Posts Tagged ‘role’

Sierra Leone – Empowering the poor through community-based paralegals

Saturday, April 10th, 2010

Sonkita Conteh, LLM, LLB (Hons), BL, Barrister and Solicitor of the High Court of Sierra Leone, has been advocating that Sierra Leone  provide legal empowerment to the poor to rectify a severe  imbalance in access to justice. He states, “one principally effective and inexpensive way [this] has been through [is] the use of community-based paralegals.” In an article yesterday in Sierra Express Media he notes that the process of paralegal utilization is impeded by “misconceptions about paralegal” among lawyers.

Paralegals in Sierra Leone are different than paralegals in the United States, although Conteh notes that “In terms of litigation, paralegals can and do provide lawyers with support services- filing and serving documents, chasing up witnesses, taking down notes during court sessions and more.” However, apparently there is enough similarity that the misconceptions among lawyers there are similar to those held here. Take, for example, number six, of the ten misconceptions he attempts to correct:

While lawyers and paralegals may not have the same level or type of skill set, it is unfair and indefensible to hold that paralegals provide substandard services. The error is in trying to equate the work of a paralegal to that of a lawyer. Paralegals may not carry out forcible mergers and hostile takeovers because they are not trained for that and may not display the standard of drafting excellence or oratorical wit of a lawyer. Yet, they can mediate and ensure that a child is maintained in some far flung rural outpost where lawyers have never trod or help farmers get the much needed seed rice to plant before the sowing season ends. Justice problems vary in intensity and scope and cannot all be addressed by one person or group. Paralegals who tackle the ordinary, down-to-earth problems of communities contribute no less to the attainment of justice than their cousins who handle the more ‘glamorous’ matters. (Emphasis added)

Again, the context is different, but the error – not understanding the unique role of the paralegal – is one that remains a problem among many members of the American bar.

Controlling the Scream II

Thursday, April 8th, 2010

Yesterday I did a post  on one paralegal’s response to a question posted on the Paralegal Today listserv:

What do you do to relieve your stress level when all you want to do is scream, set your desk on fire and run away??
 
HELP!!    
 
 I liked that post because it worked in well with the concept of an empowered, professional paralegal taking control of that which you can take control. In many circumstances all  you can control is yourself. Realizing that and managing the consequences is, however, far better than any alternative. 
Today, I am following up with a response posted by Tina Brower Medlock, ACP:
Kimberly:  I’m going to take a stab at this, because it sounds like you are dealing with some of the same issues that I’ve dealt with before. Yes, some of your stress is that you’ve been out, you’re still recovering from being sick, and it is tax time.  That one gets me every year.  However, it sounds like a bigger issues for you are that (1) no one is listening to you when you raise a concern; and (2) you don’t like that things are going out when they’re incorrect.  The biggest thing I can suggest is to cover your behind.  If you think something is wrong, copy the reason you think it’s wrong (statute, rule, case note, etc.) and attach it to a WRITTEN memo or email to the attorney.  “I’m not sure if you saw this on x client’s file, but . . .”  Then, if she ignores you, you can put the memo in your file and move forward, knowing you did what you could.  And, if anyone calls you on it later, you can pull out exactly what you told her and when.  It takes a little time, but you will save yourself tons of worry and stress. 

I have the hardest time remembering something very simple:  it is the attorney’s signature, and the attorney’s work product.  If I do what I can to call something to their attention, and they choose to ignore me, then I am not at fault.  It’s not easy to do as a professional, but sometimes you have no other choice.   

This comment also demonstrates taking control of the situation to the extent possible, but adds the element of protecting the record and acknowledging the attorney/paralegal roles on the legal team. It takes two to make the legal team dance. When one member is not engaged in that dance, the other should both take steps to change the situation to the extent they can, manage the consequences when they cannot change the situation, and make a record of their efforts to protect themselves when (and if) the need arises.  

I’ve written in previous posts, KNOW: The Magazine for Paralegals. and The Empowered Paralegal about some steps to take with problem attorneys. When those steps do not work, or while you are attempting to get them to work, take heed of Tina’s advice.

Thanks for allowing me to use your comment, Tina!

Chosing to Sit in the Dark is Not Professional

Monday, April 5th, 2010

ABAJournal.com reports this morning on an attorney whose case was dismissed because he missed a notice of motion for summary judgment due to computer problems. More precisely though the problem was that he chose not to deal with the problem. 

