What Part of “ONLY Licensed Attorneys” Don’t You Understand?

May 7, 2018

My company, StarrParalegals, provides paralegal support to attorneys PERIOD.

A simple concept, that is until I realized people have developed ‘selective reading’. It’s a bit like selective hearing. You know, the way a parent doesn’t hear, “Mommie!!! Mommie!!! I WANT THIS!” Or an attorney doesn’t hear repeated reminders of upcoming deadlines and bar dates 😉

Why is this an issue? Because non-lawyers keep wasting my time – constant calls from folks that “don’t really need an attorney” or “just want to ask a simple question” or who dive straight into the facts of their case despite the loud repetition of my mantra: “I’m sorry, we can’t help you. We only work for attorneys. If you’re not an attorney, we can’t help you.”

They even ignore the outgoing message on my phone, “Thank you for calling StarrParalegals … if you’re not an attorney or representative of a law firm, we can’t help you. Please hang up; don’t leave a message …” (I need to re-record it, so please don’t call to check it out.)

Everyone claims they’ve ‘been to my website’.
Nu? DID YOU SEE THE DISCLAIMER AT THE TOP OF EVERY SINGLE PAGE??!!??

Well, uh, yeah, but …

Or better yet, “I didn’t actually go to your website. You just came up on Google, so I called.” (BULL CACA!)

And the emails … OY!! The emails!!

Really? Did you REALLY look? Did you READ THE WORDS?

Clue, buy you should.

 

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#DontDiscussBusinessInPublicLikeThis

April 19, 2017

Think, for a momentDon't do it. , about the last time you were at the grocery store, a mall, or in any public setting. Did you encounter people on their cellphones and having face-to-face conversations? What did you hear in passing?

Me? I had just dropped off a prescription at the pharmacy in my local grocery store and decided to do a little shopping while it was being filled. Cart and shopping list in hand, I found myself trailing a meanderer who was more focused on her conversation than shopping. Normally, I would have zipped past her, but the aisle was crowded and she kept pausing – not to shop or compare prices. Oy, gott in himmel,[1] that would have been a blessing.

No, my friends, she stopped, every few steps, to emphasize some salient (salacious?) point. Did I mention she was on speakerphone? The subject of the conversation – words I shall never unhear – in graphically intimate detail … the tribulations with her current method of birth control, punctuated by her friend’s excruciatingly, descriptive observations and commentary.

Oh how I wished that a ‘cone of silence’[2] would drop soundly on her (or my) head.

When did we become so complacent and nonchalant about the most intimate details of our lives?

How did we lose the skill to self-censor our actions and suppress the things we say and share?

At what point did we allow technology to override our awareness of the where, when, and what of our speech and actions?

And what, you may ask, does my grocery store encounter have to do with our jobs, duties, and responsibilities as paralegals?

More than you might realize –

You’ve seen the news, reports, and posts about the impact of technology and social media on ethics and confidentiality. Perhaps you’ve read one or more ethics opinions on the subject. As paralegals, we must be mindful of the constantly changing landscape that is 21st century law and give proper consideration to the implications of those transformations within the walls of our offices – you know, the sanctum sanctorum where we adhere to the rules. We know what we should and shouldn’t do. Right?

Just in case, let’s review the rules …

We’ll start with NFPA’s Model Code of Ethics and Professional Responsibility and Guidelines for Enforcement. Ethical Considerations 1.5 sets the standard for confidentiality:

EC-1.5 (f) A paralegal shall not engage in any indiscreet communications concerning clients.

It is derived from Rule 1.6 of the ABA Model Rules of Professional Conduct – Confidentiality of Information. This rule defines a lawyer’s – and every paralegal’s – ethical duty to take reasonable measures to protect confidential client information from inadvertent or unauthorized disclosures. Paragraph (a) states, in part:

  • A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent …[3]

In May 2012, the ABA Commission on Ethics 20/20 submitted a Resolution and Report on Technology and Confidentiality to the ABA House of Delegates with recommendations for significant changes to the Model Rules to conform with advances in technology. Subsequently, Rule 1.6 was amended to include the following paragraph, ostensibly in consideration of the effect of technology on the practice of law and to further clarify concerns about inadvertent or unauthorized disclosure:

(c)  A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

Are you taking notes?

