chapter 2 legal administration and technology & the unauthorized practice of law
TRANSCRIPT
Chapter 2Legal Administration and Technology & The
Unauthorized Practice of Law
Objectives
o Distinguish between practice management and administrative management.
o Identify the functions of legal administration.
o Define total quality management.o List and explain major federal
employment laws.o Discuss what a staff manual is and why
it is important.o Explain the purpose of strategic
planning.o Describe what disaster planning is.o Discuss major technology issues in law
offices.
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Legal Administration Principles
o Good attorneys don’t necessarily make good managers
o Practice Management v. Administrative Managemento Practice management refers to
management decisions about how a law office will practice law and handle its cases.
o Administrative management refers to management decisions relating to managing a law office, such as financial or personnel matters.
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Functions of Legal Administrationo Practice managemento Leadership
o motivating or causing others to perform and achieve objectives
o Controllingo determining whether the law practice is achieving its
objectives, holding stakeholders accountable for their goals, and making strategy adjustments as necessary so the firm achieves its objectives
o Financial managemento Human resources managemento Planning
o setting objectives, assessing the future, and developing courses of action to achieve these objectives
o Marketing managemento Organization, policies, and systemso Facilities managemento Office services managemento Technology management
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Practice Management
o Defining the Law Firm’s Practiceo Defining the Law Firm’s Serviceso Defining the Law Firm’s Practice Systemso Total Quality Management (TQM)o TQM Philosophies:
o Management has an overriding duty to ensure that the firm provides quality legal services.
o Quality service involves every person in the firm, and everyone must be involved and committed.
o Quality service is based not on management’s or our own perception of quality, but on the perceptions of the client.
o Quality service depends on the individual’s, the team’s, and ultimately the organization’s performance.
o Improve systems constantly.
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Human Resources
o Hiring Processo Writing a job descriptiono Advertising and recruitingo Employment applications/resumeso Interviewingo Reference checks
o Performance Evaluationso Compensation and Benefitso Training and Developmento Personnel Policies
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Human Resources (con’t)o Current Personnel law Issues
o Employment-at-Willo Family and Medical Leave Act of 1993
o Applies to employers with 50 or more employees.o Applies to employees with at least one year of service and 1,250 hours in the last
year.o Employee is entitled to 12 weeks of unpaid leave within a 12-month period for:
o The birth or adoption of a childo Care of a child, spouse, or parent with a serious health conditiono Employee’s own health condition
o Employee is entitled to return to his or her same position or one that is equivalent.o Fair Labor Standards Act—Sets minimum wage and maximum hours of work
for employees. It also requires employers to pay overtime for time worked over 40 hours per week to nonexempt staff.
o Civil Rights Act of 1964—Prohibits discrimination against employees on the basis of race, color, religion, sex, or national origin. The Equal Employment Opportunity Commission (EEOC) was established to enforce this law.
o Age Discrimination in Employment Act of 1967—Prohibits employers from discriminating against persons age 40 or older on the basis of their age, unless age is a bona fide occupational qualification.
o Americans with Disabilities Act of 1990—Prohibits employers from discriminating against persons with disabilities in several different areas. The ADA required that employers “reasonably accommodate” persons with disabilities.
o Equal Pay Act of 1993—Prohibits employers from basing arbitrary wage differences on gender.
o Sexual Harassment—Unwelcome sexual advances, requests for favors, and other verbal or physical conduct of a sexual nature that creates an intimidating, hostile, or offensive working environment.
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Security/Workplace Violence
Perpetrators of Workplace Violence:Customers 44%Strangers 26%Coworkers 20%Bosses 7%Former Employees 3%
Institute of Management and Administration. (2005). The complete guide to preventing violence in the workplace (More information is available at http://www.ioma.com.)
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Unauthorized Practice of Law (UPL)
o Nonlawyer legal services providerso Authorized by court rule/statue to
assist persons in representing themselves
o Not authorized to give legal advice or appear in court
o Landlord/Tenanto Divorceo Bankruptcyo Immigration
o Legal Document Assistants
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Multijurisdictional Practice Issues
o Pro hac viceo Allows a lawyer to represent a
client in a state court in a state where the lawyer is not licensed to practice
o Displaced attorneys o California Bar Association
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The Practice of Law Defined
o What constitutes the practice of law?o Preparing pleadings and legal
instrumentso Preparing any document by which legal
rights are securedo Preparing documents for or making
statements to a client that contain legal opinions, arguments, or interpretations of the law
o Appearing in court on behalf of clientso Giving legal advice – applying knowledge
and judgment to a client’s particular situation and advising of rights and responsibilities and possible courses of action.
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Deterrents to UPL
o Misdemeanoro Injunctive Reliefo Liability for negligent
performance
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Attorney’s Responsibilities to Prevent UPL
o CA Rules of Professional ConductRule 1-300. Unauthorized practice of Law
(A) A member shall not aid any person or entity in the unauthorized practice of law.(B) A member shall not practice law in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction.
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UPL - Court Appearances
o Only attorneys can represent clients at court proceedingso Requires knowledge and skills that
only a lawyer possesses by education, training and experience
o Depositionso Sign pleadingso Clients can represent themselves
o Pro Per or Pro Se
o Administrative Agencieso Can Paralegals make appearances
before the Worker’s Compensation Appeals Board?
o CA Bar Ethics Opinion
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UPL – Attorney-Client Relationships
o Lawyers have a fiduciary duty to clientso Setting feeso Accepting cases
o Can paralegals quote standard fees to a prospective client?
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UPL – Giving Legal Advice
o Substantive legal opinion that may include:o Directing or recommending a
course of action to a client about how to proceed in a matter that may have legal consequences
o Explaining to a client his or her legal rights and responsibilities
o Evaluating the probably outcome of a matter, including litigation
o Interpreting statutes, decisions or legal documents to a client
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UPL – Giving Legal Advice
o Attorneys must maintain a direct relationship with clients
o Exceptionso Do-it-yourself and self-help kitso Information or advice over the
Interneto LegalZoom
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Job Titles and Disclosure of Status as Paralegal
o Must disclose your status as a paralegal
o “Paralegal” and “Legal Assistant” are interchangeable titles
o May sign correspondence, be listed on firm letterhead and have business cards, so long as appropriate title is used
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Independent Contractor or Freelance Paralegals
o Litigation support specialistso Are freelance paralegals
supervised sufficiently?
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