A Message From "The Boss"

In the years that Melissa worked for me and wrote on this blog, it was nice to see how I developed as a character, person and boss.  I enjoyed – after she left – reading through the years of posts and see what she thought of me, her job and life in a small firm.  I say after she left because I never read the blog while she was here.  This was not due to a lack of interest (or curiosity), but rather due to a belief that she should have her privacy and freedom to write about the office and me as she saw fit, without worry that I would be reading.  But after she left, and as I read through the posts that encompassed her time here, it was nice to see ‘The Boss’ portrayed in such a positive light.  I liked the idea of being this nameless character being written about by Melissa; being the flawed but competent employer often utilized as the backdrop of Melissa’s evaluation of her current mood or assessement of the paralegal profession… Due to my faceless/nameless character in the blog, I have read on here that some imagine me like Bruce Springsteen due to the character name I was given; sometimes the nameless character made me often even picture the character as Big from Sex in the City (I’m married, so I can make that reference and still maintain my manliness…right?).  Well, I can assure you that I am nowhere near as cool as either Big or Springsteen, but I am more than happy to have you continue to think of me in either way (especially since many of us will likely never meet and thus you will never be disappointed in the reality).

I am sure at this point many of you are wondering why, now, nearly 2 years after Melissa’s departure from JNL, P.C., I am popping up again on Paralegalese. I wish it was because I was announcing her return to the office. But alas, that is not the case…..yet.  But, 22 months later (and moving on to my 5th paralegal since she left, by the way), I could not shake the feeling that I never properly said goodbye, or how much Melissa was appreciated while she was here (and even worse, how much she was unintentionally underappreciated).  And I figured, what better way could that be done than on this blog, where ‘The Boss’ was created and Melissa’s time with JNL, P.C. was played out in a much more positive, exciting manner than I think reality would ever portray. I have told people since Melissa left that it would have been much easier to replace me in this firm than it has been to replace her (a feat which, I fear, will never be accomplished).  Make no mistake about it, the girl that you read on here is much smarter than most people you will likely ever meet or work for.  She is smarter than me, and I think clients are starting to figure out she was the brains of the operation!

But even though I knew that while she was here, I never REALLY knew that until she left.  As I said before, I am now on my fourth paralegal / legal secretary since Melissa left. None were horrible, none were even bad, but none were Melissa.  Enough said.  But every time I start out on the process to hire a paralegal or assistant, I find myself pulling out the measuring stick that Melissa left behind two years ago, and it becomes blaringly clear what I had with Melissa, and what I have dearly missed.   To best sum up Melissa, the following is what I wrote in a recommendation letter for her as she has continued to pursue higher education. Ironically, this was written on March 18, 2011, almost a year to the day after she left my office:

    Melissa Hinote was employed for two years before she moved to Memphis, Tennessee – much to my dismay.  During those two years, Melissa proved herself to be unquestionably professional, motivated, intelligent and of the highest character.  In an office of two people, you get to know the other person extremely well.  As such, I came to know Melissa both professionally and personally, and can say without qualification that she is one of the most pleasant, caring, and dedicated people that I have ever had the pleasure of working with or knowing. During her time working with me, I came depend on her for everything from substantive legal work to making sure that I was prepared for, and did completely forget, meetings and trials.  In that time, she never once disappointed me or failed to exceed my expectations.  When she left, it became abundantly clear that I would have been easier to replace in my own office than she was – an assessment which has not changed in the year since she left.  

    I am convinced that no matter what Melissa does in life, she will surpass all expectations, and make proud the person or institution that gets to ‘claim’ her, so to speak.  I can assure you that she will be an asset to your program and will excel academically.  Not only academically, but seeing as I still have clients who bring her Christmas presents a year after she left, it is clear that her ability to personally connect with people would also be an asset to your program and those involved in it.  More than academic abilities and personality, though, I urge you to accept her into the MA in Communications program so that your institution, along with a long list of others – of which I am proud to be a part of – can be one of the ones who get to 

claim her as one of their own.  

Now, if you are reading this, then that means Melissa has agreed to post this on the blog.  Knowing Melissa, she will have a real problem with posting something that is complimentary to her.  So, I will add for her benefit at this point, that I would consider it a personal slap in the face if she did not give me this opportunity to say hello to the fans of ‘The Boss’ that have been wondering how I am.  I will be personally offended if this is not posted in its entirety (of course, after she proofreads it and makes changes to make me sound more intellectual and funny than I actually am).

