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News Briefs: July/August 2008
Below are some of the latest happenings in the paralegal community. These short snippets represent excerpts of stories that can be found in the July/August 2008 issue of Legal Assistant Today.
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After four years, the state Supreme Court denies petition.
After nearly 14 years of efforts by the Paralegal Association of Wisconsin and the state bar to establish mandatory paralegal regulation, the Supreme Court of Wisconsin dealt a crushing blow to paralegals statewide on April 7 when it denied State Bar Petition 04-03, citing budgetary and jurisdictional concerns.
It has taken four years for a decision to be reached, beginning with the submission of the petition to the Wisconsin Supreme Court in 2004 by the Wisconsin State Bar Paralegal Task Force. The task force, which was formed in 1996 and is composed of paralegal educators, attorneys and paralegals, was charged with drafting the petition. In 1994, a series of hearings was held by the Wisconsin State Bar, at which several paralegals testified. Those hearings indicated that many areas of legal needs could be served by using individuals with proper training working under attorney supervision. However, there was concern about the lack of criteria regarding who was considered a paralegal, so the task force was formed to draft the petition for the Supreme Court in order to establish certain criteria.
“I am very disappointed,” said Marie Koster, a
trusts and estate paralegal at Quarles & Brady in
In addition to concerns over how a mandatory
paralegal regulation program would be financed, the state Supreme
Court expressed concern that it didn’t have jurisdiction over the
regulation of paralegals. In its decision, the Court likened
paralegals to physicians’ assistants, who are regulated by the
Department of Regulation and Licensing in
In its decision, the State Supreme Court suggested creating a voluntary certification program. However, for PAW, establishing a voluntary certification program would neither define the paralegal profession by establishing educational criteria and ethical guidelines nor would it change the nonexempt status of paralegals with the Department of Labor. “A voluntary program of regulation does not change the professional status of a position as far as the Department of Labor is concerned because it doesn’t set mandatory guidelines,” Goudie said.
While mandatory regulation might have been
denied at the State Supreme Court level, PAW has decided to approach
the legislature. “Don’t count
For more information, please see the following article: “Wisconsin Waits on Licensure,” January/February 2005.
Paralegal fees can be recovered at prevailing market rates.
In a highly anticipated decision, on June 2 the U.S. Supreme Court ruled in favor of Richlin Security Service Co. in the Richlin v. Chertoff paralegal fees case, reversing a previous decision by the U.S. Court of Appeals for the Federal Circuit. The Court ruled that paralegals’ fees are included as part of attorneys’ fees for the purpose of determining recovery amounts from the government and, under the Equal Access to Justice Act, the reimbursed fees should be what the firm bills the client for the paralegal services, as opposed to what a law firm pays paralegals for their time.
In Richlin, after prevailing on the merits of a contracts case against what was then the Immigration and Naturalization Service on June 30, 2005, Richlin sought an award of attorneys’ fees. While the Department of Transportation’s Board of Contract Appeals granted some attorneys’ fees, it concluded that Richlin was not entitled to recover paralegal fees at the rates at which it was billed by its law firm. Richlin appealed to the U.S. Court of Appeals for the Federal Circuit, which ruled in favor of the government. Richlin then appealed to the U.S. Supreme Court. While the case was waiting to be heard in the Supreme Court, the National Association of Legal Assistants was permitted by the Court to file an amicus brief detailing the role and qualifications of paralegals in the workplace today.
In its decision, the U.S. Supreme Court determined that there is no clear difference between “fees” and “other expenses” in the EAJA, as the government argued, and that even if there was a difference, paralegal services would more likely be classified as fees rather than expenses. Delivering the opinion for the Court, Associate Justice Samuel Anthony Alito, Jr., wrote, “Surely paralegals are more analogous to attorneys, experts, and agents than to studies, analyses, reports, tests, and projects.”
The topic of paralegal fees previously came
before the Court in
The Court also disagreed with the government’s arguments that legislative history and policy favor its position, as well as the argument that any right to paralegal fee recovery be read narrowly as “determined by the statutory canon requiring strict construction of waivers of sovereign immunity.”
The Richlin decision will affect not only how EAJA fees are determined in cases against the Department of Transportation, but how these fees are determined in cases against all federal agencies. As such, in its final determination, the Court stated, “we hold that a prevailing party that satisfies EAJA’s other requirements may recover its paralegal fees from the Government at prevailing market rates.”
For more information, please see the following article: “U.S. Supreme Court to Hear Paralegal Fees Case,” March/April 2008.
A new credentialing program will set education and work experience requirements.
