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.

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.

CYA by Appointing a Committee?

A while ago, I commented on the criticisms of a number of California's Judges with respect to the Association of Courts and the Judicial Council's rather expensive endeavor to centralize California's court system via computer.

Prior to writing this article, I sat next to a woman who was flying from Hawaii to California in order to work on glitches in the system. During our five hour flight, she shared with me that she, on an almost weekly basis, flew back and forth to work on the new system. I again, thought about all the money that was being spent on this new system that remained basically, inoperable with few exceptions.

I found it very interesting to note by the press release below that the newly appointed Chief Justice acted quickly in an apparent attempt to stem the criticisms of a large number of the judiciary by appointing a committee to oversee the now over-budget and failing California court centralized computer system operations. I suppose when met with dissension it is prudent to hand over the reins to the those who would object and perhaps even to "shift the blame."

In any event, it will be a lark to learn of the findings of the new committee. We at ALDAP will keep you informed.

______________

Chief Justice Appoints New Judicial Council Internal Committee to Oversee Case Management System

San Francisco—Chief Justice Tani Cantil-Sakauye today announced the appointment of a new Judicial Council internal committee that will oversee the council’s policies on the California Court Case Management System (CCMS). It will also oversee the council’s recently established CCMS governance and advisory committees.

“The new committee will be responsible for ensuring that council policies are complied with and the project proceeds on schedule and within budget,” said Chief Justice Cantil-Sakauye. “This oversight committee and the new governance structure of CCMS will help ensure that the case management system will bring court technology into the 21st century and deliver great benefits to the justice community and the public.”

“This new internal committee will ensure that the Judicial Council is not only kept informed and up-to-date on the case management system, but that the deployment of CCMS is completed in a way that is consistent with the policies and priorities established by the council,” said William C. Vickrey, Administrative Director of the Courts. “This reflects the importance of CCMS and provides the council with the time and attention that this project merits for the next 5 to 10 years.”

The 10-member committee will seek reports and recommendations from the CCMS Executive Committee and the Administrative Director of the Courts and will ensure that reports to the council are clear, comprehensive, and provide relevant options so that the council can make effective final policies about CCMS. The committee will advise the council on CCMS policy decisions and report on CCMS at Judicial Council business meetings, which are open to the public. Like other internal council committees, the panel will be made up of Judicial Council members, as follows:


• Chair: Judge James E. Herman of the Superior Court of Santa Barbara County;
• Vice-chair: Assistant Presiding Judge Ira R. Kaufman of the Superior Court of Plumas County; Associate Justice Harry E. Hull, Jr., of the Court of Appeal, Third Appellate District (Sacramento);
• Assistant Presiding Judge David S. Wesley of the Superior Court of Los Angeles County;
• Judge Stephen H. Baker of the Superior Court of Shasta County;
• Judge Teri L. Jackson of the Superior Court of San Francisco County; an advisory member of the council;
• Ms. Edith R. Matthai, an attorney who practices law in Los Angeles;
• Mr. James N. Penrod, an attorney who practices law in San Francisco;
• Mr. Michael M. Roddy, court executive officer of the Superior Court of San Diego County, an advisory member of the council; and
• Ms. Kim Turner, court executive officer of the Superior Court of Marin County, an advisory member of the council.

The new committee will make its first report on CCMS at the next business meeting of the Judicial Council on Friday, April 29.

CCMS is an integrated court and case management system designed to eventually support trial courts of all sizes on a statewide level. Its development was triggered by the actions and business demands of superior courts that found themselves with failing or inadequate case management systems that needed replacement in order for courts to continue operations.

Earlier this year, a new governance structure was established for CCMS. That structure is overseen by the Judicial Council’s CCMS Governance Executive Committee, chaired by Associate Justice Terence L. Bruiniers of the Court of Appeal, First Appellate District (San Francisco).

