Avoidance

On a final and practical note, how should one avoid the bad lawyer in the first place?

According to Microsoft's website for small businesses, the following tips will help prevent one from committing to a relationship with a poor-performing attorney:

1.  Get a specialist.  Do not settle for a general practitioner or a specialist in a different area of law just because she's a friend or has served you well in that one area.  As we are all learning, the body of law is enormous and it is impossible for an attorney to specialize in all of the law.

2.  Do your homework.  Resist the urge to use the exclusively use the phone book to find an attorney.  Check with the state Bar to see what attorney's have been disciplined in the past five years.  Check with people you know who have used an attorney.

3.  Check out the fees.  Make sure you understand what costs are associated with the lawyer, how he charges, and if the consultation is free.  Do not go into a meeting with an attorney with a blank check because some attorneys may take everything they can get, especially if you do not know what to expect.

4.  Do not sign unless you agree.  Do not enter into a relationship with an attorney unless you understand and are comfortable with the fee agreement.  Also, ask the lawyer for an estimate for how much she anticipates the case will cost.

5.  Ask questions.  Understand what your attorney is doing for you.  If you do not understand, ask questions.  If your lawyer will not answer your questions, see if other staff can explain procedural issues to you.

6.  Insist on good communication.  Make sure you discuss with the attorney the best way of being in contact with him.  If he regularly fails to respond to your communication for more than a few weeks start looking for a new lawyer because yours may be too busy for your case.

7.  Be wary of promises.  The law is difficult to predict and any attorney who makes black and white promises probably is not a good attorney.  Most legal issues are complex and do not qualify for a yes or no answers.

When you need an attorney be aware of all of these tips so that you do not get taken by a greedy and unscrupulous lawyer.  Good luck!

This blog is prepared by a paralegal student as a class project, without compensation. The content of this blog contains my opinion, and is offered for personal interest without warranty of any kind. Comments posted by others on this blog are the responsibility of the posters of those messages. The reader is solely responsible for verifying the content of this blog and any linked information. Content, sources, information, and links will most likely change over time. The content of this blog may not be construed as legal, medical, business, or personal advice.

Pass-Through Discipline

In Ohio, there is not an ethical code of conduct for paralegals, only attorneys.  Yet, many of us have just spent a quarter learning the Ohio Rules of Professional Conduct, rules that if we break, we cannot be disciplined for.  I seems strange, doesn't it?

So how then is a paralegal disciplined?  Is he fired; put on leave without pay; is his name tarnished in the legal community?

According to The Empowered Paralegal, a paralegal blog, a Florida jury found in favor of a paralegal who entered into a contract with her supervising attorney to receive a portion of the earnings from the attorney's fees.

If you have been paying attention in Legal Ethics, this is fee-sharing or fee-splitting and is prohibited for non-lawyers.  The paralegal goes to court, knowing she has committed unethical behavior, will be fired, and will be known in the community for her unscrupulous behavior, yet still pursues the case which ultimately results in her supervising attorney being disciplined.

I find it strange that two legal professionals can go to court, both having committed unethical behavior and only one is disciplined.  Even though the lack of a paralegal ethical code protects me from court discipline, I would like to have the confidence that any non-lawyer with whom I work is under the same rules and guidelines as any lawyer with whom I work.

This issue applies to paralegals who work in all kinds of law, business, family, litigation, personal injury, and others.  I think clients should be able to have the confidence in all parts of their legal representation and that there are legal consequences for those who misbehave.

This blog is prepared by a paralegal student as a class project, without compensation. The content of this blog contains my opinion, and is offered for personal interest without warranty of any kind. Comments posted by others on this blog are the responsibility of the posters of those messages. The reader is solely responsible for verifying the content of this blog and any linked information. Content, sources, information, and links will most likely change over time. The content of this blog may not be construed as legal, medical, business, or personal advice.

Is There Help Out There?

This week we turn from horror stories of attorney malpractice to an offering of hope for those legal professionals who recognize they need help.  I visited the Ohio Lawyers Assistance Program website this week; it is an organization which serves attorneys, judges, and law students who suffer from substance abuse, chemical dependency, addiction, and mental health issues.  While no client likes to hear that her attorney has personal problems, OLAP is a wonderful organization and resource for legal professionals in Ohio.

