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Memphis, Tennessee, United States
Small town paralegal in the city. Once ran a law office, now being run by one. Med mal defense litigation. I think it's growing on me.

Monday, August 31, 2009

Jerks in the Workplace

Let me first admit that I don't have much experience in this area. I am fortunate enough to have an amazing supervising attorney who, though he probably doesn't realize it, is a great manager of people. That being said, every time I read through a paralegal textbook or open a paralegal magazine, I seem to find the same advice regarding the apparently inevitable bad supervising attorney.

To be clear, I've never personally experienced the bad supervising attorney, but he (or she) is supposedly rude, overbearing, and demanding. He or she treats nonattorney staff and probably everyone else... poorly. It is likely the bad supervisor is either a newbie and completely insecure about her place on the imaginary totem pole, or extremely experienced and has gotten away with the bad attitude for far too long for anyone to expect him to change.

Whichever one of these guys you run into, conventional wisdom seems to be "just deal with it." I heard of a situation recently in which a highly experienced paralegal described performing a task her attorney told her to do, only to have him yell at her later for doing it. Apparently the instructions he gave were ambiguous or not clearly stated. Suffice it to say, what he meant to instruct her to do and what she read were two different things. Rather than explain to him in a courteous and professional manner that there was a misunderstanding (so that such errors could be avoided in the future), she held her tongue and apologized. For what? I ask. For not reading his mind? For the sake of his ego? For fear of losing her job? No purpose is served by allowing your supervising attorney to believe something that is not true about your judgment and skills. If you have spent years working at something, giving it all your effort, you should not have to cower at your place of business. If anyone expects this, there is a major flaw in the system of your profession. Perhaps I am idealistic. Perhaps I can afford to say these things because I have a stellar Boss. Still, there is something wrong with that picture.

In my own paralegal text books, I came across various hypothetical situations where the correct answer was simply to accept the subordinate role and apologize profusely. Now, in matters of law, I am in complete agreement with the subordinate role. You won't ever catch me telling my Boss that my legal judgment is better than his. First, it just wouldn't be true. Second, even if it were, it wouldn't be my place to tell him so. However, in matters of basic management and administration, the only thing my Boss has on me is years of experience. There is no business management license that will suddenly allow one to manage a business. There is no administration license that suddenly allows someone to perform administrative duties in a business. This is not to say that I regularly exercise insubordination, nor would I. In my case, I have a lot of respect for my supervising attorney as a lawyer, a Boss, and a person. If I didn't, I would not be working for him. If he were a regular jerk, things would be different.

The first thing that would change is my job. Upon understanding that I had a bad boss, if I were working at the small firm I am now, I would immediately begin a job search. I know what you're thinking... what if the only lawfirms in your area all drink from the same water cooler? Well, if you try a few firms out and they all appear to employ snotty, horrible people, you can a) move (I know of some great attorneys around here... but don't even think about trying to move in on my job) or b) give up on the paralegal profession entirely. Luckily, as in most other fields, jerksters are the exception, not the rule, so you shouldn't have to resort to plan b.

In a bigger firm, the issue may be more complicated. But you never have to meekly accept disrespect and rude behavior from an attorney with whom you are working. It is my understanding that larger firms usually have supervising partners who govern associates and sometimes paralegals. It is also my understanding that larger firms usually have human resource departments. Before accepting that you will have to duck to avoid flying pens every day, or that you will have to bow before a daily dose of arrogant suggestions ( "Did you think I wouldn't want coffee this morning?"), I highly suggest approaching someone in a true management position to a) alert them of the situation and b) ask for tips on how to handle this person. Obviously, this should not be done to "rat out" the bad seed, but rather to give HR a heads up. If done in a professional and mature manner, such action can encourage management to take subtle action. It can also alert them to patterns of behavior that may be caused by something more than a superiority complex - drugs, alcohol abuse or depression for example.

This advice goes for any job actually. Bad managers don't deserve good employees. When I was a senior in highschool, I was a hostess at a restaurant. We were having a particularly bad night when our manager came to the hostess stand and started pitching a true fit. He threw his notebook across the room and yelled at us in front of a crowd of customers. I did not walk out, though I wanted to very badly; rather, I quietly started preparing to leave the job. No burnt bridges, no more bad boss. Criticism, I can take. Guidance is necessary. Though I've never experienced it, discipline may sometimes be needed. But rudeness, haughtiness and superiority complexes from someone in a supervisory role? No thank you.

If you are working hard and are competent at your job, you should not have to accept disrespect from people with whom you work. If you have a job where this is the status quo, for your sake, please start looking for a new one. It is not good for the individual, for the paralegal profession, for the legal field, or for the business world in general, to accept and thereby promote haughty/bad/rude behavior from attorneys, or anyone, for that matter, who is in some sort of supervisory role.

I suppose I break tradition when I say these things. Perhaps I'm too insubordinate for my own good. But come what may, I respect myself and my chosen profession. I am no one's doormat. And neither are you.

Saturday, August 29, 2009

Team Work at the Law Firm

I was recently asked to phrase my blog in less of a lawyer v. paralegal style with a better focus on the fact that we are all on the same team. This entry, therefore, includes hints and tips which will in fact make the practice of law a team event.

Go to court with your attorney. Every firm is different, but even if you ask to attend a trial and the answer is "no" you have at least shown interest and given the decision-makers a reason to think about it. Just be prepared if the answer is yes. The office dress code may be a bit more casual than that of the court. Also, courts differ on where paralegals may sit when accompanying attorneys to a trial. I have heard that a few states will allow paralegals to sit beside the attorneys at the table, but the vast majority of courts will require you to sit with the public. No matter where you sit, though, being in the courtroom during a trial can give you valuable experience, and every once in awhile, it's just plain cool.

Sit in meetings with your attorney. Again, every firm is different, but perhaps your attorney has never thought of having you in a client meeting. Ask. One of the attorney speakers at a recent conference I attended stated that it is a mistake for lawyers to conduct initial client meetings without their assistants. The reason he gave is that the lawyer takes in information by calculating legal angles and gathering the necessary information for such. The paralegal is more inclined to be thinking about what vital statistic information he needs to draft documents or get information from third parties (social security numbers, release forms, contact information, etc.).

While I have never asked to sit in a client meeting, it is not because I don't think it would be helpful but rather because of lack of space and time. I could probably attend the meeting, but then that is taking up time that I could be working on discovery or making calls while the Boss is busy. In our office, it makes more sense to me that I am working on something different while the Boss is conducting his meetings. Also, our office is nice, but small. If the Boss were meeting with one person, it might be intimidating for that person to have both of us sitting in the meeting. And if he were meeting with more than one, there would be no room for another warm body anyway.

Become competent in everything you can do so that your attorney can focus especially on those tasks only he can do. I have said it before, and here I've said it again. While the attorney should be able to do all the things you do, he shouldn't have to. Learn how to effectively research and stay on top of the best search practices. Know procedure, so that when a client calls for an update, you can give her dates to look forward to. I get calls all the time, especially right after I send a status letter with a notice of service, asking what happens next. They are not usually looking for a legal answer but rather for the next step, the next important date on the calendar. A client's matter will usually feel urgent to him, so letting him know that the defendant has thirty days to answer, and that we will not be able to move forward until we receive the answer or reach the expiration of the thirty days, will help ease his mind.

Do it right the first time. Sometimes I am tempted, especially when I've been staring at a computer screen for several hours, to just hand a rough draft of a complaint or brief or motion to the Boss and let him figure out what to edit. However, this won't save anyone time, and it won't save the client money. I take a deep breath and perhaps a five minute break before diving back into the issue. When I finally give the document to my attorney for review, I have overlooked it at least twice. He will still inevitably want to change my wording here or there, and sometimes he finds a blatant copy-paste error I've missed, but if I have taken my time and put forth all my effort, he is usually satisfied with the draft I bring to him.