LDAs & Legislation

We have all experienced difficulty of some degree during the LDA registration process. I have encountered staff at the County Clerks' offices who have no knowledge of the LDA registration processes, or even just what an LDA is. I learned early on in my LDA entrepreneurial ventures that it was prudent to take copies of the code with me when I performed registration so that I could easily refer to actual language of the law rather than any one person's, or agency's interpretation. Today, I was refused an LDA employee card by my local County Clerk's office.

The explanation: In 2009, AB620 was chartered and it removed or changed, among other things, the allowance of employee cards and contained other provisions concerning LDAs, Professional Photocopiers, Process Servers and Immigration Consultants. When the clerk mentioned the 2009 bill I was floored. How come I did not know of this in 2009? Talk about being late!

Admittedly, I was not ALDAP's Director of Legislation during 2009, but I do believe I stay current with legislation affecting our profession. I argued my point with the clerk but she remained steadfast, and she then read me the language of the bill. I thanked her and then began my own investigation as I was completely shocked that this would have slid by my nightly bedtime reading of legislation.

My investigation proved that in 2009 a bill was chartered decreasing the minimum size of the LDA registration card. The bill also created changes to the cards of the other professions listed above, and changed a bit of County Recorder business, but DID NOT change the allowance and requirements for LDA employee cards. Those statutory provisions remain in CA B&P Code section 6405.

I called my favorite clerk and explained that the bill as chartered did contain language decreasing the minimum dimensions of the registration card but that the removal of language concerning allowance of employee LDA cards had itself been deleted from the final version of the bill. We agreed that her informational materials required update and I thanked her for her time.

ALDAP caught and implemented deletion of prohibitive language in AB 590 four days prior to the last day to amend - a late discovery. We need to review all legislation, not just that having to do with 6400 et seq. AB 590 had nothing at all to do with LDAs, but was a Civil Access to Justice Bill. And yet, contrary language concerning our profession was included in its text. I remember saying this back on August 26, 2009 and today's "rush" to the codes was a gentle reminder. We must watchdog legislation in order to protect ourselves and the consumers we serve.

Sunshine Week at McGeorge School of Law

Open Government
What Does This Mean and Why Should You Care?

Without open government we wouldn’t know about the issues occurring with our city and state government. With open government we keep informed and we can make educated decisions on matters of interest to each of us. Recent events in California demonstrate the importance of open government.

By filing petitions under the California Public Records Act, the Sacramento Bee and the Los Angeles Times exposed information that would not have come to light otherwise. For example, the sprinklers being turned off during the Westfield Galleria fire in Roseville, and the exorbitant salaries and compensation paid to the Bell city government employees – all information that should be accessible because of open government.

On March 23, all individuals interested in learning more about open government and their role in assuring that government information is open to the general public will be gathering at Pacific McGeorge School of Law in Sacramento.

Thomas W. Newton of the California Newspaper Publishers Association and Prof. John Cary Sims of Pacific McGeorge School of Law will be discussing open government during the Sacramento-Area “Sunshine Week” event at McGeorge School of Law on March 23, 2011, sponsored by Northern California library groups and the League of Women Voters of Sacramento County. Taking place after the national Sunshine Week, this local event will feature a panel discussion and will allow audience members to view the national Sunshine Week web-cast sponsored by the American Society of News Editors. The general public is invited to discuss open government issues with the panel and area librarians.
You may view a PDF version of our tri-fold brochure at: http://is.gd/oc2PlY


Registration will be $20.00 / Students: $15.00.
Registration includes a continental breakfast & boxed lunch.
Register online
Registration deadline is March 20, 2011.


When:
Wednesday, March 23, 2011
8:30 am -1:30 pm
Where: Pacific McGeorge School of Law, Classroom D
3285 Fifth Avenue
(NW corner of 5th Ave & 33rd St)
Sacramento, CA 95817
Parking is free.

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.

The Myth of the "Independent Paralegal"

This article originally appeared in the Spring 2010 issue of The Scrivener, as "The LDA's Bookshelf: The Independent Paralegal’s Handbook."