OLAP is a member of a larger national organization, the American Bar Association Commission on Lawyer Assistance Programs.  This organization lists all of the state lawyer assistance programs, holds an annual national conference, and publishes a quarterly newsletter for the benefit of legal professionals.

The most recent copy of the periodical, called Highlights, has several articles which focus on the struggles of law students.  I have several friends who are either in law school or have completed law school and I have heard many a horror story about the rigors and impossibly high expectations imposed by professors, not to mention the cut-throat competition between students.

Law school is a business and filled with tradition.  Even if a law student gets cold feet after the first year, he may feel forced to continue based on the amount of debt already incurred for that one year.  Susan Grover's article, "Helping Law Students," outlines the many stressors that such students face.

Many students go from being at the top of their undergraduate class to struggling to make B's, let alone the impossible A.  For perfectionists and Summa cum Laud grads, law school can seem impossible.  Often, in an attempt to focus even more on their studies, students will put aside important personal practices, such as prayer, meditation, and personal private time.  Grover argues that although the stress in law school is immense, Lawyer Assistance Programs are more frequently now reaching out to law students, helping them regain perspective, deal with chemical dependency, and serve as a means of encouragement.

Also included in this issue is an anonymous article detailing one law student's struggle with alcoholism and drug abuse.  Although his law studies did not initiate his problems with addiction, it exacerbated such issues and only through the help of an LAP was he able to hind help, healing, and remain in law school.

If, when you have obtained a fantastic paralegal job, you find that an attorney in your firm is struggling with chemical dependency or mental health issues, I would urge you to anonymously contact the OLAP so that the attorney can find help and her clients get the best representation possible.

This blog is prepared by a paralegal student as a class project, without compensation. The content of this blog contains my opinion, and is offered for personal interest without warranty of any kind. Comments posted by others on this blog are the responsibility of the posters of those messages. The reader is solely responsible for verifying the content of this blog and any linked information. Content, sources, information, and links will most likely change over time. The content of this blog may not be construed as legal, medical, business, or personal advice.

You Want ME to Pay Taxes?

Chicago, IL

CPAs licensed to practice law

Multi-million dollar clients wishing to avoid taxes

What to you think happens?



In June, 2009, five individuals from the Chicago area and two others were indicted by the U.S. Attorney's office on 27 counts including tax evasion and conspiracy to defraud the IRS.

These seven individuals allegedly developed, marketed, and executed complex tax shelters designed to fool the IRS into thinking they were legitimate.  These tax shelters gave the appearance to the IRS that wealthy individuals had sustained losses that would then prevent them from paying government taxes.  The defendants also participated in these schemes and, over the course of ten years, produced over $7.3 billion in false and fraudulent tax losses.

The attorneys and CPAs convinced their clients that if the IRS came a'knocking, they were protected by letters from the firm.

In these days of intense government spending, uncertain tax futures, and high unemployment, the last thing we need is licensed individuals in positions of trust fleecing the government.  I know that every profession has its bad apples, but these lawyers who allegedly acted in this way took it to an entirely new level.

Read the press release here.


This blog is prepared by a paralegal student as a class project, without compensation. The content of this blog contains my opinion, and is offered for personal interest without warranty of any kind. Comments posted by others on this blog are the responsibility of the posters of those messages. The reader is solely responsible for verifying the content of this blog and any linked information. Content, sources, information, and links will most likely change over time. The content of this blog may not be construed as legal, medical, business, or personal advice.

Something's Fishy Around Here

Suppose that one day you or your company needs legal representation for some matter.  You are the person assigned to be in contact with legal counsel and her staff and as the case progresses (or doesn't in some instances), you suspect that the lawyer is not performing her job for any number of reasons.  What should you do?

1.  Attempt to minimize the damage caused by the attorney.  You can request that the attorney take action to remedy her error and then seek a second opinion from another attorney.

2.  Contact a legal malpractice attorney.  Before stomping into your attorney's office in a tirade, sit down with another attorney who knows how to handle the preservation of evidence and the rules of the court.  Wouldn't it be great is the former attorney destroyed all paper records and wiped her hard drives clean?  While files would still be recoverable, it would be at great time and cost.

