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According to a July 30, 2015 article in The National Law Journal, the ABA will debate next week over how much a bar applicant should be required to reveal about their mental health history during the character-and-fitness review process.

This is a topic near and dear to me, and not just in the legal world.  I have family members and friends who suffer from depression, bi-polar disorder and schizophrenia.  The stigma that is associated with mental illness is huge in our society.

I have seen first hand how those with mental illness are treated, even by the health professionals.  It is traumatizing to people that suffer with mental illness to be treated by health professionals so poorly. Before my son passed away earlier this year, he would often comment to me how poorly he was treated when I was not at the hospital with him.  I didn’t want to believe that this was true, but trying to find help for him was next to impossible.  Many promises were made by mental health professionals to help him, but then there were always excuses as to why they couldn’t follow through with the help.  I began to believe that what my son told me was true.  Of course, the treatment of our mentally ill is a topic for another day.

As to the debate about bar applicants and their mental health history, I am torn.  On the one hand I think that mental health issues could be exacerbated by the pressures in the legal arena and should be disclosed (we see this many times as paralegals, not only with attorneys, but judges and fellow paralegals) but on the other hand, the stigma that comes with revealing someone’s mental health issues could be traumatizing and embarrassing and an applicant should not have to reveal their issues.  I will be waiting to hear more about this and how the ABA plans on handling this issue.  I would love to hear how others feel about this upcoming debate as well.

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Category: Family Law, Legal News, mental health, Personal  Comments off

I just read a great blog at The Estrin Report, written by fellow paralegal, Chere Estrin, called “Still Thinking about Licensing Paralegals? Hogwash.  Old School Thinking.”

I am still on the fence about licensing paralegals.  There are many good reasons to do so but there are almost as many bad reasons.  In Ms. Estrin’s blog, (you can read the entire blog here) she makes the point that: “Licensing may establish minimum qualifications, but that won’t necessarily help you land the job. Attorneys will still rely on your resume to identify specific skills and work experience when they’re considering you for a position.”

Ms. Estrin believes the paralegal field will “follow similar suit to nursing practitioners and physician assistants, as shown below:

  • The Attorney Practitioner: BA/BS degree; graduate school; 1 or 2 years of law school; able to perform previous attorney assignments: perhaps take a deposition; assess a case; prepare certain documents; appear in front of a judge;  (in King County, Seattle, this has been done with paralegals for years on default judgments and more).
  • The Certified Paralegal: BA/BS; paralegal certificate; required number of years in the field; plus sits for certification exam.
  • The Paralegal: BA/BS degree plus paralegal certificate.
  • The Paralegal Assistant: An AA degree plus paralegal certificate.
  • The Paralegal Clerk: Either an AA degree, no paralegal certificate or paralegal certificate and no college degree. Cannot move up unless an AA degree and paralegal certificate are reached.”

She further believes the “field will stratify according to entry requirements, education, years of experience and expertise which will in turn limit the types of duties a paralegal of certain ranks will be allowed to do. Right now, there is only entry-level, mid-level, senior level and paralegal manager in most firms. Paralegals are paid according to years in the field, modeled after the associate program. They are not paid for performance. Right now, a 10 year paralegal can be performing at the two-year level but paid at the 10 year market level.” I don’t entirely agree with this last sentence, but I do agree that the majority of paralegals are paid based on their years of experience, (but in the area I work in, their knowledge is also considered for their salary.)

I do agree that paralegals should be required to attain more education, sophisticated assignments and years in the field before they can even be considered for certification, let alone licensing.

So, to license or not license paralegals. Who will pay for this licensing, the paralegal or the attorney they work with/for and who will monitor the licensing?  The State Bar? I wonder how my fellow paralegals and even the attorneys we work for feel about licensing paralegals.  Please let me know by completing the quick survey below.  It will only take a second or two and then back to work you go!  Many thanks.

 

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As reported in the California Bar Journal this month, the California Supreme Court made history last month when it granted posthumous State Bar admission to Hong Yen Chang, who was denied a law license 125 years ago due to federal and state laws denying citizenship and employment to Chinese Americans.

