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This long-running column examines ethics in the paralegal profession. Do you have an ethical dilemma or question? E-mail us today.
News Briefs: May/June 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 May/June 2008 issue of Legal Assistant Today.
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Proposal could affect any nonlawyer who prepares documents for the public.
The Hawaii Supreme Court is reviewing public comments on a proposal it set forth in October 2007 to define the practice of law. The proposal under consideration is in the form of an addition to the Hawaii Supreme Court Rules and defines the practice of law as the “giving of legal advice or legal assistance to another person.” The definition includes, but is not limited to, “giving advice or counsel to another person about the person’s legal rights and obligations or the legal rights and obligations of others.” Several exceptions and exclusions to the definition were included in the proposed rule, including the performance of services as a paralegal under the supervision of a judge, justice or member of the bar.
In essence, the proposal would cause businesses
that provide documents for do-it-yourself court filings to close,
and prevent any nonlawyer from assisting others in completing legal
documents. Conviction for the unauthorized practice of law in
The Hawaii State Bar Association first sent a proposed rule to the Hawaii Supreme Court in July 2007. After review, the Hawaii Supreme Court proposed its version of the rule in October 2007, posting that version on its Web site and requesting public comment through Jan. 25.
On Jan. 25, the HSBA asked the Hawaii Supreme Court for additional time to submit its response to the court’s proposed rule, citing numerous comments and questions it had received about the rule, and indicating that it wanted adequate time to review and possibly develop changes to the proposed rule. The time for the HSBA to respond was extended until March 28.
Recognizing the concerns expressed by other
If the Hawaii Supreme Court adopts the language
in its current form, business owners such as Betty Marais would
directly be impacted. Marais owns Legal-Ez, a legal document
preparation service in
Some states already have adopted legislation that regulates, rather than prohibits, nonlawyers who perform legal-related services for the public.
Marais, who already is bonded and has 25 years
of experience, agreed. “I would welcome that same regulation process
The Hawaii Supreme Court granted the HSBA’s Feb. 29 request and extended the time for the bar’s response to May 30. After reviewing the public comments submitted, the court will have the option to reject the proposal, adopt it or adopt a modified version of the original language. If the court adopts the proposal, it could take effect as early as July 1.
Paralegal who posed as attorney receives probation and community service.
Brian Valery, the paralegal who was charged in both
According to Jennifer Kushner of the Manhattan district attorney’s office, Valery first pled guilty to grand larceny in the second degree on Oct. 10, 2007, at which time he was ordered to pay a restitution fee of $150,000 immediately — the first portion of the $225,000. Upon that payment, Valery was allowed to re-plead to grand larceny in the third degree on Jan. 30. Over his 5-year probation period, he must pay the remaining $75,000 to Anderson Kill, and also must complete the 100 hours of community service.
Since Valery’s attorney impersonation charges
first came to light last year, paralegals around the country have
been angry about the possible damage to the paralegal field’s
reputation. “As a paralegal and president of the New York City
Paralegal Association, I am outraged,” said Letitia Smith, a
litigation paralegal at Fensterstock & Partners in
Stricter Notary Laws in
Assembly Bill 886 requires specific forms of identification and adds stiffer penalties.
On Jan. 1 California Assembly Bill 886 went into effect, creating a number of significant changes in notarial law that affect paralegal notaries throughout the state. Specific forms of identification now are required from clients, including fingerprints in certain circumstances, and penalties for notaries now are stricter. The bill, introduced in February 2007 by Assemblywoman Sharon Runner from the 36th assembly district, also was supported by Los Angeles District Attorney Steve Cooley and Los Angeles County Sheriff Lee Baca.
Tim Reiniger, executive director of the National
Notary Association, cited the growing problem of real estate fraud,
Another new feature of the bill is that notaries renewing their status must now submit fingerprints to the Department of Justice for a background check. “I believe this [new part of the law will] be helpful in preventing anyone from being a not-so-dependable notary,” said Mary E. Kelly, a self-employed notary since 2004 based in Stockton, Calif. “The new law also [will] help prevent someone with a history of being [unethical] from becoming a notary.”