On April 12, the Keystone Alliance of Paralegal
Associations voted unanimously to establish the Pennsylvania
Certified Paralegal, a voluntary credentialing program open to all
The alliance, which is composed of eight paralegal associations, has considered different forms of regulation over the years, from licensure to required certification. In November 2006, an ad hoc committee was formed to review information gathered from surveys conducted by both the Keystone Alliance and individual member associations. Based on the survey results, the committee determined that voluntary certification was the preferred form of regulation. “The alliance adopted that position as official policy in November 2007,” Buttorff said. “Since that time, with the input from members of our local associations, hard work by alliance delegates, and review and comparison of the standards adopted by our sister states’ paralegals, the alliance worked diligently to develop a credentialing program that is relevant, measurable and reliable.”
Now that the Keystone Alliance has approved the decision to establish voluntary certification of paralegals, the next step is to form a credentialing committee and an appeals committee, both of which will be made up of individuals other than alliance delegates, such as paralegals and attorneys who are not primary or secondary representatives to the Keystone Alliance. Once those committees are formed, the forms for receiving the credential will be available on the alliance’s Web site, www.keystoneparalegals.org, with the first certifications being issued in late summer or early fall.
Claim of tortious interference arises following a potential conflict of interest.
Paralegals and nonlawyers are very much aware of
conflicts of interest when changing jobs between law firms. But how
much time must a paralegal spend on a case for there to be a
conflict and what protective measures are in place to ensure client
confidentiality when paralegals accept a new position at a different
firm? These are questions being raised by a recent case,
Patricia J. Dillman v. Holland & Knight, in
In August 2007, Dillman, who had been employed
with Holland & Knight as the director of litigation support since
December 2004, interviewed with law firm Hughes Hubbard & Reed in
Dillman filed a complaint against Holland & Knight on Nov. 17, 2007, for tortious interference with a contract. A judge dismissed the case on Feb. 22, on the grounds that no official contract was in place between Dillman and Hughes Hubbard; rather, it was a prospective contract. The complaint was amended to say that Holland & Knight interfered with prospective business relations, which immediately was followed by a second motion to dismiss by Holland & Knight. On May 16, Judge Odessa F. Vincent took Holland & Knight’s motion to dismiss under advisement and set a schedule for the case to proceed to the discovery phase.
The conflict in question involved a case,
Reino De Espana v. American Bureau of Shipping, in which
Holland & Knight represented the plaintiff and Hughes Hubbard the
defendant, and on which Dillman billed 13.6 hours. She argues that
her work didn’t allow her to acquire client confidences. According
to Lynne Bernabei, attorney for Dillman and a partner at Bernabei &
“There’s a lot of mobility in particular among support staff or people in [Dillman]’s position or paralegals between law firms,” Bernabei said. “And I think the bar association, in terms of the ethical rules binding paralegals and other support personnel, has always realized that they’re not in the same position as lawyers who are in charge of a case. They’ve always been pretty careful not to restrict mobility based on these ethical concerns.”
While Dillman tried to negotiate with Holland & Knight before proceeding with her case, she felt that the two months’ salary offered to her was not adequate because, at the time of negotiation, she had been unemployed for three months and because the opportunity at Hughes Hubbard, which took her nine months to find, was rare. Dillman, who has worked in the legal field for 25 years, has no qualms about her decision to go forward with the case. “I really have a lot of faith that this will work out one way or another,” she said. “I really won’t regret ever taking this step toward resolving it in this manner because I really think that it’s a statement for myself personally, but I [also] think generally for those of us who need to be able to step up and try to do something to resolve a conflict like this.”
NFPA Updates the PACE Exam
Modifications reflect changing nature of law and current practice areas.
The National Federation of Paralegal Associations’ Paralegal Advanced Competency Exam has been updated and became available to aspiring registered paralegals May 12. The PACE exam still is a conceptual test; however, questions are less litigation-oriented in the revised version, with more questions in areas such as intellectual property, estates and probate, nonstate-specific family law, bankruptcy law, contracts and corporate law.
The computer-based certification exam, which candidates are allotted four hours to complete, remains 200 questions long and continues to test five domains: Administration of Client Legal Matters, Development of Client Legal Matters, Factual and Legal Research, Factual and Legal Writing, and Office Administration, along with ethics, technology and legal terminology.
The questions contained in these areas, however, have been reviewed to refresh wording and update changes in the law, and to weed out obsolete questions. “Because law is an ever-changing field, with some practice areas waning and others on the upswing, we tried to update the test to reflect current practice areas in which many PACE candidates practice,” said Ann W. Price, RP, NFPA vice president and director of PACE, and a paralegal specialist in the Environment and Natural Resources Division of the U.S. Department of Justice in Washington, D.C.
Price estimated that between 2006 and 2007, the number of paralegals taking the exam doubled, possibly because of a heightened desire for regulation. “[C]ertification is becoming ever important as more and more states contemplate regulatory schemes for paralegals,” Price said. “Many states are grandfathering certified paralegals, and as the profession grows and evolves, certification is becoming more important as a method to validate the competency of paralegals.”
