H O T " C I T E S "
PROVIDING COST-EFFECTIVE LEGAL SERVICES
As I meet paralegals and paralegal students around the state and across the country, conversations frequently turn to what we do at our jobs. There are as many types of paralegals as there are attorneys, and the responsibilities of those paralegals vary widely. Attorneys and paralegals alike are not always certain about what a paralegal can and should do. There is a very short list of what paralegals may not do, and a seemingly endless list of what they can do. Only statutory or court authority places limits on the tasks paralegals may perform. Paralegals perform the same functions as attorneys except those generally prohibited by UPL statutes: accepting clients; setting legal fees; giving legal advice; and representing others in Court.
Paralegals have become an integral part of the legal team. The best use of attorneys, paralegals, and support staff comes when a team approach is used. As on most teams, the legal team members should complement each other’s strengths and compensate for each other’s weaknesses. Tasks should be assigned to the team member who can complete the task in the best and most cost-efficient manner. Utilization of paralegals is essential to the success of this effort and key to providing the highest quality and most cost-effective legal services.
According to a recent survey by ABA’s Standing Committee on Legal Assistants, substantial progress in the utilization of paralegals has been made since the mid-1970’s. About one-half the survey respondents reported that they had expanded the roles of their paralegals because their paralegals had developed a broader range of skill levels. The survey showed that attorneys in small firms who utilize paralegals delegate a wider variety of tasks and responsibilities to their paralegals than do members of larger firms. Larger law firms assign tasks to new associates and summer law clerks that are paralegal level responsibilities. Utilization of paralegals in litigation practice areas appears to follow the traditional or standard job responsibilities, while utilization of those in non-traditional areas seemed to be broader and more creative, providing the paralegals with a higher level of responsibility and more autonomy. Attorneys identified the most important skills that paralegals possess to be organization, communication, interpersonal skills, and computer literacy. Considered least important were conducting legal research and preparing legal memoranda.
Recognizing the need to inform and educate future attorneys on better utilization of paralegals, and perhaps as a reminder to those already in practice, the National Federation of Paralegal Associations ("NFPA") has developed a video, "Role of the Paralegal in the Practice of Law", which is being made available to law schools, judicial colleges, bar associations, and law firms. The video is designed to give a better understanding of what a paralegal is, including a definition and the short list of what paralegal cannot do, along with the roles and responsibilities paralegals may have within a broad range of practice areas including litigation, corporate law, real estate law, bankruptcy, and in non-traditional areas. There is a section on how utilizing paralegals benefits attorneys and their law practices, and includes statistics demonstrating cost savings to clients, paralegal profitability, and contributions paralegals make in pro bono publico. Another section outlines the qualifications of paralegals emphasizing the different levels of education programs and the numerous credentialing programs.
The paralegal profession is continually evolving and changing. The paralegal profession is facing possible regulation through licensing or other means. Attorneys should be cognizant of the education and training of paralegal candidates. Have they completed a course of study concentrating in paralegal studies? Have they demonstrated their ability, skills, and knowledge by passing a competency exam? Are they members of a paralegal organization, demonstrating their commitment to their profession? Attorneys should think in terms of how they could be utilizing paralegals beyond the standard or traditional responsibility. Paralegals, by virtue of their education and training, are competent and qualified to perform substantive legal work. Paralegals should be encouraged to be creative and to take the initiative in performing higher legal tasks with increased responsibility. Continuing legal education for paralegals should be encouraged and supported by the employer.
The entire legal community wins when attorneys recognize that paralegals have the education and experience to perform legally substantive tasks. When attorneys believe that paralegals are qualified, paralegals receive increased responsibility and more substantive work, and their work is more satisfying and challenging. They develop a sense of pride and ownership in the work and in its result. They become loyal and dedicated employees and more valued members of the profession.
For more information regarding NFPA, its history and positions on various issues, see Statement on Issues Affecting the Paralegal Profession, which can be found in electronic format at: http://www.paralegals.org or contact: NFPA at P.O. Box 33108, Kansas City, MO 64114-0108. Tel. (816) 941-4000. Fax. (816)941-2725 or Info@paralegals.org.
