News Briefs: May/June 2008

Below are some of the latest happenings in the paralegal community. These short snippets represent excerpts of stories that can be found in the May/June 2008 issue of Legal Assistant Today.

Got News? – Do you know of a significant new law under consideration or recently passed in your area? Are you aware of changes to rules or codes that significantly impact the work done in your specialty area?

If so, we want to hear from you. If you submit an original news lead that turns into a news story that we print in Legal Assistant Today, we will pay you $25. If you have a original news lead that you think we would like to hear about, e-mail us.

Hawaii Attempts to Define the Practice of Law

Proposal could affect any nonlawyer who prepares documents for the public.

By Tommy Sangchompuphen

The Hawaii Supreme Court is reviewing public comments on a proposal it set forth in October 2007 to define the practice of law. The proposal under consideration is in the form of an addition to the Hawaii Supreme Court Rules and defines the practice of law as the “giving of legal advice or legal assistance to another person.” The definition includes, but is not limited to, “giving advice or counsel to another person about the person’s legal rights and obligations or the legal rights and obligations of others.” Several exceptions and exclusions to the definition were included in the proposed rule, including the performance of services as a paralegal under the supervision of a judge, justice or member of the bar.

In essence, the proposal would cause businesses that provide documents for do-it-yourself court filings to close, and prevent any nonlawyer from assisting others in completing legal documents. Conviction for the unauthorized practice of law in Hawaii is a misdemeanor punishable by up to one year in jail and a $2,000 fine.

The Hawaii State Bar Association first sent a proposed rule to the Hawaii Supreme Court in July 2007. After review, the Hawaii Supreme Court proposed its version of the rule in October 2007, posting that version on its Web site and requesting public comment through Jan. 25.

On Jan. 25, the HSBA asked the Hawaii Supreme Court for additional time to submit its response to the court’s proposed rule, citing numerous comments and questions it had received about the rule, and indicating that it wanted adequate time to review and possibly develop changes to the proposed rule. The time for the HSBA to respond was extended until March 28.

Recognizing the concerns expressed by other professionals, including Hawaii’s realtors and certified public accountants, HSBA President Jeffrey Sia sent a letter to the Hawaii Supreme Court on Feb. 29, requesting another extension  “for comment by the HSBA on the proposed rule” and asking the court to share any other comments about the proposed rule that it received. In the letter, Sia reiterated the bar’s concern that bad and improper legal advice by untrained, unlicensed and unregulated individuals can result in the loss of legal rights or opportunities, which is the reason the bar association “has developed and recommended a rule to define the ‘practice of law’ as no such definition currently exists.” However, Sia also acknowledged the concerns the proposal received from various professional groups during the comment period, stating in the letter, “It was not the HSBA’s intention or goal to deprive any professional group or any person of their right to conduct and handle matters they legally are entitled to do by law. …”  

If the Hawaii Supreme Court adopts the language in its current form, business owners such as Betty Marais would directly be impacted. Marais owns Legal-Ez, a legal document preparation service in Honolulu that provides affordable legal documents to about 20 to 30 customers each month. “I help people to help themselves,” Marais said. “They come to me with their needs and they know what they want. I then prepare the documents based upon the information they provide to me. People save hundreds, if not thousands, of dollars utilizing my services.”

Some states already have adopted legislation that regulates, rather than prohibits, nonlawyers who perform legal-related services for the public.

Marais, who already is bonded and has 25 years of experience, agreed. “I would welcome that same regulation process here in Hawaii,” she said. In the meantime, Marais said she is prepared to do whatever it takes to keep her business open. “I have decided that being a legal document preparer is a valuable and necessary community service to the people that I help,” Marais said. “I will fight to stay in business and to keep providing my services to the people of Hawaii who need [them] and want [them].”

The Hawaii Supreme Court granted the HSBA’s Feb. 29 request and extended the time for the bar’s response to May 30. After reviewing the public comments submitted, the court will have the option to reject the proposal, adopt it or adopt a modified version of the original language. If the court adopts the proposal, it could take effect as early as July 1.

Final Sentencing

Paralegal who posed as attorney receives probation and community service.

