C
O L U M N S
PRESIDENT'S
MESSAGE
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“The freedom and happiness of
man . . . [are] the sole objects of all legitimate government.”
Thomas Jefferson (1743–1826)
Towards the end of Harper Lee’s
To Kill a Mockingbird, after a passionate but unsuccessful defense
of a black man accused of rape, Atticus Finch walks from the
courtroom beneath a balcony filled with the black population of
Maycomb, Georgia. Jean Louise Finch—Atticus’ daughter
“Scout,” the novel’s narrator—is the sole white face among
the gallery of people looking down as her father passes beneath
them. As those in the balcony rise from their seats in deference and
respect to Atticus, Scout is admonished, “Miss Jean Louise, stand
up. Your father’s passin’.”
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S.
Kristine Farmer
President, 2001-2002
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Our nation’s history is one of a procession
of great lawyers: Twenty-five of the nation’s 43 presidents were
lawyers; and Daniel Webster, Oliver Wendell Holmes, Clarence Darrow,
were just a few of our nation’s greatest lawyers.
To strengthen American heritage of liberty, justice, and
equality under the law, President Dwight D. Eisenhower, in 1958,
established Law Day. In 1961, Congress designated May 1 as the
official date for celebrating Law Day nationally. According to
President Eisenhower, the celebration provides an opportunity to
expand awareness of American laws and the justice system, to public
understand how the law protects their freedoms.
And it offers us the ability to reflect on our great
heritage.
For American, freedom is a word which expresses
feeling of profound awe and respect. What does freedom mean to you?
Free and fair elections? Free and independent media? Freedom
of assembly? Equality under the law and access to an independent,
nondiscriminatory judiciary? Due process? Free business? We could
choose many ways of defining America’s freedoms. However you
personally define freedom, our Constitution and our system of law as
well as our independent courts have superior power and influence.
Without laws, our freedom would not exist—as our life and
country would be riddled with chaos.
Shakespeare’s oft-quoted passage from King
Henry VI, “The first thing we do, let’s kill all the lawyers.”
is almost universally quoted out of context. The statement was made
as a means to assure anarchy, i.e., without lawyers, law and
societal order break down. Shakespeare was right—lawyers are the
front-line troops, the legal marines, whom we first send in to do
battle against those who would deprive us of our freedoms and
liberties.
It is unrealistic to expect contemporary
Americans to rise out of respect when a lawyer walks by, as happened
in To Kill a Mockingbird. However, as Shakespeare knew, when
lawyers are rendered ineffective by public scorn, ridicule or
mistrust, we will all ultimately stand defenseless before those who
would steal our liberties.
There
are many Law Day celebrations being conducted through local bar
association and local paralegal associations across the state. If
you are looking for ways to become more involved in your profession,
this may be the perfect opportunity.
Editor’s
Note
by Debra Crosby
I hope that everyone had a safe and happy spring
break (of course, some of us didn’t get one!). Summer will be upon us
before we know it. I am excited about this issue of the TPJ
because we have what I think is a good variety of articles for you.
The focus on Animal Law is an area that is near and
dear to my heart, and so I tried to select some articles that would be
of interest in general; I also included some sources for additional
information. As far as I know, this topic has never been addressed in an
issue of the TPJ. I hope you enjoy the articles and that you find
them educational with regard to our 4-legged friends!
We are also beginning, with thanks to the National
Notary Association, an informational series on notarization practices
and procedures. Many of us are, or have been, notaries, and I think you
will be surprised at what you will find out when you read these
articles. They are both interesting and enlightening.
And
of course we have our usual columns and articles for your edification
and enjoyment. As always, I am vitally interested in knowing what you
are interested in reading about. If you know of good articles, if you
have a topic about which you have a burning curiosity, if you want to
know more about something we’ve already published, please let me hear
from you. This is your magazine, after all. We do it all for you! Have a
good Spring!
SCRUPLES
Ethics and the Paralegal's Involvement in
Settlement Negotiations
by Ellen Lockwood, CLA—Ethics
Chair
Canons 1 and 3 of the Code of Ethics and
Professional Responsibility of the Legal Assistants Division of the
State Bar of Texas state as follows:
A legal assistant shall not engage in the practice
of law as defined by statutes or court decisions, including but not
limited to accepting cases or clients, setting fees, giving legal advice
or appearing in a representative capacity in court or before an
administrative or regulatory agency (unless otherwise authorized by
statute, court or agency rules); the legal assistant shall assist in
preventing the unauthorized practice of law.
