Category Archives: Lawyer Supervision

An Update on the New DOL Overtime Rule.

21 Wednesday Sep 2016

Posted by in Employment Law, Exempt Employees, Law Office Management, Lawyer Supervision, Non-Exempt Employees, Paralegals/Legal Assistants

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Michigan Joins Quest to Block New Overtime Rule, by Jason Shinn, Michigan Employment Law Advisor Blog

http://bit.ly/2d5Bpto

The new overtime rule proposed by the Department of Labor is definitely one to watch. Its impact on employee and employer alike is significant.

How will it impact paralegals? As a profession, we began as exempt professionals, and not eligible for overtime. The Department of Labor eventually determined that paralegals were non-exempt because we work under the direct supervision of lawyers, and do not make independent decisions. Personally, I prefer being considered as an exempt professional, but not all paralegals share my opinion.

 A more detailed explanation of the history of the Department of Labor and the paralegal professional can be found here: https://www.paralegals.org/i4a/pages/index.cfm?pageid=3304. -CCE

On September 20, 2016, Michigan joined 20 other states in filing a lawsuit against the U.S. Department of Labor (DOL) to block a new overtime rule that goes into effect on December 1, 2016. Here is a link to the complaint Nevada v. Labor Dept., (9/20/16).

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DOL’s Rule Expands Eligibility for Overtime Pay

The DOL’s overtime rule would more than double the salary threshold, up to about $47,500, under which workers are automatically entitled to overtime pay. This rule focuses on shrinking what is referred to as the ‘white collar exemption,’ which exempts employees who perform ‘executive, administrative or professional’ duties from overtime and minimum wage requirements.

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Big Law Firms Miss $1.5 Billion Dollar Mistake.

07 Friday Aug 2015

Posted by in 2nd Circuit Court of Appeals, Diligence, Lawyer Supervision, Legal Ethics, Malpractice, Paralegals/Legal Assistants, Rules of Professional Responsibility, Supervising Support Staff

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Mayer  Brown & Simpson Thacher Make Epic Screwup, by Joe Patrice, Above The Law (with hat tip to William P. Statsky)

http://abovethelaw.com/2015/01/mayer-brown-simpson-thacher-make-epic-screwup/

It is rare indeed to find such a dearth of responsibility among so many fine legal professionals. If you can, follow the bouncing ball. –CCE

Mistakes happen. It’s why pencils have erasers. But it’s also why law firms install tier after tier of increasingly senior professionals to second-guess every ounce of work product. It’s remarkably effective — and fairly lucrative on an hourly basis.

Unfortunately, the flip side of a tiered system is a tendency toward over-delegation. And that’s how an unwary paralegal ends up costing a bank millions. . . .

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Legal Ethics and Conflicts of Interest – What Is Your Professional Duty?

19 Sunday Jul 2015

Posted by in Confidentiality, Confidentiality, Conflict of Interest, Ethics, Lawyer Supervision, Legal Ethics, Paralegals/Legal Assistants, Rules of Professional Responsibility, Supervising Support Staff

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Regardless of whether you are a lawyer, judge, or paralegal, have you kept a list of every case on which you have worked? Does it include all the parties or only your client?

Christine Simmons recently posted an interesting article in the New York Law Journal in which the Court disqualified a White Plains attorney’s representation of his client. The attorney’s paralegal had, in the past, been involved with the opposing party. For this reason, the Court ruled to vacate the settlement due to tainted negotiations.

So back to my original question – when you were hired, did anyone ask you to look at the firm’s active client list to determine whether you had a conflict of interest? Shouldn’t this especially be the case if your practice is limited to only one or two specific areas of law where you often get repeat business from your clients?

Often, when a firm signs on a new client, it will run a conflict check through its database. It likely also sends an email to all the attorneys asking whether any have a conflict with this particular client. Are support staff and/or the IT Department included in this inquiry? Shouldn’t they if they will have access to the file or any communication with the client, regardless of what role they play in the preparation of the case?

Although every legal professional, lawyer and paralegal, are aware of their ethical obligation to confidentiality and conflicts of interest, how many of us have a complete list of every client and/or parties in each case we have ever worked? Should we? -CCE

A Rose By Any Other Name . . . .

19 Sunday Jul 2015

Posted by in Lawyer Supervision, National Exams, Paralegals/Legal Assistants, Professional Organizations, Regulation, Unauthorized Practice of Law

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Attorney’s Quick Guide to Paralegal Credentials, by Misty L. Sheffield, Atlanta Paralegal Services©2015

http://www.atlantaparalegalservices.com/2011/08/attorneys-quick-guide-to-paralegal-credentials/

 

Attorneys looking for a paralegal to hire full-time, part-time or on a contract basis will be faced with a variety of titles and credentials. Paralegals are not a licensed profession, but credentials are offered by the national paralegal organizations on a voluntary basis. This is a quick reference guide to the most commonly used national paralegal titles and credentials. This list does not include state-specific credentials. . . .

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This Is So Wrong On So Many Levels.