By Ashley Johnson

Brian Valery, the paralegal who was charged in both New York and Connecticut in 2007 for impersonating an attorney while employed with Anderson Kill & Olick in New York, was sentenced for the New York charges on Jan. 30. In the New York State Supreme Court in Manhattan, Judge Gregory Carro sentenced Valery to five years of probation and 100 hours of community service. Valery also was ordered to pay back $225,000 he received from Anderson Kill as compensation while posing as an attorney.

According to Jennifer Kushner of the Manhattan district attorney’s office, Valery first pled guilty to grand larceny in the second degree on Oct. 10, 2007, at which time he was ordered to pay a restitution fee of $150,000 immediately — the first portion of the $225,000. Upon that payment, Valery was allowed to re-plead to grand larceny in the third degree on Jan. 30. Over his 5-year probation period, he must pay the remaining $75,000 to Anderson Kill, and also must complete the 100 hours of community service.

Since Valery’s attorney impersonation charges first came to light last year, paralegals around the country have been angry about the possible damage to the paralegal field’s reputation. “As a paralegal and president of the New York City Paralegal Association, I am outraged,” said Letitia Smith, a litigation paralegal at Fensterstock & Partners in New York. “Our profession is working hard to obtain more recognition in the legal community and something like this just sets a bad example. Many people have impersonated attorneys throughout the years but when a member of the paralegal community does so, it reflects badly upon all paralegals.”

For more information, please see the following articles: “Attorney Act Comes to an End,” May/June 2007; “New Charges for Brian Valery,” September/October 2007.

Stricter Notary Laws in California

Assembly Bill 886 requires specific forms of identification and adds stiffer penalties.

By Melody Ip

On Jan. 1 California Assembly Bill 886 went into effect, creating a number of significant changes in notarial law that affect paralegal notaries throughout the state. Specific forms of identification now are required from clients, including fingerprints in certain circumstances, and penalties for notaries now are stricter. The bill, introduced in February 2007 by Assemblywoman Sharon Runner from the 36th assembly district, also was supported by Los Angeles District Attorney Steve Cooley and Los Angeles County Sheriff Lee Baca.

Tim Reiniger, executive director of the National Notary Association, cited the growing problem of real estate fraud, specifically in Los Angeles County, as motivation behind the bill’s creation. According to Reiniger, a letter dated September 2007 from Cooley to Gov. Arnold Schwarzenegger stated that about 70 percent of all real estate fraud investigations in Los Angeles County involved criminal and unethical notaries. “I don’t believe mortgage fraud takes place without the involvement of a notary in some way,” Reiniger said. “Two central documents [deed of trust and mortgage] involve the notary identifying the principal. A notary who is unethical in the sense of not requiring the personal appearance [of the principal] — which is fundamental — will [notarize the document] without the physical appearance.” 

Another new feature of the bill is that notaries renewing their status must now submit fingerprints to the Department of Justice for a background check. “I believe this [new part of the law will] be helpful in preventing anyone from being a not-so-dependable notary,” said Mary E. Kelly, a self-employed notary since 2004 based in Stockton, Calif. “The new law also [will] help prevent someone with a history of being [unethical] from becoming a notary.”

Aside from adapting to stricter identification guidelines, notaries also have had to replace old certificate forms to reflect the new laws. Language about personal knowledge was removed from the old forms, and a new penalty of perjury provision was inserted into the statutory certificate of acknowledgement form.

With California trying to crack down on mortgage fraud with measures including tougher notary laws, will other states follow its lead? The Federal Bureau of Investigation’s Web site lists California among the top 10 states for incidences of mortgage fraud, along with Florida, Georgia, Illinois, Indiana, Michigan, New York, Ohio, Texas and Utah. “We would not be surprised [if other states adopted similar laws] given the importance of California,” said Reiniger, describing California’s status as a large business center, which results in a high number of notarized documents that appear in other states through interstate commerce. “Other states will quickly see the elimination of the personal knowledge identification criteria and the penalty of perjury statement on the Acknowledgement certificate as fraud-fighting measures. On the other hand, California was the first to require notaries to receive thumbprints in journals, which went into effect in the 1990s, and no state has yet copied that requirement even though that is supported by the FBI, particularly in the climate of mortgage fraud,” he said.

