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.

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.

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.

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.

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.

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.

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: http://tinyurl.com/n6tt3j), 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.