Success By the Book

Reposted by request:

As an LDA I employ my paralegal skills and experience and follow ALDAP's business practices model to remain in compliance while helping my clients.

I received a follow-up phone call today from a client who came to me several months ago with a desire to file an appeal of his Superior Court case. He had formerly been represented by counsel and that counsel failed to show up at a MSJ hearing and my client was sanctioned and the defendants prevailed.

This is a client I blogged about previously ("Bo") as he had, prior to meeting me, hired a rogue document preparer who held himself out as an unlicensed attorney, to prepare his appeal. After learning that his designation had been rejected three times and after a review of the San Diego Superior Court's file, my client realized that the rogue had forged his signature on legal documents filed with the court, and that the guy was basically taking him for a ride having charged him $1,200 for a notice of appeal and the designation documents.

Since his case concerned his home and his mortgage, I was uncertain if I could legitimately help him, at least to the extent he required. My first concern was whether or not he could withstand the pressure of preparation of an opening brief complete with case law, etc.

We discussed his level of competence and comprehension and we agreed that I would provide him with the procedural information which he would read and then we would see where to go from there. I did so and he was ready to commence preparation of his brief believing that he was able to adequately represent himself and write his own brief.

During the next few days my client realized that self representation was not as easy as it appeared on television and that the brief he was to create was not a simple task. He called and asked me questions like "Can you do the introduction, I don't know what to put?" He asked me to pull cases that match his particular situation. He called several times a day always asking for me to do the brief for him or start it for him or to help him write it. This, I explained, I cannot do.

Finally, I recommended that he pay an attorney to write the brief. He did not want to hire yet another attorney, but I admonished him that the writing of the brief was obviously not within his ability and it was definitely not within the scope of services I could or would provide. I explained that paying legal counsel to help now would be better than losing and then retaining counsel to figure out why or to help repair any damage self representation could bring. I referred him to legal counsel who was willing to assist him with the brief and not kill him with a $300 an hour rate.

A few weeks later I received a call from my client who had been instructed by the attorney to file a motion to augment the record. I once again provided him with the rules of court and procedural information so that he could reasonably fashion his motion. He fashioned; I typed, filed, and served the motion - he prevailed!

He was overjoyed and ready to take on the big guys. I warned him that this was merely a battle in the war and not to get too cocky about the win, "One must not tempt fate."

I received the rough draft of the brief from his "ghost writing" attorney and after edits, formatting and preparation of the TOC and TOA, we sent it off to all. OC filed its responsive brief some time later and we waited. My client decided, against counsel's advise, to request oral argument. He appeared, argued and we waited some more.

Today the email notification from the court dropped into my inbox. It stated that my client's case was remanded back to Superior Court and he shall receive another turn at bat. I called my "now former" client and we discussed the win. I told him how proud I was of him taking on the big law firm on principle and that his drive and determination were the main factors in his win. He thanked me yet again for all my help and said that he would not have won if he would not have met me; that I helped him find counsel to write the brief and that my support and the information I provided to him in the form of rules, procedures, samples, etc. allowed him to adequately and properly represent himself. He said that he knew he didn't have a chance at prevailing until he met me - the person who convinced him that the case involved his life savings and his home and that he needed more help than what I alone could provide.

This is a duty of a legal document assistant. We are not attorneys. We might have a grasp of legal issues and remedies, but ABSOLUTELY NOT to the extent that we should be advising our clients on how to proceed or write their materials for them. It is our obligation - and it is the law - that we advise potential clients of any need for legal counsel. It is morally proper and any non-attorney legal service provider who acts independently on behalf of a client lacks integrity and is flirting with loss of bonding which is a requirement of registration.

As I always tell any callers who are confused about what to do or where to go - get yourself the legal advice from a licensed attorney who is competent, then return to me when you can provide instruction. Front-load the legal advice - do not wait until after you file documents and appear at a hearing and then learn all your money, time and trouble were for naught. Do it first so that you are not spinning your wheels. I tell them, "I will take your money - heck anyone will take your money - but spend it wisely. Use forethought and prudence and talk to an attorney who will advise you properly before undertaking serious legal matters."

This I know to be true: An educated client is a successful litigant. A successful litigant/client is a perfect source of enthusiastic referrals.

San Diego County Public Law Library Honors John Adam's Legacy With Free Legal Clinics During Law Week

In partnership with the San Diego County Bar Association, Foothills Bar Association, and North County Bar Association, volunteer attorneys will be available for free consultations at the San Diego Law Library. The free legal clinics will be held:

o May 2 (Monday), 12:00 p.m. - 4:00 p.m., South Bay branch
o May 6 (Friday), 9:00 a.m. - 4:00 p.m., East County branch
o May 6 (Friday), 9:00 a.m. - 12:00 p.m. and 1:00 p.m. - 4:00 p.m., North County
branch

Free legal advice in specialty practice areas may include criminal law, family law, estate and probate, real estate and general civil law. Consultations will be on a first come, first served basis and will not include ongoing attorney representation.

Draft Model California LDA Legislative Changes

Tom Gordon, of Responsive Law, met with myself and Suzanne Bowlby to discuss changes to California's B&P 6400 - the LDA law. We provided our input as to the seeming "failures" in the existing code and Mr. Gordon later provided us with the following rough draft of proposed model legislation drafted using Arizona's existing statute and input from our meeting and from legal document preparers in other states. At this time, there is no set target date for introduction of proposed legislation, but we are hoping to have it (in some form) before the legislators in time for the 2012 session. We are asking for comments from anyone interested in legislation so that we may prepare a written and comprehensive response to Mr. Gordon's request for input from California LDAs and Paralegals.

We would like to know what you think. Should we make an effort to change the legislation? Is this playing with fire? Do you have any comments, modifications, additions or deletions you would like to see? What are your thoughts?
________________

DRAFT MODEL STATE LEGAL TECHNICIAN LEGISLATION

NOTE: This rough draft of model legal technician legislation is based largely on the Arizona Legal Document Preparer (LDP) statute, with input from the California statute and the proposed Washington state framework as well. We have chosen the term “legal technician” for ease in drafting, and because it may impute some additional respect to the profession.


