The Paralegal Corner
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Summary prepared by Nancy Bagatti, Perkins Coie LLP
(Editing assistance by attorney David Gold)
United States v. Kar, No. 15-1608, ___ F.3d ___ (2017), WL 957193 (1st Cir. Mar. 13, 2017)
This case involves defendant Kar’s appeal of his jury conviction in Rhode Island district court on bank fraud charges. One of the three issues on appeal was the district court’s unwillingness to dismiss a juror - acquainted with a paralegal for the prosecution - for potential bias. Kar was originally represented by counsel but was unhappy with the representation. For various reasons outlined in the appellate court’s decision, Kar was allowed to proceed to trial pro se, but not before warnings by both the district court judge (and magistrate judge during jury selection) of the potential consequences of doing so. The judge, nevertheless, ordered Kar’s previously appointed counsel to act on “stand by” throughout jury selection and trial. It is noted that Kar ultimately conferred with counsel during both.
On day one of trial, the prosecuting attorneys disclosed to the court they had just learned that their paralegal was “friendly” with a juror’s sister. The paralegal had apparently not been present during jury selection. The judge proceeded to interview the affected juror wherein it was revealed that the juror’s sister babysat for the paralegal fairly frequently and the juror had also babysat for her “once or twice.” After being told by the juror that the paralegal never discussed the case or her work in the U.S. Attorney’s office with the juror, and there was nothing stopping the juror from being fair and impartial, the judge allowed the juror to remain on the jury. Kar, after conferring with his “stand by” counsel, requested the juror be removed based on having a personal connection to the paralegal. The judge denied the request and subsequently directed the juror not to discuss the case with her sister or the paralegal.
After the four-day trial, the jury returned a guilty verdict on all counts against Kar. On the issue of Kar’s right to trial by an impartial jury, the appellate court found no “bias in fact” (personal bias) nor “bias as a matter of law” (exceptional circumstances such as a juror being (i) an employee of the prosecutor’s office, (ii) a close relative of a trial participant or (iii) a witness relating to, or having involvement in, the criminal transaction). The lower court conviction was affirmed and the appellate court found no clear abuse of discretion by allowing the juror to serve.
No. 15-8132, 2017 WL 655405 (Feb 17, 2017 (10th Cir.)
By Robert Hrouda
This matter is an appeal from the Wyoming District Court in Ms. Breen’s effort for a new trial. In this matter, Ms. Breen had been going through a divorce and child custody dispute and in 2012, the Wyoming state court ordered Ms. Breen to enroll in a “Conscious Co-Parenting” class, which was designed by Ms. Pruter, although Ms. Pruter was not the instructor. At the end of the class, it was suggested to Breen that she contact Pruter for life coaching and consulting services. Pruter is not a psychologist or lawyer, but “claimed to be a ‘team leader’ of a group of lawyers, psychologist, and paralegals.” She began coaching Breen and organized evidence from Breen’s child custody matter into digital timelines using an outside vendor. Pruter was paid $3,500 for this service.
In July, 2013, Breen and Pruter entered into a Consulting Agreement in which Pruter would help with the child custody dispute by providing “consulting services to compile evidence, create timelines, and write scripts to provide to [Ms. Breen’s] legal team”. Since the $3,500 previously paid was used up, the agreement provided for Pruter to receive 20% of any recovery Breen received from the child custody proceedings.
On April 17, 2014, Breen filed a complaint in the United States District Court for the District of Wyoming against Pruter and Dorcy, Inc, claiming multiple causes of action, including fraud, negligent misrepresentation, negligence per se and other claims. Pruter’s summary judgment motion was granted on the negligence claims, and others, and Breen asserts the district court erred in granting summary judgment on the negligence claims, which arose from the unauthorized practice of law and psychology.
Breen’s complaint argued that “By providing [Ms. Breen] with legal and psychological analysis and advice without being licensed to provide either, [Ms. Pruter’s] conduct should be held to the same standard of such a professional and any conduct that would be considered malpractice by such a licensed lawyer or psychologist should be treated at law as the commission of malpractice by [Ms. Pruter].” Ms. Breen cites to Wyoming Statues §§ 33-5-117 (unauthorized practice of law) and 33-27-119(b) (unauthorized practice of psychology) in order to demonstrate the standard of care, not the duty of the standard of care. Of note, Breen “inadvertently” did not plead general negligence. Just prior to trial, Ms. Breen did try to amend the complaint to add a general negligence claim, and the motion was denied. The parties previously agreed that Wyoming law applies, and the district court ruled that the UPL statutes do not grant a private right of action and Breen waived any arguments that the duties arise under common law, and therefore dismissed her UPL claims. The Tenth Circuit agreed.