Despite extra steps required of notaries by AB 886, the creators of the bill and its supporters believe the new laws will protect potential victims of real estate fraud. “Everything about [AB 886] is only to help people and make it a more serious offense in case there’s fraud,” Schulz said. “There’s so much of it going on.”

New Association Forms

Freelance and independent paralegals find support virtually with the
American Freelance Paralegal Association.

By Lois Fiorelli

A new paralegal association now is available to give freelance and independent paralegals in the United States and Canada the opportunity to share ideas and experiences about their businesses. On Jan. 8 the American Freelance Para­legal Association was formed to provide these paralegal small business owners support in their ventures.

AFPA emerged from the Yahoo Freelance Paralegal Group, of which the association’s founders all are members. “We got together by teleconference one day and discussed forming AFPA, first creating a mission statement,” said David Moyer, AFPA’s president and owner of Moyer Paralegal Services in Cuyahoga Falls, Ohio. According to Moyer, who has been a paralegal for 14 years and freelancing for nine years, “There are plenty of organizations out there — things that have to do with being a paralegal. We felt there wasn’t anything out there for the paralegal that is a small business owner, i.e., the freelance paralegal.”

Membership dues for AFPA are $85 for the first year and then $125 annually. Currently, AFPA has seven members, and has opened membership to freelancers and independents in Canada and the United States. “At the appropriate juncture, we’ll encompass a more global marketing strategy,” Moyer said. However, AFPA is “attempting to make our presence known through prestigious periodicals such as LAT, our Web site, monthly online chat sessions and word of mouth,” he said. “We don’t have a specific number of members we hope to obtain, but we will strive to make AFPA a viable, respected organization for the legal community.”

To learn more about AFPA and how to join, go to www.freelanceparalegal.org.

Green is the New Black

Law firms around the United States impact the environment by taking part in the ABA-EPA challenge.

By Ashley Johnson

In March 2007, the American Bar Association and the Environmental Protection Agency issued a challenge to law firms: conserve energy and reduce paper. One year later, the challenge, which officially is coined the ABA-EPA Law Office Climate Challenge, has more than 50 law firms and 100 law offices signed up to be partners or leaders in one or more of the four programs, which are Best Practices for Office Paper Management, WasteWise, Green Power and Energy Star.

The overall challenge idea is much more complex than just conserving resources such as energy and paper; rather, the idea is to encourage law firms to begin thinking about what can be done for conservation measures to become more sustainable. “It’s supposed to be a starting point, not an end point,” said Dan Eisenberg, public service vice chair for the air quality committee of the ABA Section on Environment, Energy and Resources in Washington, D.C. “A firm shouldn’t sign up for the challenge and then have that be everything they do.”

The challenge is the brainchild of Howard Hoffman, a lawyer with the EPA’s office of general counsel in Washington, D.C., and David Friedland, a principal at Beveridge & Diamond in Washington, D.C. Both are members of the air quality committee, which is a group within the ABA’s Section on Environment, Energy and Resources. It was decided to model the programs in the challenge after existing EPA programs.

To enroll in the climate challenge, law firms must fill out an enrollment form, which is available online at the challenge’s Web site, www.abanet.org/environ/climatechallenge/home.shtml. A firm can enroll on behalf of just one office, more than one office, or the entire firm or organization. The challenge’s Web site also lists detailed steps on how to complete the enrollment form. Once a law firm submits the enrollment form, it then is listed as a law office climate challenge partner. Law firms that become partners and leaders will be highlighted on the Web site for the challenge.

The Marten Law Group, an environmental law firm with offices in Washington and Oregon, was the first law firm in the Pacific Northwest to take part in the challenge by enrolling in the Best Practices program. “We’re working on basically reducing everything we possibly can in our office and in our practice,” said Eve Rashby-Pollock, the senior paralegal at the Marten Law Group’s Seattle office and its chief sustainability officer.

Arnold & Porter, a law firm with eight offices in the United States and abroad, has taken actions that don’t fall into any of the challenge’s categories. Arnold & Porter’s Washington, D.C., and New York offices use hybrids as part of the firm’s car service for transporting clients and attorneys. “One thing I plan to do this year is to also get all of our offices in line and make sure we have a sedan service that uses hybrid cars,” said Toccarra Gates, senior legal assistant in Arnold & Porter’s Washington, D.C., office. The firm already has installed a tire pump in the parking garage of the Washington, D.C., office so employees can properly inflate their cars’ tires. The firm also uses strictly green cleaning and bathroom products, and is eliminating plastic water bottles in conference rooms.

