"Paralegal" Wins Against Summary Judgment, But Will He Succeed In Trial?

The Daily Inter Lake, a Montana newspaper, is reporting that a self-named independent paralegal has prevailed against the attorney general's summary judgment motion, which stated that his advertising had been "deceptive as a matter of law." Of course, while the judge may agree that the case needs hearing, paralegal Jerry O'Neil is more cautious than optimistic. The newspaper quotes him as saying, “He indicated my ads were not deceptive, but that was the only motion before him.” If the case makes it all the way to trial, Mr. O'Neil, a former state senator, seems to face charges of unauthorized practice of law and deceptive advertising.

A few things interest me about this case. First, apparently Mr. O'Neil enlists the help of attorneys for his document preparation, paying them to review his completed documents before filing them for his clients. Second, the judge himself noted that the Montana Legal Services uses non-attorney volunteers to perform many of the same functions that O'Neil says he performs, and that the volunteer-prepared documents do not even receive the benefit of attorney review.

The judge has pointed out a major discrepancy in Montana's system, it appears. If Mr. O'Neil is having attorneys review his work, it should be assumed that such work is higher in quality than documents which do not get the benefit of attorney review.

I will also note that my office works in the same basic fashion, except that I do not pay the Boss for his review of my work. Still, I draft a Will based on a form the client has filled out, he reviews it, most of the time it needs no alterations, and then we deliver it to the client.

Another point of interest is that Mr. O'Neil had legal trouble with his "independent paralegal" practice in the past and had since changed his advertising to conform to previous injunctions. The judge in his current case is quoted as saying, "O’Neil claims he has complied with the permanent injunction and is not violating MCPA, as he is not providing services that only a lawyer can perform and is now [sic] working under the auspices of an attorney.”

Of course, I am not going to opine whether Mr. O'Neil is guilty of UPL or violating any other law in the state of Montana. I am not familiar with Montana's UPL laws. Neither am I familiar with the Montana Unfair Trade and Consumer Protection Act. However, I will suggest that if he is performing services with the benefit of attorney review which are the same services non-attorney volunteers perform without attorney review, it would seem unfair to both him and his consumers to deem his work the unauthorized practice of law.

[Editor's Note 1/31/2010: Further investigation into Mr. O'Neil's situation, aided by a reading of Practical Paralegalism's story on the topic, led me to the 2006 Montana Supreme Court opinion in an earlier case regarding Mr. O'Neil and the unauthorized practice of law. It can be found here. It may be noted that in the earlier case, the court described Mr. O'Neal as having readily admitted to "drafting pleadings for his customers, providing them with legal advice and appearing in court with his customers," actions the court (and probably any sensible person) deemed to be the practice of law. Still, the facts of the new case seem distinguishable to some extent from the earlier case, so it should be interesting.)

Another Dive In

I caught the second episode of the infamous Deep End today, and I was pleasantly surprised that while it did not improve much, it was not worse than the first episode.

I still feel as if the women are the only interesting characters of the whole bunch, and that the men exist simply as plot instruments. But I was sad to see that it appears the most interesting character, Katie the paralegal, is already irrelevant to the show. Her budding relationship with What'sHisFace FirstYear came to a screeching halt when her other relationship with one of the partners fell apart. Let this be a lesson to all you young paralegals out there with amazing hair: sleeping with the boss is a baaaaaad idea, especially when his wife is also your boss. Not only can is screw up your social life, it might wreck your career. Or at least, it will force you to take your career to Montana, and no one wants that.

I'm still smirking at the various unrealistic story lines. Like the fact that the first-years are taking on their own cases within two weeks of being licensed. Or the crazy client antics. And who are all the beautiful mystery ladies constantly showing up to kiss the British/Australian guy? Are they other lawyers? Other paralegals? Secretaries? Prostitutes? We have no idea where they are coming from.

All in all, I'm disappointed that they seem to be getting rid of Katie the paralegal. Aside from the fact that she has failed the bar exam FOUR times, she seems pretty proficient at her paralegal job. When she is not sleeping with coworkers or the boss or pissing off another boss by sleeping with her husband, she is researching and helping the first years prepare for pre-trial conferences. In fact, the team work that was exhibited in this second episode between Katie and Beth was actually exactly what I would like to see between paralegals and attorneys.