Today, my esteemed colleagues, I’d like you to consider your role in the prevalence of inadvertent disclosure in the real world. Keep the thou shalt nots of the rules cited above in mind while you consider the ramifications and indirect consequences of your interactions once you leave the hallowed halls of your work places.

Let me share a true-life example courtesy of Jennifer Ellis, JD, a respected expert on social media and ethics.[4] On March 6, 2015, Jennifer live tweeted an entertaining, albeit unsettling, account of her observations while waiting for her car to be repaired:

  • At a car dealer. Man is talking to his employee about a third employee. #badidea
  • He is talking to a woman with the same first name as me, which caused me to notice.
  • He gave Jennifer detailed information about how to log into their bank system. I heard the name of the bank and the passcode.
  • #dontdiscussbusinessinpubliclikethis
  • He is explaining his payroll issue. It seems there is an issue with the bank.
  • He needs to pay his employees half in cash
  • I could easily figure out who this guy is, where he works and the location of his safe with money in.
  • He is confirming he has large amounts of cash in his safe.
  • Now I know where they are meeting with a large amount of cash. He even provided detailed directions
  • Now I know his full name.
  • So to recap. I know name, bank, password (I forgot that immediately alas) that Dawn is in trouble. That he is buying a property.
  • Where the property is. And that he will be carrying cash.
  • I will not give in to the temptation to look up his name. Which I will forget very soon anyway. [5]

What happened to common sense? Did he really think no one would hear his conversation? One can only hope that, 1) other customers in that waiting room also chose to ignore temptation; and 2) no one in that room knew any of the named parties.

‘Fess up. You just had a ‘have I done that?’ moment.

Put your on paralegal suit and consider a typical day at work. You’ve settled in to perform your characteristic paralegal magic, and, SCENE:

  1. You’re in the elevator with co-workers talking about opposing counsel.
  2. You’re at lunch with colleagues when the conversation turns that PITT (“Pain in the Tuchas”) client.
  3. You’re driving home from work and you call your BFF (hands-free connection, of course) to whine about your day.
  4. You’re in line somewhere, phone in hand, checking office email or texting a colleague.
  5. You’re at the park on the phone discussing trial details with your supervising attorney.
  6. You’re on the train, a plane, or in some very public waiting area working on your tablet or laptop.
  7. You’re at a professional event comparing war stories.
  8. You’ve posted a hypothetical to an online forum on Facebook, LinkedIn, an ‘old school’ listserv, or discussion board.

If you’re first thought is, ‘she can’t be serious’. You’re wrong.

Remember EC 1.5 (f)? “A paralegal shall not engage in any indiscreet communications concerning clients.” [emphasis added]

What about Rule 1.6 (a) and (c)? For additional insight and guidance, we look to the comments to Rule 1.6, specifically as they apply to paragraphs (a) and (c).[6]

Comment 4 expands the application of Paragraph (a) – the rule that ‘prohibits a lawyer from revealing information relating to the representation of a client.’ According to Comment 4:

This prohibition also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person. A lawyer’s use of a hypothetical to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved. [emphasis added]

Comment 18 elaborates on Paragraph (c)’s requirement that ‘a lawyer make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.’ In significant part, Comment 18 explains that a lawyer is required:

… to act competently to safeguard information relating to the representation of a client against unauthorized access by third parties and against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision. See Rules 1.1, 5.1 and 5.3.  …  Whether a lawyer may be required to take additional steps to safeguard a client’s information in order to comply with other law, such as state and federal laws that govern data privacy or that impose notification requirements upon the loss of, or unauthorized access to, electronic information, is beyond the scope of these Rules … [emphasis added]

In short, we’re bound by the rules to be discreet to avoid inadvertent or unauthorized disclosure. Although the rules seem to place more emphasis on electronic mishaps and that which occurs within the office, I submit that rules extend to the spoken word and the manner in which we conduct ourselves outside the office … at all times.