Aside from adapting to stricter identification guidelines, notaries also have had to replace old certificate forms to reflect the new laws. Language about personal knowledge was removed from the old forms, and a new penalty of perjury provision was inserted into the statutory certificate of acknowledgement form.
Despite extra steps required of notaries by AB 886, the creators of the bill and its supporters believe the new laws will protect potential victims of real estate fraud. “Everything about [AB 886] is only to help people and make it a more serious offense in case there’s fraud,” Schulz said. “There’s so much of it going on.”
New Association Forms
Freelance and independent paralegals find support
virtually with the
A new paralegal association now is available to give
freelance and independent paralegals in the
AFPA emerged from the Yahoo Freelance Paralegal
Group, of which the association’s founders all are members. “We got
together by teleconference one day and discussed forming AFPA, first
creating a mission statement,” said David Moyer, AFPA’s president
and owner of Moyer Paralegal Services in
Membership dues for AFPA are $85 for the first
year and then $125 annually. Currently, AFPA has seven members, and
has opened membership to freelancers and independents in
To learn more about AFPA and how to join, go to www.freelanceparalegal.org.
Green is the New Black
Law firms around the
In March 2007, the American Bar Association and the Environmental Protection Agency issued a challenge to law firms: conserve energy and reduce paper. One year later, the challenge, which officially is coined the ABA-EPA Law Office Climate Challenge, has more than 50 law firms and 100 law offices signed up to be partners or leaders in one or more of the four programs, which are Best Practices for Office Paper Management, WasteWise, Green Power and Energy Star.
The overall challenge idea is much more complex than just conserving resources such as energy and paper; rather, the idea is to encourage law firms to begin thinking about what can be done for conservation measures to become more sustainable. “It’s supposed to be a starting point, not an end point,” said Dan Eisenberg, public service vice chair for the air quality committee of the ABA Section on Environment, Energy and Resources in Washington, D.C. “A firm shouldn’t sign up for the challenge and then have that be everything they do.”
The challenge is the brainchild of Howard
Hoffman, a lawyer with the EPA’s office of general counsel in
To enroll in the climate challenge, law firms must fill out an enrollment form, which is available online at the challenge’s Web site, www.abanet.org/environ/climatechallenge/home.shtml. A firm can enroll on behalf of just one office, more than one office, or the entire firm or organization. The challenge’s Web site also lists detailed steps on how to complete the enrollment form. Once a law firm submits the enrollment form, it then is listed as a law office climate challenge partner. Law firms that become partners and leaders will be highlighted on the Web site for the challenge.
The Marten Law Group, an environmental law firm
with offices in
Arnold & Porter, a law firm with eight offices
Both Gates and Rashby-Pollock became integral to their firms’ participation in the challenge by approaching upper management. “I actually think paralegals are in a really good position to initiate this sort of thing because they are in touch with every level of staff,” Rashby-Pollock said. “Everyone goes to the paralegals when they want to know about document management and paper usage; they’re the ones who really know.”
Another way paralegals can get involved is by initiating a green committee, which can oversee implementation of the climate challenge and other environmental sustainability programs. According to Eisenberg, paralegals often are involved in the practical aspects of legal work, such as document productions, and can produce ideas that attorneys might not think of. “I think what a lot of firms are doing — and I think it’s a good idea — is they’re starting green committees,” Eisenberg said.
Gates indicated three major steps paralegals and law firms can take to get started in the challenge and develop green programs: create a group, prioritize your goals and get management approval. “I think people are accepting the fact that this is the direction that we have to go in,” Gates said. “We can’t continue to use resources the way that we were using them, say, 10 years ago; we need to start making some changes.”