A federal appeals court has upheld dismissal of a wrongful termination case granted after the plaintiff’s lawyer experienced computer problems and never got e-mail notice of a motion for summary judgment.

Lawyer Charles Everage of Charlotte, N.C., said his computer was afflicted by a malware virus and other problems. As a result he never learned of the motion and he didn’t respond to it. A trial judge dismissed the suit Everage had filed on behalf of a fired worker, and denied the lawyer’s motions to reinstate it.

The Richmond, Va.-based 4th U.S. Circuit Court of Appeals affirmed. Everage was aware of his computer troubles, the court said, and should have checked the court docket or informed the judge and opposing counsel of the situation.

Everage was “willfully blind,” the court said in a 2-1 opinion (PDF), and he can’t obtain relief from the consequences of his choices. The majority opinion by Judge Allyson Duncan noted Everage had testified that he chose not to call opposing lawyers because he didn’t want to alert them to the court’s deadline.

Everage “made the affirmative decision to remain in the dark,” Duncan wrote. A concurring opinion by Judge Andre Davis elaborated, referring to “counsel’s unwise and misplaced strategic choice to litigate, ostrich-like, with his head in the sand.”

Apparently Everage needed a good, professional, empowered paralegal who could identify the problem,  and analyze and implement solutions such as those suggested by the court. The professional paralegal does not simply complain about a problem or ignore a problem. Rather she or he takes control. If the problem cannot be solved, plans are made and implemented to determine and minimize the ill effects of the problem. A good paralegal, assuming Everage was willing to listen and work as a team with that paralegal, could have helped him arrive at solutions much better than role-playing an ostrich.

“There is space for all in a struggle for a better world”

Monday, March 29th, 2010

The quote is from “A renowned law academic, Prof Chris Maina Peter,” in Dar es Salaam, Tanzania, on Thursday shortly after “he received this year’s Lifetime Achievement Award, the highest honour offered by the Tanganyika Law Society (TLS) to a member who has shown outstanding dedication in promoting the rule of law and improving access to justice” according to a report in The Citizen. Here’s more of the report:

“It is gratifying to note that TLS is coordinating civil societies in urging the government to introduce paralegals in legal aid after realisation that there is no competition between advocates and paralegals.

There is space for all in a struggle for a better world and ensuring that there is a timely justice for all,“ said Prof Maina. He urged TLS to continue promoting the system and take it to new heights so as to make the lawyer’s body “a site of justice where the poor and marginalised members of our society run to for refuge in search for justice.“

The issue of paralegals first emerged in Tanzania in 1983s at a TLS meeting when a paper arguing for the introduction of a new cadre of law assistance which in other countrie was referred to as “barefoot lawyers.“

The idea received stiff resistance and has since then been neglected by authorities as an alternative in promoting timely justice.

However, the promotion of paralegals has gained unprecedented support by TLS which has in recent year undertaken to coordinate civil societies in urging the government to introduce the system.

As stated previously, the paralegal concept means something different in many countries than it does here. However, one constant factor in the conception is the thought that paralegals can help improve access to justice. One can only hope there will be greater recognition of this role everywhere, including the United States.

“Trust, but verify” – The attorney/paralegal relationship

Friday, March 26th, 2010

My old stomping grounds provides another story of a paralegal embezzling from the law office in which she worked. This time it’s only $80,000 – small change compared to some. These stories are always disheartening, even outside of the legal profession, but are especially so when they involve the attorney/paralegal relationship. On the one hand it is good that attorneys are recognizing the abilities and independence of the paralegal professionals who work with them. (In this post I won’t go off on a tangent about whether or not this individual paralegal was actually qualified to bear the “paralegal” title.)  However, the attorney/client relationship ought not to be one of two individuals working separately for a common purpose.

Attorneys and paralegal, at least under our system, are a legal team, each with their own role. The role of the attorney continues to be that of supervisor. That role requires that the attorney verify the work done by the attorney, including the work they do with client and office accounts. Thus, it is always a mystery to me how paralegals can embezzle so much without getting caught. (This is in no way a criticism of this particular attorney. I do not know him or any of the circumstances other than what is in the story.)