According to Price, the designation awarded to those that pass the exam will remain RP, or PACE Registered Paralegal, which is registered to NFPA, and all of the certification’s renewal requirements will remain the same.
Paying It Forward
New Nals president sees her role as a chance to give back to her association.
Dee Beardsley, PP, PLS, is the new president of Nals … the association for legal professionals, but she views her new role more as a collaborative leader and believes in the “theater of leadership.” “[M]y role is much like that of a director whose job is to inspire, incite, motivate, cajole, nurture and then get out of the way and let the leadership team do its job,” Beardsley said. “If I have done mine, I will have created an environment in which every proposed idea will be respected and applied in some measure to the work of the association.”
Beardsley, legal secretary supervisor at Latham
& Watkins in
“As president, I encourage leaders to take risks, to free the association from conventional methodologies, to be innovative and imaginative in the ways in which we accomplish our mission and support the public interest,” Beardsley said. “I encourage members to believe in themselves and their unlimited potential — to put themselves on the line each and every day in order to be enriched and grow as [people].”
Other members of the 2008-2009 Nals board include president-elect, Julie A. Abernathy, PP, PLS; secretary/treasurer, Patricia E. Infanti, PP, PLS; certification director, Caryn S. Wolchuck, PP, PLS, CPS/CAP; education director, Helene Wood, PP, PLS; marketing director, Kathleen Amirante, PP, PLS; membership director, Rose Carter, PP, PLS, RP; and foundation chair, Faynell Poe, PP, PLS.
NALA Releases 2008 National Utilization and Compensation Survey
Years of experience correlate to increasing salaries.
On March 18, the National Association of Legal Assistants released the results of its 2008 National Utilization and Compensation Survey. The survey, which has been conducted by NALA almost every two years since 1986, covers education and experience, firm environment, responsibilities, billing rates and salaries for legal assistants.
More than 1,400 legal professionals from 48
states, the Virgin Islands and
The average salary reported was $48,211, and the average bonus was $3,808, an increase from the 2004 survey when the average salary was $44,373 and the average bonus was $3,393. (While the survey usually is conducted every two years, one was not administered in 2006.) The survey also showed salaries and bonuses based on region, the number of years at current job, paralegal education and educational degree.
The top five responsibilities in the workplace were drafting correspondence, general factual research, calendaring deadlines, assisting with client conferences and client contact, and case management. Less frequent responsibilities included deposition summaries, law library maintenance, training employees, personnel management, and client and witness interviews.
“The survey findings are relied upon by many, [so] we take this responsibility very seriously and are committed to producing a top-quality product,” said Tita Brewster, president of NALA and a freelance contract paralegal based in Las Cruces, N.M. “That is one of the main reasons the findings are available free of charge on the Web — to benefit NALA members and our profession.” For the complete survey results, go to www.nala.org/Survey_Table.htm.
Local Audit in
Santa Clara County District Attorney’s office advised to add 25 senior paralegals.
In March, results of an audit conducted by the Santa
Clara County District Attorney’s Office in
Currently, 21 paralegals and one supervising
paralegal are employed by the district attorney’s office. The
current attorney to paralegal ratio within the department is 8.4 to
1, far higher than other
The audit, conducted by the county’s independent auditor, Harvey M. Rose Associates, was ordered by District Attorney Dolores Carr shortly after she took office in January 2007. “As the newly elected district attorney, I believed an outside audit would assist in assessing how the organization is working and in identifying areas [that] need improvement,” Carr said.
Compiled between July 2007 and January 2008, the
audit surveyed 37 of the 165 full-time attorneys employed with the
district attorney’s office. “In
In response to the audit, Carr also noted how significant the work of paralegals is to her office. “Despite the 21 percent reduction in attorney staff since 2002, no paralegal cuts have been made,” she said. “Our own analysis … address[es] key areas where there are either no paralegals or where there are backlogs, and intense trial work or casework.”
In addition to hiring more paralegals, the audit found that a small percentage of attorneys were unsure about how to appropriately designate tasks to a paralegal. The audit suggested that the district attorney’s office instate a program to familiarize attorneys with utilizing paralegals. “We agree with this recommendation,” Carr said. “Many of our attorneys have not worked with paralegals before. We believe that proper training and direction as to how to best utilize paralegals would be beneficial for attorneys, paralegals and support staff.”
The district attorney’s office has begun implementing some of the audit’s suggestions. “We have requested an additional paralegal through the fiscal year 2008-2009 budget process,” Carr said. “Given the severe countywide budget deficit, we could not justify asking for any additional paralegals at this time. We do not have to reduce our budget this next fiscal year so we do not have any plans to reduce attorney positions.” However, other changes based on the audit are in the works. “We have begun to work on implementation of recommendations in the audit which do not require additional funding or staff,” she said. “[And] we expect to train on utilization of paralegals later this year.”
