Posts Tagged ‘tasks’

Distinguishing Clerical and Professional Tasks

Friday, July 9th, 2010

Most paralegals are charged with file management and other “clerical” tasks. In some small offices, even the attorneys must take on such tasks. The professional paralegals handles these tasks effectively and efficiently as part of their role in the legal team. Many paralegals are also charged with tracking and billing their time.  A recent case from the Nebraska United States Bankruptcy Court posted by Leagle.com deals with the relationship between the performance of clerical tasks and billing of time (among other issues). Here’s what the court has to say:

In addition to the matters discussed above, there is an issue concerning a law firm charging for secretarial or administrative functions, which, traditionally, have been treated as overhead and either not charged at all, or not charged at professional or paraprofessional rates.

There has been little guidance on this issue from courts in the Eighth Circuit. Most of the case law around the country suggests that “ministerial tasks” (typing, file organization, document preparation, searching or filing documents on PACER, etc.) performed by a professional or paraprofessional should not be allowed as a separate charge because it is part of the office overhead which should already be built into counsel’s hourly rate. See In re Dimas, LLC, 357 B.R. 563, 577 (Bankr. N.D. Calif. 2006) (“Services that are clerical in nature are not properly chargeable to the bankruptcy estate. They are not in the nature of professional services and must be absorbed by the applicant’s firm as an overhead expense.”). There is some older authority, however, for the proposition that the court should look at the “sum total” of the services rendered in determining whether a specialized service was performed which benefitted the estate, even if it was a clerical task performed by a professional. In re Interstate Restaurant Sys., Inc., 61 B.R. 945, 949 (S.D. Fla. 1986).

With regard to billing for clerical work, the Supreme Court said, in a case involving the award of attorney fees under the Civil Rights Act, that:

It has frequently been recognized in the lower courts that paralegals are capable of carrying out many tasks, under the supervision of an attorney, that might otherwise be performed by a lawyer and billed at a higher rate. Such work might include, for example, factual investigation, including locating and interviewing witnesses; assistance with depositions, interrogatories, and document production; compilation of statistical and financial data; checking legal citations; and drafting correspondence. Much such work lies in a gray area of tasks that might appropriately be performed either by an attorney or a paralegal. To the extent that fee applications under § 1988 are not permitted to bill for the work of paralegals at market rates, it would not be surprising to see a greater amount of such work performed by attorneys themselves, thus increasing the overall cost of litigation. Of course, purely clerical or secretarial tasks should not be billed at a paralegal rate, regardless of who performs them. What the court in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717 (CA5 1974), said in regard to the work of attorneys is applicable by analogy to paralegals: “It is appropriate to distinguish between legal work in the strict sense, and investigation, clerical work, compilation of facts and statistics and other work which can often be accomplished by non-lawyers but which a lawyer may do because he has no other help available. Such non-legal work may command a lesser rate. Its dollar value is not enhanced just because a lawyer does it.”

Missouri v. Jenkins, 491 U.S. 274, 288 n.10 (1989).

Many of the time entries in this fee application for work performed by the employees identified as paralegals appear to be, functionally, clerical. File setup, scanning, setting up appointments, would be considered, according to the authority cited above, clerical in nature and not billable. I will, therefore, discount the amount claimed as paralegal time. I suggest that in the future Mr. Skrupa, and other law firms using a similar billing system, review the functions performed by the “paralegals” and bill, or not bill, accordingly.

The court thus recognizes the value of paralegal professional services, but requires that clerical task time be built into the paralegal’s hourly rate, just as it is for the other professional on the legal team – the attorney.

A clerical task remains a clerical task whether done by a file clerk, a paralegal, or an attorney. Law office might want to take this into account when structuring the office. Since clerical tasks are not separately billable by a paralegal, it might make more sense to hire a file clerk as part of the office overhead and free up the paralegal time for professional work that can be billed separately. In The Empowered Paralegal: Effective, Efficient, and Professional, I discuss delegation of clerical tasks as one aspect of paralegal time management. There I attempt to assist paralegals in making the argument for hiring persons to whom clerical tasks can be delegated. This case supports that argument.

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?

Tracking Time for Non-Client and Non-paralegal Work – A Follow Up to “Paralegals: An Asset to Your Team”

Tuesday, August 11th, 2009

It is, of course, necessary to keep time records for all of your billable time. There are also reasons for you to track your time that are more practical to you. They involve non-billable time, that is, time not necessarily spent on client work or time spent on non-paralegal (and therefore non-billable) tasks.

One reason is that it allows you to advocate for yourself as an asset to the legal team and the law office. Time management often entails delegating tasks that may be better handled by someone with less skill than you. This may require hiring another full or part-time staff member. Convincing your attorney or office manager that this was the right thing to do may require some initiative on your part. Tracking your time may very well give you the ammunition you need.

Really, did you get your paralegal degree to spend time filing?  That alone is enough reason for you to track the time. But we’re not done yet.

A Job Description Sheet that includes estimates of the amount of time you spend doing particular tasks is a good starting point for time management. From that point you can move on to making plans and schedules to structure and manage time in a way that makes sense given the work you do.  However, the plans and schedules should not be matter of guess work.

The guess work is quite educated because you have a good grasp of your job and what it entails. After all, you do the job day in and day out. However, really effective time management requires that you know how much time it takes to do a task. You can’t plan an allotted amount of time for filing each week if you don’t know how much time you actually spend filing each week.

Finally, it’s your time. You can gain a great deal of satisfaction from knowing how you are using it and knowing you are managing it well.