Purposes

The purpose of the legal technician program is to expand low-cost services in non-contested legal matters in which parties are unrepresented by providing opportunity and fair administration for legal technicians, while affording a high degree of consumer protection through accountability and quality of service.

Section 1: Legal Technician

A. Definitions. The following definitions shall apply:

“Board” means the Board of Legal Technicians.

“Designated principal” means the individual associated with a certified business entity, on file with the board, who is a certified legal technician and is responsible for supervising all certified legal technicians, trainees and staff working for the business.

“Legal technician” means an individual or business entity certified pursuant to this section to prepare or provide legal documents, without the supervision of an attorney, for an entity or a member of the public who is engaging in self-representation in any legal matter. An individual or business entity whose assistance consists merely of secretarial or receptionist services is not a legal technician.

“Trainee” means a person who would qualify for certification as a legal technician but for the lack of required experience, and who is seeking to gain the required experience to qualify as a certified legal technician by working under the supervision of a designated principal, on behalf of a certified business entity, to perform authorized services, as set forth in this section.

B. Applicability. In order to qualify to provide legal document preparation services under this section, legal technicians and business entities that provide legal document preparation services shall hold valid certification and perform their duties in accordance with this Chapter.

C. Administration.

1. The Board of Legal Technicians is established. (1) The board shall certify and recertify qualified applicants and shall make determinations regarding disciplinary proceedings. The board shall oversee a staff to administer the program. (2)

2. Establishment and Administration of Fund. The board shall establish a legal technician fund consisting of monies received for certification fees, costs and civil penalties. The board shall administer the legal technician fund and shall receive and expend monies from the fund.


D. Certification. The following requirements apply:

1. Eligibility Individual Standard Certification.

a. The board shall issue certification to an applicant for Individual Certification who provides or shows proof of each of the following: (3)

i. Age. An applicant must be at least eighteen years of age;

ii. Good standing. An applicant must show that he or she is not an individual whose application has been denied or whose individual certificate has been revoked by the board, except that the board may grant the application of such an individual if the board reviews the application of the applicant during a board meeting and is satisfied the applicant meets the requirements of this section, and by majority vote of the board, allows certification of the applicant. (4)

iii. Education or Experience. The applicant shall also possess one of the following combinations of education or experience:

1. Option 1. A two-year associates degree from an accredited college or university and a minimum of two years of law-related experience under the supervision of a licensed attorney; under the supervision of a certified legal technician; or as court employee; or completed independently before this law took effect; or in a combination of any of the above.

2. Option 2. A four-year bachelor of arts or bachelor of science degree from an accredited college or university and a minimum of one year of law-related experience under the supervision of a licensed attorney; under the supervision of a certified legal technician; as a court employee; or completed independently before this law took effect; or in a combination of any of the above.

3. Option 3. A minimum of three years of law-related experience under the supervision of a licensed attorney; under the supervision of a certified legal technician; as a court employee; or completed independently before this law took effect; or in a combination of any of the above.

4. Option 4. A certificate of completion from a paralegal or legal assistant program approved by the American Bar Association or that is institutionally accredited, that requires successful completion of a minimum of 24 semester units, or the equivalent, in legal specialization courses, with a grade of “C” or better, or a pass in a pass/fail program;

5. Option 5. A certificate of completion from an accredited educational program designed specifically to qualify a person for certification as a legal technician under this section;

6. Option 6. The successful completion of eight semester units from a law school institutionally accredited or accredited by the American Bar Association or the bar association of this state, with a grade of “C” or better, or a pass in a pass/fail program.

b. An applicant who is denied certification by the board may exercise the right to a hearing by the board.

2. Eligibility for Business Entity Standard Certification.

a. All corporations, limited liability companies, partnerships, and all sole proprietorships that offer authorized legal document preparation services to parties and employ more than one certified legal technician, or supervise trainees, shall obtain certification as a business entity.

b. The business entity shall designate a certified individual legal technician as a principal pursuant to this section. The designated principal shall have the following duties and responsibilities:

i. Prepare and submit, with the business entity application, and by [Month] [Date] (5) of each year, a list of all certified legal technicians and trainees acting on behalf of the business entity;

ii. Actively and directly supervise all other certified legal technicians, trainees, and staff working for the certified business entity; and

iii. Represent the business entity, at the discretion of the entity, in any proceeding under this section.

c. In the event a designated principal is no longer able or willing to serve as the principal, a certified business entity shall immediately designate another certified individual legal technician as the new designated principal and file an updated designated principal form with the division staff.

d. If the status of an individual certificate holder changes from being associated with a business entity, the legal technician shall notify the division staff in writing.

e. The owner or officers of a certified legal technician business entity are not required to hold individual certification, provided the business entity has a designated principal who holds valid individual certification as a legal technician. (6)

f. A person whose individual application has been denied or revoked by the board without being later granted or reinstated may not hold ownership interest in a certified legal technician business.

3. Trainees. A certified business entity may employ a person who would qualify for certification as a legal technician but for the lack of required experience. A designated principal may train the employee to perform services authorized by this section until such time as the trainee meets the minimum eligibility requirements for individual certification. (7) Any designated principal who undertakes to train an employee shall:

a. Supervise the quality of and guide the trainee’s work;

b. Ensure the trainee is familiar with and adheres to this Chapter;

c. Provide the designated principal’s name and certificate number on any documents prepared by the trainee under the designated principal’s supervision; and

d. Prepare and submit to the board the name, address, start date of the trainee, and the anticipated date the trainee will meet the minimum eligibility requirements to seek individual certification. (8)

4. Eligibility for Online Legal Technicians.

a. To provide legal technician services to any customer in [this state], an online provider of legal technician services must:

i. Establish a designated principal who is a certified individual legal technician under this Chapter and who is responsible for receiving service of process in the state and ensuring that the online legal technician service provider complies with all applicable provisions.

ii. Comply with all applicable codes of conduct ethical and professional responsibility standards under this chapter, including that an online legal technician service must:

1. Clearly and unequivocally state in prominent locations throughout the website and on every downloadable form that an attorney-client relationship is not created, nor is any privilege associated with that relationship.