Be the go-to person. Every team needs someone they can rely on for almost anything that needs to be done, just in case. This kind of fits into being proficient at all tasks nonattorneys can do, but here we're taking it a step further. Be willing to take on any project, large or small. Or at least don't act as if you are above it. If you feel like your talents and skills are not being utilized, or if you feel like your billables aren't being met because you've been asked to make copies twelve times today, approach it from that angle of "I'm not going to be able to meet my billables" rather than "This is not in my job description." If your supervising attorney keeps sending you to pour his coffee, perhaps you should ask her nicely if she wouldn't be better served by using you in a more substantive capacity. (Personally, I would probably ask her if she wouldn't be better served by getting her own coffee, but I realize that not every lawyer is as self-sufficient as mine.)

Demand team work. Or at least subtly demand it. If you have a secretary, utilize him to the best of his abilities. If you are about to work on a nonbillable task, ask yourself if you could delegate it to him. Talk to everyone at the firm, make them all your friends, find someone in each role you can use as an emergency resource or for uplifting discussion. Don't associate with only those individuals at your "level." Team work requires mutual respect and positive thinking from everyone in every role. Being "above" someone in the ancient hierarchial system does not exempt you from treating that person with respect and expecting the best they have to give. That means that the people "above" you are not exempt either. Perform as if you assume everyone on the team knows this, and if they don't already, they should eventually come around.

So there you have it, my six tips for teamwork. Let me know how they work.

Friday, August 28, 2009

Does Nonlawyer = Incompetent?

In my unrivaled wisdom and all-encompassing knowledge, or perhaps in my efforts to over-generalize a bigger issue, I have reduced the types of people who work as nonlawyer legal staff into three distinct groups. Please see below for details.

The Easies These are the individuals working at the law firm not for the clients or the law, but for the cushy office job. They include everyone from highschool students who come in to run documents in the afternoons or over the summer, to young adults who have not figured out their true career aspirations, to part-timers who need the job but not necessarily the money. They take jobs as runners and receptionists, secretaries and file clerks. Many times, the job is simply a paycheck for a temporary period of time, and they tend to treat it as such. They are not to be confused with the runners, receptionists, secretaries, and file clerks who take their jobs seriously and are committed and competent employees - I will address them in a moment.

The Inbetweens These employees can be divided into two subsets: those moving up and those stepping down. The employees moving up are using their legal staff position as some sort of leverage into a new area. Perhaps they intend to go to law school or want to gain legal experience to take with them to the corporate world. Whatever their purpose, they are using the job as a learning and networking tool. Since they are committed to moving up some type of ladder, these individuals will likely be competent, helpful, and smart. Those stepping down are getting ready for retirement, but have not let go of the working world yet. As experienced careermen, they enjoy the interesting legal work, but are not looking to climb any ladders. Their backgrounds tend to be diverse. They will be competent because they just are. After thirty plus years in the career world, it is in their blood to do a job and do it right.

The Career Staffers These people are serious about their jobs. They enjoy the law, working in the law, reading law, aiding attorneys in the practical application of the law, etc. They also fill many of the same positions the Easies fill: secretary, receptionist, file clerk, paralegal. The difference is, these individuals do a better job because they want to be there doing it. This is my current niche, and I know there are plenty of us out there. Because these individuals are serious about their roles in their firms, they are competent and keep themselves educated on important topics. Their goals include great client service, efficiency, and results. They are smart, loyal, and hardworking. They have standards, whether those held by the professional organizations they belong to, or those they hold within themselves. A smart lawyer will have at least one of these people by her side.

One problem I have recently faced is that the Easies have a negative effect on the perception of the Career Staffers. Just today I participated in a conversation with an attorney who was describing the lack of organizational skills of some legal staff he works with. When I asked why they are so disorganized in general, his response was something to the effect of "Well, they're nonlawyers and didn't have proper training." While I would agree that lack of training in basic organization could be a problem, the fact that these people are "nonlawyers" should have little to do with their organizational skills. (I know for a fact that they didn't offer Organizational Skills for Lawyers 101 when my Boss was in law school.) Still, the incompetence of some of the Easies (not all, of course) is giving the rest of us a bad name.

Lawyers, if your legal staff, especially your paralegals, are highly unorganized or incompetent, it has nothing to do with the lack of a law degree. Perhaps you need to figure out which group they fall into. If you need someone with motivation to do a job and do it well, don't hire an Easy. However, if you just need a body to fill up eight hours in the day, be my guest. Further, if you do not feel that you can use your paralegals for researching, analyzing and synthesizing case law, drafting motions, and corresponding with clients in a professional manner, then you have the wrong paralegals. I read somewhere that highly skilled paralegals with a certain level of experience should be able to perform associate level work under moderate supervision. If I were an attorney, which may still happen, I would want the most competent and intelligent assistant I could find.

One way to be a great leader is to surround yourself with talented people. Perhaps if more lawyers and firms hired highly skilled staff, the perception of nonlawyers as incompetent and unknowledgable wastes of firm space would shift. However, most of the responsibility lies with paralegals and other nonlawyer staff. If intelligent, competent nonlawyer legal professionals are to be the rule, we have to keep insisting on more uniform standards among ourselves, and then uphold each other to those standards.

The overall trend is a positive one, and organizations like NALA (National Association of Legal Assistants) and NALS (National Association of Legal Professionals) are achieving goals step by step. One by one, state bar associations have started coming around, too. I'm optimistic that sooner, rather than later, anyone who sneers at the word "nonlawyer" or "paralegal" will be recognized by all as either insecure or out-of-place in the legal profession and that law will be seen by all of us as the team sport it truly is.

Thursday, August 27, 2009

A Major Overhaul... or Invasion of the Independent Paralegals!!

Robert Mongue, at The Empowered Paralegal blog, and I have been involved in a sideways dialogue of late regarding independent paralegals and UPL. His most recent post about independent paralegals, which can be found here, actually blew my mind a little bit. I thought I was reading an entry about independent paralegal practice, but I ended up diving head first into the Bellow-Sacks Access to Civil Legal Services Project, a broad access to justice project that has suggested, among other things, regulating limited nonlawyer practice in a few specialty areas of the law to achieve better access to legal remedies for indigent and even middle class citizens.

But this is not where the project either begins or ends. Its scope is so wide, and it so boldly threatens the ABA's monopoly on the legal world (or at least, it would appear that way at first - it would probably actually stregthen the positions of attorneys as leaders in their field by helping to fix the public's view of the legal system), that I imagine the best parts of it may never be implemented.

I have found three beautiful papers on this philosophy, two of which I share below. I wish I could express all of their findings and research-backed opinions in the small space I have here, but the most I can do is give you a list of highlights of each. However, I urge you to read them yourselves and join with me in this dialogue about how the legal community can rise to better serve the needs of individuals who need us.