First published in 1986, The Independent Paralegal’s Handbook (1) has spawned a misnomer that, to this day, serves only as a barrier to acceptance of the legal document assistant (LDA) profession by members of the traditional legal community.

As a new LDA, I purchased a copy of the Handbook, with the hope that it would help me sort out who I was, what I did, and for whom I did it. I was a formally trained, experienced paralegal; but totally in the dark about the logistics of LDA contracts, questionnaires, and business practices designed to give UPL a wide berth.

The Handbook includes general information regarding establishing a new business, and an overview of the history of UPL (from 1967-2003) and many states’ positions regarding non-attorney legal services. However, most of this information is skewed toward the misnomer that is the subject of this article.

The misnomer? It’s contained in the book’s very title itself. It is ALDAP’s position that using the term “independent paralegal” to describe non-attorney, self-help legal services is not – and never has been – accurate, proper, or in the spirit of consumer protection.

Reading the Handbook as someone new to the profession left me somewhat unclear about the passage of SB 1418 (Bus. & Prof. Code § 6400 et seq.) and AB 1761 (Bus. & Prof. Code § 6450 et seq.). I had previously read the Code and, I thought, had a pretty good handle on it – I would register as an LDA to assist consumers, and would pick up freelance paralegal gigs to diversify my income and give my brain some room to exercise. But after reading about all of the “independent paralegals” in the Handbook, I was left facing a severe identity crisis.

Even the book’s Introduction states, “In fact, in California, IPs are prohibited from referring to themselves as paralegals.” How is this a fact? If so-called “independent paralegals” are prohibited by law from calling themselves “paralegals,” then they aren’t really paralegals (independent or otherwise) in the first place, now, are they? This sort of cognitive dissonance is difficult to resolve, even for the most sophisticated legal mind.

As I became more involved in the LDA profession, and ALDAP in particular, I began to intuitively understand what I have since researched and verified. Throughout the text of the Handbook, the references to this improper terminology come from the Handbook’s authors; and not the judges, legislators or reports to which the authors cite. The book contains numerous parenthetical references to the term “independent paralegal” immediately following the actual, proper terminology stated in a statute or court opinion (i.e. “legal technicians,” “nonlawyers,” or a similar term). Similarly, the Handbook’s claim that in 1976, Colorado began allowing “the preparation of divorce forms by an independent paralegal,” is erroneous and misleading. In fact, the court case the authors cite (2) contains absolutely no mention of the term “paralegal”; but the authors took certain editorial liberties to push their “independent paralegal” agenda, which conflicts with what they describe as “organized lawyerdom,” as well as several public policy concerns.

The California Paralegal War – An (Un)Civil War

The paralegal profession emerged in the 1970s, when consumer demand to reduce legal fees drove many attorneys to start giving their legal secretaries more substantive assignments. “In response to this need, the terms ‘paralegal’ and ‘legal assistant’ were created,” wrote Sue Sullivan, Director of the University of San Diego Paralegal Program, in an article for SCRIBE. “With additional educational background and practical training, these new professionals were able to work more directly with clients; assist with forms, procedures and paperwork; and free the attorney to go to court, give legal advice, set fees and make legal decisions. Up to that point, many attorneys were their own paralegals.”

Around the same time, individuals – many without any formal legal training – began working directly for the public, with some practitioners calling themselves “paralegals” and raising serious issues concerning the unauthorized practice of law. Worse still, some of these establishments were operated by disbarred attorneys or other questionable characters.

From day one, the lack of differentiation between the bona fide paralegal and the self-help document preparer confused and, in some instances, legally harmed consumers. Members of the public did not know the difference between the two, and many believed they were getting someone with formal legal training or attorney oversight (and the consumer protections that accompany licensure). Immigrant communities were particularly susceptible to fraud, as members of these communities often believed “paralegal” to be synonymous with “lawyer.”

The enactment of Business & Professions Code § 6450, et seq. in 2000 righted that wrong. “It took 20 years before we got AB 1761 through the Legislature,” said Carolyn Yellis, ACP, past president of the California Alliance of Paralegal Associations (CAPA). “Ultimately it was successful because of the differentiation argument and the need to protect consumers.”

