Ethical Walls

When a firm hires a paralegal who has worked for opposing counsel or an opposing client, the entire firm should be notified that an ethical wall is to be erected around the paralegal and that no one may do the following:

1.      Discuss the case in the presence of the paralegal

2.      Allow the paralegal access to any documents, both hard copy and electronic

3.      Engage in any discussions with the paralegal about her prior work on the case or work her previous firm may have done.

All these precautions are necessary to avoid the firm’s possible disqualification in the case.  Even an ethical wall is no guarantee that opposing counsel will not file a motion to disqualify your firm, despite the fact that the motion may ultimately be denied.  In the course of defending such a motion, firms may be required to produce billing records and other documents, and provide documentation of any ethical wall that was erected around the person in question.

Other areas of conflicts include other jobs you may hold, a family member’s employer, and stock you may own. 

If you think you may have a potential conflict, you should notify your attorney immediately so your attorney may determine if there is a conflict.

If you are contemplating changing jobs, be certain your potential new employer is aware of the cases and clients for which you have worked before you begin your new job.  In addition, be prepared to assist your new employer in determining how best to develop an ethical wall to shield you in the event of a possible conflict.  If you are a freelance or contract paralegal, keep a list of each firm for which you have worked, as well as the cases and clients for which you have worked.

(One more note regarding ethical walls: please don't refer to them as "Chinese Walls." That term is outdated and is no longer acceptable terminology.) 

Your Most Valuable Professional Asset

I have been fortunate to get to know many wonderful paralegals during my career. Most have impressive resumés with great work experience, notable education, important credentials, and inspiring accomplishments. When I think about these paralegals, I sometimes feel as if I am not doing enough in my profession and career. Regardless of what I do, I know I will never catch up to these paralegals in every area.

However, I also know several paralegals who have fabulous resumés but very few people would recommend them or want to work with them. Some of them are known to have difficult personalities, a few have questionable ethics, and others appear to be overstating their qualifications and experience.

So how can you stand out, particularly when surrounded by fellow paralegals with outstanding resumés? By your reputation.

There will ALWAYS be someone with more experience, more education, better credentials, and more impressive accomplishments. There is nothing you can do about that. What you CAN control is making sure you have a reputation for being knowledgable, dependable, conscientious, professional, and ethical. All of the wonderful information on your resumé can't overcome a bad reputation.

So, above all else, work to guard and improve your professional (and personal) reputation. Because when it comes right down to it, it's really all you've got.

But I Thought We Were a Team?

Most paralegals I know are satisfied with not being attorneys, but they view themselves as important members of the legal team and wish to be treated as such. Being a member of the lega team includes the following: - Being involved in the matter from the beginning - Being introduced to the client - Being involved in discussions regarding how the case will proceed, or at least given the "why" for the assignment - Having the professionalism to at least listen to our suggestions and recommendations - Treating us with courtesy and respect, whether in private or in front of the client and/or opposing counsel - Keeping us updated on developments in the matter without us always having to ask Sometimes we have to teach attorneys how to treat us as members of the team. Don't be afraid to let your attorneys know, in a professional manner, of course, not only how you want to be included but why doing so benefits the attorney and the client. And if, despite your best efforts, you are not valued and included as a team member, there is always the option to find a new team that will!

I'm Offended!

I was just copied on a series of emails between two people. To say that the exchange didn't go well might be an understatement. The originator of the email series was trying her best to gently deliver some news that she expected would disappoint or even anger the primary recipient of the email. Of course, even though the sender made an effort to not offend the recipient, the recipient took immediate and dramatic offense. The recipient picked apart the email and accused the sender of having made particular statements based on positions the recipient knows the sender does not hold. The sender sent reply emails in which gracious, sincere apologies were made as well as statements that the accusations were not true, only to have the recipient make more unfounded accusations.

Unfortunately, this type of exchange happens far too often, both in the professional world and in our personal interactions. Because I was copied on the exchange I am taking it as a reminder to do the following:

- Remember it is difficult to convey and discern tone and emotion in emails

- Analyze what was conveyed and compare it to what you know the other person's usual intentions and positions to be; if the communication does not match up to your prior experiences with that person, perhaps you should ask for clarification

- Give the other person the benefit of the doubt, at least until you can clarify his or her position

- Consider whether disussing the matter in person, or even over the phone, might be the best way for each of you to explain your positions

Too often we find we have taken offense where none was intended. By then it may be difficult to rectify the damage we may have with our accusatory and indignant responses.

Lying Clients

Clients sometimes lie. There. I said it. Clients may withhold information, often intentionally, and some tell outright falsehoods.