Both Gates and Rashby-Pollock became integral to their firms’ participation in the challenge by approaching upper management. “I actually think paralegals are in a really good position to initiate this sort of thing because they are in touch with every level of staff,” Rashby-Pollock said. “Everyone goes to the paralegals when they want to know about document management and paper usage; they’re the ones who really know.”

Another way paralegals can get involved is by initiating a green committee, which can oversee implementation of the climate challenge and other environmental sustainability programs. According to Eisenberg, paralegals often are involved in the practical aspects of legal work, such as document productions, and can produce ideas that attorneys might not think of. “I think what a lot of firms are doing — and I think it’s a good idea — is they’re starting green committees,” Eisenberg said.

Gates indicated three major steps paralegals and law firms can take to get started in the challenge and develop green programs: create a group, prioritize your goals and get management approval. “I think people are accepting the fact that this is the direction that we have to go in,” Gates said. “We can’t continue to use resources the way that we were using them, say, 10 years ago; we need to start making some changes.”

While the challenge’s membership is expanding, the goal is to not only increase that in the next year but also to change the way firms think. “We are hoping that law firms will use the climate challenge as an opportunity to think seriously about how their offices can be made more environmentally sustainable,” Eisenberg said. “And take steps to make their offices more efficient and environmentally friendly.”

LegalTech New York Draws Record Attendance

Technology show features latest trends and new education tracks.

By Tommy Sangchompuphen

As technology in the legal field has grown, so, too, has LegalTech New York. Already billed as the largest legal technology show in the United States, this year’s event, held in New York City Feb. 5 to Feb. 7 and organized by ALM Events, had a record 13,000 attendees, with a significant increase in the amount of attorneys and support staff compared to past years. “The last couple of years have been a major turning point for the legal technology industry. Law firms and corporate legal departments now understand that technology is something they have to adapt into their everyday practice,” said Amy Juers, chief executive officer of Edge Legal Marketing, a Minneapolis-based marketing and public relations firm serving companies targeting the legal market.

Juers added that the look of LegalTech has changed considerably over the years too, especially in terms of marketing and promotion. “Everywhere you turn[ed], you [saw] more vendor booths, logos and advertising. The legal technology market is crowded and fierce. Exhibitors are clamoring to get their brand noticed, even if it means putting their ad on marble floors, in restroom stalls or elevators,” she said.

The value of those who work directly with legal technology also will  become more important as technology continues to expand and become more affordable. “Today, even a small firm or practitioner can purchase almost any kind of computer-based practice support system at a reasonable price. However, many of these systems are complicated and require hardware purchases and highly trained staffs to really make them work,” said Ian Levit, vice president of Levit & James, a provider of document conversion software and the maker of Best Authority, an add-on to Microsoft Word that assists legal professionals in creating tables of authorities.

LegalTech New York continued to give legal vendors — large and small — opportunities to showcase their products and services directly to consumers. “Several popular technical applications and services discussed at the show were electronic discovery, collaboration tools and SharePoint. Of course, the legal community is always interested in what the big players in the industry are announcing or putting in the spotlight,” Juers said.

LegalTech West Coast will be held June 26 to 27, at the Los Angeles Convention Center. LegalTech New York 2009 will be held Feb. 2 to Feb. 4, at the New York Hilton in New York City.

Who Really Owns Law Firm E-mails?

California district court finds that some e-mails are personal property.

By Anthony J. Iannini, AACP, DCP, and Heidi Lowry

Are the e-mails that paralegals send and receive at the office personal property or the property of the firm? Although most paralegals might answer that all e-mails belong to the firm, the recent decision in Sam Bedwell, et al. v. Fish & Richardson, 2007 U.S. Dist. Lexis 88595 (S.D. Cal. Dec. 3, 2007), found that isn’t always the case. In the decision by U.S. Magistrate Judge Jan M. Adler, the court ruled that while some e-mails are considered firm property, there are those that should be considered personal property and that a paralegal is allowed to keep when he or she leaves a firm, even though they were created on a firm computer. 