My only consolation with Katie's departure is that she is apparently being promoted to point person for due diligence with some team in Montana.

Minesweeper

In recent weeks, I've had cause to imagine myself working in a different city, at a different firm, with (or for, depending on the situation) a different attorney (or attorneys). This idea scares me because frankly, I have it made right now. I am a very picky employee, and my current professional situation is about as perfect as I could ever expect. The work is challenging and fast-paced. Every case is different. The Boss respects me and my contributions. He voices his appreciation regularly. We are a team. Sometimes I think sole practitioners understand the value of their assistants better than any other attorneys possibly could. To the sole practitioner, his paralegal is his right-hand man, responsible for everything from phone calls to bookkeeping to research and writing to the docket calendar. I value that relationship. I like knowing that what I do is important because it makes me work that much harder.

If I were to change jobs, could I ever find this again? Would I even feel as though I had the right to expect it? I am sure I could find a job, but would I be just another legal assistant to an overworked associate? Would my presence, my contributions, my work ethic matter? Or would I be expendable?

I went to a conference this past weekend, where I learned several things:

(1) I don't like it when speakers, lawyers and judges no less, make sexist comments while giving their presentations. I like it even less when the women around me laugh and smile at such comments.

(2) Apparently several attorneys in my state and local area do not "allow" their secretaries and paralegals to be involved in the local NALS and NALA affiliates. I have several thoughts on this matter. First, who is my Boss to tell me which organizations I may or may not belong to outside of work? Second, at what point did these lawyers decide that professional development for staff members is a bad thing, and what led them to this conclusion? I have said it before and I will say it again, if I ever have people working for me, I will want the smartest, most capable people I can find who are interested in growing their skills. I cannot find a single thing wrong with those characteristics.

(3) The answer one of our speakers gave to the sometimes problem of seasoned paralegals working with problem attorneys was to "have patience" and "try to help him however you can." If you have tried reaching out to this problem lawyer, and then tried reaching out to his boss, with no success, then my own answer would be to find another job. If 90% of lawyers are decent people with at least average people skills (and I bet the percentage is higher than that), then let the young buck with an ego problem learn on his own how not to treat people while you enjoy a productive work relationship with someone who puts the "civil" in "civil procedure." I am spoiled by my awesome Boss, I know, but we should not reward disrespect and anger management issues with subordination and meek obedience. This is a lesson for people in all types of situations, not only for legal professionals. We must be engaged and interested in our work. But to do so means that we must realize ourselves as part of a team, not as work mules being prodded and whipped by the inexperienced plow boy. I am a huge fan of communication. If you do not work in an environment where you can communicate any issues you have and be heard, then it's probably time to find a place where you can.

My fear is that if I do have to find another job, I will get stuck with a sexist boss, or a nonsupportive boss, or a boss who likes to yell and assert authority just for the heck of it, who does not know how to communicate in an effective and productive way. I worry because even though I know these are the exceptions to the rule, the exceptions exist, like land mines waiting silently for me to take an errant step.

Splash!

After watching the series premiere of the new legal drama The Deep End, I have a few thoughts (beware of spoilers!):

1. The paralegal does have amazing hair. It must take hours to fix.

2. The paralegal did not choose her career. Apparently she has failed the bar exam... multiple times. Probably because she spent more time on her hair than her prep courses. (Can you blame her?) Still, I know I should understand that it's too much to ask that the writers create a paralegal who is at least slightly empowered in her field (although perhaps not in her personal life... that would be no fun). But I wish someone would.

3. In the magical world of television, an ex parte meeting with a judge to discuss your trial strategy in the case you have before him is perfectly ethical. He will even tell you his ruling before notifying the other party or entering the order.

4. E-filing does not exist in this world. Instead, partners send first-year associates (not runners or assistants) downtown to the courthouse to file motions. Or perhaps e-filing does exist, but the partners just enjoy torturing the associates with tedious and fruitless errands.