I attribute much of this to the continued confusion on the part of the bar regarding the proper role for paralegals as part of the legal team and the attorney’s responsibility to supervise the paralegal. I’ve previously posted that I view the duty to supervise as one that is owed to the paralegal as well as the public. It would be helpful for both the paralegal and the attorney professions for the attorneys to have an increased understanding. Thus, I encourage both bar and paralegal associations to include these topics in CLE presentations designed for attorneys. There is, after all, no rule saying that paralegal associations cannot educate attorneys. Paralegals do it in law offices hundreds of times every day. I am quite sure that I and many of may colleagues at AAfPE would be willing to assist in this effort.

More on Access to Justice

Saturday, March 13th, 2010

Giliam Hadfield, a Harvard law professor writing in The Washington Post argues for innovative approaches to low-cost, quality legal services. He makes several points that support statements made in my last two posts. Here are some excerpts:

The United States stands largely alone in advanced-market democracies in drastically restricting where and how people can get help with their legal problems. In all states, under rules created by bar associations and state supreme courts, only people with law degrees and who are admitted to the state bar can provide legal advice and services of any kind.

In England, Australia and the Netherlands, by contrast, a wide variety of professionals and experts can provide legal assistance.

Free legal aid clinics hardly fill the gap: Only 1 percent of the 1 million lawyers in the United State do either legal aid or public defender work; student-staffed law clinics can operate only under the supervision of a licensed attorney. Pro-bono hours at best amount to about 2 percent of total legal effort.

There’s nothing wrong with ensuring quality of service, but attacks on innovative providers in the United States go well beyond what can be justified in a world that looks so much to law to organize everyday life. They also go much further than other wise countries go.

My research suggests that Americans have a much higher rate of simply giving up in the face of legal difficulties, with effectively nowhere to turn if they cannot afford a lawyer who comes at a minimum price of $150 an hour. This means giving up on seeing their children or saving their homes or credit ratings or jobs. Unlike people in Britain, those facing legal problems in the United States can’t turn to local volunteer organizations, their unions or consumer organizations. They can’t buy what they need from entrepreneurs or the full-service stores like Wal-Mart that now package low-cost eye exams, insurance, banking and more with their diapers and detergents.

This may explain why in U.S. surveys 30 to 40 percent of Americans with an identifiable legal problem say they do nothing to resolve it, compared with just 5 percent in Britain. Yes, Britain spends far more public funds on ensuring access to justice — $76 in legal aid per capita compared with $13 in the States (including charitable contributions). But the critical difference is the widespread and diverse availability of help in Britain and other advanced-market democracies for people with legal troubles — not just criminal arrest but issues such as foreclosure, divorce, child custody, employment and bankruptcy. The United States urgently needs to expand capacity for non-lawyers to meet the legal needs of ordinary Americans in innovative and less costly ways.

As is no secret by now, this commentator argues that well-trained, well-regulated, professional paralegals provide one viable answer to the access to justice issue.

Can anyone call themselves a “paralegal?”

Friday, March 12th, 2010

John Stossel of Fox News says his show tonight will include “interview David Price, a Kansas City paralegal who went to jail for half a year because he helped 86- year old Eldon Ray write a letter defending himself against the charge of “unlicensed practice of architecture.”  I’ve never seen John’s show and, if the contect of the show is as misleading as the announcement, I suspect it is just as well. I’ve reviewed a number of news reports on Mr. Price’s situation. Perhaps the most comprehensive and clearest is here.

There are a lot of problems with John’s characterization of David Price, what Price did, and why his was in jail, but my chief concern here is that Price is characterized as a paralegal. It does not appear that Price has any education or training that would justify that designation.  He also has little experience other than having “challenged dozens of judges, attorneys and court officials in the Kansas justice system with a variety of lawsuits found to be frivolous by the state and federal courts.”

The story linked above states, ”

However, it becomes clear through his own admission that his personal battle with the legal system is deeply rooted in a domestic relations case that went awry. Court files indicate Price filed legal motions for four years to stop the adoption of his biological child after the court severed his parental rights in 2001 and allowed the mother of the child and her husband to voluntarily put the child up for adoption.

Price said the experience spurred his interest in the law, his distrust for the system and the desire to advise others.”

If the news reports are correct, while the experience spurred his interest in the law, it apparently did not spur any interest in obtaining education or training in the law before starting to give advice. Stossel appears to argue that there should be no government licensing of anyone. In essence any one should be able to say they are a paralegal, a lawyer, a doctor, or a pilot, regardless of their knowledge, training, education, or experience. Apparently he’d just let the free market decide whether they survive competing against those that have actual knowledge of the topic.

