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.

Sacramento County Public Law Library Expands Pro Bono Attorney Consultation Hours

NOW EVERY MONDAY!

Volunteer attorneys offer FREE 20-minute consultations to low-income patrons.

Arrive at 5:15 pm to participate in a lottery for an appointment between
5:30pm and 7:30pm.

www.saclaw.org


813 Sixth Street, 1st Floor, Sacramento, CA 95814
(916) 874-8541 or (916) 874-6012

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

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

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

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

Draft Model California LDA Legislative Changes

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

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

DRAFT MODEL STATE LEGAL TECHNICIAN LEGISLATION

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


Purposes

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

Section 1: Legal Technician

A. Definitions. The following definitions shall apply:

“Board” means the Board of Legal Technicians.

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

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

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

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

C. Administration.

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

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


D. Certification. The following requirements apply:

1. Eligibility Individual Standard Certification.

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

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

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

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

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

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

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

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

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

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

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

2. Eligibility for Business Entity Standard Certification.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

4. Eligibility for Online Legal Technicians.

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

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

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

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

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

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

E. Role and Responsibilities of Certificate Holders.

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

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

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

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

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

2. Code of Conduct.

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

b. Ethics and Professionalism. (10)

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

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

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

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

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

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

c. Fees and Services.

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

d. Skills and Practice.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

a. Dismissing the complaint.

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

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

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

iii. Are not confidential.

7. Public Availability of Certification and Discipline.

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

H. Fee Schedule.

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

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

3. Inactive Status $[]

4. Late Renewal $ []


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

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.

San Diego County Public Law Library Offers Free MCLE

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

Upside Down House, in Debt, Oh My!


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

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

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

1 hour MCLE credit, General Participatory

Sacramento County Public Law Library Offers MCLE

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

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

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

2.5 hours MCLE credit Register online

Sacramento County Public Law Library Offers Course on Intellectual Property

Ins & Outs of Intellectual Property Law

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

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

2-hours MCLE credit Register HERE: $55.00

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

Sacramento County Public Law Library Offers 2 Hours MCLE

Legal Forms and Pleadings

"How To"

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

Instructors: SCPLL Law Librarians

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

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

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

Appellate Law MCLE Credits: 1

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

Registration: $45.00

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

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

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

Legal Research Part A - California Statutes


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


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

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


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

Sacramento County Public Law Library Offers Low Cost MCLE

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

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

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.

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

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

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

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

1.5 hours MCLE credit Registration Fee: $55.00

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

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

Self Defense Law for Lawyers

Self Defense Law for Lawyers

September 23, 2010 (Tuesday) 2:00pm - 4:00pm
Instructor: Jonathan G Stein, Law Offices of Jonathan G. Stein

What is your legal right to self-defense? More than ever before, lawyers must cope with difficult people both at court and in the office. This presentation will cover current law and practical methods you can utilize to become aware of your environment and maintain your personal safety as well as that of your staff.

2 hours MCLE credit Registration: $55.00

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


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

Sacramento County Public Law Library MCLE - Use of Summations®

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

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

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

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

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