  1. With the rules in mind – what considerations should have been made regarding the above scenarios?
    1. ‘The elevator’ – Were you the only occupants at the time? Did someone board the elevator while you were in mid-conversation? Is there a chance that OC or the other party has offices in your building and someone overheard your conversation? How much did you say and in what context? From an alternative perspective, you’re alone on the elevator when some attorneys from another firm, in the midst of a heated discussion about a settlement agreement, join you. As far as they’re concerned, you’re invisible.
    2. “At lunch” – Who can hear you? If you think the answer is, ‘It was noisy, no one could hear us.’ You’re wrong. You heard each other, didn’t you? How specific were your comments? Did you name names or other details about the case?
    3. “Driving home” – Granted, you’re alone in your car and your BFF doesn’t even work in a law related industry. How could there be an issue? Did you rant about a colleague or client, or discuss the details of a file you’re working on?
    4. “In line” – I bet you’re thinking, it’s a tiny screen. Who would take the time or energy to read over my shoulder? Does it really matter? A friend recently told me she’d been able to clearly see some random guy’s entire text conversation while she was sitting inside a coffee shop and he was sitting outside merrily texting along.
    5. “At the park” – Who was around you? Did it occur to you to mention where you were or suggest that you would call back when you were in a more secure location? How detailed was your conversation?
    6. “On the train …” – Was it a secure Wi-Fi connection? What about your screen? Could anyone look over your shoulder and read that pleading your drafting? Maybe it’s time to invest in a VPN and privacy screen protector.
    7. “At a professional event” – This one should be obvious. The attendees are about as diverse a group as you can get and you’re in public (semi-private doesn’t count). Unless you’re speaking in Enigma level code, it’s likely you’re unintentionally giving away the proverbial farm.
    8. “Posting to a forum” – How often have you read and responded to questions posted by other paralegals requesting information or clarification on a situation? Or perhaps you’ve posted your own query – how well disguised was your hypothetical? Did you take time to consider that someone from the other side might be a member of the group – lurking in the background? Did you disclose information by way of an innocent inquiry? Did you commit UPL??

These things happen every day and we often let them pass without a second thought.

How much identifiable or confidential information have you inadvertently disclosed?

This is no joking matter!

Think before you speak, type, text, send, post …

 Reprinted by permission from The National Federation of Paralegal, Associations, Inc., www.paralegals.org.


[1] Loosely translated from German as “good heavens”

[2] Get Smart (TV Series 1965–1970)

[3] Rule 1.0(e) “Informed consent” denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”

[4] http://www.jlellis.net/blog/ – @jle_jd

[5] I have redacted a significant number of posts from the original, 1-hour feed.

[6] Model Rules of Professional Conduct Comment on Rule 1.6, http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_6_confidentiality_of_information/comment_on_rule_1_6.htm

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Computer Twilight Zone

July 7, 2016
upsidedown
 What new hell is this??

I was happily composing a response to a client when, flicker … flip.

That’s right, FLIP!

My laptop display reappeared upside-down and backward, as if it had entered a da Vinci twilight zone.

  • Coffee … check.
  • Ground below, sky above … check

Don’t Panic!!

I hadn’t, to my knowledge, encountered a wormhole or stepped through a looking glass. And, no, the laptop shouldn’t have a rotating display. It’s a basic, 6 lb., sits on my desk, no touchscreen, laptop.

I picked up my netbook, turned it on, – breathed a huge sigh of relief when it opened in normal, landscape orientation – and Googled, ‘WTF? My laptop display is upside-down!

Alrighty then. According to the brain trusts at several fora, including HP and Microsoft, it’s a simple fix: Ctrl + Alt + up arrow.