Lesley G. Cox, RP is a paralegal with Church, Church, Hittle & Antrim in Noblesville, Indiana and is currently the President of the Indiana Paralegal Association and NFPA’s Multidisciplinary Practice Coordinator.
Meetings
Maneuvers: Strategies for Meaningful Meetings
by Michele Boerder, Legal Assistant, Hughes & Luce, LLP
How many times have you attended a firm meeting, client meeting, or association meeting and afterwards nothing happens? Perhaps good or even great ideas are discussed, but there is no follow through or follow-up, and the idea remains an intangible. Are ineffective meetings consuming your time and slowing productivity?
Here are some strategies to consider:
What is the purpose of the meeting? Even social parties have purpose: to have fun, to commemorate an event, or celebrate a holiday. Is your meeting purpose to be creative and brainstorm? To solve a problem? Or, to delegate specific known tasks? The purpose will determine the approach, the attendees and the environment.
Who should attend the meeting? A legal team may be comprised of a large core group and various "sub-teams," or in a small firm it could be the lawyer, the paralegal, and the secretary! A factor to consider is the combined hourly rate cost of the meeting. The core group meeting should be for issues in which all need to participate. Otherwise, sub-meetings are more economical. In many instances, however, sharing of knowledge at group meetings can save many hours and many dollars by avoiding repetitive work, by "cross-pollination" of intelligence and ensuring that team members are handling similar tasks in a similar manner.The physical environment of a meeting is not always given the level of planning and importance that it deserves. In most instances, the physical environment of the meeting will be an office conference room. However, it may be at a hotel facility, or even a restaurant. Ensure that the environment and facility are adequate and appropriate for the goals of your meeting, and that attendees will be comfortable. The surroundings should be conducive to participation by each individual in the group. Think about whether there should be assigned seating or structured seating (round table, rectangular table; who sits at each head, etc.) Are there team members who do not get along and sitting next to each other will create tension in the meeting? Conversely, are there others who are friends and will carry on ancillary conversations? These meetings hindrances can be controlled by pre- planning the environment setting.If you don’t tell them they won’t come. You must notify attendees and give them as much advance notice as possible, preferably in writing or via e-mail. Be sure that the day, date, start time, expected ending time, specific location (address, room, etc.— even the city) is stated. Include a description of attire, if appropriate. If the meeting is near a meal time hour, indicate if food will be provided.
Compose a written agenda that can be distributed. An agenda will provide structure and focus as well as a checklist document to accomplish the purpose(s) of the meeting. An agenda can be very specific, or only include general topics, therefore the scope of this meeting tool depends upon the purpose. If the purpose is to have a free-flowing exchange of thoughts and ideas, the agenda may be very broad. If, however, the meeting is to assign specific tasks, the tasks should be sufficiently stated in the agenda. An agenda also gives attendees a place to record their own notes, conveniently under the appropriate topics. Blanks can be provided to fill in deadlines and assignments.
The facilitator is the "rudder" of the meeting "ship," steering the group in the direction it needs to go, keeping it moving, and ensuring that the "passengers" are comfortable and willing to embark upon the voyage! Begin the meeting with introductions unless everyone knows each other. Even if only one person is new to the meeting, spend a few moments for name, position, location (e.g. department, city, division, etc.) Effective meetings require communication, and communication is more effective when attendees know one another. Perhaps this is why many conventions begin with a cocktail hour or social event—to help people get to know each other before the business of the meeting.
The second step of facilitation is to state the goals and structure of the meeting. A good facilitator moves the meeting through the agenda, while allowing discussion and interaction as appropriate. Effective facilitation involves good listening and accurate "re-capping" of what is stated. Many times a facilitator can bring closure to a decision by re-wording it. A facilitator should be non-partisan, fair, but firm in leading the meeting.Before conclusion, the agenda should be reviewed for items addressed and items deferred. Specific project assignments should be identified and persons responsible for them noted. Each project should have a completion or follow up deadline.