Paralegal Students Visit
On March 20, paralegal students and faculty from
According to Katherine Currier, chair of the
paralegal and legal studies department, the 20 participants on the
trip began their day with a tour of the White House, followed by a
tour of the
For 30 minutes, Justice Breyer fielded the
students’ questions which, according to
“I think paralegals need to have a basic
understanding of the process itself. And not just ‘here, I want you
to make copies of this’ and ‘here, I want you to file this motion.’
It’s good for them to know how the whole system works. They have a
better understanding of it and I think paralegals deserve to have a
little bit more opportunity to show what they can do,”
Keeping Tabs on Uncle Sam
Report by law librarians finds lack of authenticity in online government resources.
While most paralegals know that you can’t just rely on any old Internet site, what about government-hosted online legal information? Surely Uncle Sam and his state- and local-level brethren can be trusted, right? Not always, according to a recent report by the American Association of Law Librarians. In its State-by-State Report on Authentication of Online Legal Resources, AALL found that, “A significant number of the state online legal resources are official but none are authenticated or afforded ready authentication by standard methods. State online primary legal resources are … not sufficiently trustworthy.”
As Mary Alice Baish, acting
The problem lies in the distinction between “official” and “authentic.” An official resource is one that has been designated as such by a government body. That is, the government has dictated the form and manner of publication or has published the materials itself. An authentic resource, on the other hand, is one in which content has been verified by the government as an accurate and complete representation of the original version. For example, imagine a state court that publishes all of its opinions online on its own Web site with a notice that the Web site contains the official version. A hacker breaks into the site and changes the wording in one of the opinions and before the problem has been discovered and fixed, a paralegal downloads a copy of the opinion and relies on it in drafting a brief for the lawyer. The paralegal has used an “official” copy of the opinion; that is, one that was published by the state on its Web site; however, he or she has not used an “authentic” copy, but rather one that has been changed since it was issued by its originating body.
So how can paralegals get involved in this
important issue? Marcus Hochstetler, director of the King County Law
In the meantime, paralegals should avoid relying on government-hosted online legal information. As Hochstetler noted, “making sure the primary legal materials produced by a governmental agency are authentic in their electronic form ensures that decisions based upon those documents can be relied upon in the future.”
“The 2008 Solo and Small Firm Legal Technology
Guide,” by Sharon D. Nelson, John Simek and Michael C. Maschke,
published by the American Bar Association, provides information and
recommendations on computers, servers, networking equipment, legal
software, printers, security products and smartphones suitable for
any law office. Some of the topics included in the book cover
step-by-step instructions for making technology decisions; how to
choose the right operating system and software, including case
management applications, billing systems and document management
solutions; how to go wireless; and how to protect against security
threats, including viruses, spyware and spam. The book is available
for $79.95 from the
Precydent is a new, free legal research service that
adapts Web-style mathematical measures to the legal citation
network. In addition to its store of all U.S. Supreme Court cases
and U.S. Court of Appeals cases decided since 1950, several Web 2.0
features can be found, such as the ability to comment on cases and
rank their importance, and upload documents. Precydent also plans to
cover cases in the
Workers’ Compensation Practice
“Workers’ Compensation Practice for Paralegals,” by Lynne J. DeVenny and J. Griffin Morgan, published by Carolina Academic Press, includes an overview of workers’ compensation law, as well as information on practical tasks associated with handling a workers’ compensation case, such as determining compensable claims, evaluating and accepting cases, reviewing and summarizing medical records, investigating claims, obtaining evidence, drafting pleadings, and preparing for mediations and hearings. The book also includes topics of a more complex nature, such as handling catastrophic injury and death claims, Medicare set-aside arrangements, third-party claims and bankrupt defendants. The book is available for $30 from Carolina Academic Press at www.cap-press.com/books/1748.
Lex Mundi, an association of independent law firms, published four new multi-jurisdictional surveys: Criminal Liability of Companies; Trends for Commercializing Intellectual Property; European Union: Accession States Tax Guide; and Issues in Real Estate Investment and Finance. The Criminal Liability of Companies survey covers key criminal offense laws in each jurisdiction. The Trends for Commercializing Intellectual Property survey covers the commercialization and licensing aspects of IP law to determine the degree of uniformity across the jurisdictions. The survey on the European Union: Accession States Tax Guide discusses information on tax systems in effect for new EU member states. The Real Estate Investment and Finance survey covers topics such as national and state restrictions imposed on ownership of real estate, taxes levied in each jurisdiction and reporting requirements. The surveys now are part of the Lex Mundi multi-jurisdictional survey collection, which includes six other surveys. All surveys can be downloaded for free in their entirety or by jurisdiction at www.lexmundi.com.
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