In the first research-oriented paper I read on this subject, which I found at The Empowered Paralegal, the author makes the following points:

- Few lawyers tend to be interested in the areas of law in which low and middle income people need services, such as family law, debt, etc.
- Less than 17% of lawyers participate in pro bono programs, for various reasons.
- The United States Federal Administrative Procedure Act already authorizes qualified nonlawyers to appear before federal agencies to represent an individual.
- Several states, California and Washington included, already allow limited nonlawyer practice, to positive results.
- Pro se litigants could stand to benefit from the guidance of nonlawyer facilitators who could take them step by step through the legal process.
- Although critics suggest that in theory, offering nonlawyer legal services will diminish the quality of legal services to the public, existing evidence suggests the opposite may be true.
- In some other countries which allow nonlawyer practice, specifically England and Wales, lawyers had more cases that resulted in an inadequate rating of services, while nonlawyers had more cases that resulted in a rating of "excellent."
- In the U.S., what little comparative research we have on the topic suggests that nonlawyer specialists perform as well as lawyers. In fact, in a survey of consumer satisfaction with legal services, nonlawyer practitioners scored higher than attorneys. (There are various reasons for this, and I'm betting they don't include anything truly negative about lawyers, but rather how much consumers valued the services versus what they were charged for them.)
- UPL rules are overbroad: "Rather than sanction fraudulent legal service, the unauthorized practice doctrine prohibits lay practicioners from performing any traditional legal task."
- UPL rules "fail to fairly inform either the Independent Paralegal or the general public as to what conduct is prohibited."
- Case law shows that UPL laws in the U.S. have been relied on more heavily by members of the bar rather than by consumers, whom the laws are supposedly meant to protect.
- If nonlawyer specialists were narrowly regulated by licensing, minimum standards, etc., as opposed to broadly banned, the consumer would stand to benefit.
- UPL rules are based on the idea that laymen do not have the knowledge or ability to represent others in legal matters. But Independent Paralegals "develop not only competent, but highly specialized expertise by focusing on a specific area of the law or engaging in a certain type of assistance over time." And "[l]aw school does not teach some of the specialized legal knowledge that paralegals acquire from experience." (Or that knowledge attorneys acquire through experience, either.)
- By eliminating UPL rules and regulating highly specialized areas of nonlawyer practice, lower and middle income individuals would receive higher quality and more affordable legal services.

I am leaving out a ton of research and major points, of course, because the paper is so dense with information and thought0provoking discussion. The next piece of literature I found on the Bellow-Sacks project was much more practice-based, and provided a guide for the set-up for a form of socialized legal aid. You can read it here. Below I have listed a few of its highlights and proposals.

- Courts run better, and less time and money are spent when litigants are represented by attorneys, but not everyone can afford a lawyer.
- The Bellow-Sacks Access to Justice Project proposes the following: preventative legal aid, strong management and accountability, reforms that will reduce costs as well as the need for expert legal assistance, and private bar innovations to bring legal costs down.
- Not all legal needs are equal. Sometimes those who can least afford an attorney need assistance the most. (Think of indigent individuals who may be illegally and unfairly evicted or people living with spousal abuse.)
- Some legal issues do not inherently require the advice and expertise of a licensed, experienced attorney. (I know many of you will disagree with this; I'm just the messenger, this is a project created by highly educated attorneys.)
- The project proposes a "Service Pyramid" that involves, from base to tip, the following:
1) Web-based information;
2) Phone and web-based tools;
3) Brief service and advice with web-based tools;
4) Paralegals and lay-advisors; and finally
5) Law student and lawyers. Highly expert lawyers are at the tip top of the pyramid.

The purpose of the project's proposals and the focus of its research seems to be about finding a way to serve the poor and middle class with high quality legal services while at the same time allowing attorneys to take cases that will actually make money. This, as opposed to hoping more lawyers will give up the financial opportunies in order to provide free services to people who can't pay what their time is worth.

The project also includes co-pays, subsidies, and a lot of other things that give me great pause as to what kind of system it would set up; however, the idea is novel to me, and therefore intriguing.

Read the pieces, let me know what you think. I am itching to have a real discussion about the pros and cons of this type of legal system overhaul. I also would like to find out what happened to the project. Everything I find is from 2005 or earlier. I am sure bar associations didn't take kindly to it.

What I found most interesting about this project is that these ivy league education attorneys were promoting the idea of limited nonlawyer practice for the benefit of low to middle income people. They could probably command outrageous salaries at major firms (even in this economy), and yet they are not afraid of the ramifications of allowing nonlawyers to step in to handle those cases that highly educated attorneys don't want anyway.

If you have actually made it to the end of this entry, Reader, congratulations! I will reward you by stopping now.

Wednesday, August 26, 2009

The Paralegal with Many Faces

The Boss recently surprised me with brand new, uber professional business cards. They look just like his, but with my name and designation as a certified paralegal NALA-style. I have worked for him for nearly two years, but this moment spoke to me in an I-am-here-to-stay kind of way. I definitely can't leave before using all of those business cards, at any rate.

As I read my card, with my title printed so clearly, I began thinking of all the things I do as the paralegal at our tiny firm. I am the clerical staff, the mail room, the coffee maker, the filer, the runner, the paralegal (of course), the notary public, and the receptionist. I take on all of these roles as the need arises, just like most people who work in small offices. The Boss, also, is not too proud to pour his own coffee, or to answer the phone when necessary. I've even caught him making copies before. This is the nature of a small office. When the population of the workplace constitutes the owner and his one employee, both are pretty self-sufficient.

Apparently the big firms require less effort from their attorneys when it comes to tasks that don't require a license. Our new neighbor, we'll call him Newbie, who just left a big firm and now works in the office above us, has convinced me of this. He had been with the big guys just long enough to forget how to function without the full support staff- paralegals, secretaries, IT professionals, etc. His current staff consists of his wife on a part-time basis until they learn that working together will result in one of their untimely deaths (very likely his own). But when she is not there, he relies from time to time on my expertise in certain areas, such as "where things go" when they are scanned into a computer.

It all began with a phone call last week asking me how to save a document as a PDF. I explained that we use CutePDFWriter. He ended up emailing me the documents so that I could save, convert, and email them back to him as PDFs. The next call came hours later, asking what kind of scanner the Boss has. The Boss and I both have all-in-one printer/copier/fax/scanners. I think they are fabulous. Newbie informed me that he already had a printer, so an all-in-one machine could get redundant. A few hours later, he returned with an all-in-one machine.

It was not long before another call came in.
"Do you have any extra USB cords down there?"
I checked. We didn't.
"My scanner didn't come a USB cord."

I went upstairs to examine the situation. He was right. His machine did not come with a USB cord. I think that's the way it is these days. The companies just expect you to have your own cord. "You'll have to buy one," I shrugged. But he needed to scan something that very moment. I asked if he had any USB cords hooked to something else that he could afford to go without for a bit. "Well," he hesitated, "I suppose I could unplug my printer's USB cord, at least for awhile." I tried not to smirk then as I asked, "Is there a reason you don't want to use your new all-in-one as your printer, too?"

But this is not where it ends, Reader. Once we had him up and running, I returned to my desk downstairs. I was right in the middle of recording an entry in my notary journal when the phone rang again. "When you scan something, where does it go?" I marched up the wooded stairs in my heels one more time to show him how to name a file and direct where it is to be saved. I'm sure this information was somewhere in a manual that came with the machine, but he did not appear to have time to look. I'm not sure the thought of a manual ever crossed his mind, actually. I suppose in big firms, IT is but a phone call away, and the secretary scans all of your documents for you.

The Boss just shook his head when I returned to our office. He was smirking, and I think I heard him mutter something about "fancy lawyers" when I walked past his door. As for me, I have one more title to add to my rather long list: IT Extraordinaire!

Monday, August 24, 2009

Where Are We Going?

I regret that I have been absent for a few days, Reader, but I am sure you will forgive me when you discover my reason. I was enjoying beautiful (and I do mean beautiful) Huntsville, Alabama this weekend with my boyfriend-the-lawyer. We enjoyed a long walk through an almost hidden park before bumping right into downtown Huntsville. We admired the mod-style courthouse in the middle of town befor exploring the local law offices. If only you could have seen it! We peeked into one window to an office that looked as if it had just stepped out of the 1960's. Dark wood, a grandfather clock, even a coat rack that should have been holding Don Draper's hat. I wanted to melt into the scene and be whisked away to a different time. As you can tell, my wish did not come true. Instead, I ended up back home in the southern part of the state, and four days gone on the blogging.

But even while away on my weekend mini-vacation, paralegal issues found me. First, if you have not checked out The Empowered Paralegal blog, by Robert E. Mongue, please do so now. Right now. Specifically, read this one about independent paralegals. Mr. Mongue received a letter from the owner of an independent paralegal business in Colorado regarding his business and how he avoids UPL. However, the description of this business, one which directly serves pro se litigants by assisting them in the process of representing themselves, gave me great pause.