2. Provide on the website in clear and simple terms the nature of the services provided, and the role of all attorneys, legal technicians, other personnel and automated systems in providing, preparing and submitting legal documents.

3. Provide clearly and prominently the current certification and legal technician certification number for [this state].

E. Role and Responsibilities of Certificate Holders.

1. Authorized Services. A certified legal technician is authorized to provide all of the following services for any individual or entity:

a. Prepare, provide, or select legal documents for customers;

b. Provide general legal information pertaining to legal rights, procedures, or options available, but may not provide any kind of specific advice, opinion, or recommendation to a consumer about possible legal rights, remedies, defenses, options, or strategies;

c. Review forms and filings for completeness, spelling and grammar, as well as internal consistency of names, addresses and other similar information. A legal technician may not review forms for legal sufficiency, draw legal conclusions, or apply the law to the facts of a particular situation.

d. File and arrange for service of legal forms and documents for a person in a legal matter.

2. Code of Conduct.

a. Identification. All documents prepared by a legal technician shall include: the legal technician’s name; the title “Certified Legal Technician;” the legal technician’s certificate number; and the business entity name and certificate number where applicable.(9)

b. Ethics and Professionalism. (10)

i. A legal technician shall avoid impropriety and the appearance of impropriety in all activities, shall respect and comply with the laws, and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the legal and judicial systems.

ii. A legal technician shall refrain from knowingly making misleading, untrue, or fraudulent representations while assisting a consumer in the preparation of legal documents, and shall observe the highest standards of integrity and truthfulness in all professional dealings.

iii. A legal technician shall treat information received from the consumer as confidential, yet recognize and acknowledge that the privilege of attorney-client confidential communications is not extended to certified legal technicians.

iv. A legal technician shall not represent that they are authorized to practice law in [this state], nor shall the legal technician provide legal advice or services to another by expressing opinions, either verbal or written, about possible legal rights, remedies, defenses, options, or strategies, or by representing another in a judicial, quasi-judicial, or administrative proceeding, or other formal dispute resolution process.

v. A legal technician shall inform the consumer in writing that a legal technician is not a lawyer, is not employed by a lawyer, and cannot give legal advice, and that communications with a legal technician are confidential but not privileged.(11)

vi. A legal technician shall not use the designations “lawyer,” “attorney at law,” “counselor at law,” “law office,” “JD,” “Esq.,” or other equivalent words, the use of which is reasonably likely to induce others to believe the legal technician is authorized to engage in the practice of law in this state.

c. Fees and Services.

i. A legal technician shall provide in writing an itemization of all rates and charges to that consumer.

d. Skills and Practice.

i. A legal technician may consult and involve other professionals in order to assist the consumer, while protecting the confidentiality of his or her consumers to the extent possible. (12)

ii. A legal technician shall provide completed documents to a consumer in a timely manner, and shall meet document preparation deadlines in accordance with rules, statutes, court orders, or agreements with the parties. A legal technician shall provide immediate notification to the consumer of any delays.

iii. A legal technician shall accept only those assignments for which the legal technician’s level of competence will result in the preparation of an accurate document.

iv. A legal technician shall not at any time engage in the unauthorized practice of law.

F. Renewal of Certification. All standard certifications expire at midnight, on [Month][Day] of each odd numbered year.(13) Renewal fees are due before this date.

G. Complaints, Investigation, Disciplinary Proceedings and Certification and Disciplinary Hearings.(14)

1. Grounds for Discipline. A certificate holder is subject to disciplinary action if the board finds the certificate holder has:

a. Failed to perform any duty to discharge any obligation in the course of the certificate holder’s responsibilities as required by law or has failed to comply with any ethical or skills and practice standards;

b. Aided or assisted another person or business entity to provide services requiring certification if the other person or entity does not hold the required certification;

c. Been convicted of a criminal offense while certified by final judgment of a felony relevant to certification or failed to provide information regarding a criminal conviction;

d. Exhibited gross negligence or incompetence in the performance of duties;

e. Evaded service of a subpoena or notice or failed to cooperate with or supply information to the staff or board.

2. Filing of complaint. Any person may(15) file a complaint with the division staff if it appears a certificate holder has violated statutes, court rules, or this Chapter. The complaint shall be in writing with sufficient specificity to warrant further investigation. The complaint form shall provide the name, telephone number and address of the complainant.

3. The division staff shall immediately dismiss any complaint lacking any of the above information, or if a complaint fails to establish jurisdiction of the board.(16)

4. Standing of Complainant. A complainant does not have standing regarding any proceedings and is not a party to any proceedings. The complainant may, upon request, receive notice of public proceeding concerning the complaint. Failure by division staff to provide the complainant with information as required by this subsection shall not affect the ultimate disposition of any proceedings.

5. Investigative Subpoenas. Upon a demonstration of good cause, the board may issue an investigative subpoena to any person or entity for documents or information related to a pending investigation over which the board has jurisdiction.

6. Resolution of Complaints and Investigations. The division may resolve a complaint by:

a. Dismissing the complaint.

b. Resolving the complaint through a formal discipline proceeding. Formal Disciplinary Proceedings:

i. Provide the certificate holder the right to a hearing;

ii. May result in sanctions, including costs and civil penalties; and

iii. Are not confidential.

7. Public Availability of Certification and Discipline.

a. The board shall maintain an accurate, up-to-date list of all currently certified legal technicians and the disciplinary records of each available to the public.