As paralegals we know that often a tiny bit of information can completely change a situation. That means it's our job to ferret out all relevant information as we possibly can before taking the matter to the attorney. Unfortunately, one of the best ways to figure out what questions to ask to get the most information from clients is the experience of finding out later that a client did not provide all the needed information. At my office we regularly update our trademark search request form to require the client to provide specific information that prior requestors did not provide and which affected the advice given by the attorney. We have also added some language to some of our opinions that state we are assuming certain things and if those assumptions are incorrect, to let us know.

What techniques do you use to try to ensure your clients are providing all the relevant information?

Can Personal Volunteer Activities Create Conflict of Interest?

I was recently contacted by a paralegal who was trying to address her supervising attorney's concerns with the paralegal's volunteer efforts. The paralegal works for a solo practioner who also handles criminal defense cases. The paralegal volunteers with a religios group that works with inmates at an area prison. The group's activities including helping the inmates with anger issues, self esteem, and GED classes.

In prison where the paralegal volunteers is not one from which her supervising attorney gets clients. The paralegal intentionally avoided volunteering at the county jail for that reason. She also does not tell anyone at the prison that she is a paralegal, does not discuss any legal issues while volunteering, and has made it clear to her fellow volunteers that there is to be no mention of her being a paralegal.

The problem is her attorney feels her activities are a potentail conflict of interest. She has reviewed with her attorney the steps she has taken to avoid potential issues but her attorney still isn't satisfied.

I'd be interested in your comments as to whether the paralegal should stop her volunteer activities in order to avoid a potential, though perhaps unlikely, conflict of interest.

Ethics of Owning Stock in Client of Firm

In addition to the usual conflicts issues and avoiding trading on confidential and privileged information a paralegal may be exposed to, more and more firms are instituting policies and procedures that take these concerns to a higher level.

Do you or your immediate family own stock? If so, you may want to be sure none of the companies in which you or your family own stock are clients of the firm for which you work. Paralegals should also check your firm’s policies regarding ownership of stock in companies the firm represents. Many firms have implemented such policies to try to limit the potential for conflicts and insider trading.

The potential for conflicts and insider trading allegations may also be raised when any employee of a firm has a family member who works for a client of the firm, regardless of which section of the firm the employee works. For example, a paralegal works in the immigration section of a law firm and her husband works for the XYZ Corporation, a client of the firm. The firm doesn’t do any immigration work for XYZ Corporation, only tax work. Although the paralegal does not work in the tax section of the firm, the paralegal may learn information about the work the firm is doing for XYZ Corporation. The paralegal may also get information from her husband about XYZ Corporation’s business that, combined with information from her job, may constitute a conflict. While all law firm employees should be well aware that any information to which they are exposed through their work should be considered confidential and privileged, some employees may consider discussions with their spouses either the exception to the rule, or necessary to ensure their spouses’ position or advantage with the spouses’ employer.

Because of this potential problem, paralegals should be careful not to discuss their work with firm employees other than those directly involved in the project. Paralegals should also take care not to discuss confidential or client proprietary information where it may be overheard by anyone, including other firm employees.

It is important to note that not everyone associated with a particular client is necessarily entitled to the same information. Paralegals should ask their supervising attorneys for a list of the people associated with the client with whom information may be shared. If someone other than one of the previously identified people contacts the paralegal for information, the paralegal should confirm with the supervising attorney what information may be provided to the requester. Providing information to the wrong person may not only violate the attorney-client privilege, but could provide a basis for an opportunity for insider trading.

With so many people hoping to gain any advantage, and clients ever more sensitive to the implications of misappropriated information and even the appearance of impropriety, paralegals must be ever vigilant to protect and preserve confidential, proprietary, and privileged information.

E-Filing Procedures: Gotta Have 'Em!

E-filing is one of those good news/bad news things:

• Good news: No rushing to file a document before the courthouse closes
• Bad news: Attorneys have more time to procrastinate and revise
• Good news: No need for lots of hard copies of the document and exhibits
• Bad news: Local rules may still require particular documents in hard copy
• Good news: Easier and faster to file documents
• Bad news: Easier to file the wrong version or even wrong document

If your office is e-filing, you need procedures to ensure proper approvals prior to filing. The best and safest procedure is to print out document to be filed, have attorney sign the hard copy, then keep signed hard copy in file or scan executed document for paperless file. That way there is no question which version the attorney intended to file.

If your office doesn’t have procedures for e-filing, why don’t you recommend procedures to your attorney?

Ethics of Improving the Legal System

One of the ethical responsibilities of paralegals is to assist with improving the legal system. There are many opportunities for paralegals to help improve the legal system, including the following:

• Pro bono; either through your firm/company or through another program
• Mentor another paralegal; many paralegal associations offer programs
• Become involved with a local, state, or national paralegal organization
• Make CLE presentations
• Author articles

So, on this 4th of July, what have you done for our country’s legal system lately?

