Look what Sallie Mae quietly slipped into the stimulus bill:
"One provision, which was sought by the student lending industry and went unmentioned in early Congressional summaries of the stimulus package, would temporarily increase subsidies to banks in the guaranteed student loan program by tying them to a new index, partly because recent federal intervention in the credit markets has invalidated the previous index. A spokesman for Sallie Mae, one of the largest student lenders, said the change was needed to keep student loan markets fluid. Critics said it represented a potential new windfall for lenders.
“This just continues the well-established tradition of welfare for the student loan industry,” said Barmak Nassirian, an expert in student lending."
http://www.nytimes.com/2009/01/28/education/28educ.html?hp
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1 – 200 of 337 Newer› Newest»So why don't you lead an effort to strip this out online? Go to some of the more progressive blogs. Let them know what this means.
Did you expect anything else? It's laughable to think that Obama administration would somehow be impervious to the laws of political gravity. The Congress, (Democrat controlled) is up to the same old tricks - handouts to those least in need.
The Student Loan companies need "stimulating" and Obama and the Dems are here to help.
You didn't think they would stand up for us, did you? They are trying to rush through so noone will really analyze any of the stinky pork filling it up.
Politicians, be they democrats or republicans, care about nothing but themselves - their ludicrously inflated egos and their VIP lifestyles. That's all there is to them - especially the ones who make it to Congress or the White House. Corporations who screw up get welfare and bailouts, the people they screw get paltry amounts for unemployment while they even get that. Then they have to pay taxes on the unemployment they've already paid taxes for.
Nothing more than a pile of stinky pork. We need jobs, not more student loan debt. The teacher's union practically owns the Democratic Party. Here in New York, they are going to tax soda and raise practically every other tax so that the surburban teachers can continue to make 100K + in their cushy jobs.
Politicians really can never win. People are so fickle. Just two weeks ago, the big news was that students would be unable to get loans for education because some 42 of the 65ish banks/financial institutions that were in the student loan game were discontinuing lending to students. Clearly this part of the "stimulus" package was included to incentivize some of those lenders to stay in the game.
If the politicians had not included this package - and lending was slashed - the libs and the do-gooders would be screaming bloody murder. Now, on the other hand, the jaded and bitter "higher education is a scam" crowd is going to frame the issue as a giveaway to corporate America. Get over yourselves. Nothing is perfect, especially in government.
Change?.......If he really was committed to "change" and what apparently/allegedly is his "agenda" one the first of many things that should have been on his "hit change list" would have been an aggressive attack on the "business" of academia in the U.S. (both ivy and non-ivy, including state schools)and SallieMae. The point being that students today are suffocated by their student loans (undergrad and grad/professional schools) such that they can not do anything of any real benefit to society or for themselves because they are strangeled by their student loans. It is beyond the pale that students who do not even benefit from the best of the academic institutions in this country are saddled with $100,000-$185,000 debt merely to obtain a piece of paper for the brain, that now in this economy they may not even be able to apply, and hence able to efficiently payback their student loans. It is a stangle-hold on the economic viability of this country, discourgaes risk taking, and only keeps the business of academic, their sports teams, their alumni/ae, and facilities/insurers happy. If O was truly interested in change of a lasting nature for this country, he'd start with the obvious. Right now, he is no agent of change and it is the same old same old, with an apparent "leader" who can't even be an admiral of his own ship. This is a complete failure, he can't even properly issue spot (our great HLS grad) beyond what Al Gore feeds him to identity the real issue that his own kids are going to face....too insular, not qualified for his job......Sallie Mae would have been the most obvious issue to start with, and instead, he added to his stimulus package......whatever...he's no agent of change period. His feet are talking.
the first thing
Politicians can never win? Who are you kidding, they wind up millionaires with offshore tax shelters. They live like aristocrats, put half of their families in public sector jobs and have the other half pretend to be consultants so that bribes can be laundered. And we wind up on UE while they and their corporate cronies screw everything up. Then of course there are their connections to organized crime which are all over the place.
Politicians really can never win? Who are you kidding, yourself? They wind up millionaires with offshore tax shelters and mob connections, put half of their families into public sector jobs and have the other half pretend to be consultants so they can have the bribes they take laundered. They and their corporate cronies screw up and we wind up on UE.
Vote Libertarian
The Clintons have like $50 million dollars and we're on UE.
The private loan companies, like the banks, gorged on the free and easy credit. Now, after paying out billions in commissions in bonuses, they've these poorly managed (Hello Harvard and other Ivy MBAs) have been run into the ground, betting the house sub prime loans. And they lost.
Now, we're supposed to keep them going based on "justice" and "accessility" and we really need it or the economy is going to collapse. Obama is wringing his hands and begging for the stimulus. I thought he was a cool customer, but he seems like a nervous wreck.
Let the banks and loan companies fail. Let's put together a top notch workout crew and put these failures through bankruptcy, like everyone else.
There should not be a bailout or "too big to fail" mentality. Let 'em drop and let the vultures devour the scraps.
Why do we need these asshole companies anyway? They've failed.
Obama is a politician, not a diety. He is in it for himself. That's why he's cuddling up to the Clintons now. He'd like to have even more $$$ for himself than they have.