H. Fee Schedule.

1. Certification for each two year certification period $[] (17)

2. Business Entity Certification for Two Year Certification Period $[]

3. Inactive Status $[]

4. Late Renewal $ []


______________________________
Notes:
(1) In Arizona and Washington (proposed), the Supreme Court oversees the administration of LT programs, but LTs are not providing legal services, so it is not clear that the SC in any state should have jurisdiction over them. Some administration is necessary, but it seems that a competent board should be sufficient. In Arizona, the SC serves as the last review board for certification decisions, but it seems that applicants and LTs will have adequate due process through a board procedure and the typical redress to courts. It may be necessary to include in the law that the “final” decision from the board is the necessary final step in exhausting administrative remedies before any claim can be brought in court.
(2) In Arizona, the board is comprised of an attorney, a judge and a member appointed by the Supreme Court; that level of detail seems unnecessary in model legislation.
(3) Arizona also requires an applicant to furnish fingerprints for a criminal background investigation, have good moral character, and be a citizen or legal resident. As far as the moral character and criminal background check go, including them adds to the complexity and cost of administration, and requires further regulations to determine what constitutes “moral character,” and what in a criminal background check would be disqualifying, unless these decisions are left to the board without additional guidance. Requiring legal citizenship or residency injects a political message without consumer benefit, so it has also been omitted here.
(4) Arizona also requires that an applicant show that he or she is not an individual who has been disbarred by the highest court in any state, without reinstatement, except that the board may grant the application of such an individual if: The board reviews the application of the applicant during a board meeting and is satisfied the applicant meets the requirements of this section, and by majority vote of the board in public session, allows certification of the applicant. Given the various possible reasons for disbarment, not all of which may be relevant to competence as an LT, and given a preference for autonomy of the LT profession from the bar, this requirement has been omitted.
(5) As with its recertification standards, which are required on the same date each year for all LTs, regardless of when they became certified, Arizona’s single deadline for other administrative requirements is a smart move that conserves resources for the state and results in clarity for LTs.
(6) This provision allows out-of-state businesses to operate within the state; it also allows large entities run by non-LTs to provide services.
(7) Arizona allows a trainee to work as a trainee for only two and a half years, which seems designed to prevent the creation of a permanent “trainee” position. Allowing more than the six month leeway they allow might be a more balanced approach and, for example, allow women to enter the field and count their training, even after they have left for maternity leave or other reasons. There are analogous provisions under the ABA for completing law school within a certain number of semesters, but there do not appear to be analogous provisions in California for apprenticing attorneys (those who do not go to law school before taking the bar exam), which seems to be a more applicable analogy.
(8) Arizona also requires a certificate holder who has been disbarred from the practice of law in any state since original certification as a legal technician to tell the board within 30 days of service of the notice of the disbarment. Arizona also requires a certificate holder who has been denied admission to the practice of law in Arizona since original certification as a legal technician to provide the information regarding the denial to the board within 30 days of service of the notice of the denial. These requirements correspond to Arizona’s requirements that someone who has been disbarred in any state, or who has been denied admission to the AZ board must have a special hearing before being certified as an LDP.
(9) Arizona requires that an LDP shall provide their name, title and certificate number to any person upon request, which seems odd and overbroad. I also think the nonjudicial agency language is quite odd, and am unsure of a case in which this would be applicable. It’s also strange to expressly require for a nonjudicial agency to prohibit the posting of a name and ID number, but not to include a court, which presumably an LT would have to listen to.
(10) Arizona has a number of detailed ethics requirements that are summed up in this shortened list.
(11) The reference to confidentiality is new.
(12) This reference to confidentiality is also new.
(13) Establishing deadlines may reach a level of detail we don’t need to incorporate in our model legislation. If we do want to incorporate it, it seems like establishing one date per year rather than a rolling admissions/recertification system minimizes the level of bureaucracy throughout the year and results in clarity for LTs.
(14) Legal technician professional associations may provide much of the needed oversight and structure for disciplinary proceedings, as will general market forces. Arizona’s complaint and disciplinary proceedings provisions are exceedingly detailed. This section is designed to provide a loose framework for such proceedings, that state can work into its existing structures.
(15) Arizona requires all judicial officers, court employees and certificate holders to file complaints with the board; we removed that requirement, as it is nearly impossible to monitor, and in the hopes that an aggrieved consumer would stand up for themselves and file a complaint if other mechanisms (such as a refund) are not sufficient to remedy any wrongs. One could envision a situation in which a consumer is wronged by inadequate services provided by an LT, and the consumer does not realize or is otherwise unable to report on the LT’s failures. In such a case, it is possible a court employee’s reporting would be valuable. To address this, the model legislation does not bar such reporting, but simply don’t require it. In general, allowing the market and private interactions to solve disputes seems like the more efficient and likely more satisfying option, and one that uses fewer state resources.
(16) Arizona allows the board to retain authority after expiration of a certificate, to initiate a complaint, direct division staff to investigate a complaint, or take disciplinary action regarding the certification of a certificate. This is unnecessary; if a person has a claim for damages against an LT whose license has expired, the person can bring a claim against them. The board should not retain jurisdiction over someone whose certification has expired.
(17) In 2009, Arizona’s fee was $650 every two years, or $325 per year. California’s was $175 plus the bond requirement. Since we require a bond in the model legislation, a smaller fee seems warranted. However, for model legislation purposes, including an actual number does not seem necessary.

San Diego County Public Law Library Offers Free MCLE

F-r-e-e MCLE March 17, 2011

Upside Down House, in Debt, Oh My!


This week The San Diego County Public Law Library - South Branch is offering a fabulous class on debtors’ rights at our South Bay branch. Learn what options debtors have when dealing with a house that is upside down and how to evaluate the best approach. In this class we will explore options for loan modification, short sale, foreclosure, bankruptcy and litigation.

The class is free to Law Library members and $5 for non-members. Pre-registration is required as seating is limited. Please sign up by calling (619) 691-4929.

Foreclosure, Bankruptcy and Litigation: Understand your Rights!
by Ajay Gupta, Esq.
Thursday, March 17, 2011
12:00 -1:00 pm

1 hour MCLE credit, General Participatory

Sacramento County Public Law Library Offers MCLE

Microsoft® EXCEL 2007 for
Legal Professionals: PART B:
Large Worksheets, Charts/Graphs and Advanced Formulas & Functions

April 1, 2011 (Friday) 1:30pm to 4:00pm
Instructor: Cheri Boyer

This 2.5 hour advanced course will cover the more sophisticated features found in Excel 2007. You will learn how to link pages in worksheets, create charts and graphs, and how to work with advanced functions and formulas to help calculate values for settlement offers, outline damages, and even generate potential business deals.