In my last post I suggested that UPL laws that restrict legal services solely to attorneys were not the best way to deal with the difficulties that arise when people go to non-lawyers for assistance because they cannot afford an attorney. Kansas acknowledges this problem. The story linked above includes this:

While nonlawyers aren’t permitted to advise pro se litigants, a committee established by the Kansas Supreme Court found a growing number of people need help in the court system.

Valdez, who serves as a member of the Kansas Supreme Court’s Pro Se Committee, said public education through town meetings and allowing limited scope assistance from attorneys may help.

“The pro se litigant issue isn’t going to go away,” Valdez said. “You’ll always have people who can’t afford lawyers. Going into it, you want to make sure they have enough knowledge.”

However, the way advocated by Stossell and Price is also not a viable solution. At the very least the government ought to require disclosure of creditials to consumers in a clear, prominent way. However, the public would be best served if there were standards in place that has to be met before someone is allowed to call themselves a paralegal. Mr. Stossel, David Price is not a paralegal.

 All that being said, the legal community must give much more thought to utilization of people who meet that standard to solve access to justice problems, including the possibility of allowing well qualified and regulated professionals to perform some basic legal services without the supervision of an attorney.  It should be noted here that our conception of paralegal varies significantly from the conception of paralegals in many, many other countries. Vivek Mairu, in a well crafted essay appearing in THE YALE JOURNAL OF INTERNATIONAL LAW [Vol. 31: 427] proposes a full definition, but starts with a statement that does appear to catch that conception, “In bare terms, paralegals who provide justice services are laypeople with basic training in law and formal government who assist poor and otherwise disempowered communities to remedy breaches of fundamental rights and freedoms.”

Not a Dead Horse

Monday, March 8th, 2010

The Paralegal Todaydiscussion forum has an thread started by a post entitled, “Not to beat a dead horse, but….” Here’s the gist of the post that started it:

Sad to say I had a conversation with one of the lawyers I work for and he said “don’t get caught up in titles, you are no different than the administrative assistants”. What do you think I should do? …

Now, please do not get me wrong, I think admins are marvelous  but I have a 4 year Bachelors, an Associates and a certificate as a paralegal. …

I am so discouraged. I was hired as a paralegal (I specifically mentioned how important that was to me) I do excellent work and don’t understand why there is still this attitude. I have worked so hard for respect and to create a niche where I add value.

Normally, I’d go into a long comment on this topic, since it is really what The Empowered Paralegal is all about, but on this one I’ll let some of the comments on the thread do the talking:

Obviously the attorney needs to be educated and is ignorant of the fact of what you REALLY do and what the profession REALLY does.
 IMHO, it’s up to you to educate him (depending on if he’s actually educatiable or is too set in his archaic mindset).  That or find another firm/attorney with a bit more modern mindset that gives you the respect you deserve.
 Course that’s MHO.  People like this are working on a mindset of 20 years ago.  Prehaps it’s time he came into the 21st Century.
_______________
 I understand his comment about not getting caught up in titles, but having a sit down discussion with him about his comment and letting him know you don’t mind helping him with a letter now and then, but that your work as a paralegal has deadlines that take priority and a secretary is more likely to be able to get the correspondence work out for him.  Don’t get discouraged, this is where you stand and fight for your turf.  Draw the line (but do it succinctly and professionally) letting him know you are the consummate professional and you have his clients’ best interest at heart.
_________
not to beat a dead horse… but why do you think there are paralegal utilization studies and the constant fight to get paralegals certified and blogs about The Empowered Paralegal?
 
Yes, we have to be team players and I do my share of copying (etc.) to manage the work flow for the day, but paralegals must continue to do the job of distinguishing themselves from the great assistants out there who have, by definition, a different job than we do.  They are good at what they do, assist the attorneys and other timekeepers.  We are good at what we do, provide substantive legal services that would otherwise have been provided by an attorney, under the supervision of an attorney.
 
