C O L U M N S

PRESIDENT'S MESSAGE

Editor’s Note
by Debra Crosby

First of all, let me take this opportunity to wish each of you a safe and happy holiday season. Although our lives and our world have changed quite a bit in the past few months, I think that if we continue to focus on the things that are most important to us, home, family, friends, we can find joy and peace in the briefest of moments and even in the saddest of times. It’s so easy to get caught up in the materialistic aspects of the season, allowing ourselves to become over-extended financially and stressed mentally. Sometimes we just need to relax and remember that the things that are the most precious are those things that we cannot see, feel, touch, wear or drive down the street in (with the top down and the stereo blaring). I hope you all find at least a few of those rare moments of peace this holiday season, and that you find joy even in your most annoying relatives.

But, I digress. We have a lot of information for you all in this issue of the TPJ. We are fortunate to have received some excellent and informative articles, as well as a new column, written by Lynda Barron of Tyler, which we hope we will be able to include as a regular feature. Be sure to review the Elections Notice for information as to upcoming elections. We also have our usual features and a retrospective on LAU. Enjoy.

SCRUPLES

The Ethics of In-House Paralegals and UPL
by Ellen Lockwood, CLA—Ethics Chair

Most of us make every effort not to commit UPL (unauthorized practice of law), particularly giving legal advice. However, some in-house paralegals are allowed to do things they would never have considered doing while working for a law firm. In-house paralegals are dealing not with clients who are members of the general public, but employees of the same company. Because of this special attorney-client relationship, some in-house attorneys have determined that they have no problem with their paralegals giving what would otherwise be considered legal advice.

I asked in-house paralegals on the LAD email forum as well as the Legal Assistant Today email forum for their experiences and found that they varied widely. A few in-house paralegals are under the same restrictions as those who work for outside counsel. Even if they know the answer to the client’s question, they must ask their attorneys each and every time if they may give the client a particular answer, then tell the client the attorney said the answer to the question is X.

Several in-house paralegals reported they have broad discretion to answer questions from the people in their companies. One labor and employment paralegal advises managers on termination issues, provides information to employees on how to proceed with personnel issues, gives approval for terminations in standard situations, and drafts and finalizes standard termination agreements.

A former in-house paralegal for a large brokerage firm says that the paralegals were trained by the in-house counsel to review organizational documents and the applicable state and federal laws to determine if potential entity customers had the legal authority to open brokerage accounts and trade in particular types of securities. These “opinions” were used by the customer service department and the company’s brokers in establishing the accounts.

One of the legal assistants I interviewed noted that someone whose job title is “risk manager” or “vice president of real estate” can give advice to the corporation about applicable laws without fear of committing UPL. However, because we are legal assistants, he believes we are bound by UPL rules. Another paralegal disagreed, noting a risk manager may be a paralegal by education and training, but may hold a title that does not include the term “paralegal.”  She also believes corporations do not need the same UPL protection as the public.

Intellectual Property (IP) appears to be an area where many in-house paralegals have quite a bit of leeway. I heard from several paralegals, particularly those who work with trademarks, and who are the primary contact in their companies for initial information about using trademarks. They perform and review trademark searches, determine whether to recommend filing a trademark application, whether to send a cease and desist letter, and work with outside counsel when necessary. 

In every case where paralegals had broad responsibilities, the following were the issues that had to be addressed:

• The type of broader responsibilities.

• The general comfort level of the attorney with assigning broader responsibilities to the paralegal.

• The experience level of the paralegal.

• The comfort level of the paralegal in taking on broader responsibilities.

• The attorney’s confidence in the paralegal’s ability to handle broader responsibilities.