At the time, many LDAs raised strong opposition to AB 1761, and some of their remarks remain published today, as position statements on websites targeting the LDA community. There were claims that the bill would not protect consumers, and that, “The only reason CAPA introduced AB 1761 was to protect its turf.”

However, we need only look within the Handbook itself for evidence that, as early as 1988, California governing bodies refused to refer to non-attorney legal document preparers as “independent paralegals,” instead defining them as “legal technicians”; yet the authors’ bias toward this improper terminology shines through, with a parenthetical reference, “(IP),” presumably to “clarify” for the reader that what the California Public Protection Committee (3) really meant was “independent paralegal” rather than the terminology it actually used.

This Handbook, however, is not the sole cause of confusion regarding the differences between self-help legal service providers and legitimate paralegals. Other significant confusion-inducing elements have come from exactly the same source. Around the same time the Handbook was published, one of its authors co-founded the California Association of Independent Paralegals (CAIP); which was finally forced to change its name to California Association of Legal Document Assistants (CALDA) upon the passage of AB 1761. One person is behind both of these far-reaching, long-standing, public “statements” that non-attorney, self-help legal service providers are – or should be – called “independent paralegals.” This individual may not have known what she was talking about, but she said it with a megaphone; leaving generations of LDAs to clear up confusion that has held the profession back, and made us all vulnerable to the “rogue” paralegals.

It appears that the enactment of section 6450 was in direct response to exactly this misinformation, and the stubborn refusal to correct it voluntarily. AB 1761 may never have passed, absent the loud proclamations from non-paralegals that they should be allowed to call themselves “paralegals.”

LDAs and “independent paralegals” are not the same. They never have been the same. And those who continue to insist that they are – or were – the same, do nothing but a disservice to our profession and the clients we serve.

As written, sections 6400 and 6450 would have – and should have – afforded at least some measure of consumer protection, if they were enforced and dutifully followed by members of both professions. But far too many LDAs continue to muddy the waters by insisting on defining themselves as, “formerly known as independent paralegal.” A more accurate statement might be, “sometimes erroneously referred to as independent paralegal,” or “don’t want to give up any perceived competitive advantage I get by advertising as a paralegal.”

In the Handbook’s chapter on naming your business, the authors claim that “paralegal can mean almost anything.” This statement could not be more false. The same year that this book was first published, the American Bar Association adopted its model definition of legal assistant/paralegal – which did not include the provision of self-help services to consumers. While this erroneous information may have been caused by the delay between the time of writing to date of publication, these statements certainly should have been corrected on one of the five subsequent editions.

The decades-long confusion created by the inappropriate application of this term to describe non-attorneys who assist self-represented litigants is a direct result of misinformation such as that contained in this Handbook. How many new practitioners were just like me, desperate for information and thrilled to find such a Handbook? This book is now out-of-print, but new LDAs will continue to scour eBay or Amazon for used copies, only to learn an improper vocabulary and outdated or erroneous historical context for the consumer protections afforded under today’s Business & Professions Code.

Until such time that we, as a profession, cast aside this improper, confusing title in favor of proudly proclaiming our rightful distinction as bonded and registered legal document assistants, our own businesses, the paralegal community, and the general public will continue to be harmed by rogue paralegals – who are neither paralegals nor LDAs. It’s been ten years. Let’s take back our titles and put the rogues out of business.

Notes:

1. Ralph Warner, Stephen Elias & Catherine Elias-Jermany, The Independent Paralegal’s Handbook, (6th ed., Nolo 2004).
2. Colorado Bar Ass’n v. Miles, 192 Colo. 294 (1976).
3. The California Public Protection Committee was appointed in 1986 by the California State Bar to investigate public harm from nonlawyer legal services, and to determine if regulation of the nonlawyer providers would be appropriate.

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!