Ms. Breen argued that it was not apparent until the summary judgment hearing that her UPL claims could be dismissed, but the court found that Pruter’s motion for summary judgment should have given Breen notice of this possibility because Pruter’s motion stated “Wyoming law does not appear to provide for a private cause of action” for unauthorized practice of law. The district court found that Breen delayed in amending her complaint to add a common law negligence claim, waiting until many deadlines had passed and trial was close. The court also found that allowing Breen to amend her complaint would be unfairly prejudicial to Pruter, in part because she would not have the opportunity to file a motion for summary judgment prior to trial. The Tenth circuit upheld the district court’s denial of the motion to amend.
The Tenth Circuit confirmed all findings of the district court in denying Breen’s Motion for a New Trial.
Summary prepared by Nancy Bagatti
(Editing assistance by attorney Yasamin Oloomi)
In Rogers Townsend & Thomas, PC v. Stephen H. Peck, et al., No. 2011-199626, 2017 WL 694753 (S.C. February 22, 2017), the South Carolina Supreme Court recently found that a management group engaged in the unauthorized practice of law when it filed judgments on behalf of associations, prepared and recorded liens, and advertised those services.
Respondent Community Management Group, LLC (“CMG”) manages homeowners’ and condo associations in several South Carolina counties. As part of its management services, CMG recorded liens against homeowners for unpaid assessments, brought collection suits on behalf of the associations in magistrate’s court, and filed the judgments in circuit court. Plaintiff alleged that CMG engaged in the unauthorized practice of law by providing those services.
South Carolina Magistrate Court Rule 21 allows a business to be represented in civil magistrate’s court by a “non-lawyer officer, agent, or employee …” As the Rogers Court recognized, Rule 21 does not define the term “agent.” However, the Court clarified that “non-lawyer third party entities or individuals” are not agents under Rule 21. Id. Instead, an agent is an individual who is not an officer or employee of a business but has a connection to the business via its corporate structure. A board member of the association, for example, would be an agent under Rule 21. Under the court’s definition, CMG was not an “agent” of the associations and therefore could not represent them in court proceedings.
Although there were additional allegations of the unauthorized practice of law by CMG, such as interpreting covenants for homeowners, the Court recognized that such determinations are fact-specific and must be evaluated in context.
A temporary injunction against CMG had been previously entered by the Court causing CMG to cease representing associations in circuit court and preparing and recording liens without an attorney. A principal of CMG also indicated they would not resume such practices.
By Tanya Patterson
I am the mother of a 5 year daughter. She is beautiful and perfect in every way, but…
As do all young’uns, she can make some really bad decisions. Recent wall-drawings, puddles of Play-Doh smooshed and ground into the carpet (apparently they thought it felt good to their feet) come to mind. During times like these, she gets sent to time-out. She is expected to sit quietly, consider her bad decisions and come up with more appropriate behavioral options she may have chosen instead. We then discuss the negative behavior, appropriate punishment and the better options for the future. Sometimes this method works, sometimes it doesn’t. What her time-outs always provide, though, is a minute for me to catch my breath and consider the best way for me to handle the situation. I am able to step away and plan an objective rather than emotional response.
What I propose to you is this:
Give yourself a time-out. Take a minute, five minutes to get yourself together before you react emotionally to the stress of whatever, be it a computer that isn’t cooperating, traffic that is particularly ridiculous or a spouse that just doesn’t get it. It’s during these times of high emotion that we adults can make some really bad decisions too. While we probably won’t smash the Play-Doh into the carpet, we might respond in a vocal tone that conveys the eye-roll we have managed to hide or we might close the office door just a little too roughly, for instance.
Before that happens, head to the time-out corner!
Insight Timer is an app that I use when I need a quick re-set or need to think about my actions and reactions.
Insight Timer provides over 1,300,000 meditations. While there are certainly tracks for the serious practitioner, I find applicability in its short, guided meditations for relaxation and centering. Some are just a few minutes long and are provided by world renowned teachers. When I need to check-out, I’ll stick in my headphones, close my eyes and let the app guide me to recognizing and calming my breath, acknowledging my feelings or just having a time-out. A few minutes later, the track ends with me feeling ready to face whatever is happening.