Hong Yen Chang
Hong Yen Chang – Courtesy of the Ah Tye Family

Chang overcame numerous obstacles to become licensed to practice in New York in 1888, but when he moved to California two years later, the high court here rejected his application.

Hong Yen Chang, a native of China, came to this country in 1872 as part of an educational program to teach Chinese youth about the West.

Chang graduated from the Philips Academy in Andover, Massachusetts, in 1879 and earned his undergraduate degree at Yale.

He went on to graduate from Columbia Law School in 1886. He applied for admission to the New York Bar, but despite a “high marking” and unanimous recommendation from the bar examiners, he was turned down by the state supreme court in 1887 because he was not a citizen.

That same year, a New York judge issued Chang a certificate of naturalization.  After the New York Legislature passed a law allowing him to reapply for bar admission, Chang was admitted in 1888, becoming the only regularly admitted Chinese lawyer in this country.

Since then, the anti-Chinese exclusionary laws and policies that led to his rejection have been renounced.

“Even if we cannot undo history, we can acknowledge it and, in doing so, accord a full measure of recognition to Chang’s path-breaking efforts to become the first lawyer of Chinese descent in the United States,” the court wrote in its unanimous March 16 opinion.

Chang’s descendants and the Asian Pacific American Law Students Association at the University of California Davis School of Law spearheaded the effort to right the historic wrong.

The law firm of Munger, Tolles & Olson, working pro bono, filed a petition with the court late last year.

“I thought it was important to start addressing a stain on California’s judicial history and make amends to the Chinese people,” Munger partner and former State Bar President Jeffrey Bleich told the Los Angeles Times.

The state Senate called for Chang’s admission to the bar via a unanimous resolution and the State Bar of California granted Chang honorary membership “in repudiation of the discrimination against Asians that unjustly formed the basis for barring his admission to the bar in 1890.”

UC Davis Law Professor Gabriel Chin told the San Francisco Chronicle, that the case showed both the rewards of a long fight for justice and the drawbacks of having to wait more than a century for it.

Chin also told the newspaper that it was fitting that Monday’s ruling came from “perhaps the most diverse state Supreme Court in the country.” Chief Justice Tani Cantil-Sakauye and Justices Ming Chin and Goodwin Liu are of Asian descent and Justice Mariano-Florentino Cuéllar was born in Mexico.

Rachelle Chong, Chang’s grandniece and one of four family members who’ve become California lawyers, told the  San Jose Mercury News the family is “thrilled” the state Supreme Court reversed its own 1890 ruling. She, along with a cousin working on a book about Chang, discovered the old Supreme Court ruling while in law school in the early 1990s. Chong was the first Asian-American to serve on the Federal Communications Commission and the California Public Utilities Commission.

“We feel we were the only family left to try to clear up this historic wrong,” she told the paper.

I was very pleased to read this and just had to share it.  Reading about Mr. Chang’s history was absolutely fascinating and I am awestruck by his tenacity.  His family tree of descendants is now filled with lawyers and this must make him proud; that all he went through in his lifetime paved the way for his family.

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In another ABA Journal article, a lawyer in Kansas who told jurors his capital murder client was a “professional drug dealer” and a “shooter of people” has been disbarred for “inexplicable incompetence.”

The Kansas Supreme Court posted its opinion (PDF) on Friday as well as a video of oral arguments in which Dennis Hawver appeared dressed as Thomas Jefferson. (A good shot of his attire is at five minutes and 17 seconds; his argument begins at 22 minutes and 38 seconds.) The Wichita Eagle has coverage.

The video of the Supreme Court hearing is long, almost 42 minutes, and it is sad to watch the attorney argue to keep his license, all the while dressed as Thomas Jefferson.

Mr. Hawver’s explanation for his attire was that Jefferson is his hero and said he wore the outfit because he had a constitutional right to represent the client “as directed, instructed and agreed” by the client, “no matter what the ABA guidelines have to say.”

YouTube Preview Image

 

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Category: Court Info, Legal News  Comments off

According to an article in the ABA Journal, The State Bar of California is firing back after its former executive director claimed in a lawsuit that he was fired for exposing “egregious improprieties.”