Bankruptcy Petition Preparer, Legal Document Assistant and Paralegal Prevails Against U.S. Trustee

You think it will never happen to you, yet you fear one day it could. You do everything you can to make certain it won't and then, it does, despite your good efforts.

Bankruptcy Petition Preparers are strenuously regulated by the Trustees and for good reason - consumer protection. Legal Document Assistants and Paralegals suffer risk as BPPs due to the nature of their experience and alternate use of titles. The code was written to protect consumers from non-attorneys who could be construed as sharing their "legal knowledge" which is unlawful. Non-attorneys do not have adequate education or credentials to provide legal advice.

A motion pursuant to 11 U.S.C. 110 was brought by a Trustee against me, personally, and my legal document assistant and paralegal service, Catalyst Legal, concerning the use of the term "legal" as a component of my business name. The Trustee claimed that a business name is a form of advertisement and that Catalyst Legal sold bankruptcy petition preparation services in violation of the statute which sets forth at (f) "A bankruptcy petition preparer shall not use the word "legal" or any similar term in any advertisements, or advertise under any category that includes the word "legal" or any similar term."

What the Trustee refused to acknowledge is that I also own and operate Catalyst Bankruptcy, a debt relief agency, a completely separate business entity.

Today was the scheduled motion date. I thought about retaining counsel, but then realized that I really couldn't afford to hire an attorney. Two attorney friends offered to help, but one wanted me to pay for his travel and the other would have had to lose a day at her "other job" and I did not want for her to take time off just to speak on my behalf. An internet review of past BPP/Trustee cases with circumstances seemingly similar to mine which were heard with "benefit" of legal counsel proved that many of these cases were lost by the BPP with an additional waiver of personal civil rights. I figured I could do as poorly as the so-called "defense" attorneys in this type of case. So I decided to appear pro se'.

Last night I could not sleep and I absolutely had to be at the airport by 5 a.m. After shuttling to the rent-a-car lot and navigating my way to and through downtown Los Angeles in my little economy car, I finally found parking and I made my extremely tired way to the courtroom. It was packed with people - standing room only. Somebody said there were 68 cases to be heard! Since I was late, I figured that I would trail to the end of the calendar. This pleased me as this "Nervous Nellie," afraid to speak in front of a packed courtroom.

My case was the 8th or 9th case called and I introduced myself and wished the Judge "Good morning your Honor."

The Judge began to speak stating that he was inclined to deny the Trustee's motion inasmuch as the evidence and statements in my opposition proved that Catalyst Legal and Catalyst Bankruptcy were two separate and distinct business entities. The attorney for the Trustee argued his points and the Judge spoke again, reiterating the contents of my opposition and his agreement therewith. At one point I attempted to speak and the Judge directed me to wait for my turn. My response: "Yes sir."

The Judge and attorney argued back and forth while I listened. I realized that opening my big mouth could result in my saying something that could be deemed an admission or detrimental to my position. After all, this type of court hearing is not something for which I have expertise. I did manage to sit still and maintain a straight face. I so just wanted to grin and clap my hands and perhaps do a little jig as I listened to the Judge. It was obvious that he did not view the facts or the law through the same lens as the attorney. The Judge agreed with my position that Catalyst Legal and Catalyst Bankruptcy are two distinctly separate business entities and therefore, no violation existed. The Judge stated that he did not think that any other individual could go to any further lengths to maintain a petition preparation service separate from a legal document preparation service. He said that it was clear that I put a lot of work into maintaining the two businesses as separate and distinct entities.

The Judge then ruled "Motion Denied." I smiled and stood up saying "Thank you your Honor" and I was out of there in a flash.

All in all I believe I learned that I do way better on paper and by keeping my big mouth shut than I do trying to impress others with "my great oratory skills" and, that when the Judge is arguing your case 100% to your benefit you should absolutely NOT interrupt. I also came away from today's hearing fully believing that I should never be afraid to stand up for what I believe is right.

