The following is the first in a series of interviews with high-profile legal professionals in Texas.
NANCY C. McLAUGHLIN: I very much appreciate your agreeing to this interview today. (Y)ou had four main priorities for your year in office. The first was "restoring public trust and confidence in the legal profession" and the fourth was "planning for the future of the legal profession."
RICHARD PENA: Well, let me talk about restoring public trust and confidence in the legal profession where we have had some seminars that you are referring to. The seminars are "Stand Up for Justice" seminars. We have gotten overwhelming responses from the lawyers and judges and some media in regard to this whole issue. The premise that we are basing this on is that the rule of law is under attack as our lawyers are under attack on a daily basis. You have to ask yourself, "How long can the attacks last before there is a serious erosion of our democracy and of our justice system?" It's not only lawyers that are under attack, but the whole justice system...judges are under attack daily. We've seen the erosion in the past years and it's very disturbing. There are surveys that show that respect for lawyers has decreased by over 50% in the past 20 years. There is a recent survey that the State Bar of Texas in conjunction with the Supreme Court is doing. The preliminary results show that they mirror nationwide results...when you ask the public to list the categories of professions-doctors, lawyers, bankers, roofers, whatever-lawyers are second to last. The last is politicians. So, what we are saying is that the time has come for us to tell our story. The lawyers are basically the ministers of the justice system and we're the glue that holds this country together. So, we are going forward telling our story. In the past, lawyers have not been very good about representing themselves and telling our story to the public. So, we're saying the time has come for us to do it. The way we've done it is that we have a communications plan that we've developed. It's taken us about a year...It requires a partnership with all segments. It requires a partnership with the local bars, with the judges, with lawyers. I've been going throughout the State and have spoken to over 20-25 local bars-specialty bars, judges-these groups (have) agreed to partner with the State Bar and to do their part. So, the response has been overwhelming. We've gotten some good media response. The Austin American Statesman, for example, has commended the State Bar for taking the initiative and they...know...that this is a big deal. It's a big project and it's not going to happen overnight. But, they have been very supportive. We have some other newspapers that have been supportive. We have had some, not many, but there have been some...there are some cynics in the media and frankly, the media is part of the problem. So, all of the response has not been positive, but most of it has been.
NCM: (Y)our successor, Mr. (Charles) Aycock...has he agreed to continue this fight...
RP: ...Charlie has agreed that it is a top priority. We're looking at...the strategic planning committee of the State Bar is looking at making this a three-year program. The seminar that you were talking about was a part of our PDP program. For the first time, the PDP department, is offering three hours of ethics and we're giving it free to the members...a whole new concept...free CLE. But, the State Bar felt that this is...an important topic and the members should know about it. In Austin...the program had a two week time line...PDP thought of it and we were trying to put it together...(T)hey were figuring that we were going to get 50-100 people...probably 50 people...based on past experiences. Well, the 50 people turned into 100, 200, 300. (T)here were over 400 people...between 400-500. It broke all records. We went to Arlington and had a similar experience where we had 400-500. We had a telephone conference on the same topic of restoring public trust and confidence in the legal profession and we had over 300...and that was a paid seminar...that broke all records for a telephone seminar. We were in the Valley and it was very well attended there. We are going to be in Houston early next month. So, everywhere we go, the lawyers are speaking up and saying, "The time has come."
NCM: (I)n the restoration of public confidence and trust, how do you feel that legal assistants can be a force?
RP: Legal assistants are critical to this whole effort. They have a very important role to play. Part of the communications plan on restoring public trust and confidence in the legal profession deals with our own conduct. Most of our lawyers, most of the time are highly professional and ethical as we all know. But, there are some that are not and there are occasions when conduct of members of our profession is less than what we would like. Basically, legal assistants in most cases, and we're talking about smaller firms, generally, where the lawyers handle the "people" business, they are the ones that talk to the clients. That is where the rubber meets the road. (P)art of our plan for restoring public and confidence has to do with the lawyer rededicating himself or herself to professionalism and ethics and a lot of that has to do with how you treat a client. It's similar to the golden rule-you do unto others as you would have them do unto you. And that's what we're preaching. It's critical for the public to have trust in us; that they get their phone calls returned. That the legal assistants on behalf of the lawyer treat them well, are nice to them, courteous. And, legal assistants also are important in prompting a lawyer to do the right thing in critical situations-in tough ethical situations. I encourage all legal assistants to get a copy of the Texas Lawyers Creed and keep it on their desk and give one to their lawyer and say "Here" and to abide by it.
NCM: (H)ow do you utilize...your legal assistants?
