Paralegals, the Public, & UPL

August 9, 2018

http://www.dreamstime.com/stock-photography-image35229672

The scope of services a paralegal is permitted to provide outside of a traditional law office is constantly morphing. The existence of virtual paralegals (like me!), rising costs of legal representation, and the persistent misunderstanding surrounding the concept of ‘paralegals’ (yes, 50 years as a profession and we’re still explaining ourselves!) has created a whirlwind of confusion.

Can a paralegal provide services to the public?

The short, but qualified, answer is no. Generally speaking, doing so is considered the unauthorized practice of law (“UPL”) and should be avoided like the plague. If only we could come to a consensus on the definition of UPL.

While there is not an all-governing definition of UPL, the ABA Model Rules provide direction, bar associations usually have a variation on the theme, and national paralegal associations have provided more clarity. For the most part, any paralegal worthy of the moniker agrees that UPL includes:

• giving legal advice
• accepting cases,
• setting fees,
• planning strategy
• making legal decisions
• taking depositions, and
• appearing in court

USLegal.com summarizes the definition  as:

…  engaging in the practice of law by persons or entities not authorized to practice law pursuant to state law or using the designations “lawyer,” “attorney at law,” counselor at law,” “law,” “law office,” “J.D.,” “Esq.,” or other equivalent words by any person or entity not authorized to practice, the use of which is reasonably likely to induce others to believe that the person or entity is authorized to engage in the practice of law in the state.

Perhaps it’s my lifetime of paralegaling, but the concepts of ‘practice of law’ and ‘legal advice’ have always seemed pretty straightforward to me.

What about LDPs (“legal document preparers”), LDAs (“legal document assistants”), state level registered paralegals, other special designation paralegals?

The states that have created those designations also have very clear and direct rules for what those paralegals may and may not do. But for very narrowly defined purposes, they are not authorized to answer questions of law or provide legal advice.

For the rest of us, why take the chance of ruining someone else’s life or losing your livelihood?

Think of it this way, would you, a paralegal, want to be responsible for telling a non-attorney the wrong thing thereby causing more harm than good? Would you want to risk disciplinary action or being a named defendant in a lawsuit because ‘you just wanted to help’?

Paralegals working independently, WITHOUT attorney supervision, aren’t covered by malpractice insurance and have little recourse if accused of providing incorrect ‘advice’ or just getting it wrong.

When (intelligent) non-attorneys call me ‘with a simple question’ or ‘for some advice’ because ‘they don’t really need/want to pay for an attorney,’ I explain that it’s worth the expense to hire a lawyer to get the job done right, then I direct them to find the links for self-help/pro se information on the court website, or suggest they contact legal aid or the local bar association. I won’t even read the content from one of those pages to the caller for fear they will think we’ve created a client relationship.

As Mariana Fradman put it, ‘Why do people ask paralegals to stand in as attorneys because of cost? Would those people ask a surgical nurse to perform surgery because they don’t want to pay for a doctor or hospital?’

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The Disclaimer is There for a Reason

August 8, 2018

It was a quiet Tuesday afternoon … a hot, summer day in Atlanta.

At StarrParalegals, I was fulfilling my duties as NFPA’s Ethics Chair, knocking out some administrative and other non-billable work, and (lucky me) getting sucked into word play ping-pong with a willfully clueless non-lawyer.

You’ve got Mail!

(NB: StarrParalegals complies with all ABA guidelines for electronic communication. References to AOL are for entertainments purposes only.)  

The subject line referenced an upcoming hearing in bankruptcy court. With visions of billable hours dancing in my head, I read the email:

Ms. Starr:

I really enjoyed your web site, truly texan. It conveyed that you are good at what you do and there is no doubt that you speak your mind.

Not to waste your time, I am NOT an attorney.  I am a small [businessman].  I am asking for your recommendation.

Can you recommend a paralegal that could attend a bankruptcy Hearing being held …  Thursday … [in] Houston Texas (see attached)?

(The attachment was a Chapter 11 341 Notice)

The execution of a Settlement with the Debtor is possible. The person would need to be a notary?

Also would like to know what the anticipated charge for their services will be.

Why do people think the disclaimer that is prominently displayed all over my website doesn’t apply to them?

I wanted to speak my mind; hit him with both barrels. Instead, I forwarded the email to a handful of trusted, dot-wearing, ethical legal folk and shared the redacted email on Facebook

My high school crush saw the problem and fixed it. The author wrote ‘texan’. Who doesn’t know that ‘Texan’ is always capitalized??

One of my bankruptcy attorney friends quipped:

I also like the part where he wants the person practicing UPL to attempt to collect on a debt by “settling” it, because that’s not a stay violation.