English Ethics

As followers of my Twitter account know, I sometimes post my pet peeves, usually related to misuse of words. I'm not sure why this gets under my skin so much, but it does. Postings such as this make me quite a happy girl and I usually learn something as well.

As paralegals we have an ethial obligation to maintain a high degree of competency. I would argue that while keeping up with case law, rules and procedures, as well as technology is extremely important, paralegals should also know how to write and speak well. Relying on lazy standards of speech and writing is not professional.

So, review your writing and speech carefully. Ask a trusted coworker to proofread your work. Become more aware of the overused expressions in your verbal and written communications and make an effort to reduce your reliance on them. Seek out resources for improving your word usage. It is possible to write and speak professionally without sounding stuffy or formal.

(I'm just sayin'. :-))

Rudeness Cubed

A local movie theater chain created an in-theater PSA using a voice mail from a customer who was unhappy for being kicked out of the theater for texting during the movie (which is against that company's rules). How great that this company could turn a lemon into lemonade.

I have the unfortunate honor of sitting in a cube at my office. There are many unwritten rules of etiquette for those who work in cubes, most of which include pretending not to hear what is going on around you.

Everyone must occasionally make a personal phone call at work and your coworkers should make an effort not to listen. However, it's just rude to speak louder than necessary, whether on the phone or having a conversation with a coworker. I have had to listen to coworkers loudly discuss their medical conditions, family problems, and even endured MONTHS of a coworker constantly on the phone dealing with all kinds of issues as her house was being built.

Please spare your cube mates from this fate. Better to seek out a private area, such as a conference room, to handle short personal calls during work. And of course, you should keep personal calls to a minimum while on the clock.

So be professional about your personal calls and conversations. Your cubemates will thank you.

It's Been Too Long

It's been too long since I last posted. Way too long. I don't really have an excuse. However, when my dad died unexpectedly last year, it really sent me into a tailspin. For quite a while it took all my energy and effort to do the minimum in my life. Then I was busy with everything involved with his estate.

Once that was finished, I just couldn't seem to get back to my blog. But now I'm back and ready to post regularly.

I've missed all my readers (even though I'm sure I can count you all on one hand). I look forward to writing for you again.

Pet Peeve Day

I think I'll start a regular feature regarding my pet peeves. Shouldn't be hard for me since I have so many! I'd also like to hear from others regarding their pet peeves. Perhaps writing about them will be somewhat therapeutic.

Today's pet peeve is having my accomplishments misstated or glossed over. I'm actually not one to toot my own horn too often, and I usually am dismissive of most of my accomplishments. However, when I was recently introduced at a speaking engagement, the person reading from my bio got most of it wrong. I don't expect an introduction to include every detail, but this introduction misstated positions I've held, organizations with which I have held leadership positions, and generally left out the parts of my bio relevant to the topic on which I was speaking. It wouldn't have been so bad but since there were no written materials for the attendees, I'm worried I looked like an unqualified goober. (Of course, one of my greatest fears in any situation is looking like a goober. That's a position I'm unfortunately well-qualified to hold.)

Paralegals are accustomed to being overlooked and not taken seriously. Years ago when I returned to the office after being out for three days to prepare for and take the (then) CLA exam, my boss asked me how I enjoyed my CLE. When I passed the CLA and other exams, no one in the office made mention of it. I didn't want a parade, but a public (or even private) "atta-girl!" would have been appreciated.

Fortunately, most paralegals I know do what they do without expecting any acknowledgment. They do the best job they can every day, and achieve voluntary certifications, volunteer with professional organizations, and serve the legal profession in other ways.

While it's true that a paralegal's primary job is to make the attorney look good, and most of us know we won't receive much (if any) public glory, I would like to let all paralegals know that you are appreciated. I value the achievements of every paralegal before and after me. You are what makes this profession what it is and your accomplishments remind us all of what we can do.

So, here's to all of us: Way to go! Good job! You make us all proud.

Once Again, TV is Not Like Real Life (I Hope!)

The latest TV drama featuring lawyers and their lives is The Deep End. The show has gotten lots of press and comments from everyone, including the legal community. Fellow blogger Lynne DeVenny has written about the paralegal on the show and how far that character is from most paralegals. Texas Lawyer also recently had an article featuring new associates' take on the show.

What struck me when watching the previews as well as reading the press and comments is that this show has at least one thing in common with most other law-related TV shows and movies: The characters are severely ethically challenged. (Many of the characters are also morally challenged, but that's not a topic for this blog.) While these shows may be entertaining, they are also wonderful examples of what "not" to do.

That might make a great assignment for a paralegal ethics class: Watch "The Deep End" and name the ethical violations. Perhaps a follow-up assignment could be to offer examples of how to handle those ethical violations if you came up against them in real life. Even the show's title could serve as a reminder to mind your ethical Ps and Qs.