Easier said than done! Have you ever tried to drive your mouse or use a touchpad in a carnival fun house? It was all catawampus!

I figured since I’m already left-handed and dyslexic, it would be easy(ish) to do. I failed to figure in that, although I write with my left hand, I use a mouse like a ‘normal’ right-handed person.

My poor, addled brain couldn’t quite master the inversion-conversion required to mouse upside-down and backward.

No worries; I’ve got this.

I picked up and flipped the laptop. Now the keyboard was upright and facing me and the display was on the desk.

Ctrl + Alt + up arrow. Flicker. Fixed.

NOT!

I was back in da Vinci land as soon as I clicked the mouse.

Back to the netbook. Oh, look, there’s a whole series of ‘thanks for nothing; it flipped back’ posts.

Well, isn’t that special?!?!

New fix:

  • Control Panel
  • Display Resolution
  • Landscape (not flipped)
  • Uncheck ‘Auto Rotate’
  • Apply
  • Pray

So far, so good. Still, it would be nice to know WTH happened in the first place!

And back to work I happily plod.

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Not Everything Your Read on Facebook is True

July 5, 2016

Reality check …

myth factEven if there were ANY truth to the recurring rumors (that’s right myths, BS, blatant nonsense) about Facebook  ‘going public’ or ‘charging for access’, or my all time favorite, that social media users have some right to protection under UCC-anything, do you honestly believe Facebook would be monitoring your pages for posts in which you attempt to invoke rights that you signed away as soon as you created your Facebook account???

Want to know more? Read my posts from November 2012:

Buy a clue people!!!

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#Sears Customer Disservice

July 3, 2016

In mid-June, I purchased a dishwasher and range from #SearsOutlet.com and a washer/dryer from #Sears.com.

It’s July 3rd and I’ve been in HELL for 3 days.

Apparently, there is no one stateside to handle ANY issues to do with #SearsOutlet.com, and far too few offshore call center people willing to release control of calls to US reps on the #Sears.com side.

Let’s start with #SearsOutlet.com … BEFORE committing to the purchase, I called customer disservice at 1-800-KillMeNow, TWICE about installation & haul away. In BOTH calls – placed on different days – I was ASSURED installation & haul away were included.

Yes, I verified that I was speaking with #SearsOutlet.com and asked whether delivery (and the, now confirmed, installation/haul away) charges were per item or location. I was told that if both items came from the same store, the fee would be split.

Thrilled with that bit of news – and no need to hire a contractor to uninstall/remove/haul away/install my dishwasher and range – I completed my purchase. According to the confirmation email, the delivery fee had been split (ergo, same store).

Two days later, I received the delivery scheduling call. The initial delivery date – more than a week away – conflicted with my schedule. I asked why so far out and was told the location only delivered on Fridays. Frustrated, I took a date another week out (July 1, 2016) and juggled my appointments.

I received a robocall the night before with the 2-hour window (8:00 am – 10:00 am). Well, the window closed with nary a peep. I had no recourse but to call 1-800-KillMeNow. It took over TWO hours of numerous transfers and interminable holds to connect with someone with a modicum of a clue. One reason for so many transfers was that the agents kept insisting I’d purchased only ONE item and it ‘was scheduled to be delivered’ that day. Dishwasher AND range EQUAL TWO ITEMS!!!

The customer disservice agent transferred me to the store manager. I was left on hold for 45 minutes during which I tried reaching the store directly from my cell phone. Despite the horrendous phone issues at the store, the store manager was incredibly patient and helpful. She confirmed “my” range was in the store (yes, marked sold to me) but that no delivery had ever been scheduled AND she had NO RECORD of my dishwasher!!

I pulled up the confirmation email and gave her the order/sales check numbers … nope, nothing! I emailed her my copy. Again, nothing. Oh, and HER store only delivers on Saturdays!! I admitted my confusion because I’d been told the store only delivers on Fridays!