5. The writing shows very little personality so far, but one or two of the characters, namely the women, show promise. While the men seem flat and predictable, the women characters may harbor some surprises.

6. The show does reinforce the perception (whether right or wrong, I suppose it depends on the firm) of law firms as career fraternities where newbies are hazed unapologetically by the more seasoned guys and gals.

7. This law firm is not as cool as it first appears. Within the first fifteen minutes, we see a mother meeting with one of the first-years to discuss her case, when a receptionist walks in with the woman's son, reprimanding the woman for her son's presence at the firm. So Sterling's client-relations need a bit of work.

8. While I like the looks of their law library, I believe that the majority of young lawyers and paralegals do their research online, or at least on the computer, these days. It looked impressive to show them reading actual books in the library, but since cases in television land are prepped and tried within minutes, I bet online research would be much more time effective for our fictional foursome.

9. Conflicts of interest are never a big deal in television law firms. They barely even acknowledge them.

10. Of course the first thing a high end firm does with its brand new associates in their first week is give them cases to complete on their own with absolutely no guidance. In television world, everything works out well for the clients.

11. Apparently these lawyers don't understand good client communication. Revealing something to your client for the first time while in a meeting with the other side, while it works in television world, is probably not the best idea. It's probably better to let the client in on the news before telling the other side.

But enough with all of my cynical, critical, nit-picking. A show doesn't have to follow real-life rules in order to gain and keep viewers. If it did, medical shows wouldn't always be able to rely on CPR and defibrillators to bring patients back to life.

With that being said, I look forward to next week's episode of The Deep End before rendering my verdict on its potential.

Jumping Into the Deep End

ABC's The Deep End premieres tomorrow night, and you better bet I'll be watching. At first glance it appeared to be a lawyer's Grey's Anatomy set in a chic fictional law firm that apparently requires a headshot with your resume. I assume that all of the beautiful lawyers will have a lot of sex with each other, presumably in dark closets and otherwise empty offices, much like Grey's. At some point, I can almost guarantee that one of them will have a disastrous affair with a secretary. It sounds so predictable. Then again, I am an avid watcher of Grey's Anatomy.

Still, though it walks and talks like the legal counterpart to Grey's Anatomy, the extended preview I viewed gave out a distinct Ally McBeal vibe. Maybe this drama will be more of a dramedy than I dare hope.

Whichever the case, I have one small wish concerning this new show. I wish only that support staff exist as human beings, not merely as props for weak plots. Of course, if paralegals and secretaries are even seen in this new series, that very fact will put it miles ahead of both the late Ally McBeal and the current Private Practice (another medical drama). Though I have seen every episode of each of these shows, I have never seen a single paralegal, secretary, or nurse, in either of them, respectfully. I know these roles aren't nearly as dramatic and glamorous as surgeons and lawyers, dear ABC, but in real life, they are very useful members of these highly technical fields.

Russian Phone Roulette

One of the trickiest parts of my job is knowing when to stop a conversation. This challenge arises because of the UPL line, ethical issues, and sometimes plain common sense. Of course, with most people, clients, opposing counsel, and the like, this is usually a complete non-issue. Most people I talk to understand my role as explained to them by the Boss and myself.

But even though clients may understand my role, some of them still find ways to push the envelope. Sometimes the envelope is addressed to "Ethics Dept.," and I avoid it like sin. Other times, the envelope is labeled "irrational" or "stubborn" and I have to find a delicate way to pry myself away from the situation so that I can pass the buzz-kill of a conversation to the Boss to deal with. (Hey, that's why they pay him the big bucks.) In these conversations, clients say things like, "Go ahead and probate the will. I don't want to have to go through the court to do this." Or they might try convincing me that the Boss and I don't understand what a Waiver and Consent form does. Or they tell us to "take the next step" in a process without really knowing (or asking) what that next step is.