While the challenge’s membership is expanding, the goal is to not only increase that in the next year but also to change the way firms think. “We are hoping that law firms will use the climate challenge as an opportunity to think seriously about how their offices can be made more environmentally sustainable,” Eisenberg said. “And take steps to make their offices more efficient and environmentally friendly.”
Technology show features latest trends and new education tracks.
As technology in the legal field has grown, so, too,
Juers added that the look of LegalTech has changed considerably over the years too, especially in terms of marketing and promotion. “Everywhere you turn[ed], you [saw] more vendor booths, logos and advertising. The legal technology market is crowded and fierce. Exhibitors are clamoring to get their brand noticed, even if it means putting their ad on marble floors, in restroom stalls or elevators,” she said.
The value of those who work directly with legal technology also will become more important as technology continues to expand and become more affordable. “Today, even a small firm or practitioner can purchase almost any kind of computer-based practice support system at a reasonable price. However, many of these systems are complicated and require hardware purchases and highly trained staffs to really make them work,” said Ian Levit, vice president of Levit & James, a provider of document conversion software and the maker of Best Authority, an add-on to Microsoft Word that assists legal professionals in creating tables of authorities.
LegalTech West Coast will be held June 26 to 27,
Who Really Owns Law Firm E-mails?
Are the e-mails that paralegals send and receive at the office personal property or the property of the firm? Although most paralegals might answer that all e-mails belong to the firm, the recent decision in Sam Bedwell, et al. v. Fish & Richardson, 2007 U.S. Dist. Lexis 88595 (S.D. Cal. Dec. 3, 2007), found that isn’t always the case. In the decision by U.S. Magistrate Judge Jan M. Adler, the court ruled that while some e-mails are considered firm property, there are those that should be considered personal property and that a paralegal is allowed to keep when he or she leaves a firm, even though they were created on a firm computer.
In Bedwell v. Fish & Richardson,
defendant Fish & Richardson, a national law firm, alleged that
plaintiff Suzanne M. Moreno, a former paralegal at the firm’s
The parties agreed to divide the e-mails into
three categories: communications regarding
However, the court disagreed with the firm on
the issue of the remaining e-mail communications, which
The court further found that the e-mails in
question “did not relate to the representation of a firm client but
rather relate[d] to [
The International Paralegal Management Association was not surprised by the decision. According to a statement issued to LAT on March 31 from several of the IPMA board members.
This decision could motivate law firms and corporations to re-evaluate their confidentiality policies and procedures. “[T]he ruling in this case may encourage firms to review written policies regarding the removal of documents from the firm. It may be necessary to add greater detail regarding restricted documents, if necessary, and to clarify and outline the procedure to request items that the employee may be entitled to copy from his or her personnel file,” the IPMA statement said.
Whether law firms rewrite their procedures based on this decision is yet to be seen, but the IPMA suggests that paralegal managers and employers following best practices keep information on file regarding an employee’s individual status, requests for transfer and other issues, and are able to access this information for departing employees. Also, paralegals that leave a firm or corporation should go through official means to obtain needed copies of pertinent documents retained in the human resources department’s records. As noted in the IPMA statement, “[T]he plaintiff could have handled the matter in a more professional manner by formally requesting a copy of the e-mails in her personnel file prior to her departure.”
The Real Deal
Virtual Deal Rooms transform due diligence.
Due diligence never has been easy. For buyers it usually means flying teams of lawyers, paralegals and others to distant and, increasingly, international locations for tedious and time-consuming searches through thousands of documents. Sellers usually face problems coordinating schedules because multiple potential buyers need to view documents at separate times. The cost occasionally is so prohibitive that deals are scrapped, and fax machines and e-mail only marginally ease the burden.
Enter Virtual Deal Rooms, or VDRs, which are secure, Web-based transaction systems where important documents are stored and organized, and dealmakers can communicate without leaving their offices. Although mainly used for due diligence in mergers and acquisitions, VDRs currently are being explored for managing everything from IPOs to bankruptcy, which could prove to be invaluable for paralegals.
