled against her in 2009, suggested “financial abuse of elders” was involved and referred the case to the State Bar.

While I have no knowledge other than this, I suspect a paralegal was a witness in these matters!

h/t ABAJournal.com who notes:

Back in 2002, Linda Lowney drafted a will for her client, Thor Tollefsen, that provided for his estate to go to his sister and two nieces in Norway.

But by 2005 the 54-year-old California attorney had become involved with Tollefsen, 85. He gave her $339,000, with his nieces’ consent, and the two got married in January 2006, using a confidential license, reports the San Francisco Chronicle.