Paralegals, the Public, & UPL

August 9, 2018

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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?’

2 Comments



#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

2 Comments



banging.head.on.desk.

April 26, 2016

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The phone rings … intelligent sounding idjit just wants to ask me a quick question. Ugh!! I give my standard response – ‘… we only work with attorneys …’.

Idjit replies, ‘ … but it’s just a question. Is there someone there that can answer a question for me? I don’t want to have to have to pay anyone for a consultation or anything …”

ARE YOU FARKING KIDDING ME??!!

‘Sir, that’s how we make our living’ <he cuts me off> “No. You make your living in court.’

I repeat,  ARE YOU FARKING KIDDING ME??!!

“I don’t make my living in court. I make my living by providing paralegal support TO ATTORNEYS, not the public. I answer questions from attorneys. I’m a PARALEGAL. I don’t answer questions from the public because they are usually questions of law and I’M NOT LICENSED TO PRACTICE LAW.”

Idjit: “Well, I know laws are different for paralegals in different states …”

I visualize a thought bubble over my head:

1. You’re calling from Georgia.
2. I’m in Georgia.
3. Georgia limits the services paralegals provide to the public.
4. IDJIT!

“Sir, paralegals are NEVER licensed to practice law. Attorneys go to law school and pass the bar so they can answer legal questions and give legal advice. I didn’t go to law school or take the bar and I choose to provide my services to attorneys that PAY ME for my time and expertise.”

Idjit: ‘Oh, uh, but …’

“Now you want me to violate my principles and possibly break the law AND you want me to do it for free?!?!? Would you call a random doctor or nurse to ask a medical question and not expect pay for their services?”

Idjit: ‘Yeah, because the hospital and insurance companies pay them …’

Oy! For the love of …
<I’ve now successfully burned 1000 calories>

The rest of the conversation is a blur … I think he broke my brain.

 

2 Comments



“The Internet Will Eat Your Email”

August 12, 2015

Yesterday, I received a call from a non-attorney who claimed he was helping ‘his’ attorney locate someone who could e-file appellate pleadings. Well, heck yeah! I can do that. The conversation quickly devolved and I found I had crossed over into the Twilight Zone:

  1. “The attorney withdrew from the case because he didn’t have the capacity to e-file.”
  2. “‘We’ need to hire you to e-file for the attorney because ‘we’ don’t have access to email.”
  3. “Um, I think he has a computer.”
  4. “‘We’ want you to receive the notices and call the attorney to tell him what to do next.”

There was much more to the conversation – oy veysmir! – but I’ll skip to the end because today’s installment is so much more entertaining.

I kept asking him about email, to which he responded:

“The Internet will eat your email / email account if you don’t use the account regularly. I know because my email account is gone.” “Well, no, I don’t actually remember my email address.”

OMG! The crazy actually got crazier –

The Internet challenged non-attorney just called back. He read me a letter ‘drafted by his attorney’ authorizing me to be the paralegal on the case and giving me permission to take direction directly from the client.

OH, HELL NO!

‘Sir, that’s not how it works. Your attorney needs to contact me; we’ll discuss his needs; I’ll prepare a contract and he’ll execute and return it.’

‘Well, how does your contract differ from this letter?’

‘Aside from the fact that it isn’t a contract and it’s written to circumvent the requirement that any work I do must be supervised by an attorney, well, pretty much everything.’

‘Then you need to MAIL me a copy of your contract so I can review the terms to see if I approve them.’

‘No sir, that isn’t how it works.’

‘Well, yes it is – I’ll be hiring you and I’m hiring the attorney. I’ll pay each of you directly.’

<Insert Scooby Doo “Huh?” here.>

‘No sir, you hire the attorney who then subcontracts to me. The attorney will direct my involvement in the case. I’ll bill him for my time and he’ll include that in his bill to you. I will not accept payment from you.’

‘But I’m the one hiring you.’

‘No. You don’t seem to understand the dynamic. Your attorney has to hire me. And, frankly, I’m still baffled by your comment that your attorney doesn’t have Internet access.’

‘Why should he have Internet access? That’s why I want to hire you. You’ll e-file according to the court guidelines and be cc’d on all emails. When those emails come in, you’ll call the attorney and tell him that something has come in and MAIL him a copy.’

‘Sir, it doesn’t work that way. The e-filing account has to be created using the ATTORNEY’S email address and bar number. The bar number and registration serve as his signature on the filings. He’ll be receiving the same email that I receive as a ‘cc’ recipient. ‘

‘Fine, I will get you his bar number and you can create the account.’

<Wait! What?>

‘You really don’t understand how this works, do you? The attorney MUST have his own, LEGITIMATE, email account. There is no universe in which I will create an email address for yourattorney@starrparalegals.com. For any of this to work, your attorney must have an active email account and Internet access.’

