Posts Tagged ‘supervision’

Drug Lord’s Paralegal: “I have to be professional.”

Tuesday, October 13th, 2009

Denverpost.com reports on Lourdes Mederos, a paralegal working with incarcerated drug cartel kingpins in ADX Florence prison:

Lulu, 28, is bilingual, street smart and gorgeous. She moved to Florence from her native Miami last year for proximity to the incarcerated cartel leaders able to pay for her attention…

ADX Florence houses convicts the feds have deemed in need of the tightest control. It isolates them in solitary confinement. Visits are allowed only with family members — most of whom live nowhere near Colorado — or people designated as part of their legal teams.

Upon Lulu’s arrival in Florence, word spread among Latino drug lords in the prison that her one-woman LM Paralegal Inc. was available for hire

Each week, usually twice for Huerta and Matta Lopez, the inmates’ out-of-state lawyers pay Lulu $125 an hour to visit their clients, generally for most of the workday. She delivers legal documents and conveys messages about the many lawsuits each has filed against the federal Bureau of Prisons. Their complaints range from the tightness of their shackles to guards’ inability to speak Spanish to long waiting lists for vision care or hernia surgery. The cases are distractions from lives led in mind-numbing isolation.

Lulu offers company and conversation, the ultimate luxury in a prison where, she says, “you could die and nobody would know.”

Lulu makes a point of visiting on holidays. She’s careful never to be late. And she abides by ADX’s rules prohibiting her from showing cleavage or wearing skirts that fall above the knee. After all, she says, “I have to be professional.”

“These aren’t my boyfriends. I can’t be flirting or anything like that. They videotape our visits. There are a lot of eyes on me when I’m at my job,” she says.

Still, she’s confident her clients like the way she works. If they didn’t, “they would have cut me off a long time ago.” [Emphasis added.]

“They’re bad boys and I love working with bad boys,” she adds. “My line of work, it’s recession-proof. They ain’t going anywhere. I’ve got my own place. I’m my own boss. I’m able to help my family out. I’m living, for me, the American dream.”

Despite the headline, it should be noted that Ms. Mederos is not the drug lords’ paralegal. She is hired by, and works for, out-of-state attorneys. I assume that those attorneys have obtained permission to practice in her state. Otherwise a number of issues arise regarding attorney supervision, e.g., does it count if the attorney superivising the paralegal is not licensed in the state where the paralegal is performing services, and does sending a paralegal to visit a client and deliver legal documents constitute practicing law in a state where the attorney is not licensed?

In any case, it is good to see the Ms. Mederos remains professional in performing her job.

Communication and the Attorney-Paralegal Relationship

Tuesday, October 6th, 2009

The keys to an effective, sustainable attorney/paralegal relationship include respect for each others role on the legal team and communication about and within those roles. You can greatly improve the respect you receive from your attorney through professional conduct and high quality work (as opposed to just satisfactory work.)

In previous posts I’ve discussed, however, the confusion that may exist over the role of the paralegal. That confusion results not only in a less effective legal team, but in frustration and unhappiness on the part of both the attorney and paralegal.

You can help reduce the confusion by being aware of the potential for it, being clear in your own mind about what you can and cannot do, and being willing to talk to your attorney about it in an open, honest and non-confrontational way. This is especially true in obtaining the instructions you need to do your job correctly.

No one benefits from you spending four hours completing a research project only to find out you did not understand what the attorney was asking. Nor is it beneficial to spend four hours completing a project you do understand if a few clarifying questions would have made it a one hour project.  On the other hand, receiving highly detailed instructions or only unchallenging tasks that require little or no instruction wastes the attorney’s time, under utilizes you as a paralegal which wastes the attorney’s money and your competence, and leads to frustration on your part, if not his.

However, it is not likely that he did this intentionally. More likely, he was simply unaware that more was needed, either because that is his management style, he made faulty assumptions or he has an insufficient understanding of what you in particular or paralegals in general can do. He cannot read your mind, and you cannot read his.

So you can see that obtaining proper instructions means instructing the attorney.  We come back again to basic communication. In subsequent posts, I’ll discuss some measures you can take to prevent and resolve these difficulties.

What Is Adequate Supervision?

Wednesday, September 30th, 2009

A situation reported in the New Haven Independent looks to be a case of inadequate supervision of a paralegal by an attorney. The setup is sort of complicated but here’s the short version. A paralegal is acting as an “advocate” for a teacher at a termination hearing in front of a local board of education. The teacher accessed school records over the internet to obtain allegedly confidential student information “to give to her paralegal for use in her case” thereby perhaps violating federal privacy law. (I know something about these laws, but this is not the place for my opinion on that issue, so I’ve included the standard waffling language.) According to the report,

The disclosure that the Farina legal team had the confidential test information from fourth-grade students at the Murphy school came from Mica Notz, Farina’s paralegal, who is acting as her advocate at the hearing. Notz, who is not an attorney, has sought the data for months.

But that’s not all:

A subpoena had been issued but not properly served, Rose said. So the matter was in legal limbo when Farina went into the data base…

As the afternoon session began, Notz created more pandemonium when she declared that Connon, whose role is equivalent to an administrative judge, had personally interviewed 14 teachers at the Murphy school as potential witnesses for the school district. Connon said he had done no such thing and that she had accused him wrongly.