In addition, Insight Timer provides musical tracks - including chants, bells and nature sounds – that may provide for a more relaxed and focused mental state. I often play these in my office and find that they do help me chill-out before a time-out is needed.
Mindfulness - Meditation for the Anti-Meditator
Dan Harris, ABC News anchor, was a meditation skeptic until he discovered Mindfulness. Harris describes his practice as a “’simple, secular, scientifically validated’ process that requires little more than a place to sit and your own breath.”
There are many definitions of Mindfulness but for me it is simply the act of being here/now. Mindful.org describes it as “the basic human ability to be fully present, aware of where we are and what we’re doing, and not overly reactive or overwhelmed by what’s going on around us.” Doesn’t that sound lovely!
While I hesitate to refer to the practice of Mindfulness as a “practice” for the purposes described in this article, Harris’ process is entirely accessible to anyone.
3 Steps to Mindfulness Meditation (as described by Dan Harris)
- Sit with your back straight and your eyes closed
- Notice the felling of your breath coming in or going out
- As soon as you try to do this, your mind is gonna go “bazonkers,” so notice when you’ve become distracted, and start over
You will find the results of your self-imposed time-out are increased clarity, improved mood and re-directed focus. All good things!
By Katharine L. Essex, CP
Worldwide Restoration, Inc. v. Gan, 2016 WL 6407277 (Superior Court of New Jersey, Appellate Division)
Generally, fee disputes that make it to the appellate level do not often make interesting reading. However, in this recent New Jersey case the trial judge ruled the attorney hours billed were reasonable, but specifically questioned why no paralegal hours were submitted.
The parties in this case had submitted their substantive issues to nonbinding arbitration. The panel found for defendants and determined Gan was entitled to statutory attorney’s fees. When Gan moved for confirmation of the arbitration award, she petitioned for attorney’s fees to be paid by plaintiff. “The sole and narrow issue in this appeal is whether the trial court misapplied its authority in declining to grant a ‘lodestar enhancement’ or ‘multiplier’ when awarding counsel fees to the prevailing party.” *1.
The trial judge accepted the number of hours submitted by the various attorneys within the law firm that worked on Gan’s case, but reduced the hourly rates that were claimed. The judge also rejected the firm’s request for a lodestar fee multiplier as unwarranted due to the nature of the case and limited scope of the work performed.
Although she ruled the attorney hours billed were reasonable, “she did question why no paralegal hours were submitted, finding some of the work charged at an attorney’s fee rate could have been done by a paralegal.” The judge did not reduce the hours spent, “even though they conceivably could have been in light of the non-use of paralegals and the firm’s lack of success in obtaining more than a nominal recovery.” *5.
The appellate court concluded the trial court was justified in denying the fee enhancement, given the particular circumstances of the litigation and affirmed the trial court’s decision.
By Janet Wilson Williams, RP®
Several years ago when I was starting out in legal, I glimpsed the front cover of “Legal Assistant Today” and saw an ACTUAL Paralegal of the Year. Although she did not sport a crown and scepter, she was still Paralegal of the Year, and I thought, oh so cool!
Fast forward 26 years and I myself am a POTY (which is not to be confused with Michael Jackson’s “PYT”). Wow, now this IS Surrealville.
After 26 years of paralegal service, I mean, experience, I’d like to share with you some thoughts on:
Being a successful paralegal — more popularly known as "what does it take to be an esquire's trusty sidekick for years on end?"
- FIRST and FOREMOST, must both understand and translate “Lawyer Speak”.
- Must have nerves of steel with confidence and chutzpah to burn — even need this when dealing with your own esquire — and remember, he needs to LIKE you while you are doing it.
- Which then brings up … buns of steel – for sitting and working on documents 8 to 10 hours a day.
- Must not flinch or run when faced with a stack of legal documents higher than your head.
- Must be a magician with these tricks:
a. Pulling a rabbit — uh … documents and deadlines — out of a hat (but alas, with no magic wand).
b. Continuously juggling balls in the air, day in and day out — add that personal life in there and you need to be super, duper skilled and maybe even earn a certificate in it from Ringling Brothers Clown College.
- Remembering why are you there – arguing with your esquire about deadlines or other meaningful work exchanges and then suddenly realizing that you are actually being paid to HELP him.