Most of the paralegals with broader responsibilities said these responsibilities came over time. Usually the responsibilities are in areas where the same situation comes up again and again and the attorney and paralegal have agreed on how those particular situations are to be handled. For example, one of the in-house IP paralegals I contacted has worked out with her attorney how to respond to requests for filing trademark applications. She and her attorney prepared a Trademark Basics document and a Trademark Search Request Form which she emails to all requestors. She also copies her attorney on all emails, even in boilerplate situations. Her attorney has confidence in her ability to know when to bring things to his attention. She also advises him of other situations, even if his involvement is not required at that time. Her philosophy is that she never wants someone else in the company to mention an issue to him without his having already been made aware of it. She and her attorney also meet once a week to review non-urgent issues, follow up on others, and discuss long-range plans for IP within their company.

In some smaller companies, the legal department may not include an attorney. Instead, companies may hire a legal assistant who works with outside counsel, but who does not work under the direct supervision of an attorney. In those instances it would probably be more likely that a paralegal would be committing UPL since she is not supervised by an attorney.

One of the companies leading the way in allowing legal assistants to work more independently is Reebok International Ltd. in Canton, Massachusetts. As outlined in an article in NALA’s Facts & Findings 2000 Career Journal published in January 2001, Reebok has developed job descriptions and an organization/career path matrix for their legal managers, particularly those working with trademarks. Depending upon the level of the legal manager (associate, I, II, or senior), the position provides for more or less attorney supervision.

I spoke to Curtis Krechevsky, Esq.1, the author of the article mentioned above, and he said thus far, no one has complained to the Massachusetts Bar Association regarding any concerns about Reebok’s legal managers committing UPL. He acknowledges, though, the legal manager structure may not work in every corporation or state.

As best as I was able to determine, there have been no UPL complaints for giving legal advice filed in Texas against in-house paralegals. In the absence of clear UPL guidelines, it is up to each attorney-paralegal team and each corporation to determine how much authority to give its in-house paralegals.

Mr. Krechevsky is a former Assistant General Counsel and Trademark Counsel for Reebok International Ltd. He is currently an attorney with the firm of Hutchins, Wheeler & Dittmar, in Boston, Massachusetts. He can be reached at ck@hutch.com.

Notes & Memos

By Lynda Jett Barron, CLAS

Almost three years ago, one cold January day, I found myself back in the legal assistant business. I’m still not sure how I got there. My then-boss was a former district attorney who was kind enough to let me back “in” after a long vacation. I will admit, I had forgotten a lot. But A. D. put up with me anyway and today I owe him great thanks.

I had done this job 10 years before in Dallas firms—two small ones that went out of business in the tumultuous ’80s and one that I left when I decided to give my journalism degree a try since I had worked two years for someone far less than appreciative of his staff. That was the side I had known. I had never even been to trial.

The thing I did know was that I wanted to make a difference in people’s lives. But I didn’t think I was in a business where I could do that. How could I do anything that really mattered in an arena I had always viewed as primarily existing to thicken the corporate wallet?

Still, my great-great grandfather was attorney general of Illinois way before a time I know of, my grandfather a lawyer in the days before they gave the Juris Doctorate at the University of Texas, and my uncle, who followed in his footsteps, recently retired from the Department of Justice in Washington, D.C.

Lately, I‘ve thought a lot about what a legal assistant really is. It varies so much from office to office that I can’t keep track—we do so many things. In my current job, I do quite a bit of secretarial work, but my other hats read “bookkeeper, systems administrator, payroll clerk, office manager” and more.

But first and always, I am a legal assistant because now I love my work.

Since my boss decided to become a sole practitioner one year ago, things have changed a lot. But the cases we have and the people we help haven’t.

Trey Yarbrough had a variety of cases when I met him, ranging from personal injury to trademark infringement to insurance defense and some employment-related matters. I had been “back” only three months, but he was patient and taught me more than these pages can allow. And not one case since then hasn’t meant something to me.

There was the one about the lady who desperately needed disability insurance and had been denied it. She said one day that, because I listened to her, she didn’t feel like everyone was uncaring. She said, on some of the rough days, she remembered things I told her . Then there was the longtime doctor sued for malpractice when he had clearly done nothing wrong. Although most people might see him as a very crusty sort, underneath he’s the sweetest man on earth. He’s my friend and I call him “Doc.”

Another that will always be in my heart is the Walton case.