RP: We have a high volume practice and we see a lot of people. We represent the people. Years ago as I was developing my law firm, I found that... the lawyers were not as productive as I would like for them to be and I started analyzing why...(W)hat I came up with was that we had lawyers that were doing work that should be done by legal assistants and that didn't make any sense. So, the way we have structured our offices is in different departments, but the number one rule is: the lawyers will do "lawyer" work and legal assistants will do "legal assistant" work. And, quite frankly, I'm a big fan of legal assistants. They have no greater champion than I because I utilize legal assistants as much as possible. If I can get away with it, I would rather hire legal assistants than lawyers. They are critical to a practice. They're just simply critical.
NCM: When you hire legal assistants do you look at whether they have attained any certifications, whether they have a four-year degree or they have a lot of CLE credit? Do you ask those things on your application or in your interviews?
RP: You take it into account, but, it depends on what you are looking for. You know, sometimes we hire and we're not looking for anything like that. Sometimes we hire and we're looking for somebody more experienced. It really depends on the role of the legal assistant. (W)e do a lot of worker's compensation. (W)e would like to have legal assistants who are, when we hire for that position, trained in workers' compensation. However, the reality is that there are very few legal assistants in the State who know anything about worker's comp under the new law. So, then you look at individuals, who, or I look at individuals, who have a good attitude...who are smart, bright, who are trustworthy and who can learn the area and communicate with people. The qualifications and the CLE and the courses and all of that are an indication of those qualities. But, I'm looking for the qualities, frankly, much more than I'm looking for a diploma or anything of that nature. (A)bove all, I think the most important qualities are to be dedicated to being a legal assistant, first and foremost, and doing things correctly. Having integrity and being professional.
NCM: Are you familiar with the Legal Assistants Division Long Range Planning Task Force and the public forums they are holding across the State...on the future of our profession?
RP: Yeah, I've heard it, but, I'm not too familiar with the results, or if there are any conclusions yet.
NCM: Basically, we had found that there were certain legal assistants that wanted some kind of structure. (A)nyone can walk in off the street right now and say "I am a legal assistant." (T)here's no regulation, restrictions, anything... some people want to tighten that up. Do you have any feelings about that, I mean, whether it be regulation, registration, licensure?
RP: Well, I'd be interested in hearing the conclusions before I make any definite statement on that. I think that there are probably two sides to that coin and two sides to the argument...I can understand the regulation...you may have a better quality out there. On the other hand...you're going to have a lot of small firms or solo practitioners that are against that probably because they want to hire whoever the heck they want to hire. I'm certainly receptive to the recommendations of the task force. Again... what we're trying to accomplish is restoring public trust and confidence in the legal profession. If, the recommendations are aimed at doing that, I'm certainly supportive. We don't want to get in a situation where its an economic recommendation...and I can see that it very well could be...aimed at restoring public trust and confidence in the profession and would have some benefit.
NCM: What do you think about expanding the role of the paralegal to say attend non-contested hearings, or go to docket call, or sit in on a client deposition?
RP: Well...I think those are three different areas. Docket calls and the client depositions are somewhat different. I give my legal assistants a heck of a lot of leeway and a lot of authority within the parameters of not practicing law without a license. So, it's hard for me to...
NCM: Would you, if in fact, there was some kind of licensure so that you were sure that your legal assistant had the necessary training and education in order to perform some of these tasks, would you be more likely to say "Yes, I would feel comfortable with her going to an uncontested hearing and presenting the papers, or whatever?
RP: I'd feel comfortable with...a competent legal assistant doing as much as possible...so long as it's not practicing law without a license. And let me expand on that a little bit. I think it is critical that we have affordable legal services. And I think it is critical in our society that we have access to the justice system for all people. One of the main criticisms that I have heard throughout the State...is people not having confidence in the legal system... they can't afford a lawyer...(I)n the very lower class you have legal services which is now under attack. In the middle class you have people who cannot afford lawyers. And even in the upper middle class, people say, "I can't afford a lawyer." (W)hat I would like to see is a system whereby all people have access to the justice system. Now if, by giving legal assistants more of a role in the procedural aspects that would lower the legal fees...and it should, because if you don't have a lawyer having to go to docket call, for example, he is not charging his client, I think that would be grand and I think that's probably where we should be heading. However, we need to be very careful in the unauthorized practice of law and not practicing law without a license.
NCM: I know that some of the feedback from some attorneys is that they are concerned that if we are licensed or regulated that the first thing that some legal assistants are going to do is run out and open their own offices. Would that be a concern to you?
RP: You have individuals that are opening up offices that are not lawyers. You have these so-called lawyer referral services that are coming into the State. You have accounting firms that are doing legal work that are not lawyers. You have a lot of people that are not lawyers. What we are seeing and what the future probably holds is maybe not a deregulation of the practice of law, but non-lawyers being involved in the practice of law. Whether... (a) regulated legal assistants program would add to that, I don't know. But, that's what the future is looking like; that's what the landscape is looking like. The practice of law in the next ten years from now will look nothing like the practice of law today.