The bar says the lawsuit by fired executive director Joe Dunn is “baseless” and his claims of being a whistleblower are

Senator Joe Dunn 2

Senator Joe Dunn 2 (Photo credit: Wikipedia)

“bewildering” because it was his job to manage the bar’s operations and employees.

Dunn claimed in his lawsuit (PDF) that he was told of his firing Nov. 7, just days after he and seven other anonymous complainants filed whistleblower notices with the bar. The bar publicly announced Dunn’s departure last Thursday, and Dunn filed his suit a few hours later.

The state bar emphasizes different points in the timeline of events.

“The lawsuit filed by Mr. Dunn is baseless,” the statement says, “and falsely suggests that the termination decision was motivated by the receipt of letters from [Dunn’s] attorney Mark Geragos stating that unnamed whistleblowers had complaints regarding state bar officials and operations.”

“At no time prior to Nov. 13 was Joe Dunn ever identified as a whistleblower, and he never brought any such claims to the board,” the statement says. “Indeed, it’s bewildering to hear Mr. Dunn claim he is a whistleblower since as the executive who is head of the entire organization he is responsible for managing operations and the over 500 employees, and he only belatedly raised claims after he was given notice of termination of his employment agreement, and after a settlement discussion with his counsel at the Girardi & Keese firm reached an impasse on Nov. 12.” Dunn was never identified as a whistleblower during those discussions, the bar said.

Many accusations by both Dunn and the Bar have been made.  You can check out the first article in the ABA Journal here and the subsequent article here.  Go to this link, for more on the current article in the ABA Journal.

 

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The California Bar Journal reported that due to budget cuts, the state’s trial courts have been devastated. To see where the closures have occurred in your county and which parts of the state have been hit the hardest, click on this link.  On the Interactive Map, if you run your mouse over the counties, it will show you how many courtrooms were closed.  Also, you can take a poll on how you and your clients have been affected by the budget cuts.

I know for our county, we are seeing longer lines at the clerk’s office, less people behind the counter to assist the public, and many documents now have to be dropped for filing.

 

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What is this world coming too?  I know attorneys get upset, disgusted and irritated with another attorney at times, but stabbing them?  Come on!!!

schmuhls

Alecia and Andrew Schmuhl

I read an article in the ABA Journal that the suspects Alecia Schmuhl, 30, and Andrew Schmuhl, 31, of Springfield, Virginia, knocked on the door of the home of the victims, Leo and and Sue Fisher, both 61 years of age and stabbed them. The Schmuhls are charged with abduction and malicious wounding, and they remain in custody in Fairfax County.

It seems that Alecia Schmuhl worked for Leo Fisher’s firm beginning in 2013 and recently left the firm. Andrew Schmuhl was a former judge advocate in the U.S. Army.  You can read the ABA Journal article here.

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As reported in an article by Julie A. Goren, Esq., there is a new Court holiday coming in 2015.  Ms. Goren’s article in part states:

“AB 1973 “an act to amend Section 6700 of the Government Code, relating to holidays” jumped out at me. What changed? As of January 1, 2015, the fourth Friday in September, known as “Native American Day,” is added to the list of “holidays in this state.”

This will mean those of us who calendar for our attorneys, and you know how fun that can be, need to make sure this holiday is put into our systems for calculation of service, etc.

For more on this new holiday, and how the drafter of the bill had no idea that Native American Day would be considered a Court Holiday, see the article posted by Ms. Goren here.

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Orange County Superior Court Judge Scott Steiner and Kern County Superior Court Judge Cory Woodward exhibited the “height of irresponsible and improper behavior” with their “intimate relationship[s],” the Commission on Judicial Performance said.

“It reflects an utter disrespect for the dignity and decorum of the court and is seriously at odds with a judge’s duty to avoid conduct that tarnishes the esteem of the judicial office in the public’s eye,” the order imposing censure on Steiner said.

Read more: http://www.therecorder.com/id=1202668718176/Two-Judges-Draw-Censures-for-Courthouse-Sexual-Affairs#ixzz3CScEeON0

According to the article, neither judge was removed from the bench, because they admitted having sex in chambers and showed remorse.  This goes to show that even judges make wrong decisions.