My first thought was that a paralegal should be working under the supervision of a licensed and practicing attorney. Period. Then I took away the term paralegal and added in some generic term like project assistant. Then I started confusing myself. It is a given that you can represent yourself in a court of law if you so choose. You can draft and file documents and negotiate on your own behalf, if you so choose. What if you are a busy 8-5er and you need someone to assist you with the execution of your tasks? What if you will not ask this person for legal advice, nor will you expect them to use independent legal judgment - you just want them to help get everything typed up and filed? Is that person committing UPL?

My boyfriend-the-lawyer's answer was an unequivocal YES. His stance is that anyone who provides services of a legal nature without the supervision of a licensed practicing attorney is committing UPL. I certainly understand where he is coming from, and I agree. But not completely. California, for one, seems completely fine with allowing non-attorneys to help the general public with preparing and filing their legal documents. If you go to the website for the National Association of Legal Document Preparers, you will find a host of valuable information regarding this niche that several states seem intent on expanding for non-attorney practice.

I was quite surprised to read from their website that in 1993, the ABA actually commissioned a panel on non-lawyer practice, though their report never made it to the House of Delegates. From what I can gather, the report would have suggested regulating certain non-lawyer practices in order to provide less expensive access to justice for those who cannot afford attorneys.

Now, I know what lawyers will say about this. And I know how I, a fair-minded paralegal who does not wish to provide attorney-type services directly to the public, feel about it. If you keep pushing this issue into all fifty states, if lawyers eventually become merely the fine dining option when pursuing one's legal goals, wouldn't the license eventually become irrelevant, and then what would all those law school grads do with their expensive educations?

I jest, but I do agree with my boyfriend-the-lawyer (and not just because he takes me to see awesomely-bad chick flicks). There has to be a clearly defined line of UPL, and that line cannot keep being pushed further and further back until all the lawyers are confined to a tiny corner where they push and fight over expensive legal fees. The fact that the public, some non-attorneys, and even a few lawyers think that it is a good idea to regulate and allow non-attorney legal services directly to the public says at least one thing to me: lawyers have become too expensive for the common man. I think it also says that law firms value their own services more than their prospective clients do. When people are willing to forego the licensed professional for the regulated document preparer, it's time to rethink the status quo. Hey attorneys, do you hear me? It's your jobs and futures we're talking about here. It appears the paralegals will be just fine.

Thursday, August 20, 2009

Where Have All the Cowboys Gone?

I have been doing a lot of networking lately and gathering up CLE credits like candy. I have met some of the sweetest ladies and extremely professional women. I've spoken with everyone from the President of NALA to administrative professionals in the circuit clerk's office. I have learned that I have a hard time choosing between the organization in which most members are professional and career-concious and the organization in which most members are friendly and fun-loving. (As a result of this indecision, I'm choosing both.)

Through it all, though, one glaring reality has begun to emerge. The paralegal career field is missing a very large demographic - men. Where are all the men? Surely not every man who enjoys law decides he absolutely must be a lawyer... right? Or is it possible that the legal field is behind the medical field in yet another area - gender?

Even as society accepts and encourages women to attain higher education, get a law license, and practice in roles that were once traditionally held by only men, the same doesn't hold true for the positions widely held by females. This was once a problem with the nursing profession. As we all know, male nurses used to be a source of ridicule and fodder for unseemly jokes. Thank goodness the social tides have turned! As the nursing profession has shown just how important it is, as demand for nurses has grown on a national scale, as standards have continuously been raised, and as the nursing profession has offered increasing opportunities for career and educational growth, more and more men have flocked to the career.

Perhaps the legal field could take a cue from the world of medicine. Maybe it is time for legal professionals, licensed and not, to set higher standards for non-licensed legal professionals. Of course, it is all a matter of perspective on the whole. If paralegals raise the bar for our profession, we will implicitly invite into it individuals who are career-minded and looking for challenges. We will invite into it professionals who identify with their career and want to excel at something meaningful.

I think this is the key to recuiting more men into our profession. When we take ourselves seriously as a group, when we expect more from ourselves and co-workers, we will find others doing the same thing. Some of those individuals might even decide to join us. Some of them, let us hope, will be men.

Tuesday, August 18, 2009

At Your Service; No Seriously, Use Me

Those of us who work in the law know, or should know, just how important good support staff are these days. Over the past several years, paralegals specifically have been carving out a niche for ourselves in the legal community. We grew out of a need for cost control and efficiency as law firms began competing as businesses. We grew out of a need to bridge the gap between the high and mighty lawyer and the lay people he serves. We stem from the legal secretary, a highly efficient and organized specimen who learned procedural law to perfection until one day someone decided her skills should be billable. We sprung forth from professionals of every field who enjoy the challenges in the law yet choose not to pursue a license. And we are becoming ever more necessary in a legal world fraught with runaway costs, inflated salaries, and increasing overhead.

Unfortunately, we have failed to catch onto the cleverness of the pyramid theory (not to be confused with pyramid scheme). We still expect lawyers, and lawyers still expect themselves, to be able to take care of all aspects of running a law firm with a little bit of assistance from support staff. This is inefficient. If we look at clinics, the medical field being slightly relatable to law in this way, we find that it takes so much more than the practice of medicine to run the operation. In fact, the practice of medicine, that which only licensed physicians or surgeons can do, is but a fraction (albeit a necessary and good chunk of one) of the daily goings on in a medical clinic. A doctors office pyramid would probably look like this in a very general sense (and because I cannot get this to post as a pyramid, you have to use your imagination; I tried):

Dear medical readers, if I am wrong, please tell me. I know I am missing several steps on the pyramid, but my point is that it takes much more to run a medical practice than that which only doctors can do. You need billing clerks, records administrators, assistants and nurses, etc. And yet hospitals and clinics would not exist without the practice of medicine. This is how I view the law.
In my own small office, my Boss performs many of the same tasks I do: we both draft and file documents, make phone calls, and answer emails. However, the Boss also gives out the legal advice, explains cases, advocates for clients in court, and negotiates settlements. I do not do these things, but I manage the files, tend to the schedule, keep track of various collections, write procedural and status letters, make copies, handle invoices, and answer the phone. My Boss could do all of these things, too, but should he? My answer is no, not if I have the time and ability to do it, and his time would be better spent on a task that I cannot do. Not if he is working in the client's best monetary interest.
If a seasoned, well-educated paralegal is to a law firm what a nurse practitioner is to a clinic, why then would the attorney want to spend time doing paralegal-type tasks when a) he has the benefit of a paralegal and b) his license and education are better used in attorney-specific tasks? Sure, lawyers could do it all, and bill for every second, or even worse, waste time doing non-billable administrative tasks, but this doesn't mean they should.
This topic stems from a discussion I had this evening regarding paralegals and attorneys. I was told that paralegals are becoming less necessary today because young associates are willing and able to do all their own work. First, that is not true. The paralegal profession is expected to grow at a rate of 22% between 2006 and 2016. In the meantime, the job market for attorneys is expected to grow at a rate of 11%, which is steady but average. Finally, young associates are doing all their own work right now in an effort to keep their hours up because there is so little work to go around at the bigger firms. This does not mean that paralegals are going to become extinct. If anything, it suggests that associates are so worried about their jobs that they are performing tasks they would normally delegate to the paralegals in an effort to reach their billable hours goals. Especially in areas of the law that are big in document creation, areas with little to no involvement in litigation, I can see paralegals thriving. Of course, we are thriving right now, even in a down market. People always need legal services, and they always need those services from a lawyer - but these days that lawyer may be more than willing to have his experienced paralegal do the work rather than a young associate.
Finally, there is much good to be said regarding smart attorneys who utilize their assistants. Many times, we are much more in tune with local court preferences than the attorneys. For instance, I know that a certain judge in my county likes proposed orders to be filed separately from motions. I know exactly what is needed when requesting service by certified mail. These are small, administrative things. But my attorney does not have the time to call the clerk's office with these questions. I do. And the clerk's office, as I found out tonight while speaking with one of the ladies who works there, is thankful. In the words of T. from Juvenile, "I wish more attorneys would properly utilize their assistants; when they try to do it all themselves they just screw everything up."

