Most of the time we know the answer…. but is it ethical????

I have been a paralegal for well over 15 years.  Today I was reminded of something that I tell all the new paralegals.  “Under no circumstances are you allowed to give legal advice.”

From the minute I walked into the office this morning the phone did not stop ringing and the emails just kept on coming.  Keep in mind that I am at the office at 7:30 a.m. London was calling at 7:45 and before then I wanted to make sure I sent some information over to our affiliate in Australia (maybe I could still find him awake and get a response).  There were post-its on my desk of tasks I needed to complete before the day really got crazy (my attorneys like to leave “love notes” written on post-it notes.  They really love me, I get lots of them).

My voice mail light kept blinking “yelling” at me that I had messages that needed to be pick up.  It just felt like I was never going to have a moment to breath.  In the midst of all this chaos I received a call from a client who had called twice the day before asking me a question about a QDRO (Qualified Domestic Relations Order). A “qualified domestic relation order”  is a domestic relations order that creates or recognizes the existence of an alternate payee’s right to receive, or assigns to an alternate payee the right to receive, all or a portion of the benefits payable with respect to a participant under a retirement plan, and that includes certain information and meets certain other requirements.  Reference: ERISA § 206(d)(3)(B)(i); IRC § 414(p)(1)(A)

The client wanted to know how he could go about taking the money out of the account to give it to his ex-wife.  I knew how… after all,  I was looking right at the QDRO and it was specified right there, in black and white, in paragraph 6… the amount and the way to do it.  I almost told him how to go about doing it and how he could accomplish this task the “easiest way” possible.  It would have been so easy to just get this one thing off my plate.  There were so many files I could not close and so many started projects that just remained on my desk waiting for one of the attorneys to have a chance to review and give me the final go ahead to complete my work so I could close the file and consider it done.  This was one of those times, when all I needed to do was give a simple answer and get things done and move on to the task.

I have to be honest.  A part of me wanted this client to know that I knew what to do.  I wanted to feel validated and feel intelligent.  I wanted… Ohhh I’m sure most of you have been in this place.  I stopped myself.

Instead of telling the client what to do, I listened to the question (again) and advised the client that I was in possession of the QDRO and I was reading the same paragraph he was reading but I was going to have to review the file with an attorney and I, or the attorney, would get back to him within the next day or so and give him the information he needed.

Why did I take this route?  Well, had I given the client the information he was seeking I would have been giving the client legal advice.  I would have been instructing the client how to proceed legally.  That could have been considered unauthorized practice of law and it would have violated ethics rules.

As paralegals we handle the same type of cases day in and day out and most of the cases are very similar.  It’s very easy to cross that line at times.

Expectation of Privacy….

Let’s be honest.  Most of us have, from time to time, used our employers’ computers to send personal emails.  If you’re an employer I am sure you think you are covered by giving your employee that letter to sign stating that the email system is to be for “business use” and that you (the employer) reserve the right to review and retain all incoming and outgoing mail sent from that computer….. hmmmm think again.  You may have to re-write that policy.

The New Jersey Court found in Stengart v. Loving Care Agency, Inc ., 201 N.J. 300 (March 31, 2010) that  “employees may have a reasonable expectation of privacy when using employer-issued computers for sending electronic mail (e-mail) even if the e-mail is sent through a personal, password-protected, web-based e-mail account.”

The end of the article mentions a few things that you, as an employer, should consider relating to your email policy.

“Googling” jurors in the Court Room… Court Says OK

Courtrooms have been, or most are being, equipped with wireless internet access.  If you’re like me you have been the paralegal sitting outside the courtroom trying to get some research done while your attorney is sitting in the courtroom and once in a while you get some cryptic note which you are supposed to understand and research on a moment’s notice.

Currently there is nothing in the law that precludes counsel from utilizing the technology available to his/her client’s benefit while in he courtroom.

In 2009, during a medical malpractice case, New Jersey, Morris County Superior Court judge ruled that plaintiff’s counsel could not utilize his wireless laptop to google jurors’ names while in the courtroom because he did not advise the court in advance that he would be conducting research while in the courtroom and therefore having an advantage over defense counsel.  The trial judge instructed plaintiff’s counsel to close the laptop.  The judge never cited a specific authority or rule of court which addressed the issue stating instead: “The rule is it’s my courtroom and I control it.”

An appeals court reversed the decision by stating that, although trial judges can and should have discretion and control over their courtrooms.  That discretion and control does not give the judge the authority to act unreasonably.

“The playing field was, in fact, already ‘level’ because Internet access was open to both counsel, even if only one of them chose to utilize it.”   the court said on Aug. 30 in Carino v. Muenzen, M.D., A-5491-08.

New Jersey Law Journal Article September 13, 2010

Virtual Paralegal

Almost every time I pick up a legal publication I can’t help but read about how technology advances, the financial crises and the recession have aided in the growth of virtual paralegal services.  More and more we are hearing the terms “virtual paralegal,” “virtual assistant,” and/or “VA.”

What is a virtual paralegal, a virtual assistant or a VA?  To me all these terms are interchangeable.   A virtual paralegal is a professional paralegal that provides off-site services to attorneys.  The virtual paralegal meets with the attorneys (clients) solely on line and all the work and communication is done via the Internet.

…. a person, qualified by education, training or work experience who is employed or retained by a lawyer, law office, corporation, governmental agency or other entity and who performs specifically delegated substantive legal work for which a lawyer is responsible.

The American Bar Association… Definition of a paralegal or legal assistant

A virtual paralegal (“VA”) must meet the above criteria and in addition must possess additional skills sets, which allow for the work to be performed from a virtual office.

Experience is a must in this business.  When a new project is assigned, the VA must get the job done.  If the attorney wants a motion drafted it is up to the VA to figure out what the local court rules are, what needs to be inserted into the motion in order to get it to the attorney completed and ready to be filed.  Never forget, the attorney is the one who must sign the motion papers and file them.  (Check your local UPL rules and regulations).

Being a VA is a business and as in any other business it is important to keep up with changes in your chosen filed.  The legal field is no different.

For a paralegal, whether in a traditional setting or a virtual setting, it is important to be comfortable around the law and rules.  Our “world” is all about rules.  However, this becomes even more important for the VA as normally the VA has no one to “fall back on.”

It is important to be adept at legal research.  The attorney (client) may not know when a statute of limitations runs out, or how long he/she has to file reply papers or answer a complaint.  It’s important that the VA is able to find this information quickly and in one phone call or one email the client has an answer so that he can communicate to his/her client.  A good VA has lots of bookmarks for several research sites and court websites so that the information is always available.

In my opinion, the virtual paralegal business is a trend that is here to stay.  There is plenty of time for those of you who want to get in the game to get in the game.  Do not cheat yourselves out of getting the experience you need before you take on this challenge. I do not recommend that a recent graduate launch a virtual paralegal business.  My suggestion is that you invest in yourself first and take a few years, maybe 5 or 6, and work at a law firm to learn as you can about being a paralegal.  Learn about the administrative tasks that must be accomplished which we all hate doing.  Learn about the short cuts of legal research, find your niche and develop your skills.  Become really good at it and then embark on this amazing adventure that is being your own boss.