Explain whom to contact should questions arise, and, clearly communicate:
After the meeting, timely send minutes or an overview of the meeting, noting any decisions and assignments to attendees and others. This will provide a uniform document to remind attendees of their assignments, and to solicit any questions or clarifications from the attendees. Set up a repository for meeting materials (notes, files, correspondence, agendas, reports, etc.) with a person responsible for them, if the chair of the meeting does not retain them.
A meeting is a terrible thing to waste! Try using some of these maneuvers at your next meeting for a more productive meeting result!
Ethics
and the Paralegal
If It Doesn’t Seem Right, Don’t Do It!
by Nancy C. McLaughlin, CLAS
Your credentials may be impeccable, your skills first rate, your responsibilities enormous. But if you practice unethical conduct, knowingly or unknowingly, you are a danger not only to the client, your attorney and the firm, but also to yourself. Therefore, it is imperative that you are aware of the code of ethics under which paralegals must perform their duties. According to Webster ethics are "The principles of conduct governing an individual or group." Ethics are the rules which govern our profession. If attorneys break their rules, they may be sanctioned. Paralegals, for the most part, will not; however, some state and local paralegal associations have by-laws which allow the sanctioning of, removal from or denial of membership in their groups. Although sanctions do not apply to paralegals in general, certain ethical breaches could land you, along with your attorney and/or law firm in court in the unenviable position of Defendant.
In your search for an understanding of your ethical responsibilities, you should read the NALA Code of Ethics and Professional Responsibility, the NALA Model Standards and Guidelines for Utilization of Legal Assistants, and the American Bar Association’s Model Rules of Professional Conduct. You should also read any canons of ethics published by your state and local bar associations as well as case law governing this subject. Each state can adopt its own set of rules, but most are based upon the ABA’s Model Rules of Professional Conduct.
Generally, all of the rules, standards and guidelines state that so long as a legal assistant is supervised by an attorney, the lawyer maintains a direct relationship with the client and is ultimately responsible for the work performed by the paralegal, she may perform any task delegated by the attorney.
However, there are certain things that the paralegal is not allowed to do. The following are some of more common ones:
Accepting Clients
A legal assistant is not allowed to accept a client on behalf of the firm. In other words, she may not establish the attorney-client relationship. This is not to say that, if the attorney and client have already agreed to the representation and its terms, the legal assistant could not present the contract to the client for signing. However, she must be extraordinarily careful if the client asks for an explanation of a portion of the contract. Even though she may know what it means, imparting this information to the client may be construed as the Unauthorized Practice of Law (UPL). If this situation arises and there is no attorney available to explain this particular provision, then the "signing" must be postponed to a later date.The same holds true for rejection of a particular client. It is up to the attorney to determine if he will add a case to his docket; it is not up to the legal assistant.
Setting Fees
Your firm may have an established minimum fee schedule, but you, as the paralegal, may not quote fees for services rendered by the firm. For one thing, although you may think you know what the fee for a particular type of case may be, perhaps the issues involved are extremely complicated and the time which must be spent developing the case may be high. For this reason, the firm may ask for a larger retainer or bill at a higher rate. If you quote a fee and it is wrong, your firm may be in no position to change it.Some cases are taken on a contingency fee basis. This means that the attorney will be paid only if he makes a recovery for the client. Again, although you may know that your firm normally takes $ of the total recovery, you may not know how expenses are to be reimbursed, if there is a cap on the expenses and if there may be statutory liens which must be paid before the client receives any money. It should be noted here that it would be unethical to take most divorce cases and all criminal cases on a contingency fee basis due to the possible conflict of ethics which may arise.
Fee Splitting
An attorney may not share the revenue from any particular case with a non-attorney. This means that if you refer a client to the firm, you may not receive compensation for that referral. The attorney may not give you a percentage of the fee for settlement of a particular case. This is not to say that the paralegal may not participate in profit sharing arrangement or retirement plan which is based on the total fees brought in by the firm.Competence and Integrity
It is your responsibility to keep abreast of the current changes in the law governing your particular area of practice. This can be accomplished by attending professional seminars, reading case law and summaries, paralegal association magazines and newsletters, and professional publications directed towards the legal profession in general and paralegals in particular.You must also do everything to maintain your integrity in dealing with clients, opposing counsel and others outside of the workplace. Once your integrity has been tarnished, it is very hard, if not impossible, to remove the stain.
