Winter 2010
Contents
• From the Chair
• Site Watch
• Use of Paralegals
• Spam Scam
Section Links
• LPM Website
• Officers and Council
Bar Links
• SBM Website
• PMRC
• Calendar of Events
• Public Policy Updates
I would like to initially introduce myself as Wm Burt Burleson, the chair for the new and recently merged, Law Practice Management and Legal Administrators Section for the State Bar of Michigan. This section will now combine the expertise of our practicing attorneys with the real guts and glory of our law practices—the legal administrator. That unsung hero or heroine behind every good lawyer or law firm. In other words, the person who really runs our show, big or small.
As a solo practitioner in Lansing, since retiring as an assistant city attorney for the City of Lansing in 2001, I have had the honor, and what I consider the privilege, to make my living full-time doing what I always envied others doing. Working in my own practice or business. My name on the wall. A real lawyer, not a government-type. Burleson for the defense! No boss or bosses.
My youngest son was recently diagnosed with ODD. I asked the doctor, “What’s that, Doc?” She said, “Oppositional Dysfunctional Disorder.” I queried, “What’s that mean?” She said, “That means that he doesn’t like authority.” Puzzled, I responded, “So, what’s wrong with him?” I’m proud, that’s my boy!
Those of you that know me, appreciate the insight. Those who don’t? Well, let’s just say there is a lesson here. I truly believe that we as lawyers or administrators need to question the status quo, challenge what is accepted, and re-examine how things are done. There is nothing wrong with challenging authority. You ever ask why we don’t have a free and voluntary State Bar? Why do I gotta do that IOLTA garbage? Why do we allow lawyer advertising? You ever vote for the State Bar president? Hate those specialty courts? Are we ever gonna get our real judges back? Why do I as an attorney have to stand when a judge enters a courtroom? On and on.
I’m an old Marine Sergeant and I do teach jurisprudence.
Nobody needs to tell you how horrible the economy is. We see the faces and hear the stories of the folks coming to see us. I hear almost daily stories about lawyers now working at 7-11, CVS, stocking shelves at Meijers, waitress here, waiter there, managing this, and running that. Lawyers in the hallways at court complaining that nobody has any money, business down 60, 70, 80 percent. Savings and retirement funds gone. Rejected at McDonalds. Heard ‘em all and they keep on coming. Times are real bad. Really bad.
That’s why it is so important for us as lawyers to stand up and be counted again. We need to be free to challenge. Lawyers, we can and we do change things. Make a difference, without question. We can make the real bad turn into the real good.
We begin by jumping back into the Bar. Join sections and become actively involved. Effectuate change by working from within. It begins with our practice and extends outward. Don’t complain about how bad it is, plan on changing it.
So I invite you to step up and become actively involved with our Section. We are and have been doing outreach programs with all the law schools. We are seeking to outreach with local bar associations. Lawyer and nonlawyer alike in our section are exploring law practice methods for conquering this economy.
Our next meeting will be held on Saturday, May 1, 2010, in Lansing at a location to be announced. We are currently also planning a section-wide membership picnic in early August open to our members and families. Articles for this newsletter are very welcomed by any section member or nonmember for submission.
Wm Burt Burleson
Google has expanded its services again. This time the expansion provides a special benefit to lawyers. Google Scholar now includes the ability to search U.S. case law and legal journals. It can be found at http://scholar.google.com. The search program is in beta stage but it is ready to try and it is only going to get better. With it a free search can be conducted using ordinary search terms to find case law of a specific state as well as federal cases and journal articles related to the topic being searched. It won’t replace Lexis or Westlaw yet, but it is a good starting point and it is free.
Ernest I. Gifford practices IP law in Troy, Michigan and Venice, Florida, and is the editor of the Section’s Newsletter.
Law Practice Management: Effective Use of Paralegals
By Linda S. Jevahirian
Paralegals increase the profitability and efficiency of the law practice. What used to be considered a fledgling profession has evolved into a world of its own. This article summarizes the information presented at the Oakland County Bar Association New Lawyers Basic Skills Seminar Series.
Paralegal or Legal Assistant?
Like attorney and lawyer the titles paralegal and legal assistant are used interchangably. The difference, however, is that both attorney and lawyer clearly denote the same profession. Lately, the title legal assistant has been used by both paralegals and legal secretaries, creating some confusion.
The National Association of Legal Assistants (NALA) and the National Federation of Paralegal Associations (NFPA) two national groups representing paralegals, adopted the designations legal assistant and paralegal early in the profession’s history. As state chapters were initiated they assumed the respective titles. Historically the titles referred to the same type of employee.