In these instances, my role has been to let the Boss explain the situation in detail. However, when the Boss is unavailable, these become some of the most difficult conversations to end. When I say, "I will have the Boss call you back to explain this matter," the callers seem to immediately sense that they are getting something wrong. Of course, in order to compensate, they continue trying to convince me they are right. It's a vicious cycle that can eat up precious minutes in the day. Then again, upon reflection, it's a silly cycle, too. It makes the routine act of picking up a phone feel a little like Russian Roulette (without the danger of bodily harm... usually).

My Screenplay Idea

The Boss: (In letter) Dear Client, we told you several months ago that if you wish to pursue your case, you'll need to move forward by a certain date. After that date, your claim might be barred.

[Time passes.]

Paralegal: Hello, Mr. So-And-So, please contact us at your earliest convenience, preferably before _________(date).

[Time passes.]

The Boss: (In letter) Dear Client, after ______(date), we may be unable to pursue your claim because it will likely be barred by the statute of limitations. If you wish to move forward, you must contact us immediately.

[Time passes.]

The Boss: (to The Paralegal) Well, we've done everything we can. Just let it go.

[The critical date arrives. The Paralegal is checking afternoon messages, and one of them is from the Client.]

Client: I would like to come in to discuss my case to get ready to sue these people. How about next week some time?

[Camera pans to Paralegal's face; fade to black.]

The Good Days

Today was a good day. It was a rewarding day. It was very satisfying. I could go on.

Today I went to court with the Boss for the first time. Actually, I met him there, but I was there nonetheless. He was appearing in a matter that has been, in some form or fashion, dragged out for years. We went in today hopeful and optimistic, but not sure by any means. By the end of the day, I was walking on clouds. If I felt that amazing, I cannot imagine how the client felt.

But it all began with an email from the Boss: "We're about to get started if you want to come." (I had been at the office hard at work.) I took stock in my clothes. Never having been in real court before (as opposed to "fake" traffic court), even as an observer, I had no idea what people wore. The lawyers always wear suits, but they are supposed to. What does someone who is not a party to the proceedings wear? I decided that overdressing would be better than the alternative, so I rushed home to slip into a suit (one that was purchased two years ago in the juniors section of a discount store, I might add). I could have worn a nicer skirt suit, it is true, but it was so cold here this morning that my hot water froze. I was not going to subject my legs to the same kind of torture.

I arrived just in time to walk in as all the witnesses were being shooed out. The Judge looked over at me and asked, "Um, are you a witness?" She was about to send me back out the door, but the Boss assured her I was meant to be there. Then commenced the hearing.

I've never seen the Boss in action. I suppose it was exactly what I would have expected. Having worked with him for over two years, I'm pretty familiar with his mannerisms. I was more interested in the Judge, her assistant, the court reporter, the other lawyer, and the other lawyer's client. This being a small court room, there was nothing grand about it. The first row of benches opened directly to the folding tables reserved for the parties and their attorneys. The court reporter sat directly in front of the witness stand doing her thing. I was surprised that the Judge had a laptop open in front of her. In fact, much of her attention was directed toward whatever she was doing on it. Her assistant sat to her left and was working on her own laptop.

The proceedings were formal enough, but not extremely technical. When someone had an objection, he stated it, mainly speaking in a low tone toward the other attorney. The Boss and the other lawyer frequently approached the bench (or rather stepped a few steps toward it from their tables) to discuss the merits of an objection. All the while, I saw prim and proper, drinking in the scene. After the Judge called for a recess, the Boss waved me up to the bench to introduce me to her. I guess to assure her I was not a wayward witness but rather his harmless paralegal.

Fortunately for our case (but unfortunately for my desire to see more of the hearing), circumstances prompted a settlement of sorts. During the waiting time, I spent time in the lobby with our client and the client's family, who made me feel right at home with them. When the Boss came over to give the client an update, he at some point jokingly called me smarter than him. The family all laughed. As he walked away, the father said with a wink, "So your Boss thinks you are smarter than him."

"Not so," I answered. "He is the brilliant legal mind. I am merely his assistant. The Watson to his Sherlock Holmes."

"Ah," said the father, "But what was Sherlock Holmes without Watson?"