- Gratitude – For the times you are truly thankful for having that esquire, a great job with health coverage, paid parking, vacation time (when you can take it!), a treated lunch once in a while, AND even a $$$ bonus!
So why is this a great career?
BONUS POINTS DING*DING*DING
- You are an extension of your firm and your lawyer(s). In fact, you are their right hand.
- You perform meaningful work to help clients.
- You are constantly learning, each and every day.
- Research and problem solving become second nature for you.
- Diplomacy becomes your strong suit.
- It’s certainly not boring! In fact, many days bring much drama.
- You can take on further studies in your area of law or other areas that interest you.
- There are pro bono opportunities to seek out and really pour your heart into.
- Leadership opportunities abound — both state and national.
- It always pays the bills, as one of my certification candidates matter-of-factly informed me.
Memo to my state association and national colleagues: You are all my inspiration to do more and take on more. Like Frost, I have “miles to go before I sleep” … and so much more to learn.
To my attorney and firm, you have been awesome to work with these past 11 years. Thank you for your support and confidence in my abilities.
Finally, I dedicate my POTY award to my late grandmother, Mattie, who showed me from a young age what hard work was about. You see, she was one of those women who worked at the Lockheed Plant making B-52 bomber planes during WW II and then worked FT at other factory jobs until she retired in her 60s, sometimes wearing extremely high tottering heels despite standing at the assembly line all day. Women of that generation could do it all. With a high school education, she could manage finances as well as a Master’s of Finance, cook as well as a celebrity chef, and garden as well as anyone on HGTV.
Now … where can I get a POTY sash?
Janet Wilson Williams, RP is Director of Paralegal Certification and NFPA Secondary at the Georgia Association of Paralegals and works with Michael J. Hay, Esq. at Andersen Tate & Carr, P.C. in Duluth, Georgia. She also has a wicked and wonderful sense of humor. Email her at email@example.com.
How to Say it and Mean it
By: Tanya Patterson
The best kind of work is the kind that really isn’t work at all. Wouldn’t it be great to do whatever you want, whenever you want and get paid for it? Unfortunately, that isn’t possible for most of people.
However, many of us chose our profession on purpose. We have been educated, trained and are experienced legal support professionals. For whatever the reason, we choose to stay in our positions, our career field. So why do we often get burned out? Why don’t we like our jobs?
Part of the answer is that we get lost in the forest and forget to enjoy the trees. By this, I mean that we get caught up in the rush to meet deadlines, the stress of scheduling and rescheduling (and rescheduling again) all those depositions, the hurtful way that clients, bosses, opposing counsel speak to us.
Wherever You Go, There You Are
Even if the grass is looking greener, be aware that geographical cures rarely work. Your thought processes, your ideas, your attitude will stay with you, even if you go to the other side of the fence. True change comes from within.
The Mayo Clinic provides 7 strategies for increasing job satisfaction. Of these seven, there are two that speak to me and instruct accountability for not only satisfaction at work, but satisfaction in life.
Stay Positive – Easier Said Than Done, I’m Sure.
Cognitive job crafting refers to an employee’s alteration of his or her perception of his or her job, including the tasks and relationships involved. Cognitive job crafting will allow you to see things differently, in a positive light.
|The more you look for the benefits of what you’re doing, the more it feeds you psychologically.|
As legal support professionals we may often feel like menial paper-pushers. Next time this thought enters your mind, realize that we are the right-arm of the attorney and are also providing a much needed service for clients who would otherwise not be able to draft a will, respond to a complaint, negotiate an employment contract, etc.
Be Grateful – Easier to Accomplish But Often Overlooked.
I got a new keyboard. I love it! The keys are close together, the angle is perfect. I appreciate that my firm got it for me and all I had to do was ask. Yes, I am grateful for a keyboard.
Even something as small as a keyboard can affect job satisfaction, but you have to stop and recognize that fact. What do you appreciate about your office? Does your employer provide lunch once a week? Do you have a great view? Is human resources especially responsive to staff’s needs and concerns?
Have A Good Laugh – Even if it’s Fake
Laughing and smiling might just be the answer to job satisfaction. I won’t get into the science of it, but even a fake smile can make you feel better about the worst day ever.
|"When you have to work,
work with a smile."
While following these suggestions may not create a perfect work world, or allow you to live out your every dream, they will certainly make today better, even if only slightly. The next time you are about to blow your stack, remember to:
- Stay Positive;
- Be Grateful; and
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