Crime and Fraud
If your attorney gets in trouble with the ethics committee or the criminal authorities, you, as his assistant, may also be drawn into the conflict. If you know that your attorney is acting unethically, talk to someone in the firm in a position of authority about this breach. If there is no one, you may have to quit your job in order to avoid compromising your own integrity. However, you may wish to consider contacting the Lawyer’s Assistance Program sponsored by the State Bar of Texas. You call will be confidential and it just might do some good.One of the most common ways for a legal assistant to commit unethical conduct is in her capacity as a notary. Although you may be asked to do so, never notarize a document that you did not personally see executed by the Affiant. You may be held personally liable if trouble arises as this is an "intentional act" and may not be covered by your firm’s malpractice policy.
You should also be careful not to disclose confidential information learned while working on a case for your or other’s personal profit. You could be charged with "insider trading" by acting on a "hot tip" you discovered after transcribing a recorded statement from your client or a witness.
It is also unethical to buy computer software and then duplicate it for use by others in your firm. This is called "pirating" and is not only unethical, but also criminal.
Communication with the Client
As mentioned previously, to keep your client happy, you must communicate with them. Return their calls, give them updates on the progress of the case, and notify them of any hearings or depositions they are required to attend. Be sure to let them know in plenty of time for them to mark the date on their calendar and arrange their schedule accordingly.Many times the client would actually prefer to talk to the paralegal rather than the attorney. If this is the case, be very careful in the way you respond to their requests for information concerning their case. You may explain procedures that will be followed, but you may not state what you feel the best procedure would be in their particular case. You may inform the client that there is a statute of limitations governing their claim, but not what that statute may be. In other words do not give any information to the client that MAY BE CONSTRUED as legal advice. However, if your attorney asks that you communicate to the client certain information that is allowable so long as you do not elaborate on what she says. Never give any "advice" or information that requires the "exercise of legal judgment."
Confidentiality
Any information imparted to you by a client, a witness or your attorney should be considered confidential. You should not even say that your firm is representing a particular client, unless this information is a matter of public knowledge. Even then, it is best to just keep quiet.The purpose of confidentiality and the attorney/client privilege is to allow the client to discuss his claim frankly and honestly with his attorney. You, as a legal assistant, are also bound by this privilege.
I can think of only two times that confidential information between an attorney and client can be divulged to a third party. The first is if the information is necessary to advance the case and the attorney has the permission of the client to disclose it. Second, if the information involves future criminal acts.
There is actually one more. If there is a suit between an attorney and the client, some confidential information may be disclosed.
There is a difference between attorney/client privilege and attorney work-product.
According to Black’s Law Dictionary attorney/client privilege is "In law of evidence, client’s privilege to refuse to disclose and to prevent any other person from disclosing confidential communications between he and his attorney. Such privilege protects communications between attorney and client made for purpose of furnishing or obtaining professional legal advice or assistance...That privilege which permits an attorney to refuse to testify as to communications from client to him though it belongs to the client, not to attorney, and hence client may waive it. In federal courts, state law is applied with respect to such privilege."
The attorney/client privilege can be invoked if the attorney or his employees are called as witnesses and asked to divulge confidential information provided to them by the client.
Anything written down by the attorney or his employee concerning a client or a case upon which they are working that does not contain confidential information may be discoverable. Work product is considered confidential. Work product is any document, note, paper, memoranda, or tangible thing prepared by the attorney in anticipation of litigation. If a memo contains the strategy the attorney proposes to use in handling a case, this is work product and not discoverable. Extreme care must be taken by the paralegal when making notes to the file, interviewing a witness, or initiating correspondence related to the matter at hand to assure that she does not inadvertently relay confidential information to a third party or document information that may be discoverable. Even talking in the elevator to your attorney, if overheard by another person, can be a violation of confidentiality and may waive the privilege. The best rule is to not discuss a case with anyone in your office who is not directly involved in the case and especially to any one outside your office, including your best friend or spouse.