03 Friday Apr 2015

Posted by in Ethics, Lawyer Supervision, Legal Ethics, Paralegals/Legal Assistants, Supervising Support Staff

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Florida Lawyers Face Disciplinary Charges After Representing “Bubba the Love Sponge Clem” Blog, by Tom Feher, Thompson Hine LLP, The Law for Lawyers Today, © Copyright 2006-2015 Globe Business Publishing Ltd (with hat tip to William P. Statsky!)

http://www.lexology.com/library/detail.aspx?g=7369afdc-2305-4a44-aa15-ee76a6effe33

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.

We make the mistake of thinking that lawyers know every nuance to supervising paralegals, and that is not always the case. It is not enough pick up a short review of legal ethics at a CLE seminar. You should be brushing up constantly, just as you would court rules or any other integral part of your job.

This example is one of the most extreme ethical violations I have ever seen by paralegals and attorneys. You cannot make up this stuff. -CCE

Sometimes our lessons come in more bizarre ways than others. As reported by Law360 last week (subscription required), three Florida lawyers were charged by disciplinary authorities over a January 2013 incident involving the firm’s paralegal. The three lawyers were defending defamation claims against their client, who was a local radio talk show host known as ‘Bubba the Love Sponge Clem.’ The plaintiff was another radio personality.

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. . . .

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Lawyer Sanctioned For Throwing Paralegal Under The Bus To Explain Mistake To Court.

24 Tuesday Mar 2015

Posted by in Attorney Discipline, Lawyer Supervision, Legal Ethics, Paralegals/Legal Assistants, Rules of Professional Responsibility, Supervising Support Staff

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Judge Sees ‘Self-Congratulatory Blather’ In Biglaw Brief; Paralegals Blamed For Error, by Debra Cassens Weiss, ABA Journal (with hat tip to William Statsky!)

http://tinyurl.com/na9l6gy

A Florida bankruptcy judge overseeing a fight between investors in a shuttered fashion mall made no secret of his dissatisfaction with a Duane Morris pleading during a sanctions hearing on Friday.

U.S. Bankruptcy Judge John Olson said the law firm appeared to be throwing a paralegal ‘under the bus’ when it blamed her for a mistaken court filing, and its sanctions brief was lacking the proper tone, the Daily Business Review (sub. req.) reports.

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Three States Consider Non-Lawyers’ Limited License and Registration Programs.

05 Thursday Mar 2015

Posted by in Lawyer Supervision, Limited License Legal Technician Program, Paralegals/Legal Assistants, Regulation

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Three Notable Updates on Non-Lawyers Providing Legal Assistance, by Robert Ambrogi, Law Sites Blog (with hat tip to William Statsky!)

http://blog.oregonlegalresearch.com/2015/03/non-lawyer-legal-assistance-limited-license-legal-technicians-oregon.html

 

In the January 2015 issue of the ABA Journal, I had an article about Washington state’s limited license legal technician (LLLT) program, which will formally license non-lawyers to deliver legal services in limited circumstances independently, without a lawyer’s supervision. The article also discussed New York’s program of court navigators and reported on other states considering programs similar to Washington’s, including California and Oregon. Since that article came out, there have been three notable developments.

Oregon Task Force Calls for Legal Technicians

In the ABA Journal piece, I noted that the Oregon State Bar had convened a Task Force on limited license legal technicians in 2013 and that its final report was expected soon. On Feb. 13, the Task Force issued its report. In it, the Task Force recommended to the OSB’s board of governors ‘that is consider the general concept of a limited license for legal technicians as one component of the BOG’s overall strategy for increasing access to justice.’ The report noted that a large majority of the Task Force members — but not all of them — concurred in the recommendation.

Should the Board decide to proceed with this concept, the Task Force recommends a new Board or Task Force be established to develop the detailed framework of the program. For the reasons set out herein, the BOG should review the recently established Washington State Bar Association LLLT program and consider it as a potential model.

The report praised the Washington LLLT program as ‘comprehensive and well thought-out’ and urged the OSB, should it decide to proceed with a legal technician program, to ‘review, consider and learn from Washington’s program.’

The Task Force further recommended that the first area to be licensed be family law, including guardianship. . . .

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NFPA Paralegal Informal Ethics and Disciplinary Opinions and Articles.

04 Saturday Oct 2014

Posted by in Ethics, Lawyer Supervision, Paralegals/Legal Assistants, Unauthorized Practice of Law

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Positions and Issues – Ethics, National Federation of Paralegal Associations

http://www.paralegals.org/default.asp?page=31

At this link, you will find documents and articles on paralegal ethics written by members of NFPA and NFPA Informal Ethics and Disciplinary Opinions.

NFPA is not the only national paralegal association to have an ethical code or to public ethics and disciplinary opinions. Also, be advised that those states that have regulated paralegals likewise have ethical requirements. Paralegals are also obligated to follow state ethical rules for lawyers in the states in which they work. Ethical rules and opinions published by the American Bar Association are advisory, not mandatory, on both lawyers and legal support staff.