Prior to 1983, Texas common law did not recognize an alcohol seller’s or server’s liability for harm caused by his/her sales or service, nor did such a law exist in state statutes. In 1983, and again in 1984, the first major dram shop liability suits were filed.

Even though some of these eventually proved successful, trying a dram shop case is a challenge to say the least. I think it’s safe to say they are a complex undertaking with more lost than won due to the burden of proof.

But not the Walton case. Sharing their victory will always be one of the best moments of my life.

On a warm spring evening in 1995, 20-year-old Chase Walton was driving back to Tyler from Palestine with two friends. Coming down Highway 155 he encountered a drunk driver heading toward him. That was the last thing he ever saw.

My boss took the case on, knowing how difficult it would be. He told the Waltons that up front, but they remained steadfast, despite some serious challenges healthwise, during what seemed like the longest wait of their lives.

After five years and numerous continuances, we were finally going to trial in September 2000, in Smith County, Texas. Among other exhibits, I made a collage of Chase’s graduation picture and different photos of him. He had been valedictorian of his Berkner High School class in Richardson. Chase had attended the University of North Carolina at Greensboro and the University of North Texas on athletic scholarships. I wanted to let the jury know who he was, this only son of Ron and Julie Walton.

I got to be in trial a fair amount of the time. It was exciting to be there, but the best part was sitting with the Walton family and a lady from Mothers Against Drunk Drivers, now a friend, who came to lend support. I felt the hurt with them on the bad days and clung to hope on the good ones.

And when the jury came back with a verdict showing the club who had sold and served the liquor to the defendants was indeed at fault, through tears we hugged each other and agreed that now Chase could rest, and so could they begin to heal. The storm had passed, and there was a rainbow after all.

I asked Mr. and Mrs. Walton if I could include their story in this column and they said, “Please.” More gracious and courageous people I’ve never known. Had I not returned to this profession, I never would have had this privilege—and some others.

During my first year with Trey, I achieved my CLA and CLAS. In July of this year, I realized my dream of attending the NALA convention and it will always be another great experience of my life. The friends I made and the fun we had continue to give me joy. In September, I attended the State Bar of Texas’ Legal Assistant University, where I made more friends and great memories. God willing, these are two experiences I will be involved in for the rest of my life.

I’ve had the honor of meeting and working with (and for) some of the finest lawyers in the country who have treated me with respect—and the finest people as well, one of whom, a distinguished patent and trademark attorney in Washington, D. C., sent me beautiful flowers when I had surgery last spring. It was recently time for me to return that caring as he now wages the toughest battle of his life, a diagnosis of cancer. But in his indomitable spirit and style, Walter recently announced that he intends to “beat this ailment on summary judgment.” Another brave heart of gold. I believe he will.

So now I know the answer to my question: “What is a legal assistant?” It involves experience and hard work (wanting to sequester Trey in his closet some days and realizing there are days he wants to perfect same upon me)—knowing that discovery has to be done whether it’s your favorite part of litigation or not!

It’s “going for the gold” in our profession—complete with obtaining the designations that say, “I am a professional and I am proud of what I do.” It’s getting involved on your local, state and national level, volunteering some time and effort—saying I’m not too busy to contribute something that could enhance my profession and bring awareness to others of what we legal assistants can do.

But even with all of that, without looking beyond those things and seeing a heart of gold in a “crusty fellow,” handing a tissue to a lady who can’t stop crying because her life is in a mess, or embracing Ron, Julie and Laurie Walton and saying, “We did it!,” it would be a good career—but not a remarkable one.

Have I made a difference? I hope so and pray I will continue to. Being a better legal assistant was the bonus. But more than that is the difference all of these people have made in me. I am a better person now because of them.

Lynda Jett Barron lives Tyler. She holds a B.A. in Journalism from the University of Texas at Arlington. Her CLAS is in litigation.

New on LLRX.com for December 17, 2001: http://www.llrx.com 

The Domestic Cat and the Law: A Guide to Available Resources: http://www.llrx.com/features/catlaw.htm