2.5 hours MCLE credit Register online

Sacramento County Public Law Library Offers Course on Intellectual Property

Ins & Outs of Intellectual Property Law

March 30, 2011 2:00 PM to 4:00 PM
Instructor: Jim H. Salter, L O of Jim H. Salter

Intellectual property is a property right protected under federal and state law. IP includes copyrightable works, ideas, discoveries, and inventions related to intangible property such as patents, trademarks, copyrights, and trade secrets.
Jim H. Salter, expert witness and litigation support counsel, will address legal issues surrounding the rights of ownership of patents, trade secrets, trade dress, service marks or trademarks, and the legal or illegal use of this property.

2-hours MCLE credit Register HERE: $55.00

Use your MasterCard® or VISA® to register online at www.saclaw.org. Parking validation available for the City of Sacramento two-story parking structure, entrance on G Street & 7th. Bring your parking receipt and we will validate for time spent in this class.

Sacramento County Public Law Library Offers 2 Hours MCLE

Legal Forms and Pleadings

"How To"

March 16, 2011 (Wednesday) 2:00 pm to 4:00 pm

Instructors: SCPLL Law Librarians

This hands-on computer course will cover preparation of pleadings and other legal forms, and will demonstrate how you can locate these resources in the Sacramento County Public Law Library.

2 hours MCLE credit $30.00 Register at www.saclaw.org

ALDAP Seeks Comments on Proposed Amendments to LDA Statutes

ALDAP is seeking your comments on California Business and Professions Code section 6400 et seq. (California's LDA statutes). It is our desire to create an open discussion related to the statutes governing non-attorneys in the State of California. What needs changing? What should remain the same? Are there any portions that should be struck? Added? After ten years, we wish to re-examine the legislation surrounding our industry and seek improvements to the existing laws.

Since its inception, ALDAP's main focus and efforts have been on issues related to compliance associated with the failure to comply with B&P 6400 by non-attorney document preparers ("rogues") and a common lack of compliance with the regulations by registered legal document preparers.

Our efforts has proven that grievous harm to consumers by these individuals and companies has gone and will remain ignored by law enforcement.

For the past ten years, LDAs have regularly questioned just how to enforce the statutes governing LDAs. LDAs are governed by the Department of Consumer Affairs pursuant to California Business and Professions Code section 101.6 which provides that the DCA is “established for the purpose of ensuring that those private businesses and professions deemed to engage in activities which have potential impact upon the public health, safety, and welfare are adequately regulated in order to protect the people of California.”

Toward this end, the DCA is to “establish minimum qualifications and levels of competency and license persons desiring to engage in the occupations they regulate upon determining that such persons possess the requisite skills and qualifications necessary to provide safe and effective services to the public, or register or otherwise certify persons in order to identify practitioners and ensure performance according to set and accepted professional standards. They (DCA) provide a means for redress of grievances by investigating allegations of unprofessional conduct, incompetence, fraudulent action, or unlawful activity brought to their attention by members of the public and institute disciplinary action against persons licensed or registered under the provisions of this code when such action is warranted. In addition, they conduct periodic checks of licensees, registrants, or otherwise certified persons in order to ensure compliance with the relevant sections of this code.” (emphasis added).

ALDAP has noted that its complaints have been pushed aside by the DCA with referrals to local law enforcement. ALDAP has also received correspondence from local law enforcement denying responsibility for enforcement. Local District Attorneys have ignored complaints and the California State Bar responded that it is "maintaining a file." Now, these complaints were not of a minor nature, but rather, included forgery, UPL, transfer of real properties for no apparent reason other than to charge fees, exorbitant fees for the work performed, and failure to use the required LDA contract. One such case even included fraudulent statements by the rogue that he was, indeed, an attorney, just not licensed in California.

ALDAP's complaints were supported by client declarations, reams of documented proof and our own declarations based on office sting operations. Apparently, legislated consumer protections are merely a ruse.

California's economic downturn created burdens and challenges. Local district attorneys offer that there are much more egregious crimes to be investigated and that the statute of limitations on fraud is short. Time and budget constraints limit law enforcement investigation. However, ALDAP frequently receives calls and emails from harmed consumers begging us to help them. There is nothing we can do, aside from guiding the harmed consumer to the proper authorities. Unfortunately, with the exception of a civil suit, consumers are left with little recourse. Reputable LDAs also suffer as a result of consumer skepticism and distrust.

ALDAP intends to change up its methodologies in order to enforce the regulations governing the LDA industry and to attain the level of professionalism that we deserve. ALDAP is working with other state and national associations to create proposed amendments to the current legislation to enhance the role of the LDA and to clear up the “gray” provisions that exist and cloud efforts to enforce the laws. It appears that if we do not do it ourselves, we may never receive professional recognition. As a matter of fact, the Elkins Family Law Task Force reported that until LDA compliance is assured, it could not recommend use of LDAs to our court users.

Many states are reviewing non-attorney document preparers as a viable alternative to the high cost of attorney fees. Hawaii, after a failed attempt to broaden its definition of the practice of law to exclude document preparers and other legal document professionals, will soon be reviewing proposed legislation allowing for legal document preparers, but with strict guidelines.

ALDAP believes California should be THE model for other states. Unfortunately, existing legislation leaves much to be desired. Violators are commonplace. Consumers continue to be harmed. Compliant LDAs are also harmed by those who fail to pony up the fees for a bond and registration. Consumers and reputable competent LDAs are harmed by those who have little knowledge of the preparation and processing of legal documents, knowledge of ethics, confidentiality, or the definition of UPL. It has commonly been acknowledged in the legal profession that a little bit of knowledge can be a dangerous thing. An LDA should have complete comprehension of how to assist a client without stepping on or over the line.

The following comprises a brief view of changes to existing legislation ALDAP's board has discussed:

Qualifications:

At present the minimum qualifications are that a person must have a high school diploma or general equivalency diploma, and either a minimum of two years of law-related experience under the supervision of a licensed attorney, or a minimum of two years experience, prior to January 1, 1999, providing self-help service – or a baccalaureate degree in any field and either a minimum of one year of law-related experience under the supervision of a licensed attorney, or a minimum of one year of experience, prior to January 1, 1999, providing self-help service.