‘Why would we need YOU then??? If the attorney is going to do the work …’

<Seriously, Allen Funt can step out of the shadows any time now.>

‘Let me try to explain this again from my perspective – I work for attorneys. Period. An attorney must execute my contract before I’ll do any work for him/her on any project. The attorney tells me what needs to be done and I do it. You need someone who knows how to e-file – that would be me. The attorney drafts and signs pleadings then emails them to me. I vet the pleadings for formatting and confirm it all pages and attachments are included; then log into the system – using the attorney’s login information – and e-file the document(s). Once filed, I download the e-filing confirmation and file-stamped copy and email them to the attorney.’

‘Why can’t you just MAIL it to him??’

‘BECAUSE THE MOST BASIC REQUIREMENT FOR ANY OF THIS TO WORK IS THAT THE ATTORNEY HAS INTERNET ACCESS AND AN EMAIL ADDRESS.’

‘I don’t understand why you find this so objectionable. How hard is it for you to call the attorney and tell him that something was filed and then MAIL him a copy??’

<Lawd, help me!>

‘Well, let’s see – you’re trying to put me in a position where I’m working for you, not the attorney. At the very least, it is an ethical conundrum for me. I’m not a lawyer –’

‘I know that.’

‘<audible sigh> I’m not a lawyer, I do not practice law, nor do I work for non-attorneys. To do so puts my entire career in jeopardy. Furthermore, it is impossible for me to wrap my head around the concept of an attorney without Internet access or an email address.’

‘But the court says that it recommends that a paralegal or secretary be cc’d –’

‘Do you even understand what a ‘cc’ is?’

‘Yes, a carbon copy. You receive the email, call the attorney, print and MAIL him a copy.’

<The lump on my head is now the size of a pomegranate.>

‘No. The attorney receives the SAME EMAIL with the same attachment. It’s up to him to monitor his email account and be responsible for the case.’

‘Again, I ask, why would we need you if he’s expected to do all the work?’

<Did I say pomegranate? Cantaloupe . . . >

‘Well, because it’s his job to practice law and represent you? I don’t understand why you want the added expense* of my time to open and print a document that he’ll receive as the primary on the e-filing account, and then MAIL the email attachment to him for review. This is a paperless system. The only reason the court recommends a cc is if there’s a technical failure or the attorney is out of the office for a prolonged period of time.’

‘Well, he is out of the office all the time and he would need you to call him to tell him about the email and take care of everything.’

<Malpractice? UPL? Anyone? Bueller . . .>

‘It really doesn’t work that way. He needs to have an email account that he monitors. He is the responsible party . . . not me.’

‘So I guess I need to meet with him tomorrow and have him contact you to see if this will even work.’

‘That would be the best place to start.’

‘How do I get a copy of your contract?’

‘I’ll draft it AFTER I speak with the attorney and email it to him to review and execute.’

<You know where this is going now, right?>

‘Why can’t you just MAIL it to me??’

‘I’ll be available late tomorrow. Have your attorney call me.’

*I will happily part a fool from his money …

2 Comments



“Quick Question” – Asked and Answered

May 28, 2015

Yesterday I posted about aquick questionemail I’d received. Several folks suggested responses, others just shook their heads knowingly.

This is what I did . . .

I took a deep breath and let it out, shrugged my shoulders and told my snark to take a break. Then I wrote back:

Technically, there are no quick questions. The answer could be short; the response, quick. The question, not so much.

I will infer from your question that you are neither a paralegal, nor an attorney. If you were, you’d know the answer.

My business is based in Georgia and therefore, I am prohibited by the state bar/state law from working with the public. Even if I weren’t, it is my choice, and prerogative, to work only with attorneys.

I hope that answers your question.

(My snark didn’t listen very well)

He responded:

Well actually I think of it the opposite but you definitely have a valid point.

Questions via email are never quick and they are unfair to the recipient.

Think about it, the reason we all hate email is it’s a time suck because some knuckle-head like me can fire off a two second email that takes you 10 minutes to craft a response to. Used to be you would spent just as much time on a phone call as me so the time sink was equal. The person who figures out how to rebalance the time equation will make a billion dollars!

Anyway sorry for the lame question and rambling response. Totally makes sense now that you mention it. I’m in the market for a paralegal to help with our corp docs. I can’t spend 350 an hour which is what my attorney wants to charge. [emphasis added]

I shall keep hunting!

Oh No You Didnt photo oh_no_you_didnt.gif

The old ‘I don’t want to pay a lawyer for services, so I’ll see if I can find someone to do it for less. I know. I’ll hire a paralegal.’ rationalization.

Forget snark . . . I’m angry. <insert Hulk / redhead references here>

It took several deep breaths before I could pen my response –

I understand your frustration, however, preparing corporate documents is considered practicing law. Paralegals are never permitted to practice law. It’s built into the name. Attorneys go to law school and pass the bar for the privilege of practicing law. Paralegals train to support attorneys. Therefore, we can prepare corporate documents under the supervision of an attorney.

There are some states that allow independent paralegals to offer limited services to the public – without attorney supervision. Preparing corporate documents falls outside the scope of permitted services.

If you find someone claiming to be a paralegal who can and will provide that service, be warned, that person is acting outside the scope of what is allowed. It is both illegal and an ethics violation. A properly trained and ethical paralegal would avoid being placed in a position that would cost them their professional reputation and livelihood.

‘Nuf said!

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