In recent years, the American Bar Association took the lead in changing their designation from legal assistant to paralegal, as did the International Paralegal Management Association, and NALA. Local associations, firms, and companies followed suit, including the State Bar of Michigan, the Oakland County Bar Association, and the Detroit Metropolitan Bar Association. While there is no rule about using either title, paralegal is becoming the preferred title, especially in light of the confusion that exists with the broader use of the title legal assistant.
Why Hire a Paralegal?
Lawyers hire paralegals for a variety of reasons. One motivating factor is the opportunity to offer their clients legal services at a reduced rate. Some clients are more willing to hire a firm because of this option. A second objective is to maximize the time the lawyer spends on lawyering, work that justifies a higher fee. The bottom line is that a well-trained paralegal will add significant value to the practice while increasing profit.
Paralegals are Not Regulated
The paralegal profession is not regulated by any state or federal institution. There have been pockets of pro regulation groups that have advocated licensure but their success has been limited to a few states who now offer voluntary state certification.
NALA and NFPA offer voluntary certification through examination. NALA offers the Certified Legal Assistant or Paralegal (CLA or CP or CLAS for specialists) and NFPA offers the Registered Paralegal (RP). The tests are intense and continuing education credits are required to maintain the certification. While most employers do not seek out paralegals based on this achievement, it represents a personal and professional accomplishment that goes beyond the basic requirements of paralegal education.
Attorneys in Michigan rely on the State Bar of Michigan definition and guidelines when employing paralegals, which in large part was adopted from the American Bar Association. They define a paralegal as:
“any person currently employed or retained by a lawyer, law office, governmental agency, or other entity engaged in the practice of law, in a capacity or function which involves the performance under the direction and supervision of an attorney of specifically delegated substantive legal work, which work, for the most part, requires a sufficient knowledge of legal concepts such that, absent that legal assistant, the attorney would perform the task and which is not primarily clerical or secretarial in nature.”
Among other things, the guidelines state that:
- Paralegals must follow the Michigan Rules of Professional Conduct.
- A lawyer can ethically assign responsibilities to a paralegal (where the attorney reviews the paralegal’s work), provided
- the paralegal’s non-lawyer status is clear
- the paralegal does not convey opinions outside the firm
- the attorney signs legal documents
- the paralegal does not appear on behalf of a client
- A lawyer cannot delegate to a paralegal responsibility for:
- establishing the client-lawyer relationship
- establishing the fee arrangement
- Paralegals may have business cards and be on company stationary identified by name and with non-lawyer status/title.
- A lawyer must ensure no conflict of interest is presented arising out of the paralegal’s current or prior employment or from the paralegal’s other business or personal interests.
- A lawyer may not split legal fees with a paralegal nor pay a paralegal for the referral of legal business.
- A lawyer who employs a paralegal should facilitate the paralegal’s participation in appropriate continuing education and public service activities.
- A lawyer may include a reasonable charge for work performed by a paralegal.
Paralegal Fees
In a landmark decision that turned the tide for the paralegal profession, Justice Brennan ruled that paralegals are separate members of the billing team, and that they encourage cost-effective legal services. In Missouri v. Jenkins, 491 US 274, 288, n 10; 109 S Ct 2463; 105 L Ed 2d 229 (1989) he stated that:
- The level of education must be appropriate for a paralegal
- There is a difference between paralegal and clerical work
- There must be a reliable method for recording paralegal work
- Paralegal services should be priced at market rate
More recently, Richlin Security Service Company v. Chertoff, 128 S.Ct. 2007 (2008), stated that paralegal fees are compensable under the Equal Access to Justice Act (EAJA) at prevailing market rates.
The recoverability of paralegal fees is also set forth in Michigan Court Rule 2.626, which states that
“an award of attorney fees may include an award for the time and labor of any legal assistant who contributed non-clerical, legal support under the supervision of an attorney, provided the legal assistant meets the criteria set forth in Article 1, § 6 of the Bylaws of the State Bar of Michigan.”
Paralegal billing rates are widely influenced by the level of work and the level of experience of the employee. Fees ranging from $75.00 - $140.00 per hour are not uncommon, and those rates fluctuate according to client and firm. Most importantly, and in keeping with Missouri v. Jenkins, time keeping records should be specific and clear as to the work done by a paralegal. A time entry, ‘prepared interrogatories’ could easily be interpreted as a clerical task, but ‘reviewed complaint and interview notes; drafted interrogatories’ more specifically describes a substantive task.