Sunday, August 16, 2009

Networking Part II: Rules of the Conference

My favorite quote from this weekend: "I wouldn't trade her for two associates and an undisclosed draft pick." - Attorney's words regarding his paralegal.

This weekend, an old southern hotel by the bay hosted the Alabama Association of Paralegals, Inc. (AAPi) summer conference. Since I live nearby, I thought I would use this opportunity to try AAPi on for size. Below are a few things I learned this weekend, as a newcomer to the networking, career-building, CLE gathering world:

1) Think like a predator. It sounds way more sinister than it really is, but my point is to attack the networking scene with subtle cunning. Instead of approaching an entire group of faces and names you will desperately try and fail to remember all at once, pick them off one by one. The first person I met at the conference was a girl named Kelly, who was sitting alone when I decided to take the seat next to her. We became quick friends. Kelly just happened to know almost everyone else I met this weekend, as they all live in the same area. If I had chosen to sit alone, or if I had chosen to sit next to four or five people who already knew each other, I either would have been isolated from everyone or ignored in favor of familiar faces.

2) Take advantage of cocktail hour. During the meetings and presentations, everyone is trying to appear professional, which can come off as stuffy and insincere. But over drinks, almost everyone loosens up. You don't even have to participate in the drinking, as long as you are there to reap the benefits. Our reception the first night included karaoke. While it is not for everyone, getting up the guts to sing a country song in front of total strangers is oddly freeing. The added benefit is that everyone who watched me belt a tune now has a memory attached to my face and name. As long as you aren't getting sloppy or causing drama, cocktail hour is a great opportunity to interact as individuals with other conference goers and to find people with whom you have shared interests and goals.

3) Engage in the icebreakers. Our big icebreaker game involved a type of scavenger hunt. We had to meet individuals and get their signatures according to directions on a worksheet. For instance, I had to find someone who had previously worked at Wal-Mart, someone who had a pet cat, someone who was born outside of the U.S., etc. This is how I gained my nickname "Miss Blue Eyes" from several of the ladies whose sheets I signed. Like my now famous rendition of "Before He Cheats," this was another way someone may remember me in the future.

4) Fight for your box lunch; you paid for it. This rule applies to non-members of the sponsor organization. I decided I would first try out AAPi before actually joining, so I paid the non-member fee for the conference and my self-titled Introduction Weekend. On the second day, the organization had its annual meeting. I was unsure about the rules, but I was fully prepared not to be in the meeting. After all, I'm not yet a member. But the meeting was a lunch meeting, and the box lunches were in the auditorium along with the AAPi members. I waited in a brief line to the door, where the VP of Membership was checking names from a list. When she asked my name, I told her who I was and added, "I won't be on the list because I'm not a member. I would just like to get my lunch." I gestured to the multitude of paper bags holding what I believed to be delicious sandwiches and probably brownies for dessert. She stared at me blankly. "If you're not a member, you can't come in." "Okay," I stated calmly, "I am fine with not being in the meeting, but I would like to get my lunch if that's okay." It was not okay. "Lunches are for members only," she stated blandly. I felt as if I were speaking an alien language. I quickly tallied a few numbers in my head. "Ma'am, I paid more than the members for this conference, did my money not go toward today's lunch?" Again, nothing. The exact same answer.

I felt my face blushing with a mixture of embarrassment and anger. Embarrassment because this organization I was hoping to become a member of was chastising me for not yet being a member; anger because I'm pretty sure they used at least $4 of my fee on one of those brown bag lunches I saw sitting behind her. But as my face grew hotter, I decided I had better let it go before my voice rose to an unhealthily high pitch. "I guess I will be on my way to pay extra for lunch," I stated as I turned around. Thankfully, one of the seminar committee members saw me turning to go and asked me why. When I told her the problem, she seemed to disagree with the VP Membership and an argument seemed moments from erupting. "Non-members are not allowed in the room at all at this point, " said Miss Membership in her unfriendly yet (I have to give it to her) unfaltering voice. "Well then, maybe I can step in and bring her lunch out to her," countered Miss Committee Member. "She did pay for it." At this point I was mortified and more than willing to slink out to pay extra for my lunch at the hotel's restaurant, but Miss Membership finally gave in and allowed someone to bring a bag out to me.

I am not sure whether they were slaughtering goats in this super secret meeting, or handing out grandma's secret recipe (as my friend Kelly opined), but whatever was going on, I was discouraged from contaminating the atmosphere with my presence way before the meeting even began. I may have eaten alone in the sweltering heat of a southern midday, but by golly, I got my lunch!

Fortunately, this was but one sour moment in a weekend full of delightful experiences.

5) Go to the seminars. We had some very fine speakers at this conference. My favorites were the paralegals-turned-attorneys-who-still-loved-paralegals. I also enjoyed the speaker who excused his technical difficulties with Power Point by explaining that a lawyer, not his paralegal, had helped him put it together. Linda Wolfe, ACP, President of NALA, gave a speech on the current national climate in regards to the paralegal profession. It was perhaps the most encouraging and helpful presentation of the weekend. Still, a question that weighed heavily on my mind was why six out of eight of our speakers were lawyers, and five of those lawyers had never been paralegals. I love attorneys because without them, my career would not exist. I harbor a great deal of respect for lawyers who know how to properly use paralegals and who respect those of us who are passionate about law but not about getting a law license. However, is there some ethical constraint against paralegals giving CLE presentations for paralegals? If not, why are we relying so heavily on lawyers to do this job? While I believe it is necessary, for the mutual understanding of our different and sometimes overlapping roles in the law firm, that attorneys make presentations to paralegals and vice versa as long as it is not a presentation involving legal advice, I do feel that we should rely at least as heavily on the experience and perspective of other paralegals as we rely on attorneys for our growing knowledge base.

I have a host of other stories to go along with this conference - from the delicious breakfasts shared with other conference-goers to the Saturday night outing that caused Sunday to arrive three hours too soon. I feel that this weekend was a success on both personal and professional levels, and I am more than a little sad that it is over.

Thursday, August 13, 2009

In The Era of E's

Forgive me for revisiting the topic of ethics so soon, but as I was joining the conversation on my post entitled "Swimming in the Gray," I stumbled upon a particularly contemporary problem in ethics and the legal profession. It was the issue of the electronic signature. My question was this: How important is it that the attorney is the individual who places the /s/John Hancock on a document before it is e-filed? Until this week, I had not really thought about it. Usually, when we e-file documents at my firm, they are of the nature that require at least two drafts... mine first, and the Boss's various tweaks for the final product. If he is reviewing the document and has made all the changes, he will usually go ahead and file it himself. No problem there.

But today, I was given directions to e-file a Notice of Discovery, which, as many of you know, is a notice to the Court that you are serving the other side with a set of Interrogatories and/or other delicous requests, which makes it much easier to ask the court to compel the other side when (usually if) they fail to respond in a timely fashion. The Notice of Discovery is a very basic form document. Ours contains two sentences. The only things that ever change are the heading and which party is serving which party. Yet, being a document that is filed with the Court, it requires a signature.

As I drafted it, I eventually ended up at the signature. Since I knew we would be e-filing it, I simply filled in the signature line: /s/ The Boss . Then I stopped. I thought back to my previous post about filing documents and some of the comments to that post. I thought about my own comment regarding this very issue. And I erased the signature.