Attorney Rose, who represents the district, immediately told the committee he was the interviewer. Logically he would have to be; he is calling witnesses and presenting the evidence for termination. But even after Rose openly declared he had gone to the school to interview these witnesses, Notz did not believe him. She said she had an email from a state union official who identified the lawyer as Connon. She would not step back from her belief until she checked further, she said….

Nor was it clear if Notz would face investigation. The actions of the paralegal raise questions.

I agree that these events raise questions, but I’m not so sure that Notz’ conduct is what should be investigated – at least not that conduct alone. Here is where the real questions arise:

At this hearing the firm’s leader, Eugene Axelrod, was not at her side. On Friday a young attorney named Robert Mollen sat at the table. Mollen did not intervene as Axelrod has. Nor did he try to keep Notz in check as Axelrod has. She was on her own. (Emphasis added.)

I’ve posted recently on a paralegal’s right to adequate supervision. One difficulty is the confusion among the bar regarding what a paralegal is and what a paralegal can do, a topic that has been discussed here often. (It may be that in this instance there was also inadequate supervision of the young attorney.)

Many problems that arise from a law office’s use of paralegals could best be avoid through adequate training not of the paralegals, but of the attorneys. The attorneys need to know what the role of a paralegal is, what the attorney’s duty of supervision is, other ethical issues that can (and do) arise from utilization of paralegals, and how attorneys and paralegals work together as a legal team.

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

Paralegals Contributing In Another Way

Friday, September 4th, 2009

Through a press release on www.pr.com, Outsourced Paralegal Services has asserted a “Link Between Chapter 7 & 13 Bankruptcy Filings and Medical Bills:”

Outsourced Paralegal Services, LLC a company specializing in providing Chapter 7 and Chapter 13 consumer bankruptcy petition preparation and other relevant support services to attorneys has identified a direct correlation between chronic illness and medical bills, and filings for Chapter 7 & 13 bankruptcies throughout the Unites States.

According to Outsourced Paralegal Services President and Bankruptcy Paralegal, Patrick Campbell, “Our firm has prepared several hundred bankruptcy petitions for attorneys in the past year. I can corroborate the unsettling fact that approximately 65% of the consumer bankruptcy petitions that have come across my desk this year are for people who have, or who are still dealing with a chronic illness with medical bills in the thousands, and in some cases the tens of thousands of dollars. This is no longer simply something I read in the newspaper or watch on CNN. I have seen it in black and white first hand.”

This is interesting for several reasons. One is that it provides a starting point for a type of paralegal that has not previously been discussed on this blog – the paralegal who works as an independent contractor for a variety of attorneys. These paralegals are neither employees of special law offices in the traditional sense and the sense most discussed here. Nor are they “independent”paralegals in the sense of working directly with the public without attorney supervision as discussion several posts in the category “‘Independent’ Paralegals.”

 It is possible outsourced paralegals may provide a way balancing the competing interest of increasing access to the legal system by the public and providing protection for the public against the harms that arise from UPL. According to the press release, “Outsourced Paralegal Services provides law firms with the opportunity to outsource their workload to a senior level bankruptcy paralegal at half the cost of hiring a full time paralegal on staff.” The question, of course, in terms of providing greater public access to the legal system is whether the sole benefit of this is “conserving resources within a law firm” without that consevation of resources being passed on to the public thus making access more affordable.

Another interesting aspect is the way, not totally altruistic to be sure, that these particular paralegals used their expertise to contribute some hard data and some research to a public debate. There is a tremendous amount of talent and expertise with the paralegal profession. Bringing that talent and expertise to bear on matters of public interest, if done properly, can help improve the public’s perception of paralegals as professionals.

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?

The Line Separating “Lawyers” From “Paralegal” Becomes Blurred

Friday, August 7th, 2009

Lynne at Practical Paralegalism has a good post entitled, “Paralegals, Watch Your Backs! Out-of-Work Lawyers Want Your Jobs. ”  The post discusses a story that also caught my eye describing how the recession has resulted in lay-offs of almost 6,000 lawyers that, according to Lawshucks.com, a Web site that tracks legal layoffs – are willing to work in the legal industry as paralegals, law librarians and legal secretaries.

This is of particular interest to me as an academic researching paralegalism in other countries. (An interest, therefore, of far less import than that of practicing paralegals who may feel threatened by this development.) On a recent trip to London I learned that the term “paralegal” is taking on a new meaning for a similar reason. In England law students “study law” for four years at the Bachelor’s level, then take a one-year “legal practice” program before entering into a two-year training program under contract with one of the “chambers” authorized to practice before the courts. The problem is that every year there are almost twice as many graduates of the Bachelor level programs as there are “chambers” contracts available.

Those graduates who do not get the contracts have become a pool of individuals who call themselves “paralegals.” However, these “paralegals” are not subject to the same restrictions as paralegals in the United States, so many end up setting up their own practices and working directly with clients without the supervision of attorneys. In England, people needing legal services still have a common law right to chose the person from whom they receive those services, so the paralegals are on safe footing as long as they make it clear they are not solicitors or barristers.  I had the pleasure of meeting with one such practitioner who maintains his own office with two other “paralegals” who work under his direction and others staff. The office serves mainly people who have legal problems dealing with immigration. The immigration service has granted him the right to represent his clients before the immigration courts.

This is, of course, a grossly simplified statement of the British system. I will explain further in later posts. I will also post regarding groups of paralegals like one of which I am aware in Portland, Maine, that runs their own independent office, but provides services to attorneys on a contract basis.