fall 2003 vol.9 no. 2                                                                                                                            Return to Contents
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Legislative News Update

H.R. 2660 (S.B. 1356 companion bill) Popularly known in our profession as the “Overtime Bill” and introduced as the Department of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act, 2004 was sponsored by Representative Ralph Regula of Ohio and introduced earlier this year. The bill proposes to give employers the option not to pay overtime to workers that currently receive overtime and that meet a set of criteria. The criteria established, if met, could affect the overtime pay to white collar professions including our own. As of this writing the Senate voted to block the plan that had passed in the House. Currently, negotiators from the Senate and House are working to resolve the disagreements. To follow this issue or obtain the complete history, log on to the Department of Labor’s website at www.dol.gov or the Senate website at www.senate.gov

H.R. 1119 is another attempt at amending the Fair Labor Standards Act by providing compensatory time for employees in the private sector. The proposed bill would allow employees to trade their monetary compensation for overtime time off at a rate not less than one and one-half hours for each hour of overtime employment. There are conditions to be met and a maximum placed on the number of hours an employee could accrue. The bill has been placed on the Union Calendar No. 64.

Texas Legislative Update

S.B. 1721 relates to governmental contingent fee contracts for legal services entered into by local governmental entities. “Local governmental entities include but is not limited to municipalities, counties, school districts, various types of water districts and other political subdivisions of Texas. The bill proposes that the contracting attorney or law firm keep current and complete detailed written time and expense records for work performed under the contract. These records would then be available for inspection or copying by the governmental agency at any time on request. Upon conclusion of the contract, the attorney or law firm would provide a complete written statement describing the outcome of the matter, amount of recovery, computation of amount of contingent fee and would contain the time and expense records. This statement and the attached records would then become public information under Chapter 552, Government Code. The bill has been referred to the committee on Intergovernmental Relations where it remains.
S.B. 1031 relates to the imposition of sales and use tax on certain services including legal services. Legal services is defined as acts or activity constituting the practice of law and any other act or activity provided by an attorney-at-law licensed in the State of Texas and includes services provided by paralegals or legal secretaries employed by an attorney-at-law and provided to the attorney’s client. Other services proposed for the sales and use tax include accounting and auditing, advertising media, architectural, engineering and various other types of services. The bill has been referred to the Finance committee.

H.B. 4, authored by Representative Nixon, was signed into law by Governor Rick Perry on June 11, 2003. Most of us are aware of the cap this law puts on “non-economic” damages in civil lawsuits based on negligence but it also affects many aspects of civil litigation. If you haven’t taken the time to read the bill or some of the numerous articles summarizing the details, you should. Almost every aspect of this bill will make it more difficult and costly for plaintiffs to recover monetary damages in lawsuits tried in Texas courts. Actions were also taken in the 78th Legislative session that could impose a general damages cap in civil litigation. Several legislators proposed bills capping damages in all personal injury and wrongful death matters. No such bill was passed in the regular session but will likely resurface in special sessions or in the next term.

National News:

Iowa – The Iowa Supreme Court Board of Professional Ethics and Conduct has rescinded prior opinions disallowing paralegals to use the designation of “CLA”. It had not permitted the use of the designation due to the potential confusion the term may cause to the public in believing such designation may be for a law degree. Subsequently, the Board deemed the use of “Certified Legal Assistant’ to be improper as well. Legal Assistants working for Iowa lawyers that have met the NALA certification requirements may now add “Certified Legal Assistant” to their names, but not “CLA”. The opinion is dated September 15, 2003.

South Carolina – In a declaratory judgment action before the South Carolina Supreme Court, Petitioner, a paralegal, sought determination on whether certain tasks constituted the unauthorized practice of law. The tasks specifically were (1) whether a paralegal employed by an attorney could conduct information seminars for the general public on wills and trusts without an attorney being present; (2) meet with clients privately at the attorney’s office, answer general questions about wills and trusts, and gather basic information from the clients; and (3) receipt of compensation from the law firm/employer through a profit-sharing arrangement based upon the volume and type of cases the paralegal handled. A court appointed referee acted to make findings of fact and conclusions of laws. The court then adopted the findings and recommendations of the referee that the actions did constitute UPL. The proposed fee arrangement was found to be a violation of ethical rules against fee-splitting with non-lawyer employees.

Texas Paralegal Journal © Copyright 2003 by the Legal Assistants Division, State Bar of Texas.

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