At the end of the day, all was well with the world. Almost all, anyway. All enough to count, that is. There were hugs and smiles and sighs from all, and a cautious sense of relief from the Boss. Today was a good day.

Return of Rule Four

I've mentioned before that the two counties in which the Boss usually practices are vastly different from each other in terms of court procedures and judges. We have learned a lot over the past year regarding the way Mobile County courts run and how their judges make decisions. In one memorable "teachable moment," a Mobile County judge asked me, "Have you read Rule 4?" (That was the moment I told the Boss a judge was on the phone for him.)

Well, we recently received a judgement in our favor in Mobile that did not satisfy us one bit. Knowing that no Baldwin County judge would have ruled that way, the Boss asked me to call the judge's office to make sure we understood the reasoning behind the order. Since this was the Rule 4 Judge, I of course brushed up on my reading of that particular rule before calling. Since this was also the judge who answers his own phone, I braced for impact as I dialed the number.

By the time I called, I believed I had figured out exactly why we had received the unsatisfactory order. I was ready to speak to our Judge himself, but in a moment of good fortune, his assistant answered. I explained to her that, while I believed I knew the answer to our question, I needed clarification before bringing the answer to the Boss. However, the very order itself seemed to confuse her. From what she said, I could tell that she had been the one who drafted the order for the Judge to sign. Still, upon hearing my question, she told me she would ask the Judge and get back to me.

Flash forward two or three hours, and the phone rang. I did not hesitate in picking it up because I could tell from the number on caller ID that it was the Judge's Assistant. I was wrong. It was none other than the Rule 4 Judge himself. He, too, seemed quite confused about the order, which saved me from sounding like a blubbering fool this time. Of course, as we were speaking about legal things in regards to a particular case, he asked to speak to the Boss (who is the representative of the client, after all), and my hands were cleaned of the matter.

After their conversation, the Boss give me the rundown. It turns out, I had already discovered why we received the unsatisfactory order. Thanks to Rule 4. And I suppose, thanks to the Rule 4 Judge who intimidated me into reading through it once more before calling his office.

As for the Boss and me, now we know for sure.

The Destruction of New Year Resolutions

Oh the things I was going to do this year! I was going to exercise daily, eat at least one piece of fruit each day, and most importantly, send out monthly status letters to clients.

Thanks to the brutal cold and other dead-of-winter realities, I'm finding that the exercise resolution is more a dream. Knowing that it is too cold to run outside right now and too dark when I get off of work to bother anyway, I set my alarm clock for "early" this morning so that I could work out to a DVD in my apartment. I woke up "early" but snoozed through to "late" thanks to the below-freezing temperatures outside of my thick blanket of blankets. Except for the quick run from my door to my car and the intense yet involuntary shuddering which was the result of my exposure to the frosty air, I am sad to report that no actual exercising was accomplished.

But that's okay. There's always tomorrow. In the mean time, I'm eating better, right? It turns out that eating at least one fruit a day is harder than I thought. I should have started last night, but I didn't want to eat fruit before bed. I'm not sure why, but it did not seem right. And everyone knows you don't eat fruit for breakfast unless you're having a big breakfast. Fruit on an empty stomach is not good. I barely got to leave the office for lunch, so I didn't make it to my apartment for that apple. And here I sit at night, already fat and happy from a soup and salad dinner. When oh when will I find the right time to add a healthy piece of fruit to my diet?

Perhaps the most insufferable disappointment is that I have not mailed out the inaugural batch of monthly status letters yet. To be fair, I have worked a total of two days, only 16 hours, in the new year. I have twenty-something more days of non-mailing before this project becomes a total failure. But I am discovering that this extra work just makes my stack of other to-dos seem taller. Because status letters are not urgent, I fear that I will put them off until next year by accident. Do you ever have that dream where you have forgotten something extremely important and only remember when it is far too late? I'm going to keep having that dream until I send these letters out. They are the monster under my bed.

After such a stress-free holiday, the real world is causing me to re-evaluate all these crazy "goals." Perhaps I need to give up a resolution or two. Tomorrow, I think I will eat chocolate all day, move as little as possible, and then, just maybe, get those status letters done.