ALDAP believes that in order to provide appropriate services, an LDA should have a legal background, including appropriate legal document preparation experience and knowledge of the rules of ethics and confidentiality in order to assist non-attorneys with their paperwork. With the current legislation, any person with a two year degree can work as a file clerk in a law firm and will therefore, qualify to assist consumers with legal document preparation. Consumers are not protected from LDAs who do not know what they are doing and who are taking advantage of consumers who may not know what they are doing. This can result in mistakes which could cost consumers rights and remedies. A paralegal or a legal secretary with a minimum of five years experience should have knowledge of published information and the court processes and in that regard, could properly assist a pro per court user on the finer nuances of procedure and document preparation through the use of published information and practice guides. This is ALDAP's Advantage(TM) business model which has proven over time to assist a pro se client by educating that client on the court rules, procedures and requirements. ALDAP would like to see the two minimum provisions deleted with additional qualifications to be added:

To be eligible to apply for registration under this chapter as a legal document assistant, the applicant shall possess at least one of the following:

(a) A certificate of completion from a paralegal program that is institutionally accredited but not approved by the American Bar Association, that requires successful completion of a minimum of 24 semester units, or the equivalent, in legal specialization courses.

(b) A certificate of completion from a paralegal program approved by the American Bar Association; or

(c) Five years documented experience working as a legal secretary or paralegal in a law firm.

Registration:

At present, the statutes require that “A legal document assistant, including any legal document assistant employed by a partnership or corporation, may not provide any self-help service for compensation, unless the legal document assistant is registered in the county in which his or her principal place of business is located and in any other county in which he or she performs acts for which registration is required. A legal document assistant or unlawful detainer assistant shall be registered pursuant to this chapter by the county clerk in the county in which his or her principal place of business is located (deemed primary registration), and in any other county in which he or she performs acts for which registration is required (deemed secondary registration). Any registration in a county, other than the county of the person's place of business, shall state the person's principal place of business and provide proof that the registrant has satisfied the bonding requirement of Section 6405. No person who has been disbarred or suspended from the practice of law pursuant to Article 6 (commencing with Section 6100) of Chapter 4 may, during the period of any disbarment or suspension, register as a legal document assistant or unlawful detainer assistant. The Department of Consumer Affairs shall develop the application required to be completed by a person for purposes of registration as a legal document assistant. The application shall specify the types of proof that the applicant shall provide to the county clerk in order to demonstrate qualifications and requirements of Section 6402.1.”

ALDAP intends to propose that LDAs be required to follow registration requirements similar to those of notaries or immigration consultants. LDAs should be required to register with the State of California Secretary of State and the SOS should govern the acts of LDAs. Further, LDAs should be required to undergo background reviews via the DOJ as is required of notaries and immigration consultants. The SOS has proven itself diligent in its compliance procedures. LDAs should not be required to hold multiple registrations to operate within the state of California. The SOS should maintain on online register of LDAs, to include name, business contact information, registration number and expiration date. The bond information should be included as well as a photo of the LDA. Identification cards should be issued. The LDA contract should be changed to reflect the location of this information in order for a consumer to independently research the LDA.

Outside Scope of Authority:

Existing language clearly employs the unlawful practice of law as follows: “A legal document assistant may not provide service to a client who requires assistance that exceeds the definition of self-help service in subdivision (d) of Section 6400, and shall inform the client that the client requires the services of an attorney.”

This language would suggest that an LDA make a determination that clearly requires the application of legal acumen. The language should be amended as follows: "A legal document assistant must inform each client that he or she cannot exceed the definition of self-help service and that the client should always consult with a licensed attorney prior to hiring a legal document assistant." The contract should also specify language to this effect in boldface, large font.

Legal Education:

ALDAP supports use of an ethics and basic legal document examination prior to issuance of a registration. ALDAP also supports the requirement that once an LDA is registered he or she must complete 12 hours minimum continuing education with 4 hours to be on the topic of ethics to be performed every two years. Documentation of CLE should be submitted with an application for re-issuance of registration.

Of course, ALDAP would include in its proposed amendment a "grandfather" clause for those LDAs who already maintain registration. The sunset date shall be upon the date of any proposed amendments becoming law.

Before we begin writing proposed amendments, ALDAP would appreciate your comments and questions. This is a huge task and ALDAP would appreciate input from others who may have comments concerning amending current legislation. Some LDAs may not wish for any changes to the statutes; others may wish for dramatic change. Please comment publicly here on The Scribe, or if you prefer, you may email your comments to Kathleen Mountjoy at Legislation@aldap.org or to Anna Taylor at Compliance@aldap.org.

Sacramento County Public Law Library Offers MCLE Course on Appellate Law (Emphasis in Family Law)

Appellate Law MCLE Credits: 1

Date: 03/04/11 Start Time: 2:30 PM End Time: 3:30 PM

Registration: $45.00

After receiving a final order in a client's case, challenging that decision or working to uphold the decision requires a thorough understanding of the Appellate Law process. This presentation will cover appellate law with an emphasis on appeals in the family law context. Topics will include appellate jurisdiction, i.e., when is an order appealable and what types of orders are appealable; the function of appellate courts; procedures and time frames; standards of review; and costs, which may vary depending upon the number of issues appealed, the complexity of the issues, the length of the trial court's record and the hearing transcript. You will learn how to identify important factors to represent your client in an appellate proceeding.

813 Sixth Street, 1st Floor, Sacramento, CA
Phone: 916.874.8541 Fax: 916.874.5691
www.saclaw.org

Sacramento County Public Law Library Offers Course on Legal Research 2.5 Hour MCLE at $15.00

Legal Research Part A - California Statutes


February 26, 2011 (Saturday)
9:30am to 12:00pm
Instructor: SCPLL Law Librarians
2.5 hours MCLE credit
Registration fee: $15.00


This course will cover Statutes. Learn how to recognize and locate California laws, in print and online, and how to use the Annotated Codes. This class will also cover secondary sources, which provide interpretation and context, and are often used as “side doors” into the official statutes.

Use your MasterCard® or VISA® to register online. View our Schedule of Available Classes. Parking validation available for the City of Sacramento two-story parking structure, entrance on G Street & 7th. Bring your parking receipt and we will validate for time spent in this class.