If you attend a conference or hearing or interview a client, you may wish to ask your attorney whether or not he wants you to take written or recorded notes. Again, remember that information may be discoverable.
It is also a good idea to mark all confidential documents privileged
Conflicts of Interest
The paralegal should always avoid conflicts of interest or even the appearance thereof.The Chinese Wall
A conflict can oftentimes occur when a legal assistant changes jobs. Obviously, this could happen if a legal assistant who worked on a particular case for the Plaintiff went to work for the law firm working for the Defendant. A Chinese Wall may need to be erected to protect the new employer from disqualification. Steps would be taken to be sure that the paralegal does not work on any aspect of the case, no one discusses the case with the legal assistant, any information known by the paralegal is not imparted by her to anyone in her new firm, and the files pertaining to this particular case are locked or flagged so that the paralegal knows that they contain information that she is prevented from seeing.Loans to Clients
Certain loans to clients by the attorney are acceptable. These would include filing fees and court costs. Advances for living expenses may not as they could present a conflict of interest. It may appear as though the attorney has made a settlement on behalf of the client that, although not in the best interest of the client, will assure that the attorney will be repaid his loan.Gifts from Clients
Any gift from a client to an attorney that requires the execution of a legal document may be unethical. If the client gave the attorney a new VCR that would be acceptable as no legal document would be required. However, the attorney would be prevented from drafting a will in which he or one of his relations is the beneficiary as this could pose a conflict of interest. The same would hold true if the paralegal who is named in the will is asked to notarize it. That could present a conflict.Representation of Multiple Parties as a Result of the Same Event
For instance, representation of the driver of a vehicle and his passenger who were involved in a motor vehicle collision could cause problems. In order for an attorney to represent both parties, he would need the permission of both. Although it may seem at first that there is no conflict, as they case progresses, the attorney finds that the two clients are placed in adverse positions. At that point, he would be required to advise the clients of the potential conflict and turn over representation of one or both to other attorneys.Commingling of Funds
A law office must maintain separate trust accounts for holding client funds. This includes not only settlement monies, but also retainer fees. If the paralegal is responsible for the accounting, she must be sure that all transactions are kept accurately and that client funds are not used for general office expenses. Also referred to as "separation of property".Improper Communications with the Other Side
The paralegal, like the attorney, is prevented from direct communication with the adverse party in a lawsuit, if she knows that the party is represented by counsel. If you are placed in the position of interviewing or consulting with the unrepresented, adverse party, it is imperative that you communicate your relationship as a legal assistant for the firm representing the other side and that you not give any information to the unrepresented party that might be construed as legal advice.Solicitation
You cannot directly solicit a client on behalf of your firm. This is called ambulance chasing. However, in most states, your firm may solicit new clients by mail.Letterhead and Business Cards
Most states will allow a paralegal to be listed on the firms letterhead, IF her status with the firm is clear. In other words, it must be clear in stating: Sue Smith, Paralegal to the Firm, or Sue Smith, Paralegal, or Paralegals: Sue Smith, Rachel Roberts, Bob Jones.Business cards must also reveal that the holder is a paralegal. Cards are to be used for identification purposes and not for the solicitation of business.
Most states will allow the use of the CLA designation on business cards and letterhead.
Signing Documents
It is proper for the legal assistant, with the permission of her firm or supervising attorney, to sign letters and other documents that do not impart legal advice, if her status with the firm is made clear by the appropriate non-lawyer designation. However, she would prevented from signing any court pleadings or discovery documents. You should not even sign your name to the Certificate of Service. A good rule of thumb: You may draft them, but you cannot sign them.Pro Bono & Public Service
Many bar associations have programs to provide pro bono legal services to the community and oftentimes paralegals are asked to assist or they may wish to volunteer their services. This is acceptable, if the legal assistant is working under the direct supervision of an attorney.The Unauthorized Practice of Law
This paper has discussed many aspects of the Unauthorized Practice of Law. However, we have not talked about representation in legal proceedings of the client by the paralegal. There are some courts, (small claims) and administrative agencies that do allow non-lawyers to appear before them on behalf of clients. Before appearing on behalf of a client, you must be sure that you are allowed to do so by the court or agency, that your supervising attorney is aware of the appearance and has approved it, and that the client has knowledge that a paralegal will be making the appearance and approves.