3.  Obtain a copy of your file.  Every client is entitled to the original copy of his or her file.  The attorney may make a copy, but it must be at her expense.  A good malpractice lawyer will handle this for you.

4.  Participate in the malpractice case.  You will meet with the malpractice attorneys initially and may have to attend a deposition and trial if the case is not settled out of court.

Most legal malpractice attorneys are on contingency fees, meaning that they do not get paid unless they win money for their client, you.  This makes filing a claim cost less at the outset.

The following claims may be considered malpractice:

• Failure to follow a statute of limitations
• Failure to follow other important court deadlines
• Failure to handle client funds properly
• Failure to recuse oneself from a case when a conflict of interest arises
• Failure to prosecute a case resulting in dismissal
• Failure to act in a competent and experienced manner
• Failure to advise the client of his of her options
• Failure to gather the needed evidence to prosecute a case

Remember, attorneys, even good ones, make mistakes.  However, when it affects the outcome of your case you may want to pursue action for malpractice.  Contact a knowledgeable attorney before you take action.

Sources:

Simeone Miller

Fred B Goldberg

Salvi Maher

American Bar Association

This blog is prepared by a paralegal student as a class project, without compensation. The content of this blog contains my opinion, and is offered for personal interest without warranty of any kind. Comments posted by others on this blog are the responsibility of the posters of those messages. The reader is solely responsible for verifying the content of this blog and any linked information. Content, sources, information, and links will most likely change over time. The content of this blog may not be construed as legal, medical, business, or personal advice.

All in the Family

We have all learned in Ethics that it is unethical for a lawyer to represent both sides.  What if it is family and everyone trusts each other?  Would you still go through the trouble of obtaining your own legal counsel to do business with your parents?  The more I read, the more I know that I would.  No matter how good your relationship is with your family people sometimes make poor judgments that hurt others.  The following family learned this lesson the hard way:

In this case the plaintiff was working on a deal to sell his business to his son and daughter-in-law.  The purchase price would be calculated according to the profits of the business when it was under the control of his son.  The dilemma comes with the entrance of the attorney.  Not only was the attorney representing both parties, but he was also a member of the board of directors for the company.

The plaintiff alleged that the attorney failed to share information with him that showed the son and daughter-in-law participated in unauthorized actions to lower the value of the company.  The plaintiff's case was brought to trial and the presiding judge determined that the attorney had engaged in misconduct.

If you are interested in reading the case, the cite is:   50 A.D.3d 667.

The lesson learned in this instance is to take precautions in business, even when dealing with family members.

Legal Malpractice Article

This blog is prepared by a paralegal student as a class project, without compensation. The content of this blog contains my opinion, and is offered for personal interest without warranty of any kind. Comments posted by others on this blog are the responsibility of the posters of those messages. The reader is solely responsible for verifying the content of this blog and any linked information. Content, sources, information, and links will most likely change over time. The content of this blog may not be construed as legal, medical, business, or personal advice.

Follow My Lead

There is a common discussion among my classmates about who would like to go on to law school and become a licensed attorney.  I applaud those who have the desire and sincerely wish them the best in the pursuit of their dreams.  I, however, have no desire at this time to become an attorney. One of the largest reasons for this apparent complacency is the amount of responsibility that lawyers have.

No doubt, paralegals carry a great deal of responsibility, but they are always under the supervision of an attorney (at least in Ohio).  I like having the confidence that my work is checked (theoretically, at least) by an attorney who probably knows more about the law than me.  However, paralegals must be careful to make sure that their supervising attorneys are asking them only to perform tasks that are ethical.

 We are back in Norwalk, Connecticut this week (what is it about that town?), but this time with a different scenario.  In this instance, the attorney, Francis DiScala, asked his paralegal to help in deceiving two different clients.  First, DiScala asked his paralegal to cover up portions of a document that notified the client that she was entitled to independent counsel and had the right to sue for malpractice.  The client signed the document with no knowledge of her rights in these two areas.  Second, DiScala failed to file a complaint before the statute of limitations ran out on a different client's claim.  DiScala had his paralegal cover the same portions of the document as before when the second client signed.  DiScala also misled the client and told her he had actually settled the case and paid her $15,000 out of the firm's expense account.

 

DiScala was reprimanded by the Connecticut Statewide Greivance Committee but is still able to practice law.  The complaints can both be found here.