After the hearing I spoke to the attorney explaining that if he had any further issues with my business practices or model that I would like to be informed. He did say that the telephone number for Catalyst Legal is the same phone number for Catalyst Bankruptcy. He had argued this point with the Judge but the Judge said that phone numbers and addresses do not matter as they are not a form of advertising and they are not the business name. I responded to the attorney that Just Believe!, BFP Cruises, BFP Events, Katalicious, Adult Store to Your Door, and Missionary Legal all utilize the same number as Catalyst Legal and Catalyst Bankruptcy - but that I would obtain a new number for Catalyst Bankruptcy today. And I did.

Sometimes you have to throw them a bone.

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.

HALT - Moving Forward with Alternative Legal Services

ALDAP received a request to meet with Tom Gordon, Senior Counsel and Policy Director for HALT (Help Abolish Legal Tyranny), to discuss the delivery of non-attorney, self-help legal services to consumers. (To be clear, there has been some confusion among our membership regarding HALT's proposed name change to CLEAR in 2009; that name change did not take place. HALT is HALT, and HALT is here to stay.)

Gordon and ALDAP's Executive Committee met last Friday to discuss a cooperative effort to enhance consumer protections in California and to bring appropriate business model practices to the attention of other states which soon will follow California's example in bringing access to justice to consumers. ALDAP is a step ahead, having developed the ALDAP AdvantageTM - a business practice model that allows for consumer education while guaranteeing absolute compliance with the statutes governing legal document preparers. We discussed how ALDAP's LDA Roundtable events enable the association to present this practice model, which focuses on consumer protections and professional integrity, throughout the state at no cost to attendees.

ALDAP looks forward to working with other legal professionals to further the Access to Justice Movement on behalf of all consumers.

Success - By The Book

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.

Chief Justice Praises Court Reforms in "State of the Judiciary" Address

State Courts Affected by Fiscal Crisis, but Remain Focused on Delivering Equal Justice

In his 15th annual State of the Judiciary Address to the California Legislature, Chief Justice Ronald M. George yesterday praised the Legislature and Governor for their support in achieving fundamental reforms in the judicial branch’s structure that have left courts “better able to deliver on the promise of equal justice under law than at any other time in my service as Chief Justice of California, and perhaps than at any other time in our state’s history.”

These historic structural reforms began with breakthrough legislation in 1997 that provided for statewide funding of the courts. Trial court unification followed in 1998 and the historic Trial Court Facilities Act was enacted in 2002.

Chief Justice George observed that the reforms “have enabled us to provide better service to the public, have strengthened the fundamental role of the judiciary as a co-equal branch of government, and have resulted in a greater degree of accountability to you – the legislative branch of government – and to the public.”

Although courts are fundamentally strong, the state’s current fiscal crisis leaves the courts “increasingly hard-pressed to meet their obligation to provide accessible justice,” the Chief Justice noted.

The Chief Justice urged the Legislature to maintain the essential infrastructure projects already under way – including the statewide Case Management System (CCMS) and the court facilities construction and management program.

Impact of Fiscal Crisis on State Courts

“We managed to get through this difficult year with a combination of spending reductions, redirections of one-time funding, and the use of reserves – which will not continue to be available,” Chief Justice George stated. “But at this critical juncture I can report that although the state of the judicial branch is significantly challenged, the branch remains robust and resilient.”

At an emergency meeting last July, the Judicial Council instituted a one-day-per-month closure of all state courts for a total of ten days during the fiscal year. The decision to close the courts was made with “great reluctance” by council members, but it was the only feasible option available to address year-end budget reductions while providing statewide consistency for the public, protecting court employees from major layoffs, and avoiding other piecemeal cutbacks in service.

“The unintended yet inevitable symbolism of ‘Closed’ signs on our courthouses – institutions that embody our nation’s revered democratic ideals – is a graphic indication of the severity of California’s economic crisis,” Chief Justice George declared. “These statewide closures must not continue into the next fiscal year.”

“For many Californians the courts represent their primary — and sometimes their most important —interaction with state government. Yet the entire judicial branch budget accounts for only about two percent of the state budget,” he stated.