Sacramento County Public Law Library
813 Sixth Street, 1st Floor, Sacramento, CA 95814
Phone: 916.874.8541
www.saclaw.org

Sacramento County Public Law Library Offers Low Cost MCLE

Lexis II Course - 2 hours MCLE $30.00
Building on the techniques learned in the LEXIS I class, this hands-on computer class will emphasize time efficient and cost-effective searching tips. Skills include how to bypass menu screens using short cuts, narrow searching with segments, focus on a specific word(s) within an original search, and refine searches with advanced connectors.
February 22, 2011 (Tuesday)
2:00pm to 4:00pm
Instructor: Shannon Downs, Solutions Consultant with LexisNexis www.lexis.com

Sacramento County Public Law Library
813 Sixth Street, 2nd Floor, Sacramento, CA 95814
Phone: 916.874.8541
www.saclaw.org

ABA Blue Ribbon Task Force on Preservation of the Justice System - Survey

The American Bar Association has convened a blue-ribbon Task Force on Preservation of the Justice System. This Task Force is charged with exploring the extent and impact of the underfunding of the judiciary on access to justice for all. It is vital that your opinions are included. It will take you less than 10 minutes to complete the survey which will allow the ABA to better understand the current economic tsunami and advance solutions to address it.

Take the Survey by visiting the ABA website (cut and paste the following link into your address bar):

http://maestro.abanet.org/trk/click?ref=zpqri74vj_3-106edx311ef8x1378617&

Sacramento County Public Law Library Offers Low Cost MCLE

Civil Litigation Calendar Procedures & e-Discovery (2011)

MCLE Credits: 2
Date: 02/04/11
Start Time: 2:00 PM
End Time: 4:00 PM
Registration: $55.00

This course will cover calendaring and e-discovery in civil litigation cases. We will review amended Rules 26 (on expert witnesses) and 56 (on summary judgment motions) of the Federal Rules of Civil Procedure effective December 1, 2010. State calendaring topics will include electronic service, the Expedited Jury Trials Act, and an analysis of new Code of Civil Procedure section 12c on computing due dates before a hearing. Electronic discovery in general also will be covered.

www.saclaw.org

PRO PER OBTAINS AWARD OF LEGAL FEES IN ORANGE COUNTY

Today one of my clients telephoned me to advise that he received his order in a trust litigation action. The client found accounts that had not been provided in previous filings and brought a pro per a petition to compel trust accounting in Orange County Superior Court.

After a couple of telephonic hearings and the filing of subsequent declarations and a settlement conference statement, the order arrived today. The Judge awarded the pro per party sanctions of $800.00 against the trustee's attorney pursuant to a request for reimbursement of legal document assistant fees.

I am feeling pretty good today -- so is the client.

Merry Christmas!

Sacramento County Public Law Library Offers Judgment Recovery Course - One Hour MCLE

Judgment Enforcement 101: There’s Gold in that Turnip, or is there?

November 30, 2010 (Tuesday) 2:30pm to 4:00pm
Instructor: Jean-Pierre Rushing, Interwest Judgment Recovery

The successful enforcement of a judgment requires in-depth research and investigation to get to the “facts” standing in the way of the assets. Listen to a judgment recovery expert identify how to look into a debtor’s background, locate addresses, follow job history, and identify assets, e.g. computers, vehicles, luxury items, tools of the trade, etc. Topics to be discussed include: Writ of Execution, Abstract of Judgment, Levies on Financial Institutions, Earnings Withholding Orders (EWO), Affidavit of Identity, Debtor Examinations (OEX), and more.

1.5 hours MCLE credit Registration Fee: $55.00

Use your MasterCard® or VISA® to register online at www.saclaw.org. Parking validation is available for the City of Sacramento two-story parking structure; entrance on G Street & 7th. Bring your parking receipt and the Library will validate for time spent in this class.

Sacramento County Public Law Library
813 6th St
Sacramento, CA 95814
(916) 874-6011

Sacramento County Public Law Library MCLE - Use of Summations®

Tuesday, September 14, 2010 2:00pm to 4:00pm
Speaker: Ron Bodenmann, Capital Digital Document Solutions

This hands-on computer software class will take you through the tools and techniques of effective case management using Summations®. You will learn how to use the Form Editor, look up tables, load and search documents, edit transcripts, and work with production tools, export, and more.

2-hours MCLE credit
Register at www.saclaw.org Cost: $55.00

Use your MasterCard® or VISA® to register online. View our current Schedule of Classes. Parking validation available for the City of Sacramento two-story parking structure, entrance on G Street & 7th. Bring your parking receipt and we will validate for time spent in this class.

Sacramento County Public Law Library
813 Sixth Street, 1st Floor, Sacramento, CA 95814
Phone: 916.874.8541
www.saclaw.org

Judicial Council Court Forms Now Savable Online

Thanks to the efforts of the Superior Court of Orange County, 937 Judicial Council forms can now be filled out online and saved on computers without the need for users to purchase any software.

“All court users – especially self-represented litigants – will benefit from having savable forms online,” stated Presiding Judge Kim G. Dunning of the Superior Court of Orange County.

Judicial Council forms assist court filers in many areas of the law including civil, family, juvenile, small claims, and traffic matters. Forms are also available for persons requesting protective orders and name changes.

In the past, form users were able to fill out a form online, but had to print it out immediately because it could not be saved. The new savable format allows users to take their time in filling out forms, gather additional information as needed, make corrections, and then save the document.

The new capability will help litigants and the courts because forms that are printed out and filed with the court will be better prepared. Filers also will be able to save digital copies of the forms that they have kept for their records.

With the savable forms, self-help and other service centers will be able to work with clients over several sessions without losing any work performed online.

Judicial Council forms may be found at www.courtinfo.ca.gov/forms. Over the last 90 days, the forms have been downloaded more than 1.8 million times from this web site.

The new savable forms can be filled out and saved using the free Adobe Acrobat Reader, version 7.0 or later. On the last page of each form, a “Save” button prompts the user to save the form. “Print” and “Clear” buttons have also been provided in those cases where users may fill out a form on a public or shared computer.

Sacramento Family Law Court Branch Law Library Closing May 28, 2010

Due to Sacramento County's financial crisis the branch law library located in the Family Relations Courthouse (3341 Power Inn Road, Sacramento, CA) will close for business on May 28th. Most of the branch's collection will be transferred to the Main law library at 813 6th Street.