If it is extremely important that an attorney and only an attorney sign the document that is being filed with the Court when he is hand-signing, shouldn't it be equally as important that an attorney and only an attorney e-sign the document when e-filing it? The ABA ethics guidelines did not anticipate this little problem when they were first created.

I imagine a paralegal drafting a simple form document for e-filing, printing it out or email it to the attorney for review, the attorney going in and placing his or her e-signature on the document then e-mailing it back for the paralegal to e-file. If it is a simple form, and the only things changing are the names, hasn't the attorney already approved it by creating it? And if he or she is authorizing the paralegal or secretary or whomever to place his or her name on it electronically and to use his or her attorney password to log onto the e-file sytem in order to file the form document, then how much more approval of said document can you get?

I understand and agree that if an attorney asks his assistant to e-file a complaint and many other types of documents without his review, this would probably consitute assisting an unlicensed person in the unauthorized practice of law. But in the era of e-filing, I personally find that the most dangerous part of this situation is the lack of review. I don't think there is anything inherently dangerous going on when the attorney has already reviewed the document and asks the paralegal to e-sign it and e-file it. Then again, I also don't think there is anything dangerous going on if the paralegal saves the lawyer some effort and a few seconds by typing in the /s/John Hancock before the review. The important part, it seems to me, is the review and authorization of the material being filed.

The holding that paralegals cannot sign attorneys' names, and that attorneys should not authorize paralegals to sign their names on court documents, is apparently long standing but not expressly stated in the ABA Model Guidelines for the Utilization of Paralegal Services. Still, like all rules and descriptions regarding paralegals, the rules are vague enough to allow evolving interpretation with the times. For instance, in North Carolina, the State Bar decided that completely and absolutely barring paralegals from signing for attorneys was overkill, especially in emergency situations, and that therefore, in emergencies, paralegals can sign their attorney's name to a document as long as they indicate that it was signed on the lawyer's behalf, and as long as all the other rules have been followed. While this decision seems to clash with the long-held rule that lawyers and only lawyers can sign their names to legal documents in the representation of clients, it is a reasonable exception AND it does not actually appear to violate or contradict any expressly stated law or guideline, depending on one's interpretation of said guidelines.

The introduction of technology into the legal world has altered and will keep altering this world. In my jurisdiction, some initial pleadings, when e-filed, do not even require an attorney's signature, digital or otherwise (ie, small claims, unlawful detainers). These claims are made via the alafile website by filling in digital blanks. You do not even get a print-out of the fully drafted claim. My state, it seems, does not quite worry about who places whose name where, or if the document is even signed at all. Perhaps the "signature" that matters is the use of the password to log onto the system.

As for me, I was stalled for quite some time today until I could ask the Boss whether I was silly for hesitating, correct for hesitating, or perhaps a little of both. I will leave you, reader, to decide how that conversation went down.

Tuesday, August 11, 2009

Networking for Newbies

I am jumping in head first trying to become involved in local paralegal organizations and my own community. It sounds easy, in theory. Show up, meet people, organically meld with those people because you have common jobs, ideas, or goals, and then proceed to work together to make the world a better place. If only.

In two weeks I have four different opportunities to humiliate myself in a vain attempt to network and expand my social and business circle. I am right in the middle of this two week period. The first one occurred tonight, at our local Chamber of Commerce's monthly Business After Hours event. Every month, one business or organization belonging to the Chamber hosts a little shindig after the work day. Sometimes the host provides alcohol, from what I hear.

Let me begin by explaining that I have never been to a Business After Hours event. My Boss only recently had to explain to me that I can go to Chamber events because the business, not just he individually, is a member. So when this event came up and he mentioned it to me, I thought, why not? I'll go mingle, meet people, and eat free food. At least I was right about the free food.

Our tiny, rural town hosted the area-wide Chamber event tonight at the town hall. I can say in full honesty that the food was delicious. Someone had made scalloped potatoes or hashbrowns (whatever they were, they were covered in cheese and possibly sour cream) that caressed my taste buds with soft and smooth flavor. And the chocolate pudding... oh! the chocolate pudding! But this is where the comfort ended.

When I walked in, everyone was wearing a name tag. I should have found one and written my name on it, but I get horrible stage fright in large groups of people I don't know well, and I tend to forget common sense things. I hide it by doing silly and obvious things like walking around the room, alone, with my head held high, daring someone to accuse me of not knowing a soul. I could probably handle myself better.

When I saw two people I sort of know, I was drawn to them like a magnet. I stood by them making forced small talk through the door prize drawings, trying to think of witty and intelligent things to say. Wishing I knew them better. I saw many familiar faces as I glanced around, but no one I could say I really know. I was about to leave when I ran into the Town Coordinator. That is not her real title, but it might as well be, as she seems to put everything together. She urged me to return to the food table for more pudding and coffee. So I went back for a hot cup of coffee, I don't know why, really, perhaps because I was nervous and eager to please in whatever little way possible. That's when I ran into the Boss.

Now, during work hours, the Boss and I get along quite swimmingly. I bow to his authority and he, in turn, gives me great freedom. Or something like that. It's your basic casual work situation, and one of the reasons I like my job so much. But meeting the Boss in a social setting is... different. I find him to be an amicable person at work, so why wouldn't we have the same dynamic outside of the office? Of course, I ask that question as if I don't know, but I believe the answer is me. I am a completely awkward person when I am outside of my comfort zone. The office is my comfort zone. A Business After Hours where I know few people and the Boss knows everyone... Not so much. I wanted very much for him to introduce me to people, help break the ice in at least one conversation, something, anything. But everyone left after the door prizes anyway. And I did, too.

In a way, I'm glad the Boss doesn't do the introduction thing. It would be helpful to me, really, but I need to be able to handle myself on my own, without prodding from others. But I swear, in the moment, all I could think about was how sad and left out I must appear to everyone around. In actuality, I am probably the only one there who noticed how awkward and alone I was feeling.

After the After Hours event, I came home and readied myself for what would be my first live Paralegal Mastermind call with Vicki Voisin. I normally listen to the recording when she emails it out, but this week, I decided to do it in real time. If you are a paralegal, and you do not know Vicki, get to know her. Stop reading right this instant and make your way to the Paralegal Mentor website or her blog. Sign up for her newletter, her call, her classes, whatever you can. Then please come back and continue reading this post, and perhaps leave a comment that will make me feel better about having an awkward night.

Speaking of awkward nights, the Mastermind call is an interactive experience, where you can ask questions and make comments at various times throughout. Even via telephone, I had stage fright. I had to make myself press *6 to make the one comment I did, and I blubbered my way through it. But I did it. And Vicki graciously allowed me to self-promote Paralegalese, too.

I have two more possibly awkward, uncomfortable events coming up within the next week. The next one will be the Alabama Association of Paralegals, Inc. (a NALA affiliate) summer educational conference this weekend. I am looking forward to it, but I will not know one soul there. I expect I will be standing or sitting alone for much of the time, arguing with myself as to whether to approach someone for a conversation or remain set off, like a leper. I will force myself to meet people. And I will make silly conversation while striving to sound half-competent. I will probably ask weird questions. Or at least, they will come out of my mouth in a weird way. But I will expose myself to a greater community of paralegals in my state, and I may even make a friend or two.

Next Tuesday, I have been invited to the monthly meeting of the Baldwin County Association of Legal Professionals (a NALS affiliate). I expect to falter through introductions there, as well, and, since it is at a restaurant, a quiet and shy meal. But perhaps I will be able to coax my brave and confident professional persona out a bit to make a few friends and business acquaintances. Either way, I will be there, diving in head first to whatever awaits.

If you are able to pull anything from this post, reader, I hope it is that networking takes practice, that awkwardness is sometimes a necessary evil in order to achieve growth, and that if I can do it, so can you. If you are a new legal professional... if you are an experienced but shy legal professional... if you are in a non-legal profession, just get out there. Be awkward, be friendly, and most importantly, be there.