In Bedwell v. Fish & Richardson, defendant Fish & Richardson, a national law firm, alleged that plaintiff Suzanne M. Moreno, a former paralegal at the firm’s San Diego office who initiated litigation against Fish & Richardson for denial of family medical leave, took confidential documents belonging to the firm without permission when she left her position in August 2005. The documents included Moreno’s timesheets, which reflected work she did on behalf of the firm’s clients, and various e-mails between Moreno and colleagues at the firm, including her managers and the human resources department staff. After learning that Moreno had these documents during the discovery phase of the litigation, the firm requested that she immediately return the documents, arguing that they were the exclusive property of the firm, but she refused.

The parties agreed to divide the e-mails into three categories: communications regarding Moreno’s request for a transfer to the firm’s Dallas office, Moreno’s reassignment to the firm’s office in San Diego and Moreno’s work assignments. The court ruled that Moreno’s “time[sheets] and any e-mail(s) regarding [Moreno’s] work assignments which reportedly contain[ed] client names and relate[d] to services performed or to be performed by [Moreno] on behalf of the firm’s clients” were the property of the firm and had to be returned to the firm’s attorney. The court further ruled that Moreno could maintain an inventory of the documents but she could not keep copies of the documents unless she obtained them through the normal course of discovery.

However, the court disagreed with the firm on the issue of the remaining e-mail communications, which Moreno was allowed to keep. The court found that “the e-mails which concern [Moreno’s] individual status as an employee of [the firm], such as her request for a transfer to the Dallas office or her reassignment to the San Diego office, and which do not contain client names and concern services performed or to be performed by [Moreno] on behalf of the firm’s clients, are of a different character and warrant different treatment.”

The court further found that the e-mails in question “did not relate to the representation of a firm client but rather relate[d] to [Moreno’s] individual relationship with her employer” and could not be “swept into the broad category of property which belongs to the firm.”

The International Paralegal Management Association was not surprised by the decision. According to a statement issued to LAT on March 31 from several of the IPMA board members.

This decision could motivate law firms and corporations to re-evaluate their confidentiality policies and procedures. “[T]he ruling in this case may encourage firms to review written policies regarding the removal of documents from the firm. It may be necessary to add greater detail regarding restricted documents, if necessary, and to clarify and outline the procedure to request items that the employee may be entitled to copy from his or her personnel file,” the IPMA statement said.

Whether law firms rewrite their procedures based on this decision is yet to be seen, but the IPMA suggests that para­legal managers and employers following best practices keep information on file regarding an employee’s individual status, requests for transfer and other issues, and are able to access this information for departing employees. Also, paralegals that leave a firm or corporation should go through official means to obtain needed copies of pertinent documents retained in the human resources department’s records. As noted in the IPMA statement, “[T]he plaintiff could have handled the matter in a more professional manner by formally requesting a copy of the e-mails in her personnel file prior to her departure.”

The Real Deal

Virtual Deal Rooms transform due diligence.

By Tammy R. Pettinato

Due diligence never has been easy. For buyers it usually means flying teams of lawyers, paralegals and others to distant and, increasingly, international locations for tedious and time-consuming searches through thousands of documents. Sellers usually face problems coordinating schedules because multiple potential buyers need to view documents at separate times. The cost occasionally is so prohibitive that deals are scrapped, and fax machines and e-mail only marginally ease the burden.

Enter Virtual Deal Rooms, or VDRs, which are secure, Web-based transaction systems where important documents are stored and organized, and dealmakers can communicate without leaving their offices. Although mainly used for due diligence in mergers and acquisitions, VDRs currently are being explored for managing everything from IPOs to bankruptcy, which could prove to be invaluable for paralegals.

Jay Loyola, regional director for Merrill Datasite, an international pro­vider of VDR solutions based in Irvine, Calif., said his company’s VDRs optimize the due diligence process. “Our clients or clients that use Datasite dramatically reduce transaction time and expense through the presentation of documents that have been electronically captured and indexed online.” 

So, how do VDRs work? Typically, documents are scanned into the VDR and key players are given password-protected access. Multiple people can access the VDR at the same time from any location, eliminating scheduling and travel issues that plagued paper-based deals.