If you are reading this blog, keep doing so.  The writer is one of the smartest, most genuine people and talented writers you will ever have the chance to read.  If you are a paralegal or in the legal field, read what she writes over and over – she knows what she is talking about.  If there were a world full of paralegals like her, what a better profession the law would be. 

It was nice to meet all of you and be the backdrop to Melissa’s writings.  Thank you for your support of Melissa, she truly is as great and smart as she seems – and she is still missed.  

Thanks,

Jared

(See what I did there, like at the end of Sex in the City – you learn Big’s name – okay, maybe not ….. told you I was not as cool as he was!)

"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.)

More On Independent Paralegals

I hate to beat a dead horse, to return to the question of independent paralegals and whether it is possible to walk that tightrope between serving an attorney and committing UPL - but here I am, doing just that.

My friend Professor Mongue at The Empowered Paralegal Blog, shared quite an interesting letter from an independent paralegal today. I encourage you to take a moment to read his entry and the letter he supplied, which can be found here, before continuing reading my thoughts on the subject. (It should open in a new window.) Go on. Read it. My words will be here when you get back.

Now that you are thoroughly informed, at least as informed as you can be at this point, you know that a self-proclaimed independent paralegal is currently being investigated for UPL. While we could argue the pros and cons of independent paralegals until we're blue in the face, I am more interested in one or two issues this letter brought up.

1) First, it seems that the complaint for UPL was filed, not by a dissatisfied or misled customer, not by someone who felt taken advantage of, but rather by a lawyer. Now, I have no qualms with someone doing what he feels is necessary to protect or defend the legitimacy of his profession or field. I just find it interesting that the only person who has enough of a problem with Mr. Martin's independent paralegal practice to file a complaint against him alleging UPL is a lawyer. This reminds me of some of the information I found regarding nonattorney practice in California when I first began researching independent paralegals. In that post, found here, I mentioned the apparent success of some independent paralegal (or rather, legal document assistant) companies. My limited reading and research found that at least customers are at least as satisfied, if not more so, with these businesses as with licensed attorneys when using them for situations in which they are not in need of legal advice.

2) If we take the letter at its face, Mr. Martin believes he is providing a necessary service to those who could not otherwise afford it. He does not sound like an incompetent attorney impersonator trying to pull the wool over an unwitting public's eyes.

3) Think about what Mr. Martin says about fear in the legal profession. Whether I agree with his stance regarding independent practice or not, I have a hard time rebutting his allegations of fear of UPL. It's the scarlet letter no one wants to wear. One mistake, one wrong word, and BAM, you've committed UPL. And whether you are even guilty of committing it is irrelevant. Once a complaint is filed, no matter what the verdict, your reputation can be blemished. I understand that UPL is an attorney issue too, but the lines are in different places. The problem for paralegals, as I've said before, is that the UPL line is to some extent subjective. We all know those things that MUST NOT BE DONE. But there are some things that may be unsafe to do, not because we are worried about the client's welfare, but rather because we are worried about the perception of some unnamed person who might wrongly construe our actions as the practice of law (as Mr. Martin seems to think happened in his situation). For instance, in some courts paralegals can sit with their attorneys at the table. In others, paralegals are restricted to the public seating, presumably to avoid appearing to the public that they are acting as a representative of the client.

4) Mr. Martin hits on an important question: Should it really be necessary for someone to pay a lawyer to assist him in such common sense instances as signing his name in a specific spot? Does telling someone to write his debts in this column labeled "debts" really take a graduate degree and a license to practice law? Should that really be construed as legal advice? The people who need such assistance rarely can afford an attorney, and this is a dilemma. I'm not saying tat the answer is limited non-attorney assistance; I'm just saying that if we discount limited non-attorney assistance, we have to do a better job of finding a real answer to better serve those who need it.

It is not my job or within my limited area of expertise to give a solid opinion of Mr. Martin's letter and all the points he raises. I chose here to write about the points of interest to me, the specific areas I find curious, the statements that made the cogs in my brain start turning. If you have comments, feel free to leave them here, or even better, return to Professor Mongue's blog to contribute your opinion. We all learn best when we enter into a dialogue and share our thoughts.

I am wishing Mr. Martin luck in all his endeavors. As for myself, I am glad I have a Boss to depend on.

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.

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.