Sunday, August 9, 2009

Swimming in the Gray

I don't know about anyone else, but the most worrisome part of the NALA certification exam, for me, was Ethics. I am a very ethical person, if I do say so myself, to the point of avoiding any and all situations that could possibly be construed as borderline unethical. Unfortunately, this is precisely what causes me trouble when it comes to book ethics. In the run-up to the exam, I found myself missing practice questions because I was trying too hard to stay on the ethical side of the line.

Take this question, for example:

Your attorney supervisor is out of town for the day, but calls you frantically with instructions to draft and file a motion she failed to file before she left that morning. She wants you to e-file it, and sign the bottom with her electronic signature. What should you do?

a) Refuse to file the document until she reviews and approves it for her signature.
b) Do as she says. You've drafted motions like this several times before.
c) Draft and file the motion, but indicate somewhere on the document that it was e-signed by you outside of her presence for timeliness.
d) None of the above.

My first instinct, especially without having ever been in a situation like this or having seen the correct answer, would be A. Is this the correct one, though? Since I made up this question, I don't have the book answer for you, reader. In my experience, though, the book answers usually fall into the gray area, which is where paralegals spend much of our time. After all, we are neither lawyers nor lay people, authorized to do legal work but not to practice law. Our very existence is the thin line, and we learn early on to tread carefully lest we slip into the abyss that is the unauthorized practice of law.

One tricky situation is the prospective client inquiring about the cost of something. I know my attorney charges x dollars per hour, but I refuse to talk fees with prospective clients. I may be too cautious in this area, but I dread hearing, "Well the paralegal told me it would only be $750." One time, a man prodded me for several minutes attempting to get a price out of me. "Come on," he kept saying, "You have to have some idea what it will cost." The problem is that I usually don't. And even if I do have an idea, even if I am sure and my quote is spot on, giving a quote would at least appear to be fee-setting, and that is not in my job description. In fact, fee-setting is on my "never ever ever ever to do" list. That's what my boss went to law school for. Now, if he ever gives me a price list of fees that he has set on his own, I will gladly quote from the list, and no more.

Another tricky situation is the client who calls for a simple update. As all legal professionals know within a week of their entry into this field, nothing in law is ever simple. The simple update can easily turn into a very gray conversation. I avoid these by saying exactly what I feel I can legally say and following up with, "I am the paralegal, and I cannot give you any more information. I will have the attorney call you to explain more thoroughly if you would like." Many times, I know the answer to the client's question. Sometimes, I could probably ethically give it because it would not be legal advice. But like commas, legal information is best left out when the user is in doubt. I know that this gives my Boss a longer call-back list than he needs some days, but until I have a full and comfortable grasp on where the line marking UPL is, I want to stay as far away from it as possible.

Our tight-wire walk is even more difficult when judges and lawyers have a hard time grasping the rope themselves. I once read an ethics opinion regarding paralegals where the paralegal used the terms "we" and "our" regarding the law firm and its clients. The judge stated that paralegals do not represent firm clients (agreed), and that therefore, it was improper for the paralegal to refer to firm clients with a possessive pronoun (disagreed). This opinion would not bode well for me, as I have referred to the firm as "we" and used the term "our" to describe firm clients. After all, the clients employ the firm, and I am a part of the firm. I do not personally represent our clients, but as an employee, I represent the firm that represents them. When such strange restrictions are suggested, though, it shrinks the already small but shifting intangible space in which I work. It makes me second guess every seemingly insignificant thing I do and say, and I am one of the ethical ones.

This opinion is the main reason I had so much trouble with the ethics part of the certification exam. On every question, I wanted to choose the answer that was the farthest away from UPL; however, on the exam, the right answer is usually a half-step closer to that uncrossable line. In practice, if I always chose the answer that kept me the farthest from UPL, I would not be working in a law office.

Please do not read any this as an acceptance of the unauthorized practice of law or as intent to buck the system. I hope I have made it clear that I stay as far away from even the appearance of UPL as possible.

However, by very use of the prefix "para," our career indicates just how gray and murkey the field can be. The more experience I gain, the easier it is for me to feel my way around the dangerous spots on the job, the clearer the line becomes, and the more confidence I have in what I am allowed and not allowed to do. Every day, I live by the creed, "When in doubt, leave it out..." even if it means making the client wait for a call-back from the attorney.

Thursday, August 6, 2009

The Compliment That Wasn't

A very well-meaning person tried to give me a very nice compliment today. But, "You are too smart for this job", however nicely intended, still comes across as slightly insulting when the person you are saying it to loves the career she has chosen and finds her daily work both challenging and interesting.

I certainly understand why this person thought she was paying a compliment. After all, like much of the public, to her the lawyer is the smartest, highest educated person in a law firm. She sees the law firm as a hierarchy, not a team. To her, I am simply the lowest person on the totem pole at our two-person office. Likely, she was implying that she believes I am smart enough to be the lawyer.

While I appreciate the thought, it brought to mind all of the assumptions we tend to bring to the legal field. I wonder why we always, without fail, assume that the smartest person at the law firm is the one with the law degree. That line of thinking only further enforces the idea that any non-attorney working at a firm probably is not smart enough to go to law school. This is just not true. Many non-attorney staff members have very good reasons for not pursuing a law degree. My favorite one? That they do not want to be lawyers.

We all have our own reasons for this. While I enjoy the law, I do not want to work long hours for several years fretting over the possibility that I might not have a job after the billable hours report is released for the month because my senior attorney decided to cut half of my hours for a client she is friendly with, etc. etc. I don't want to hate my job. I don't want to fear for my job. I don't want to cower before the senior attorneys in a years long hazing process meant to break my spirit. I understand that not all legal practice involves these unfortunate occurrences, but the other option is to be a poor lawyer. I have a hard enough time being a poor paralegal; at least as a paralegal, I am 100% sure I will like my job because, well, I like my job.

Of course I've exaggerated the position of the poor associate attorney above. But the fact remains that the real reason I, and so many other legal professionals, choose to remain non-attorneys is that we already love our jobs. A successful law firm, much like any other business, takes a team effort. Everyone has his place. Like IT professionals, law office managers, and other paralegals, my job requires me to become proficient in areas where my attorney supervisor may not be so proficient. He should be the expert on the law, absolutely, but as I have said before, it takes more to run a law office than legal expertise. While I work under his supervision (as both my supervising lawyer and my boss), if he knew it all or could do it all, he would never have hired me.

So while I appreciate the intent of the person who complimented me today, I do not agree with her assessment. The job I do, and the way I do it, requires someone of my intellect, skill, and drive. I am sure a lazier someone with fewer brains and no higher education could muddle through the same job at my current office, but he would be half as effective and would probably find twice as many ways to screw things up. It takes someone smart and efficient to do it right. And even I, a certified, certificated paralegal with a B.A. in English, still make silly mistakes on a daily basis. As the #2 by default in our little office, much of my time is spent organizing and keeping things organized... I don't think they have a class for that in law school.

My main point is that if I love what I do, then I'm not too anything for it. Like Goldilocks with the Mama Bear's bowl of porridge, I find the paralegal profession to be just right.

Wednesday, August 5, 2009

Time Out for A Moment of Encouragement

When I first decided to enter the paralegal career, I geared up to constantly be on the defensive. I just knew that many attorneys, especially young ones fresh out of law school, would look down on me and my lowly position on the legal totem pole. In a few instances, my assumption turned out to be correct. Fortunately, ignorance is usually the proponent of such attitudes, and ignorance is fairly easy to cure. I remember talking to one baby lawyer last year about my studying for the NALA certification exam, and how I excited I would be to be able to add "CP" or "CLA" to the end of my name. All of a sudden, an understanding came to his face, and he said, "So that's what those letters mean! I thought our staff was just making it up!" I do not know whether he appreciates the staff members at his firm more because of my revelation, but I believe that conversation revealed to him that paralegals, while we usually have not spent three years in law school, take our jobs and roles very seriously.