VDRs also trump paper-based due diligence with their search functionalities. The best VDRs on the market are keyword searchable and some allow Boolean searching. What used to be a needle-in-a-haystack process of searching for relevant sentences or paragraphs in paper documents has been reduced to a few keystrokes. VDRs also allow sellers to see who is accessing their documents and how often.

“I loved using [the VDR],” said Mary Ellen O’Dell Schantz, a paralegal with Harter Secrest & Emery in Rochester, N.Y. She recently facilitated a deal involving about 20 people from different teams in different locations. “… [E]veryone knew he or she was looking at the most recent draft of a document so it cut down on confusion. Since everything had to come to me before it was uploaded, I had a good handle on what documents were reviewed, completed and signed, and could provide a status to the users. There was no frenetic running around like in a traditional closing.”

Not everyone has jumped on the VDR bandwagon, however. According to a December 2007 report by the Institute of Mergers, Acquisitions and Alliances (MANDA) in Zurich, Switzerland, many potential users of VDRs worry about security. The report notes that, “With a VDR, more people have access to confidential information compared with a [paper data room]. For this reason, growth in VDR usage has not been higher.” 

For the most part, it has been large corporations — those managing deals upward of $1 billion — that have jumped on the VDR bandwagon. Yet, as technology improves and costs decrease, more midrange companies and law firms are adopting the trend. The MANDA report predicts, “…VDRs [eventually] will become the accepted and most widely used data room tool for M&A transactions.” Paralegals, take note — VDRs could not only make your jobs easier but change the very dynamic of what you do.

Legal Resources

Inside Vision

InsideLegal, a blog launched by Envision Agency on Feb. 5, discusses issues that affect the legal technology industry. The blog also covers industry comings and goings, such as new hires, and mergers and acquisition news; marketing strategy; PR best practices, such as how-to articles, media planning and publicity; and vendor relations, such as technology trends, securing speaking opportunities, pitching byline articles and legal industry developments. InsideLegal also features guest bloggers, such as consultants, vendors, firms, media, and general business and strategy contributors. For more information, visit www.insidelegal.com.

Super Site

JD Supra, a Web 2.0 business, is a free online platform to post court documents, filings, articles, client alerts, original research, marketing materials and document templates. The database allows for searching, driven by Google Mini, and the site also features “The Scoop,” which presents new, recently released documents, filings and decisions. Profiles are listed on the site for recent contributors, and the resources section lists products and services for the legal community based on users’ recommendations. Also found in the resources section are Web sites for federal courts, state courts, law school clinics and journals, and national and state bar associations. For more information, visit www.jdsupra.com, or contact Allan Ripp at (212) 262-7477.

50 Careers

“50 Legal Careers for Non-Lawyers,” by Ursula Furi-Perry, published by the American Bar Association, delves into booming careers for paralegals. The book also discusses career options, such as legal administration and management, for paralegals who want to move their careers forward. Each career listed in the book includes interviews, responsibilities, education and skills, and ways to enter that career. Some of the other positions listed in the book include those for self-starters, entry-level jobs and legal careers outside of law firm environments. The book is available for $19.95 from the ABA at www.abanet.org/abastore.

Analyze This

“Legal Analysis and Writing for Paralegals, third edition” by William H. Putman, published by Delmar Cengage Learning, provides an in-depth look at the legal analysis and writing process. The book is divided into three sections, with the first section discussing analysis and the legal principles involved. The second section covers elements and tools in the analysis and writing processes, and the third section talks about how to apply the principles explained in the first two sections. The book also discusses how to draft legal correspondence, legal research memoranda and court briefs. An activity CD, which includes assignments, chapter outlines and study questions, also is included. The book is available online at www.delmarlearning.com for $72.95.

Smart Encyclopedia

The Encyclopedia of Business Graphics, by SmartDraw.com, is a free, searchable database that provides detailed information on any type of chart, diagram, schematic and illustration used by businesses. Along with each detailed description is an image of the graphic, information on the graphic’s typical uses and best practices for creating the graphic, as well as tutorials, success stories, related activities and white papers. Additionally, free templates can be downloaded that also can be edited. The graphics can be searched by type of graphic or type of activity. For more information, visit www.smartdraw.com/eobg.