(I trust you read that with all the intended sarcasm.)

I crafted and sent my response. It was delicate (mostly) and direct:

I’m flattered you like my site and my style. I am good at what I do, which is why I recommend you hire an attorney. You need one – especially in a Chapter 11. Paralegals are not permitted to work for non-attorneys – even in Texas.

It would be unethical for me to suggest another paralegal provide services that fall under the umbrella of practicing law. Even if a freelance paralegal were to attend the Meeting of Creditors ‘on your behalf’, (s)he would only be allowed to report what was said – not answer questions or interpret the facts and, most definitely, not permitted to ‘represent your interests’ regarding a settlement.

‘Nuf said? Right?

Apparently not.

Whilst speaking with potential NFPA Ethics Board members, my email pinged, the phone rang (I didn’t recognize the number), text was sent and a voicemail left.

I checked the voicemail transcription (useless). I listened to the message.

Then I listened to it again,
– FLUMMOXED –
and again,
– GOBSMACKED –
and again,
– INCREDULOUS –

Here’s the clarified (and redacted), albeit unpunctuated, transcription:

Pam <REALLY???> you know I think I have a solution um the person that you recommend could just work for the —– law firm for —– he’s an attorney so you can just send the bill to the —- law firm and uhm you know uhm that way ⁠it gets by the idiosyncrasy that you um mention, but basically we don’t need any representation or anything we just need somebody ⁠to just go there, be there and pick up any paperwork that needs to be picked up or you know um and if there’s anything … because they’ll be a report that the court will ⁠ give as to you know what happened but we just want somebody there just to pick up stuff or to be there and report back you know exactly what happened and not not technical law to make any representation on our behalf so anyway thought you’d work for the —- law firm or whomever you’d recommend and I think I sent you an email that person’s address thank you very much thank you very much…

And the somewhat less offensive (also redacted) email:

I have lost a great deal of money to the person who is declaring bankruptcy.  I made my money and try to spend it wisely.  I do not need an attorney for this matter on Thursday.  All I need is for a person to report back and pick up any related paperwork the court hands out. And, possibly witness the execution of a document(s).

I have an attorney with —– Law Firm here in —– that is advising me. The —– firm is one of the oldest most respected firms in —.

Let’s circle back, shall we?

uhm that way it gets by the idiosyncrasy that you uhm mention

IDIOSYNCRASY??????!!!!!!
To borrow from Inigo Montoya: I do not think it means what you think it means.

The phrases “are you out of your ducking mind” and “are you ducking kidding me” rang loudly in my head and desperately tried to make it into my response.

An end run around the law with complete disregard for everything I stand for as a dot-wearing* ethical paralegal … INCONCEIVABLE!

So many potential ethical violations … I tell myself to keep the response plain and concise. It wasn’t easy.

If you’ve read anything I’ve written or about me, you know 1) I won’t budge on this issue – it’s not an idiosyncrasy, it’s the law; 2) there is no ‘work around’ in which I allow an individual to hire StarrParalegals but bill a law firm for my time; and 3) no one but my mother gets to call me ‘Pam’.

If —- is a bankruptcy attorney licensed to practice in the Southern District of Texas bankruptcy court and wishes to discuss the possibility of the —- firm hiring my company, he can call me to discuss. Otherwise, this conversation is over.

It took him almost 2 hours to reply with his perceived loophole:

Please know that I carefully read what you wrote, which was, “If a freelance paralegal were to attend the Meeting of Creditors ‘on your behalf’, (s)he would only be allowed to report what was said“.  Sending a report and picking up any hands out is all that is being asked of the paralegal.  I can have a Wells Fargo bank teller witness and notarize a signature if needed.

My apologies for referring to you by the name your mother used.  

Your involvement, or the name of a respected associate would be appreciated.

What part of “conversation over” is so difficult to understand??

Sir,

You have selectively read my words to construe the intent in your favor. The first word of the sentence is “EVEN” [emphasis added] purposefully chosen to convey the unlikelihood of such event ever taking place.

I repeat, it would be unethical for me or any paralegal to provide services that fall under the umbrella of practicing law. It is not my job to educate you or your ‘advising attorney’ in the nuances of UPL.

I will not involve my company in this matter, nor will I ‘refer you to a respected associate’.

End of discussion.

We shall see.

 

* The ‘dot wearing’ references … take a quick gander at The Uprising (a faction of The Paralegal Society) on Facebook; a dedicated faction of paralegals who believe in upholding ethics for all paralegalkind, who have adopted polka dots, in all shapes, sizes, combinations, and colors as our standard.

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