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Paralegals and attorneys beware!  According to a recent article in The Recorder, sending that email to the wrong person can be a possible legal malpractice claim in the future.

“Emails sent in certain practices, such as commercial or residential real estate and other commercial transactions, are at a higher risk of being forwarded to third parties without the attorney’s consent. Clients in these areas believe a title opinion or a corporate authority opinion that is good for one purpose is good for all purposes, but forwarding emails and opinions creates risks.

For the attorney, there is the risk that opinions, which were transmitted for a single purpose in a unique context, may be transmitted for use in connection with unintended purposes or unrelated contexts. For the client, there is the risk of the waiver of the attorney-client privilege. And for the recipient, there is the risk of detrimental reliance on an opinion that does not apply to facts and circumstances for which the email was forwarded.”

There are things the legal staff and attorney can do to protect itself in the event this occurs, such as adding content to the email footer that can be automatically attached by the system to every outgoing email. The footer can be used, among other things, to include an attorney-client privilege notice or to address the risks of forwarded emails by putting recipients on notice of the boundaries for acceptable and permissible use of the content of the email.

There are however, no magic words approved by the Court for this purpose.  Also, “Courts have generally held that such a label attached by an attorney means little in deciding whether a communication is entitled to protection under either the attorney-client privilege or the work product doctrine.”

The opinions of the American Bar Association, the Courts and the many state bar associations have varied on the effectiveness of such a footer. However, it appears there is some increased protection in the liability context if attorneys adopt language in their emails that parallels the inadvertent disclosure language applicable in the discovery context.

In California, generally, where it is evident the client had not made the disclosure, the lawyer did not intend to disclose confidential information and the inadvertently disclosed document was clearly marked as confidential, no waiver will be found. See State Compensation Insurance Fund v. WPS, 70 Cal.App.4th 644 (1999).

In California, once an attorney realizes privileged information has been received, the attorney must immediately notify the sender and attempt to resolve the issue. See Rico v. Mitsubishi Motors, 42 Cal.4th 807 (2007); State Comp. Ins. Fund v. WPS, 70 Cal.App.4th 644 (1999).

“While never sufficient to “un-ring the bell” once the privileged email has been read, inadvertent disclosure instructions can increase an attorney’s ability to potentially obtain some relief after discovery of the problem.”

As stated in this article, “as applied to a footer, the language addressing both the risk of forwarded emails or inadvertent emails might contain the following:

 

NOTICE: This email and all attachments are CONFIDENTIAL and intended SOLELY for the recipients as identified in the “To,” “Cc” and “Bcc” lines of this email. If you are not an intended recipient, your receipt of this email and its attachments is the result of an inadvertent disclosure or unauthorized transmittal. Sender reserves and asserts all rights to confidentiality, including all privileges that may apply. Pursuant to those rights and privileges, immediately DELETE and DESTROY all copies of the email and its attachments, in whatever form, and immediately NOTIFY the sender of your receipt of this email. DO NOT review, copy, forward, or rely on the email and its attachments in any way. NOTICE: NO DUTIES ARE ASSUMED, INTENDED, OR CREATED BY THIS COMMUNICATION. If you have not executed a fee contract or an engagement letter, this firm does NOT represent you as your attorney. You are encouraged to retain counsel of your choice if you desire to do so. All rights of the sender for violations of the confidentiality and privileges applicable to this email and any attachments are expressly reserved.”

The inclusion of the above description serves three purposes.

1) it highlights the communications as protected so an unintended recipient cannot claim he was unaware of the privilege issue until after the email was read; 2) it reinforces the intent to preserve and protect the privileged nature of the communication and makes clear no waiver was intended; and 3),perhaps the most significant, it distinguishes the email from other emails that may not be privileged.

Of course, emails still get read, even where they are unintentionally sent. These two steps—changing the footer and the subject line—at least provide some additional protections from those situations.

The above information can also be found in the book, California Legal Malpractice Law.  I have nothing to do with the writing, editing or distribution of this book.

I think I will be editing my footer immediately.  Hopefully, knock on wood, I will never have to worry about this but I would rather be safe than sorry.

 

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