Posts Tagged ‘supervising attorney’

The Supervising Attorney as Brother’s Keeper

Tuesday, October 30th, 2012

Yes, it’s been a while, but No I’ve not been back in the hospital. Thanks to all those who asked. I’ve been traveling to conferences and back to Maine and, thus, getting further and further behind in my regular work, so I’ve not been blogging in order to catch up. I’m just now getting to reading email and postings on other blogs from the last few weeks.

One topic that caught my eye was a pair of posts regarding misconduct by legal professionals. Normally when I spot a story regarding embezzlement by a paralegal I go on a bit of rant about the failure of the supervising attorney to supervise the paralegal. After all, the paralegals are not supposed to work independently. I felt somewhat vindicated in this position when I read the ABA Journal post on an attorney who was reprimanded for failing to supervise his own brother, even though he reported his brother’s embezzlement:

Peter J. Galasso, a New York lawyer, should have been his brother’s keeper, the New York Court of Appeals found Tuesday.

Anthony Galasso was the office manager at the firm that was then known as Galasso & Langione, and Peter Galasso told authorities that his brother embezzled millions of dollars from client funds, Newsday reports. Nevertheless, the state’s high court found that Peter Galasso did not properly supervise the work of his brother, who spent the money on Barbra Streisand tickets and a Mercedes-Benz, among other things.

So naturally I was ready to go on another tear when I saw this headline: “Paralegal pleads guilty to embezzling $311,000 from elderly client,” especially since it involved financial abuse an elder client – another area that easily rankles me (See Elder Clients and Elder Law category.)

But this one is a bit problematical. The paralegal was working at a law firm, but “Blood, 56, a paralegal at Hiscock & Barclay’s Buffalo offices … took on the task for the widow as a side job,” and began writing out checks from the widow’s accounts to herself. It’s not clear how this “side-job” came about. Certainly if the 77 year-old widow was a client of the firm and the side-job was known to the firm, a case could be made that there is still an obligation on the part of the firm to make sure its employee was not ripping off the client, but it is not a clear-cut case. The firm , “told The Buffalo News that the thefts from the heiress “occurred outside her employment” at the law firm. They also said she is “no longer employed by the firm.”

In the end, I have to agree with the widow: Trust, but verify,’ ” she said. She urged people who entrust others to keep track of their finances, even if they’re family members, to keep tabs on what’s going on. “Look at me,” she said. “I’m not a stupid bunny.” However, many elderly are not able to verify and do not have trusted family members to do it for them. So one can’t help but wonder whether the firm should have done more verifying in this case. I like to hear from anyone who knows more about the facts of this case and, of course, from any one who has a reasoned opinion on the issues it raises.

Attorney Supervision of Freelance Paralegals

Monday, August 16th, 2010

I have advocated here for the proposition that attorneys have an obligation to paralegals, as well as the public, to provide adequate supervision to the paralegals with whom they work. And I have often commented that cases involving paralegal embezzlement raise real questions regarding whether the attorneys supervising the embezzling paralegal have provided adequate supervision. The issue is, however, not clear cut as there are few clear standards as to what constitutes adequate supervision. The issue is even more complex when the attorney contracts with a freelance or virtual paralegal for services.

This story excerpted from the Law Times involves a Canadian attorney and paralegal, but it illustrates the point:

A lawyer who worked with former paralegal Shellee Spinks, who stole $2.6 million from clients, denies he could have done anything to stop her.

Spinks used an old trust account belonging to Hamilton, Ont., lawyer Michael Puskas’ law firm to deposit funds for mortgage transactions and then transferred the money to a personal account at the same bank to feed her gambling habit.

Sentencing the former paralegal to four years in jail on Aug 5, Ontario Superior Court Justice Barry Matheson was left to wonder how she got away with it for so long.

“How it went undetected is a mystery to me. Did the lawyers not check on their paralegal?” asked Matheson. “Did the law society not check on the trust accounts of the firm? Many questions remain unanswered.”

The court heard Spinks worked for Puskas between 2002 and 2008, when she was arrested. But Puskas tells Law Times his relationship with Spinks, who operated an office in the same building as him, was always at arm’s-length.

He says he contracted her to assist him on real estate files, but she was never his employee.
“These were all files of which I wasn’t aware. If someone is suggesting I should have been breaking into her office and reviewing her filing cabinet, that’s putting a heavy onus on me,” says Puskas.

He says he asked Spinks to close down the trust account in September 2006 because he was transitioning from sole practice to a partnership and no longer needed the old trust account.

“She told me she had closed it. She had me sign a cheque to transfer the remaining funds out of it into the new account. Unfortunately I relied upon her advice that she had indeed shut it down,” says Puskas.

The attorney is correct that “If someone is suggesting I should have been breaking into her office and reviewing her filing cabinet, that’s putting a heavy onus on [the atorney],” but it hardly seems anyone is suggesting that. Surely there are steps lesser steps that the attorney can put into place. I seldom agreed with Ronald Reagan, but as I argued in a previous post there is significant merit to his signature line: “Trust, but verify.” While the attorney need not be responsible for the paralegal’s other clients and other accounts, it is possible and necessary to verify what is being done for his clients and with his accounts.

What do all you freelance and virtual paralegals think about this?