Now, if you were the paralegal and your supervising attorney asked you to do something you knew was unethical, how would you handle it?

The attorney has to run a business and keep making money to keep the doors open; the paralegal has bills to pay and wants to keep her job.  What would you do?

This blog is prepared by a paralegal student as a class project, without compensation. The content of this blog contains my opinion, and is offered for personal interest without warranty of any kind. Comments posted by others on this blog are the responsibility of the posters of those messages. The reader is solely responsible for verifying the content of this blog and any linked information. Content, sources, information, and links will most likely change over time. The content of this blog may not be construed as legal, medical, business, or personal advice.

Real Estate Lawyers

     If you have ever purchased or sold a home you may worked with a lawyer.  Many individuals do not, but it is always a good idea to procure the services of an attorney because both the seller and the buyer have different interests in the transaction.

     Imagine going to a lawyer for counsel on the sale of your home and the firm helps you in obtaining the best deal with a buyer.  You sell the home and purchase another with those proceeds.  Then, seemingly out of the blue, you get mail demanding payment for the mortgage on your previous home, which, to your knowledge, had already been sold.  This unfortunate story happened to Kimberly Drosos or Norwalk, Connecticut.  At the time the article was written in the New York Times (which you can find here), Drosos was fighting to get her old house paid off.  The firm she hired to aid in the real estate transaction claims poor bookkeeping was at fault but the attorneys on the case were charged with first-degree larceny and conspiracy to commit larceny.  At a subsequent hearing, which neither the attorneys nor Drosos attended, the Superior Court of Connecticut denied summary judgment for Drosos because in her brief she failed to establish that she had a relationship with the defendants and that their negligence proximately resulted in damages.  The court suggested Drosos appeal and more clearly state the grounds on which her complaint was based.  The cite for this decision is:  2006 Conn. Super. LEXIS 3446.  At this time, Drosos has not appealed.

     Even if the attorneys did not act out of malice, is their failure to pay off Drosos’ mortgage negligence?  I tend to think so.  The attornys failed to perform competently and complete the job that Drosos expected them to do.  Of course there are legal technicalities to overcome in this conclusion but in a similar situation, we would all expect our attorneys to finalize the sale.

     Paralegals!  Make sure you and your office are organized!  Help set up systems so that well-meaning legal professionals do not hurt clients in such grievous ways.

This blog is prepared by a paralegal student as a class project, without compensation. The content of this blog contains my opinion, and is offered for personal interest without warranty of any kind. Comments posted by others on this blog are the responsibility of the posters of those messages. The reader is solely responsible for verifying the content of this blog and any linked information. Content, sources, information, and links will most likely change over time. The content of this blog may not be construed as legal, medical, business, or personal advice.

Week of 9/26

Attorney and paralegal misconduct

Unauthorized practice of law.

Padding client bills.

Failure to act competently.

Improperly influence a government official.

Engage in dishonest conduct.

These are just a few ways in which lawyers or paralegals can misbehave within their professions.  As in any field, there are individuals who perform with the utmost honesty and integrity, and others who give the profession a poor name.  In this blog, we will examine those attorneys who have stepped over to the metaphorical dark side.  We must also remember, though that each of us may be tempted at some point in our careers to act unethically, or may be put in a position in which we have to remind a co-worker or boss of their ethical duties.

So what makes an attorney or paralegal go bad (or make an ethical mistake)?  For some it may be a long time coming.  For others it was moment of poor judgment.  For still others it might be the temptation of money or power.

One Ohio attorney was indefinitely suspended form the practice of law by the Ohio Supreme Court for transferring money from an estate for which he was the executor.  In a series of eight checks he transferred nearly $10,000 into a personal account.  For that crime, he lost the ability to work in his career until all the money was returned and his reinstatement was approved.  Sign in to Lexis to find the case here.

While the power of money is strong, the loss of one’s profession and respect in that career is much more valuable.

This blog is prepared by a paralegal student as a class project, without compensation. The content of this blog contains my opinion, and is offered for personal interest without warranty of any kind. Comments posted by others on this blog are the responsibility of the posters of those messages. The reader is solely responsible for verifying the content of this blog and any linked information. Content, sources, information, and links will most likely change over time. The content of this blog may not be construed as legal, medical, business, or personal advice.