Even more fortunately, I have met many more lawyers who respect the paralegal's role, whether they take the time to realize it or not. My Boss, for instance, grew up working in law firms. He learned early on how important the non-attorney staff are to a firm. He once told me a story about winning over a particularly grumpy lawyer at a firm he interned with during law school - all because he was on friendly terms with a secretary who knew exactly how the grumpy lawyer liked his briefs drafted. When my Boss calls another law firm, unless he has a specific reason to talk to the other attorney, he usually asks for the attorney's paralegal. He consistently lets me know when I've performed well or done something that makes his job run smoother and easier.

I also date a lawyer. Now, he might just be biased because of our relationship, but he's been only encouraging and never condenscending when I talk about my job and what kind of roles I would like to play both in the smaller realm of my office and the larger realm of the career itself. He seems to recognize that value of staff, the knowledge we can bring to the table, and the various roles each person on a legal team plays.

I am intrigued with the state bar associations that have begun to outspokenly recognize the paralegal's role in a law firm. It is encouraging to realize that so many lawyers out there understand how important the paragal's role is.

Legal Talk Network has released a podcast aimed at paralegals - The Paralegal Voice. It is a tribute to the growing role paralegals are taking on and the expansion of this career.

For all of these reasons, I have learned to let go of the defensive position I took at the very beginning of my career. While there will be lawyers who fail to understand the positive aspects of using paragals, and while there will be paralegals who fail to understand the importance of their own place in their firm, the legal community is quickly opening itself up to paralegal professionals. I am excited to have entered this world when I did, while the profession is dynamic and expansive. It makes me happy to read about legal teams working together and depending on each other, rather than lowly paralegals cowering in the corner with angry attorneys yelling at them.

I say we keep it up.

Monday, August 3, 2009

To Be or Not To Be... Exempt

I cannot wrap my head around the Department of Labor's classification of paralegals as generally all non-exempt employees under the Fair Labor Standards Act.

First, I understand that the purpose of the FLSA is to protect workers and to keep employers from taking advantage of employees. I understand that it is generally a good thing to receive overtime compensation for long hours. I also don't dispute that many paralegal positions are hourly wage positions, and there is nothing wrong with it.

My problem lies in the way the DOL dances around the controversial issue of whether or not it is appropriate to classify paralegals as exempt employees. If the purpose of the FLSA is to protect the worker, the DOL comes off sounding more condenscending than protective.

In a formal 2005 opinion (which can be found here:, the DOL attacks the situation from several different angles. For the opinion, they were given hypothetical paralegal work situations, and were to decide in each situation whether the paralegal would be considered an exempt or non-exempt employee. In every situation, they found the paralegal to be a non-exempt employee who must be paid accordingly.

There are two main categories paralegals could possible fit into when decided upon exemptions. The first, and the most difficult to establish, is the "learned professional" category. It is usually pretty easy to explain away the idea of a paralegal being a "learned professional." Generally speaking, we do not fit the bill. In order to fall under this category, an employee must perform work that requires a specialized and advanced knowledge in a field of science or learning, and such knowledge must be acquired through prolonged, intellectual, specialized instruction. 29 C.F.R. Sec. 541.301(a). This category is fairly narrow, usually encompassing lawyers, doctors, engineers, and the like. Most paralegals do not have law, medical, or engineering degrees. Now, if you do, and you use that degree in your paralegal job, then you may qualify as an exempt employee based on your learned profession and the fact that you utilize it.

There is another category, though, that paralegals could fit into: the administrative exemption. To fit into this category, an employee's primary duty must be work directly related to the management or business operations of the employer or its customers, and that duty must include using discretion and independent judgment in significant matters to the business. C.F.R. 541.200(a).

This is where the DOL loses me. Many paralegals also come with the title of law office manager, or office manager, or just manage the office without a formal title. According to the DOL opinion I cited above, work that is "directly related to the management or general business operations" of a business is work that directly assists with the running or servicing of a business. Since everything I do on a daily basis directly assists with the running or servicing of my employer's business, I feel that many other paralegals like me would meet this specific criterion. Perhaps the DOL would agree with me here. Perhaps not. They move on into even murkier territority, though, to discuss the meanings of "discretion" and "independent judgment."

29 C.F.R. Sec. 541.202(a) states that "In general, the exercise of discretion and independent judgment involves the comparison and the evaluation of possible courses of conduct, and acting or making a decision after the various possibilities have been considered. The term ‘matters of significance’ refers to the level of importance or consequence of the work performed.” Perhaps I think too highly of my position, but my Boss asks for my opinion regularly when he gives me a research assignment or asks me how to build a case. Granted, he has the final say. As the attorney, he will take whatever I do and make it his own once he puts his John Hancock on it. Still, before the last step of final approval ever happens, I am comparing and evaluating possible courses of conduct and making decisions based upon my analysis. The Boss then consults with me or my report and makes a decision based off of my analysis and suggestions. Forgive me if I have a hard time not seeing this as a significant contribution to the business or its customers. Further, my job in research and analysis fits perfectly into the following description:

"Thus, the term "discretion and independent judgment" does not require that the decisions made by an employee have a finality that goes with unlimited authority and a complete absence of review. The decisions made as a result of the exercise of discretion and independent judgment may consist of recommendations for action rather than the actual taking of action." [Emphasis added] 29 C.F.R. §541.202(c).

Factors considered when determining what kind of discretion and independent judgment an employee has include: whether she is given the authority to affect or implement management procedures, carry out major assignments, does work that affects the business in a substantial way, can commit the employer financially, can decide to deviate from standard and/or set policies, whether she is involved in business planning, whether she consults or advises, and more. 29 C.F.R. § 541.202(b) While I cannot do everything described above, like commit the business financially, I find that my job regularly includes about half of these characteristics. According to the DOL opinion and 69 Fed. Reg. at 22, 143 - individuals who meet at least two or three of these factors qualify as exempt employees. Yet the DOL finds that paralegals do not qualify.

The letter also states that

"the paralegal employees appear to fit more appropriately into that category of employees who apply particular skills and knowledge in preparing assignments. Employees who apply such skills and knowledge generally are not exercising independent judgment, even if they have some leeway in reaching a conclusion. In addition, most jurisdictions have strict prohibitions against the unauthorized practice of law by laypersons." FLSA 2005-54

I find it strange that the DOL here compares independent judgment in a law office to UPL, whether or not, it seems, the judgment is directly related to a matter of law. After all, as any solo practice or small firm lawyer can tell you, much more goes into a law office than the simple (or rather complex) practice of law. Like any business, a law firm requires management of employees, equipment, and supplies. How many paralegals out there fit also into these roles?

After reminding the reader of the ABA ethics guidelines, the DOL states, "The implication of such strictures is that the paralegal employees you describe would not have the amount of authority to exercise independent judgments with regard to legal matters necessary to bring them within the administrative exemption."

I find this to be a strange statement, too. Practicing law and working in an administrative capacity are two entirely different things. If the employee were practicing law legally, he or she wouldn't have to worry about the administrative exemption at all... he or she would be exempt under the learned professional category. Obviously, the administrative exemption is there for individuals who do not fit the learned professionals category. Yet it would seem that the DOL is disqualifying paralegals from the administrative category based on the fact that we do not fit into the learned professionals category.

While I don't mind overtime pay, I am annoyed at the reasoning behind the DOL's consistent assertions that paralegals do not qualify as exempt employees. I am particularly baffled by their seeming willingness to ignore 29 C.F.R. §541.202(c) as quoted above, regarding making recommendations rather than taking action. If the DOL would simply look at reason, they would find that many paralegals do, in fact, qualify as exempt employees under statute.