So, if legal dramas and movies fill your DVR, enjoy! Just remember real life should NOT imitate TV, at least where the legal field is concerned.

To Get Paid (or Not) for Overtime

I recently learned (much to my surprise!) that everyone isn't aware of the standing of paralegals under the Fair Labor Standard's Act ("FLSA").

All paralegals should familiarize themselves with 29 CFR §541.301. In summary, most paralegals are non-exempt. There are exceptions, such as if a paralegal has specialized training, like a nurse hired to review medical records. There are many resources on this issue, including information on the ABA website.

If a firm or company isn't paying a paralegal overtime, it may just be that the parties are unaware of the law. Unfortunately, other employers may knwo the law, but be trying to avoid paying overtime to their paralegals.

If a paralegal believes she is entitled to overtime pay but is not receiving it, she should first approach her employer about a resolution. If those efforts are not successful, the paralegal may consider contacting an employment law attorney and/or the state wage and hour division. Unfortunately, despite laws in most states that prohibit retaliation against employees who file such claims, an employer may retaliate against the employee.

It can be a tough position for a paralegal who believes she is entitled to overtime but not receiving it. While no particular course of action is advisable for every situation, every paralegal should be familiar with this issue. After all, forewarned is forearmed.

Special thanks to Lynne DeVinney for her assistance with this post.

Profile at Practical Paralegalism

Many thanks to Lynne DeVenny for profiling me on her Practical Paralegalism blog. Check it out and check out her other posts as well. Lynne does a great job of keeping us informed!

Paralegal Workout

It's the new year and many of us are trying to exercise more. Being a paralegal used to mean that you had plenty of opportunties to lift boxes, juggle heavy files, retrieve large legal tomes from the top shelf in the library, and sprint to the courthouse. Now we have online legal research, paperless files, eDiscovery, and online filing. How are paralegals supposed to get any exercise these days?

So, to make up for what used to be a daily workout for many of us, try the following:

• Instead of a heavy box full of documents, try lifting your desktop printer or scanner several times; if you are brave enough to unhook it, carry it from one side of your desk to the other
• Instead of heavy files, volunteer to make the morning coffee run or the lunch run which will allow you to juggle items of various sizes and shapes
• Move the toner refill to the top shelf of the supply cabinet and hide the step stool so you have to stretch to retrieve it
• If you park in an open parking lot, park at the far end when it's raining so you can practice your sprinting skills; alternatively, organize desk chair races in the office during lunch: racers push their coworkers in their desk chairs down long hallways

With a little effort, our fitness won't have to suffer. If you have any other suggestions for paralegal workouts, please let me know!

I Don't Need No Stinkin' eDiscovery!

If you don't work in litigation, what, if anything, do you need to know about eDiscovery?


While it's tempting to ignore all the information about eDiscovery if you don't work in litigation, it's important for all paralegals to have some basic knowledge of eDiscovery for many reasons, including the following:

• all areas of law have the potential to end up in litigation
• you may change jobs (by choice or otherwise)
• increasing your knowledge only makes you more valuable to current and future employers
• it may help you issue-spot when working on other matters

I recently spoke to an acquaintance who is a well-respected litigation paralegal. I asked her a question about eDiscovery and her response was, "What's eDiscovery?" I was shocked! It also caused me to worry about her and our profession. If we all wait to learn about something until we are forced to do so, that doesn't reflect well on our professionalism.

Would you visit a mechanic who didn't have the tools to deal with the computers now found in cars? What about a dentist who still used the same equipment that was "cutting edge" in 1970?

So, read articles and attend a CLE (whether in person or a webinar) on eDiscovery. It's the professional thing to do.

I'd love to know your thoughts and whether you agree that knowledge of eDiscovery is important.

Responding to Emails

Are you one of those people who always responds to emails, at least letting the sender know you received it? You know, a perky "thanks!" or "Got it!" or "Will do!" Or are you one of those people who is too busy to respond unless absolutely necessary? Or maybe you figure the sender should assume you received it.

I personally prefer to receive a response most of the time so I try to remember to send one.

What about you? Check out the poll and let me know your thoughts.

Resumes - Is it Ever Okay to Lie?

It's never okay to lie on your resume, or lie about lying on your resume, as this attorney found out. Even the smallest employer may check not only your references, but the facts you have included on your resume. There are even companies that will do that for employers.

I worked with a woman who lied on her resume about having a bachelor's degree. When she was let go, it wasn't because she didn't have a degree, it was because she had lied about it.

So, don't take any chances. Be truthful about your education, experience, skills, and credentials, without selling yourself short. Be confident and let the employer know how you can be an asset to the company as well as your willingness to expand your knowledge and skills.

After all, honesty is always the best policy.