NCM: Right now...we are not considered to be a profession. Many people still consider us to be "clerical." I know that one of the things that legal assistants want is to be considered to be professionals. (P)aramedics are licensed, physician's assistants are licensed, even insurance adjusters are licensed.
RP: Well, it's admirable...that you do want to be a profession. There's going to be some debate on that...(T)he main issue is whether we are going to continue to be a profession or whether we are going to be a business. If, we are going to be a business in the future, then we are going to be like the dry cleaners or anybody else. If we are to be a profession, then we are going to be regulated by the rules of ethics and professionalism. And, frankly, my feeling is if we are not going to be a profession, then our country is in a heck of a lot of trouble. Because lawyers have an obligation to do what's in the best interest of the client and not what's in the best interest of themselves and that's one of the aspects that separates an attorney from a business.
NCM: What was your worst experience as a legal assistant?
RP: I guess, there haven't been that many, but one comes to mind of a legal assistant who had a lot of experience, but was, how you say, more interested in her financial gain than the clients to the extent that...(there was) misappropriation of funds, so to speak.
NCM: How did you handle that?
RP: Well, we talked to the County Attorney about it.
NCM: Okay, what's your best experience ever with a legal assistant?
RP: I've had a lot of good experiences...many, many good experiences...I'll give you an example of one yesterday. I was talking to one of my legal assistants and she said, "We had a gentleman a couple of days ago that came in from Haiti..." My legal assistant is fluent in Spanish and English. "...and he was like other clients, he was very scared about being in a lawyer's office and it was my job to try to talk to him so that he was not as afraid and so that he would trust us...(H)e spoke very little English and he spoke no Spanish." So my legal assistant said, "I talked to him in French and he was fine after that." So, it turned out that I didn't even know my legal assistant was fluent in French, but she was, and she saved the day.
NCM: (W)hat is the case that you've had in the past that best exemplifies why you wanted to become a lawyer?
RP: There are basically cases everyday. This one came out in the paper...we didn't intend for it to. (W)e had a lady that came in on a worker's compensation case...she had been injured on the job and the employer was denying that she was injured and the insurance company was denying that she was injured. And, they were denying her medical benefits. The lady needed multiple services, medical benefits, could not work, single mother, they were getting evicted. She came and asked for our help. After reviewing the case, I realized that this was the type of case where we were not going to make any money, we were not going to make a legal fee for a number of reasons. The only thing we could hope to get was to get her medical benefits instated so that she would get the medical care...(I)t required multiple hearings and much time spent by our office. (W)e won and she got her medical benefits, she wasn't evicted, and to my surprise that was in the paper about a year ago or year and a half and that was an example of a case, a worker's comp case, a successful ending. But, there are a lot of others.
NCM: What's the best book you've ever read?
RP: ...Probably, the Bible. It's very interesting book and it has a lot in it.
One thing that I would just like to follow up on and that is the future of the legal profession. The future of the legal profession is very cloudy. And, the future of legal assistants is likewise, cloudy. Where the legal profession is going to be in 10 years, we don't know. Where legal assistants are going to be in 10 years, you don't know. There...is one school of thought that says that legal assistants are going to have a great role in the future of the legal profession and I am among those whose are saying that and that is because the public is clammoring for affordable legal services. Legal assistants can help provide in that. But, by doing the things that they should be doing and lawyers should not be doing, the trend is towards deregulation of the legal practice. If that continues, then there is a greater role for legal assistants. I am one who feels that no one should practice law without a license and so there is a division there. On the other hand, the future of the legal profession, I've been told, may be in individual lawyers with their laptop computers producing their own documents and so forth which would eliminate the need for some legal assistants. So, which of those scenarios we come out with in 10 years is for someone else to say. But, those are the things that I'm hearing about the future of our profession.
NCM: The last thing I wanted to talk to you a little bit about is pro bono... Are there things that paralegals can do to help out with those efforts?
RP: Oh, there's a lot of things paralegals can do. Sure. For example, in the disaster relief, when we go down to Del Rio...much of the work that is going to be done is going to be advice. And, a lot of it is not even legal advice. I was talking to somebody that has been down there recently and...the fact is ...over 1400 homes were destroyed or significantly impacted... neighborhoods were wiped out. The people are in a state of shock and many of them are not coming forward...what they need is people, not necessarily lawyers, but people who know a little bit about the law and a lot about human nature, to go down there...knock on their doors and say "We're here to help. What is your experience? How can we help?" And listen to their stories...In pro bono there's a lot of things legal assistants can do. You can help out with your divorce clinics, etc. But, I think what's its going to require is for legal assistants to come forth and say, "Here we are. We want to help. We can do this." It's kind of like my legal assistants when I'm doing something and they come in and they say, "Hey, I can do that." And I say, "Oh, okay and I let them." But the legal assistants...should come forward and say, "We want to be a part of this honorable profession and we can help. Let us help." If we have that at the State Bar, I can assure you, we will start utilizing them.