Attorneys’ Ethical Obligations to Paralegals

Sunday, September 13th, 2009

One visitor to this blog arrived via an inquiry regarding an attorney’s ethical obligations to his or her paralegal.  Certainly attorneys have at least the same ethical obligations to their paralegals as any employer has to their employees. (In my opinion there is a vast variance between an employer’s legal obligations to employees and an employer’s ethical obligations, a variance greater than in many other areas.) One ethical obligation, however, stands out because it is specifically incorporated into the ABA Model Rules – the duty to supervise. Model Rule 5.3 states,

Rule 5.3 Responsibilities Regarding Nonlawyer Assistants

With respect to a nonlawyer employed or retained by or associated with a lawyer:

(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer;

(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and

(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:

(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or

(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

Thus, the attorney has an ethical obligation to supervise paralegals that incorporates all other ethical obligations. Now, this obligation is frequently viewed as a rule imposed as an additional protection of the public similar to vicarious liability and the doctrine of respondeat superior. It certainly serves that role. However, I would argue that this is also an ethical obligation that the attorney owes to the paralegal. Yes, a paralegal has a right to adequate supervision from his attorney.

After all, the attorney and paralegal form an essential part of the legal team. Part of the teamwork requires that the attorney supervise the paralegal. The attorney cannot rightly simply send the paralegal off to accomplish a task without adequate instruction, training, and supervision, and then complain when the task is not completed to the attorney’s liking. At the very least the attorney must be available and open to communication from the paralegal seeking guidance.

This obligation to supervise is somewhat confusing as there is a lack of specificity as to what the constituent elements of “reasonable supervision” are. As previously discussed on this blog, there is also a great deal of confusion arising from uncertainty among the bar as to exactly what a paralegal is and what they can do. Nonetheless, it is the attorney’s responsibility to provide “reasonable supervision.”

This, in my view, is not a one-way obligation. There is confusion and the confusion is understandable given the current status of the paralegal profession. There is, however, at least,one member of the legal team that does know the capabilities of the paralegal and how much instruction, training, guidance and supervision is needed by the paralegal. That person is the paralegal.

You, the paralegal, have a right to reasonable and adequate supervision. You know when you need guidance. You know when you are not receiving adequate instruction. Take it upon yourself to make your needs known to your attorney through honest, direct, non-manipulative communication. If this is done diplomatically, both you and your attorney will benefit from the improved ability to work as a team

Some Thoughts on California

Monday, August 24th, 2009

California’s legislation relating to paralegals has come up in previous posts, particularly Independent Paralegals and UPL. The legislation capped “CAPA’s [California Alliance of Paralegal Association] longtime goal of obtaining a statutory definition of the paralegal/legal assistant titles came to fruition in 2000 with the passage of AB 1761, now codified as California Business and Professions Code sections 6450 et seq..”

The definition itself does not add much to that agreed upon by ABA and NALA:

6450. (a) “Paralegal” means a person who holds himself or herself out to be a paralegal, who is qualified by education, training, or work experience, who either contracts with or is employed by an attorney, law firm, corporation, governmental agency, or other entity, and who performs substantial legal work under the direction and supervision of an active member of the State Bar of California, as defined in Section 6060, or an attorney practicing law in the federal courts of this state, that has been specifically delegated by the attorney to him or her. Tasks performed by a paralegal include, but are not limited to, case planning, development, and management; legal research; interviewing clients; fact gathering and retrieving information; drafting and analyzing legal documents; collecting, compiling, and utilizing technical information to make an independent decision and recommendation to the supervising attorney; and representing clients before a state or federal administrative agency if that representation is permitted by statute, court rule, or administrative rule or regulation.

However, the legislation puts some meat on the bones of the phrase “who is qualified by education, training, or work experience,” stating,

(c) A paralegal shall possess at least one of the following:
   (1) A certificate of completion of a paralegal program approved by the American Bar Association.
   (2) A certificate of completion of a paralegal program at, or a degree from, a postsecondary institution that requires the successful
completion of a minimum of 24 semester, or equivalent, units in law-related courses and that has been accredited by a national or
regional accrediting organization or approved by the Bureau for Private Postsecondary and Vocational Education.
   (3) A baccalaureate degree or an advanced degree in any subject, a minimum of one year of law-related experience under the supervision
of an attorney who has been an active member of the State Bar of California for at least the preceding three years or who has
practiced in the federal courts of this state for at least the preceding three years, and a written declaration from this attorney
stating that the person is qualified to perform paralegal tasks.
   (4) A high school diploma or general equivalency diploma, a minimum of three years of law-related experience under the
supervision of an attorney who has been an active member of the State Bar of California for at least the preceding three years or who has
practiced in the federal courts of this state for at least the preceding three years, and a written declaration from this attorney
stating that the person is qualified to perform paralegal tasks. This experience and training shall be completed no later than December
31, 2003.
   (d) Every two years, commencing January 1, 2007, any person that is working as a paralegal shall be required to certify completion of
four hours of mandatory continuing legal education in legal ethics and four hours of mandatory continuing legal education in either
general law or in an area of specialized law. All continuing legal education courses shall meet the requirements of Section 6070.
Certification of these continuing education requirements shall be made with the paralegal's supervising attorney. The paralegal shall
be responsible for keeping a record of the paralegal's certifications.
   (e) A paralegal does not include a nonlawyer who provides legal services directly to members of the public, or a legal document
assistant or unlawful detainer assistant as defined in Section 6400, unless the person is a person described in subdivision (a).

Many persons within the paralegal profession argue against regulation of the profession. On the other hand, independent paralegals may point to the fact that this legislation was sought by CALA and question the motivation behind the legislation. Still other note that the preference given to ABA approved programs is intended to create or advance a monopoly by the ABA on the legal profession.

So the question remains, does minimal regulation such as California’s benefit the paralegal profession? Whether or not it does, does it benefit the public?