A legal assistant shall exercise care in using
independent professional judgment and in determining the extent to which
a client may be assisted without the presence of any attorney, and shall
not act in matters involving professional legal judgment.
I have recently heard of legal assistants
negotiating settlement agreements.1 Usually the paralegal
negotiates with opposing counsel and has strict instructions as to the
parameters of an acceptable settlement agreement.
Although I have not located any case law or rules
that address this matter, it appears that a paralegal in Texas would be
in violation of Canons 1 and 3 of the Code of Ethics and Professional
Responsibility. Although a paralegal may have been given strict
parameters to follow in attempting to negotiate a settlement, this is
definitely a matter involving professional legal judgment. If an
unexpected offer or counteroffer comes up during negotiations, a
paralegal could always state she must discuss the offer with her
attorney and the client, but sometimes the ability to react immediately
to such unanticipated offers is paramount. It is also possible that by
the time a response is given to such an offer, the offering attorney may
have thought better of it and withdraw or modify the offer, thus
necessitating another wait while the paralegal confers with her attorney
and client.
In a previous article I mentioned the following
quotation:
Never advise a client or other person on any
matter if the advice may alter the legal position or legal rights of
the one to whom the advice is given.2
Although a legal assistant might not be giving
legal advice while negotiating a settlement agreement, or representing a
client before a court or agency, the decisions and actions of a legal
assistant during a settlement negotiation could definitely “alter the
legal position or legal rights” of the client.
Most experienced paralegals I know have come to
believe the more experience and knowledge they gain, the more they
realize how much they still don’t know. They also realize how even
small details can alter the advice given to a client, and the approach
the attorney takes with handling the matter, including how the attorney
approaches opposing counsel.
In addition to the ethical reasons stated above,
attorneys carry malpractice insurance, which most paralegals do not.
Although a legal assistant is covered under her attorney’s malpractice
policy, she is usually only covered to the extent that she is performing
her duties under the supervision of an attorney, and for duties
appropriately assigned to a legal assistant. The Texas Disciplinary
Rules of Professional Conduct clearly state that a lawyer must not
assist someone in committing UPL and take steps to avoid or moderate the
consequences of his support staff.3
If you are a working as a paralegal under the
direct supervision of an attorney, it appears you, and possibly your
attorney, would be violating ethical and disciplinary rules and canons,
and perhaps committing UPL. If your attorney encourages you to negotiate
settlements, you should bring these considerations to his attention. As
paralegals, we not only have to know and follow our own ethical canons,
but the attorneys’ as well.
Ellen Lockwood, CLAS, is the Chair
of the Professional Ethics Committee of the Legal Assistants Division,
a position she has held since 1997. She is a member of the board of
directors representing District 5, a former treasurer of the Division,
and a past president of the Alamo Area Professional Legal Assistants
in San Antonio. You may contact her at 210/832-3382 or
ellenlockwood@clearchannel.com.
1 Please note that I am not addressing settlement
negotiations handled by an insurance claims adjuster.
2 West’s Paralegal Today, 2nd Edition, Miller
and Urisko
3 See Rules 5.03 and 5.05 of the Texas
Disciplinary Rules of Professional Conduct.
Notes & Memos
By Lynda Jett Barron, CLAS
The door closes with a loud “clank”
that echoes all the way down to your soul. You’re a first-time
offender. You didn’t mean to do it—it was an accident. You’ve
never been in any trouble before. You were struggling with your abusive
spouse and things got out of hand. He had a gun in his hand and it went
off. You’re beside yourself and you’re something else, too. You’re
indigent and cannot afford a criminal defense attorney. It’s a tragic
situation, but the only thing you feel guilty of is being poor.
Looking up through the bars you see the jailer
bringing in another. She shuffles by, and “clank,” the door
shuts again and you are face to face with a cold-blooded killer. She
meant to do it. She has a record of misdemeanors and even a felony
conviction a mile long marking the trail that led to this. And it’s a
cinch she cannot afford an attorney of any kind.
In a minute you are joined by another. She swears
she didn’t do it—that they are mistaken, that she was picked out of
a lineup and wrongly identified. Maybe she’s telling the truth.
Do you have the right to representation? Of course
you do, as sure as Jack Webb recited the Miranda warnings on Dragnet.
And so do they. It’s guaranteed by the Sixth Amendment of the
Constitution of the United States of America.
“In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial, by an impartial
jury of the state and district wherein the crime shall have been
committed, which district shall have been previously ascertained by
law, and to be informed of the nature and cause of the accusation; to
be confronted with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to have the
assistance of counsel for his defense.”