I volunteer and am a board member of my paralegal association and obtained the PACE certificate for these very reasons.  To continue what I feel is a very strong need to further this profession – my profession – one paralegal at a time.  I want to continue to distinguish paralegals from secretarial assistants.
____________
In all fairness, I do believe that a lot of it comes down to the size of the firm, the area, and the age of the attorneys that you’re working with.  If you go with a sole practionier, you’re going to have to be a jack of all trades, including clerical/it/legal.  I can very vividly remember even here in Va. where 20-25 years ago, attitudes were the same as what Alison has stated.  Then a curious thing happened.  As the paralegal profession started to grow, and the more trained and educated paralegals that entered the profession, attitudes slowly changed.  The younger attorneys “grew up” with professional paralegals and they slowly replaced the dinosaurs with the attitudes Alison talked about.  There was also a difference between the eastern and western parts of the state and the way we were viewed.  The eastern part of Virginia had a more progressive attitude.  The western part was, shall we say, more conservative and old fashioned.  However, that’s changed too.  But again, it’s all in the size and progressiveness of the firm.

Lack of supervision of paralegal is problem for attorney

Monday, March 1st, 2010

Several posts here have discussed the duty an attorney owes ethically to supervise paralegals working with that attorney. In one post, I argued it is a duty owed not only to the public, but to the paralegal. Today’s Boston Globe reports that failure to supervise a paralegal has jeopardized the license a prominent Boston attorney:

Stephen B. Hrones, the well-known 68-year-old Boston criminal defense lawyer, is heading to the state’s highest court to fight to keep his law license, accused of letting a paralegal in his office pass himself off as a lawyer in the firm’s employment discrimination practice.

The state Board of Bar Overseers recommended in October that Hrones’s license be suspended for a year and a day for the alleged misconduct. The Supreme Judicial Court plans to hear appeals in May from Hrones, who says he deserves no suspension, and from the state’s bar counsel, which had recommended a two-year suspension.

Hrones denies much, but admits he did not provide adequate supervision:

Hrones – a bearded, Harvard-educated former Fulbright scholar who dubbed himself Mr. Innocence for getting the murder or rape convictions of four prisoners tossed, based on newly discovered evidence – denied Thursday that he had authorized former employee Lionel Porter to practice law. Hrones said the firm’s letterhead identified Porter as a paralegal but that Porter began doing things behind Hrones’s back, mishandling cases and clients’ fees.

“I was too trusting of this individual, and now I’m paying the price,’’ Hrones said in an interview. “I was done in by this guy, and I should have supervised him better. . . . But I didn’t hold him out as a lawyer.’’

Porter worked for Hrones from 2001 to 2004, handling employment discrimination cases before the Massachusetts Commission Against Discrimination and the federal Equal Employment Opportunity Commission even though he was, as Hrones knew, a law school graduate who had not been admitted to the bar.

Porter bungled a series of cases; got Hrones’s firm barred from appearing before MCAD, which short-circuited active cases; and kept clients’ fees for himself, according to the board’s Oct. 19 recommendation of suspension.

Although the work of paralegals can resemble that of lawyers, the board concluded that Porter went far beyond permitted tasks. Porter single-handedly managed the firm’s employment discrimination practice and drafted and filed complaints at his own initiative in Hrones’s name in federal and state courts, the board said. Hrones fired him in the fall of 2004 after learning that Porter had kept fees in violation of an agreement to split them.

I suspect we will see more cases like these as the system adjusts to the blurring of the line between the paralegal and lawyer roles that occurs when out-of-work lawyers take on the role of a paralegal. While even licensed attorneys can cause problems for a firm is not adequately supervised, the role of the paralegal in a legal team is distinctly different from the role of an attorney. Blurring that distinction will inevitably cause problems for the attorney, especially if, as is often the case, the attorney does not really understand the role of a paralegal.

But let me get this straight, the “paralegal” here “bungled a series of cases; got Hrones’s firm barred from appearing before MCAD, which short-circuited active cases,” but was fired only when the attorney learned the paralegal “kept fees in violation of an agreement to split them.”   Does Massachusetts not have an ethical role against the splitting of fees with non-lawyers? If so, it’s tough to make a case that the only thing the attorney did wrong here was failure to supervise.

Suggested Reading

Thursday, February 25th, 2010

It should be clear by now that I’m a fan of Practical Paralegalism and Paralegalese and recommend each of them be added to your RSS feed. In case they are not, please do take the time to check out these two recent posts which relate to topics discussed here with some regularity: “Today’s Quote: I Have a ‘Paraprofessional’ Headache” by Lynne DeVenny and “Legal Aid and Paralegals” by Melissa H.