“The current budget now proposed for the courts includes triggers related to federal funding and new revenue from traffic violations — contingencies that are uncertain,” he stated. “We look to you not for increases, but for sufficient and secure funding in the coming fiscal year, including an extension of temporary revenue enhancements that are due to sunset next year.”

Judges Voluntarily Waive Portion of Salaries

The Chief Justice last July pledged to reduce his own salary and requested that other state jurists do the same to acknowledge the sacrifice that was asked of the 20,000 court employees who were forced to take a pay cut equivalent of one day a month, as a result of state court closures.

“I am pleased to report that the vast majority of judges and justices in California – between 80 and 90 percent – have pledged to participate in a voluntary salary waiver program amounting to a 4.6 percent pay reduction, or have otherwise made equivalent donations to their courts to help preserve access to justice in their communities,” Chief Justice George stated, noting that 100 percent of the Supreme Court justices are participating.

Cost-savings measures also were implemented by the California Supreme Court, which closed its Los Angeles Clerk’s Office at the end of 2009, and the Administrative Office of the Courts (AOC), which instituted a hiring freeze on all except critical positions and reduced operating expenses.

Court Technology Moves into the 21st Century

Chief Justice George told legislators that “we cannot retreat from our mutual commitment to investing in the judicial branch’s infrastructure” – specifically, the California Case Management System (CCMS) and the court facility construction and management program.

“These endeavors cannot be shelved when we encounter bad times – the welfare and safety of Californians depend upon proper investment in the long-term future of our state, and our plans will enhance California’s economy to benefit us all,” he declared.

As a result of severely outdated case management systems in most courts, judges and law enforcement officers are often unaware of the past criminal history of violent offenders, of outstanding warrants, and of domestic violence restraining orders.

Chief Justice George reported that development and testing of CCMS, undertaken at the urging of two governors and the legislature and in partnership with our justice system partners, is nearly complete.

“When fully deployed, the new system will deliver the services, efficiencies, and access to information that the public has a right to expect.”

Building Safe and Secure Courthouses

Chief Justice George also reported that as of December 29, 2009, all of state’s 532 courthouses and other facilities had transferred from the counties to state governance under the historic Trial Court Facilities Act, marking the “successful conclusion of one of the largest real estate transactions in our state’s history.”

“Judicial branch oversight of court facilities provides significant benefits for the public: increased safety and security, greater operational efficiencies, savings through statewide purchasing power, and enhanced delivery of programs and services,” he noted.

The critical task before the judicial branch now, the Chief Justice stated, is to begin repairing and replacing the most dilapidated and dangerous court facilities under Senate Bill 1407, legislation that created funding for this purpose with lease revenue bonds – without using a single dollar from the state’s general fund.

The bill authorizes the expenditure of up to $5 billion to construct or renovate 41 courthouses in 34 counties – the most critically needed projects required to remedy seismic, asbestos, mold, and security deficiencies.

“This homegrown stimulus package ... could not have come at a better time for the California construction industry and the men and women employed in the building trades,” Chief Justice George observed. “Estimates are that as many as 105,000 jobs will be created by the projects authorized by this measure.”

The Chief Justice responded to suggestions by some that the fees designated for the court construction program be redirected to day-to-day court operations for the duration of the economic downturn:

“For many reasons, I – and at least 54 of the state’s 58 superior court presiding judges – believe this shortsighted approach would have severe negative consequences for public safety and the well-being of the men and women who work in our courts. It also would be financially costly to the state in the long run.”

In closing, Chief Justice George noted, “Courts are not a luxury to be funded in good times and ignored in bad times. Justice cannot be available only when it is convenient to pay for it. We shall attempt to address and absorb the reductions in our budget during these difficult times. But all of us – in each of the three branches of government – must remain committed to continuing the progress we have made toward meeting the goal of a fair and accessible system of justice.”

The Chief Justice’s 2010 State of the Judiciary Address to the California Legislature is available on the California Courts Web site at http://www.courtinfo.ca.gov/.