Should the attorneys want to defend the accused?
That’s a question only they and anyone else can answer in their
hearts. I recently accompanied my boss to the Smith County Jail to do my
part for the defense of such a person, and I confess I have mixed
feelings about it. It was an eye-opening experience, though.
But feelings have nothing to do with it because
regardless of how attorneys or we as their assistants may feel, we are
all bound to do our best. So the real question then becomes are the
lawyers so qualified and are there enough of them? That is what the
State of Texas and judges throughout our Lone Star territory are trying
to determine and remedy—the subject of Senate Bill 7, the Texas Fair
Defense Act, which went into effect on January 1.
Introduced by Sen. Rodney Ellis, D-Houston, the
Texas Fair Defense Act focuses on four issues—(1) timely appointment
of counsel, (2) method of appointment by courts, (3) reporting of
information about indigent representation services, and (4) minimum
standards for attorneys. The legislation also calls for an Appointed
Counsel Assistance Program, which would provide research and related
assistance to appointed attorneys in serious felony and capital cases.
Ellis’ bill is the result of two years of work
among legislators, the State Bar of Texas, district judges, prosecutors,
defense attorneys and reform groups. It is meant to be a complete
overhaul of the criminal defense system.
Some people believe that it may bring about some
public defender programs in smaller counties which could be good, and
some feel it may make it harder on the smaller counties unless that does
occur. Senate Bill 7 is a “work in progress.”
In Smith County, our judges have worked very hard
on this as I’m sure others have throughout Texas. Our plan was
implemented last summer and one of our judges told me that the intent
behind it is very good. One of the things it does is change the basis
for determining who is indigent through information regarding income
rather than the former standard of whether or not the accused could post
bond. The intent is for people not to sit in jail for long periods of
time without being charged, but in Smith County they had been seen by a
magistrate within 24 hours anyway.
And whether we think those who commit serious (or
any) crimes should get what they deserve, the system says we must do our
best to represent them and the law takes it from there. I personally
like to believe that intent matters and in Texas, which is the only
state I can intelligently comment on, I think it does. President Bush
saw to that, often taking a stand as governor that wasn’t always the
most popular one, but he didn’t mind risking that to stand up for what
he believes in.
In Texas, capital murder is punishable by, of
course, the death penalty, or life imprisonment. If the state does not
seek the death penalty, prospective jurors are so informed that a
sentence of life imprisonment is mandatory on conviction of the capital
felony. I have to say I am not an advocate of the death penalty, but I
respect and understand the views of those who are.
I agree that the system needs improvement. A State
Bar of Texas committee report, The Crisis in Indigent Criminal
Defense in Texas, quoted a Bexar County attorney as saying, “the
pay scale is so low compared to the average hourly rate charged for
representing a defendant that I believe the majority of court-appointed
attorneys look for the best plea-bargain, settle it, and move on.” In
Harris County, a newspaper reported that one lawyer slept while his
death-row client (one of 142 from Harris County) was on trial. (There
are some who are skeptical, posing the question that if this did take
place, why were the defendant’s subsequent appeals denied?). From
Dallas County there are approximately 42 inmates on death row and from
Tarrant County, approximately 20. Smith County has had 18 receive that
sentence from 1976 to the present time.
Stephen B. Bright, director of the Southern Center
for Human Rights in Atlanta, highly criticized the death penalty process
in Texas in a Texas Law Review article. “We want to believe in the
fictional idea that Atticus Finch will come forward,” Bright said in
an interview in 2000, referring to Gregory Peck’s role in the movie, To
Kill A Mockingbird, based upon the novel by Harper Lee. “But our
system says it’s better to be rich and guilty than to be poor and
innocent.”
Food for thought, but not just in the Lone Star
state, I think. Mr. Bright’s statement does bring to mind a few highly
publicized cases in the not-too-distant past. And sometimes it works
that way, I feel, not due so much to incompetence on the part of counsel
but rather from a lack of resources in both people and funds.
But for those who feel that SB-7’s proposed
higher standards of representation might help criminals “get off the
hook,” a recent national study of error rates in capital punishment
cases found that 52 percent of the death penalty cases in Texas between
1973 and 1995 were reversed because of serious errors during trial and
appeal. So, if the accused are not adequately represented, that might
well happen. It can work both ways.
In the end, what matters is that justice be
served. It sometimes is a life or death issue.
 Lynda
Jett Barron lives in Tyler, Texas. She holds a B.A. in Journalism from
the University of Texas at Arlington. Her CLAS is in litigation. The
opinions expressed herein are her own.
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