She contacted her delivery driver and arranged for my range to be delivered Saturday. In the meantime, she checked her stock, found ‘my’ dishwasher, and offered, if my actual order could not be found, to send it along. She kept digging and I kept fuming – I’d now given almost 4 hours of my life to this crap.

While I waited to hear back, I received a call from a driver ‘with my delivery’. What delivery? ‘Your dishwasher, ma’am.’ I asked if they were coming from the Marietta store (because, I’d ordered BOTH items from the Marietta location), they said no.

Curiouser & curioser!

A few minutes later the store manager called back – she’d turned over every stone she could find and came up empty. I told her about the call and we laughed in disbelief. She asked me to call after delivery to confirm I’d received the dishwasher.

They arrived with the dishwasher and summarily dumped it, box and all, in the middle of my kitchen floor.

WHOA!  What about installation & takeaway??

Oh, no um, we just deliver. UGH!! That’s not what I signed up for!!! Frustrated, I checked the box … it was the WRONG dishwasher! They sent stainless; I ordered white! I refused delivery and sent them on their merry way.

I emailed the store manager while calling the KillMeNow number to resolve (it is to laugh) the installation & takeaway issue and make sure I didn’t get charged twice for a dishwasher.

Another TWO hours shot to hell!

Customer disservice lived up to its reputation … a lot of doublespeak punctuated by “Okay!” – to the extent that it made my teeth hurt – including a transfer (finally) to a US-based agent who told me to ‘be concise because [he] didn’t have time for long stories’ and subsequently hung up on me when I responded, out of justifiable frustration, ‘Well, aren’t you special.”

Meanwhile, the store manager called me back and I could hear her shaking her head disbelief. We decided it would be best to accept delivery from her store and ask the delivery folk if they’d complete the installation. As a courtesy, she said she’d include the parts for installation.

During the entirety of that call, I was on hold with the brain trust at KillMeNow.

I finally got to a mostly helpful agent and described the tsuris of the day, including the installation problem. She was appalled that I’d been so thoroughly misinformed, offered me a ‘for your trouble’ credit, and transferred me (again, hold-hell) to the #SearsOutlet.com delivery & installation people. They quoted me the (oh, so reasonable <sarcasm>) price of $379.99 for installation and takeaway … almost HALF the cost of my purchase!!

Thank you, no!

Seriously, why would I voluntarily put myself in this hell when I could have easily avoided the additional cost and loss of brain cells with a few calls to friends and a local contractor??

They delivered the dishwasher and range – they installed the range, but my dishwasher is still boxed up in my garage. I contend that #Sears should send someone over – at their cost, NOT mine – to install the dishwasher and remove the old one.

But wait!! There’s more!

I reviewed the confirmation emails for my #Sears.com purchases and discovered a glaring discrepancy that could very well lead to a class action against #Sears!

On the same day as the #SearsOutlet.com purchases. I purchased (in two separate transactions) a washer and dryer. Several coupons, discounts, and free shipping/installation applied to each purchase with the option for haul away at $25/item.

Problem?

The numbers on the confirmation email send by #Sears don’t add up. I did the math independently for each purchase and it would appear that I was charged for delivery. Naturally, I called #Sears credit to dispute the discrepancy and was transferred to a ‘manager’ at #Sears.com in NOT the USA!!

I have just spent another TWO hours being told that I am incapable of reading a cost breakdown and that they will happily send me a ‘corrected’ confirmation IN THEIR FAVOR.

Here is the breakdown for the washer … you do the math!

summary

By my calculations, BASED ON INFORMATION GENERATED BY #SEARS, I have been overcharged by $69.99. The same math and overcharge applies to the dryer.

Mind you, these numbers come directly from the confirmation email. The so-called supervisor at customer disservice spent TWO hours trying to convince me that the email I have in my pretty little hands is wrong …

Are you kidding me??

There are so many things wrong with the treatment I’ve received by what #Sears considers to be customer care. I’ve been misinformed at several levels, wasted valuable time, killed off needed brain cells, and been overcharged as a result of creative accounting.

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