Qualifications
The American Association for Paralegal Education (AAfPE) a group of primarily paralegal program directors and instructors, states that:
“in order to be a successful paralegal, an individual should possess not only a common core of legal knowledge, but also must have acquired vital critical thinking, organization, research, writing, oral communications, and interpersonal skills”
Paralegals who attend an American Bar Association approved paralegal program are required to take courses that satisfy the AAfPE requirements. Most programs offer a certificate of completion, an associate’s degree, or a bachelor’s degree. All designations are acceptable in the market, however, there has been a recent push toward requiring a bachelor degree. Firm and corporations set their own policy for employment qualifications.
Paralegal graduates are a colorful flock in that they bring a variety of different combinations of schooling and experience to the profession. Some paralegal graduates are fresh out of their first degree and have little or no industry experience. Others are entering a second career and bring the added value of knowledge and experience in fields such as engineering, teaching, or nursing.
Implementing a paralegal in the law practice should be as natural as hiring a new attorney. Following the State Bar of Michigan guidelines and the recommendations set forth in Missouri v. Jenkins will lead to greater profitability, and will provide clients with more efficient and affordable services.
Biography
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Linda S. Jevahirian is the founder and president of Legal Search & Management, Inc, a specialty firm that provides temporary and permanent recruiting to firms and corporations interested in improving their practice through the use of paralegals.
Linda speaks regularly about the paralegal profession, and has been published by numerous legal journals, including Michigan Lawyers Weekly, Laches, the Detroit Legal News, and the Michigan Bar Journal. She also develops and conducts paralegal seminars.
I am sure that you have received them. I hope you haven’t fallen for them. If you have e-mail, you surely have received spam in the form of offers that promise to send you lots of money for very little effort.
The early e-mails were clearly from Nigeria and usually took the form of sharing millions with you if you would help get the money out of the country and into a U.S. bank account. The money had been somehow obtained by a government official and was in a bank account in Nigeria. There was a hint that what you were being asked to do might be illegal and therefore secrecy was important. Although it was made to seem that little needed to be done before the victim would be able to share in millions. These e-mails were directed at the general public and there were reports that innocent victims lost thousands of dollars responding to the requests for, at first, small amounts of money to have the necessary documents signed, for bribes etc., as the procedure for transferring the millions progressed. The frequencies of these types of emails has diminished but occasionally still this or a similar scam reaches e-mail boxes of the general public and including lawyers. Usually now, however, the e-mails are in the form of a need for help in distributing the funds of a dying or dead owner or of the funds to charities or “heirs”, including the recipient of the e-mail, and with a healthy share of the available funds reserved for the e-mail recipient that agrees to help distribute these funds.
The scams have now become a bit more sophisticated. First, they no longer appear to come from Nigeria. The source of the sender’s e-mail is now sufficiently masked so that it is virtually impossible to determine the true source of the solicitation. Secondly, the English in the e-mail is somewhat better than in the earlier e-mails. The schemes now rely less on a number of requests for small amounts of money until the victim realizes he is being taken. Now the hits are early and for larger amounts of money. Bad checks from the solicitor and his cohorts are at the heart of these latest scams.
Also, rather than the general public being a target, lawyers are now a specific target. The lawyer receives either a request for representation from a potential client located elsewhere usually out side the U.S. or from a foreign “attorney” representing the potential client. In one form the e-mail is from a divorcee located overseas or from an attorney in a different jurisdiction representing the divorcee, requesting the lawyer to represent the divorcee in collecting divorce settlement funds the ex-husband living in the lawyers jurisdiction is obligated to pay. The settlement funds owed by the ex-husband are usually a large sum. The lawyer is promised a big part of whatever is collected. The collection turns out to be quite easy. A letter to the husband results in a check in full made out to the attorney. The check is deposited in the attorney’s trust account and the wife’s portion is sent by check to her or to her “attorney.” Only too late does the lawyer find that the check he has received bounced.
A variation of the scheme involved debt collections. The attorney receives what he thinks is a referral to collect a debt on behalf of a foreign company. Sometimes the referral seems to be from a reputable U.S. attorney. The debt is easily collected, one letter is usually enough. The check from the debtor is deposited in the lawyer’s account and a check for the foreign company is put in the mail or wired. Only after the foreign company has received its “portion” does the lawyer find that the debtor’s check is not valid.
A quicker version of the divorce and debt schemes includes the “client” sending a retainer which is excessively more than the lawyer’s request. When the “client’ or the referring “attorney” is notified, the lawyer is asked to return the excess by wire transfer. Only after the wire transfer does the lawyer find that original check is no good. Two law firms in Honolulu were bilked out of $500,000 by such a scam. (See the February 26 issue of the online version of the ABA Journal).
The key to avoiding being a victim in these schemes, other than not getting involved at all, is to make sure the check you receive clears before sending anyone your own check. Give it some time, even if the bank is willing to credit you with the amount right away. Even if the bank credits your account, if the check fails to clear, you have the loss, not the bank.