Hours:

8am-8pm Monday - Thursday
8am-5pm on Friday
9am-4pm on Saturdays

Sacramento County Public Law Library Offers Courses for Non Attorneys

June 5, 2010 (Saturday)

Instructors: SCPLL Law Librarians

This two-part series of classes is for the non-lawyer to introduce you to the Law Library and its resources.

Registration Fee: $15.00

Part A - Statutes 9:30am to 12:00pm

Learn how to recognize and locate California laws, in print and online, and how to use the Annotated Codes. The class will also cover secondary sources, which provide interpretation and context, and are often used as “side doors” into the official statutes.

Registration Fee: $15.00

Part B - Cases 1:00pm to 3:30pm

This class covers how California case law is developed and organized. Learn how to locate cases in printed reporters and online. Secondary sources will be included in the demonstration of methods researchers use to find relevant judicial opinions.

Pre-payment is required. To register online using Master Card® or VISA® go to WWW.SACLAW.ORG and select the “Classes” tab at the top of the page. Locate a class by date and complete the registration process online.

Weekend parking is free at the City of Sacramento two-story parking structure, entrance 7th & G St.

Elkins Family Law Task Force to Present Final Recommendations on April 23

The Elkins Family Law Task Force has released its response to public comment on its Draft Recommendations.

The Task Force was appointed in May 2008 to conduct a comprehensive review of family law proceedings and recommend to the Judicial Council of California proposals that will increase access to justice, ensure due process, and provide for more effective and consistent court rules, policies, and procedures.

The Task Force has held 12 in-person hearings. At the February meetings in San Francisco, the Task Force reviewed and considered public comments on the Draft Recommendations. ALDAP participated in the hearings on October 27, 2009 in Los Angeles and February 23, 2010 in San Francisco. On December 3, 2009, ALDAP submitted its comments on the Task Force's Draft Recommendations which were issued on October 1, 2009.

The Elkins Family Law Task Force's Final Recommendations will be presented at the April 23, 2010 meeting of the Judicial Council in San Francisco. The meeting agenda includes the committee's responses to each written comment and includes reference to oral testimonies made before the committee by the public.

A large percentage of the responses by the committee concerning the legal document assistant profession involve the committee's concerns surrounding lack of consumer protections. ALDAP agrees that the protections presently afforded under Business & Professions Code section 6400 et seq. lack enforcement, particularly in light of budgetary restrictions in most counties. The fundamental principle underlying the formation of ALDAP and its programs was, and still remains, a focus on consumer protections and professional integrity.

ALDAP agrees that there is more work to be accomplished within our profession before court administrators will accept LDAs as a viable resource. Much of the testimony concerning LDAs was not beneficial to our profession and, in fact, created cause for concern. Merely publishing a directory of LDAs will not cure the issues inherent in our profession and does not afford consumer protections. It is clear the committee agrees and finds the requests for such a directory to be premature.

The Task Force responded to ALDAP's comments as follows:

• ALDAP lobbied the commission for a placard notice stating that document preparers must be bonded and registered pursuant to 6400 which could have included a link to ALDAP's online directory of all California Legal Document Assistants. ALDAP disagrees with the committee that a directory as a resource could be inappropriate, and insists that signage of this nature is very much needed.
• The Task Force agrees with ALDAP that AB 590 will expand self-help services. Their response to our comments does not mention that LDA services can also help expand self-help programs and services.
• The Task Force repeatedly stated that, while it was "mindful" of the benefits that many LDAs provide to unrepresented litigants, it does not believe a recommendation that the court refer services via a LDA directory is appropriate in light of the current lack of enforcement of consumer protections. The committee frequently distinguished such a directory or LDA referral program from Lawyer Referral Services, which must be certified and, therefore, offer "extensive consumer protections."
• The Task Force agrees with ALDAP that LDAs enjoy a beneficial relationship involving limited scope respresentation (LSR) and adds that these relationships do afford consumer protections as attorneys are responsible for accuracy of work product, and that attorneys may become members of a certified lawyer referral service.
• The Task Force disagrees with ALDAP that LDAs should receive copies of notices or court correspondence relative to cases inasmuch as LDAs do not represent consumers. The Task Force suggests that LDAs address this issue with their clients to ensure that clients forward notices and correspondence received from the court to the LDA.
• The Task Force believes that it is important that LDAs review court order procedures with clients and requests LDAs consider not charging for orders after hearing, as the court regularly refers self representing litigants to the self-help clinic for the same services at no cost.
• The Task Force agrees with ALDAP's recommendation that court advocates should be appointed on behalf of children in family law matters.
• The Task Force agrees with ALDAP that educational resources should be provided to self-representing litigants regarding a variety of options concerning their cases including the role of LDAs. (emphasis added)
• The Task Force partially agrees with ALDAP that implementation of a universal form providing for disclosure of non-attorney assistance, after review as to scope, should be considered for implementation.
• The Task Force agrees with ALDAP's recommendation for consideration of uniform adoption of processes concerning rejected filings and self-representing clients who utilize the services of an LDA.
• Finally, the committee commends ALDAP and its members for providing resources and tools to self-representing litigants so they may successfully navigate the court system.

The only issue ALDAP believes outstanding concerns the placement of placards containing LDA statutory regulations within the courthouse. ALDAP believes this approach would resolve a large percentage of the committee's concerns regarding consumer protections, as it is clear that educating consumers is paramount. Consumer education creates a self protection. Combining placard placement with mandatory filing of non-attorney disclosures would result in consumer protections right at the source - the clerk's office.

ALDAP agrees 100% with the committee's remarks concerning consumer protections. It has long been ALDAP's goal to institute stricter consumer protections. We shall continue with our campaign for enforcement of existing consumer protections while further defining professional integrity. For the past 10 years others have tried to sweep noncompliance under the rug in an effort to yield harvest, yet the fruit of those (non) efforts lies upon the ground spoiled and reeking of the stench of rogues. In the past three years ALDAP has established itself as the leader in consumer protections and professional integrity. Our work is not yet done.