Other considerations of duties that may or may not be performed by a paralegal: Conducting a deposition? No. Attending a deposition? Yes
Attendance at a real estate closing to assist her attorney? Yes. Conducting the closing without an attorney present? Probably not as some items may need clarification thus causing the paralegal to give legal advice, or if problems occur, further negotiation may be required.
Supervise the execution of a will? No. Act as a witness or notary for a will? Yes.
Sit at counsel table at trial? Depends on the rules of the Court. You or your attorney should always ask the judge, clerk or bailiff if this is acceptable.
Obviously, there are more aspects to the Unauthorized Practice of Law (UPL) and paralegal Ethics that we have room for in this paper. We have attempted to cover the major ones. However, a good rule to follow is: If it doesn’t seem right, don’t do it!
Make
the Right Choice
by Craig Hackler
The rapid growth of retirement-planning options such as 401(k)s, IRAs, and variable annuities has provided an ever-increasing variety of investment choices within each plan to save for retirement years. Yet, a number of reports show that an alarming number of today’s investors are oblivious to the importance of asset allocation in their retirement portfolios’ performance. This is despite the fact that financial advisors and the financial press have emphasized the asset allocation decision as critical to investment selection.
Market studies published in the Financial Analysts Journal in 1986 and updated recently show that how dollars are allocated among stocks, bonds and cash equivalents is the single most important decision an investor can make. In fact, according to the studies, security selection and market timing are far less important to a portfolio’s performance compared to the overall asset allocation.
Although these results have been widely publicized by the financial press and investment firms, a lot of retirement plan participants aren’t taking the message to heart. Company stocks and guaranteed investment contracts (GICs) still compose a bulk of the assets in the country’s defined contribution plans.
Company stock and GICs roughly constitute almost two-thirds of all retirement plan assets. Equities, the next most popular investment choice, composed less than a fifth of the portfolios. Bonds and cash equivalents represent the remainder of the assets. At first glance, one might suspect that plans are limiting the investment choices available to participants.
However, this is not necessarily the case. Factors such as employee loyalty and familiarity account for the popularity of company stock.
On the other hand, GICs offer a fixed rate of return with a minimum of risk, thus making them attractive to investors who are understandably cautious about their retirement savings. However, placing too much money in GICs could limit an investor’s ability to achieve higher returns available from other investments and necessary to achieve retirement goals. Employees also tend to stay put and never transfer their balances to other investment choices within their plan, even when new investment options may be added. Retirement planning is a process that needs to be periodically reviewed. This means updating asset allocations and taking advantage of new investment opportunities.
Given the variety of investment choices available, there is almost no legitimate reason to have a portfolio that is not properly diversified. Buying company stock develops an ownership interest in your company that can make work financially and personally rewarding. GICs can help you balance your portfolio with a fixed-income component. However, to really minimize risk and enhance your ability to achieve superior returns, a diversified portfolio is recommended.
Take the time to periodically review your asset allocation decision, preferably with the help of your financial advisor. If necessary, adjust your portfolio as your long-term plans change; most plans allow you to transfer your assets to different investment classes at least once a quarter. Remember, asset allocation is the most significant tool you have of making a real difference in your portfolio’s performance.
Craig Hackler holds the Series 7 and Series 63 Securities licenses, as well as the Group I Insurance license (life, health, annuities). Through Raymond James Financial Services, he offers complete financial planning and investment products tailored to the individual needs of his clients. He will gladly answer your questions. Call him at 512.894.3473.
© 2000, Legal Assistants Division State Bar of Texas