Therese Cannon and Deborah Orlik have both written excellent books on paralegal ethics. I highly recommend each. If you are researching what ethical guidelines for non-lawyers, your research should include all ethical rules and guidelines that have been set by national and your state paralegal associations, as well as your state bar association.

Ethics for non-lawyer support staff may sometimes have indistinct, grey lines. If you are smart, you will take a step back when you see them. When it comes to ethical considerations, it is always best to proceed slowly or not at all. If you must err, then choose to err with caution. I strongly urge you to back away from anything that might give the appearance of impropriety or a breach of ethics. -CCE

Oops – Non-Lawyers and the Unauthorized Practice of Law.

28 Sunday Sep 2014

Posted by in Ethics, Independent Paralegals, Lawyer Supervision, Paralegals/Legal Assistants, Unauthorized Practice of Law

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STAND And Deliver Legal Services, by Mike Frisch, Legal Profession Prof Blog

http://tinyurl.com/qjc6haw

There are certain things that paralegals, legal assistants, and any other non-lawyer legal professional cannot do.

  • We cannot appear in court on behalf of a client (when we’re not with our supervising attorney). Even then, we won’t be sauntering up to the judge’s bench to make argument or answer the Court’s questions).
  • And although I know some paralegals do this with their lawyer’s approval, we should not negotiate settlement on the client’s behalf. In these situations, my guess is that, the majority of the time, the client has no idea that the has delegated this task to a non-lawyers.
  • I’m going to go with faith that non-lawyers understand about client confidentiality.
    There are other things a non-lawyer cannot do, but the biggest is that we cannot give legal advice. If someone asks you a legal question, and you say, “I can’t give legal advice, but if I were you, I would . . . ,” that’s giving legal advice. The little signs you see next to discount shopping stores offering to do your divorce for a small fee are trying to sell legal advice. Even if you know the answer when a client asks you a question, the absolute best answer you can give is, “I don’t know – you’ll have to ask the lawyer.”

That brings us to this post. No doubt that the non-lawyer in this example had good intentions, and was trying to help. If you the non-lawyer in any situation, regardless of how much training or initials you have behind your name, you CANNOT GIVE LEGAL ADVICE.-CCE

Unauthorized practice decision of the Ohio Supreme Court is described by Kathleen Maloney:

A Lorain County non-lawyer and his corporation engaged in the unauthorized practice of law by providing legal advice to individuals facing criminal charges, according to an Ohio Supreme Court decision today.

The court directed King Ayettey Zubaidah and STAND, Inc., to stop practicing law and ordered them to pay a civil penalty of $20,000 for their involvement in four legal matters.

Zubaidah formed STAND (Striving Towards a New Day!) in 2008 after his experience with the justice system in the 1980s when he was convicted on a drug charge and sentenced to five years probation. STAND’s mission was ‘to help change the unfair and partial treatment against minorities in the judicial system.’

In each of the four cases brought before the Board on the Unauthorized Practice of Law (UPL), the defendant or a parent of the defendant asked for Zubaidah’s guidance during the criminal case and signed an agreement with STAND, which stated that the organization would assist them. No payment was required. Family members testified that Zubaidah did not claim to be an attorney and they knew he was not one.

In one matter, Isaiah Harris faced several charges in three different cases in 2008 involving the same victim. The court appointed a lawyer to represent him. Harris also signed an agreement with STAND.

The three cases were combined, and before Harris’ trial Zubaidah sent a letter to the judge indicating he had in-depth knowledge about the facts in the case and defending Harris’ actions.

In the midst of trial, Harris’ lawyer negotiated a plea deal for a four-year prison term. Zubaidah attended the trial, but his involvement was disputed. Harris’ lawyer claimed that Zubaidah advised Harris not to accept the deal. Harris rejected the offer and was later convicted and sentenced to 23 years, 6 months in prison.

In the other cases, Zubaidah sent letters to the judges asking for lower bonds, citing cases, and making legal arguments, though indicating that he was not an attorney.

In today’s per curiam opinion, the court noted that an individual who negotiates legal claims for another person and provides legal advice – even without charge and even when stating that he is not an attorney – is practicing law.

While a non-attorney who sends a character-reference letter for someone to a judge is not engaging in the unauthorized practice of law, the court stated that when a letter shifts to advocating specific legal positions for that person, the unauthorized practice of law occurs.

‘[D]espite the laudable desire to seek reform in the criminal system, such a desire cannot be realized by legally advising and advocating on behalf of a criminal defendant without violating our prohibition against the unauthorized practice of law,’ the opinion stated.

‘Zubaidah’s actions extended beyond the permissible conduct of endorsing a person’s character, advocating a social issue generally, advancing personal interests, or providing nonlegal advice to a family member. Despite Zubaidah’s good intentions and intermittent disclaimers, his conduct shows a pattern of advocating legal positions on behalf of defendants and providing legal advice to those defendants, leading to serious consequences for the STAND clients who trusted him.’

The court pointed out that Zubaidah held himself out as ‘an advocate with legal expertise,’ his agreements implied that he had specialized knowledge of the legal system, and his letters to judges ‘cited case law, raised legal issues, and asked for legal results.’ . . . [Emphasis added,]