Jay Loyola, regional director for Merrill Datasite, an international provider of VDR solutions based in Irvine, Calif., said his company’s VDRs optimize the due diligence process. “Our clients or clients that use Datasite dramatically reduce transaction time and expense through the presentation of documents that have been electronically captured and indexed online.”
So, how do VDRs work? Typically, documents are scanned into the VDR and key players are given password-protected access. Multiple people can access the VDR at the same time from any location, eliminating scheduling and travel issues that plagued paper-based deals.
VDRs also trump paper-based due diligence with their search functionalities. The best VDRs on the market are keyword searchable and some allow Boolean searching. What used to be a needle-in-a-haystack process of searching for relevant sentences or paragraphs in paper documents has been reduced to a few keystrokes. VDRs also allow sellers to see who is accessing their documents and how often.
“I loved using [the VDR],” said Mary Ellen
O’Dell Schantz, a paralegal with Harter Secrest & Emery in
Not everyone has jumped on the VDR bandwagon,
however. According to a December 2007 report by the
For the most part, it has been large corporations — those managing deals upward of $1 billion — that have jumped on the VDR bandwagon. Yet, as technology improves and costs decrease, more midrange companies and law firms are adopting the trend. The MANDA report predicts, “…VDRs [eventually] will become the accepted and most widely used data room tool for M&A transactions.” Paralegals, take note — VDRs could not only make your jobs easier but change the very dynamic of what you do.
InsideLegal, a blog launched by Envision Agency on Feb. 5, discusses issues that affect the legal technology industry. The blog also covers industry comings and goings, such as new hires, and mergers and acquisition news; marketing strategy; PR best practices, such as how-to articles, media planning and publicity; and vendor relations, such as technology trends, securing speaking opportunities, pitching byline articles and legal industry developments. InsideLegal also features guest bloggers, such as consultants, vendors, firms, media, and general business and strategy contributors. For more information, visit www.insidelegal.com.
JD Supra, a Web 2.0 business, is a free online platform to post court documents, filings, articles, client alerts, original research, marketing materials and document templates. The database allows for searching, driven by Google Mini, and the site also features “The Scoop,” which presents new, recently released documents, filings and decisions. Profiles are listed on the site for recent contributors, and the resources section lists products and services for the legal community based on users’ recommendations. Also found in the resources section are Web sites for federal courts, state courts, law school clinics and journals, and national and state bar associations. For more information, visit www.jdsupra.com, or contact Allan Ripp at (212) 262-7477.
“50 Legal Careers for Non-Lawyers,” by Ursula Furi-Perry,
published by the American Bar Association, delves into booming
careers for paralegals. The book also discusses career options, such
as legal administration and management, for paralegals who want to
move their careers forward. Each career listed in the book includes
interviews, responsibilities, education and skills, and ways to
enter that career. Some of the other positions listed in the book
include those for self-starters, entry-level jobs and legal careers
outside of law firm environments. The book is available for $19.95
“Legal Analysis and Writing for Paralegals, third edition” by William H. Putman, published by Delmar Cengage Learning, provides an in-depth look at the legal analysis and writing process. The book is divided into three sections, with the first section discussing analysis and the legal principles involved. The second section covers elements and tools in the analysis and writing processes, and the third section talks about how to apply the principles explained in the first two sections. The book also discusses how to draft legal correspondence, legal research memoranda and court briefs. An activity CD, which includes assignments, chapter outlines and study questions, also is included. The book is available online at www.delmarlearning.com for $72.95.
The Encyclopedia of Business Graphics, by SmartDraw.com, is a free, searchable database that provides detailed information on any type of chart, diagram, schematic and illustration used by businesses. Along with each detailed description is an image of the graphic, information on the graphic’s typical uses and best practices for creating the graphic, as well as tutorials, success stories, related activities and white papers. Additionally, free templates can be downloaded that also can be edited. The graphics can be searched by type of graphic or type of activity. For more information, visit www.smartdraw.com/eobg.
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