Obama is a politician, not a deity. He is in it for himself. That's why he's cuddling up to the Clintons now. He'd like to have even more $$$ for himself than they have.
Don't fall for politicians, they will only break you heart.
Let's put together a top notch workout crew
_________
We are really not in a position to do that. We are unemployed.
More banks and businesses failing (although they deserve it) would only lead to more of a crisis of confidence and more people out of work. We need more regulation for them and bailouts for us.
http://www.theposselist.com/2009/02/05/legaltech-trends-affecting-contract-attorneys-%E2%80%A6-and-oh-yeah-india-again/
Has the posselist ever met a vendor it criticized? Why does it push LegalTech so much? Does it have conflicts of interest that it doesn't disclose in its so-called reporting?
The Posse List is pretty useless. It was a good idea when there was a good supply of doc review work (in English). Now it's the same gigs for ex-big law associates and foreign language gigs.
Their "coverage" of Legal Tech was a joke. For all of their pontification, they actually provide very little assistance to us.
I think that if the student loan companies want help, then the law needs to change to allow student loans to be discharged in bankruptcy.
It is simply nonsensical to tell a lender that they have to assume none of the risk for making a loan, yet they get all of its advantages.
The only way a lender should be able to make a loan under those circumstances is if they are zero interest loans, otherwise they violate basic finance. Risk requires compensation and is rewarded.
Without risk, compensation MUST be lower. If there is zero risk, there must be zero reward, anything else is either fascist or communist, and we tend not to like either of those in this country and have fought to defeat both of those repugnant ideologies.
Part of the problem with the sub-prime lending scam is that loans were made and fees collected, and then those loans, along with the attendant risk, were passed onto others.
As a result all sorts of loans that never should have been made were because there was no risk to the institution making the original loan. We know the results of that all too well.
Student lenders now are really threatening blackmail by refusing to make loans if they don't get a no-risk environment guaranteed by law. They want to continue to be bad actors and let everyone else pay for their malfeasance.
Enough is enough, call your people in congress now and tell them that if they vote for this provision then you will donate money to whoever opposes them in the next election and that you wont stand for this crap anymore. Seriously, this is YOUR future.
there should be a moratorium on student loan payments and interest for at least a year since recovery is not expected until next year
not sure if this applies to temp lawyers, but read this:
http://www.economicpopulist.org/?q=content/senators-sanders-grassley-offer-hire-american-amendment
Good stuff. We should be shutting down H1-Bs for most work, not increasing them. We should take a more "America First" stance. Other countries do it, but we have let corporations dictate policy and pave the road to gutter and lost jobs.
No foreigner without a green card should be given a job unless an American cannot be found. The rules now are far too lightly enforced. The govt should step up enforcement.
We don't need foreign doc reviewers or computer programmers, unless an American cannot be found.
Sorry guys, our country is full, go back home.
6:07 sorry but you are simply wrong on this. Our schools are a joke, everyone gets a degree in marketing or some other useless degree, and less than one per cent of the population has a phd.
We are literally becoming dumber and dumber. We don't make anything in this country any more. There is not a single tv or electronic device made in the U.S. Every year China produces 20 times more engineers than we do, Germany producers more engineers than we do.
A big reason why we are still somewhat competitive is because of immigration and having skilled foreign workers come here.
If we cut them off, as you advocate, we MUST either vastly change the way this country does business, in ways that Americans can't even imagine, or lose our ability to compete.
A full 20% of our doctors were born in India. We can not afford to lose those kinds of numbers. That is reality, and your saying "its our country" really means "Its our country committing suicide"
We need to improve math and science education, no need to import drs, engineers on a grand scale.
You missed my point, of course. We will always be a country of immigrants, that's part of our rich history. But they must be admitted in a controlled manner. We don't need to import hordes of foreign workers. We need to retrain Americans.
Rational immigration policy must be followed. Mexico is in civil war and the barbarians are edging closer to our gates. Yes, the gangs and drug mafias are barbarians, get over it.
We must put a clamp on illegal immigration and limit work based immigration only to the highly educated, skilled foreigners, in jobs for which no American can fill. We need to create opportunity for our citizens first and start exporting again.
We need to scrap outsourcing and hire at home.
All the TARP review is being conducted in India, so essentially American taxpayer money is being siphoned off to help feed and jumpstart the economy of a foreign country. Bush tried to nation build in Iraq, and now Obama is building up India. WTF about America? The only thing his stimulus bill is offering to the American people is more student loan debt, more empty hosptial beds, and a monstrous deficit that we can hand off to our grandchildren.
Anyone receiving taxpayer funds should not be outsourcing,
Without Sally, we would not be lawyers.
And that's a bad thing? Maybe it would be better for everyone if fewer people took the law school plunge. No debt and better career options.
Doesn't sound bad, does it?
Fuck this shite. After six years of being a lawyer and working 10,000 hours on doc review, I'm still have $22000 in loans. There are no jobs. I am living off UE and credit cards.
Trollop is a troll. I'm sure he'll deny it, and claim I'm taking a cheap shot on him based on his name, but I've been reading his posts, and he consistently sides with the enemy. And before you say we don't have any enemies Trolly, post it on a blog where people don't know what's going on out there. Unfortunately, we do.
"Without Sally, we would not be lawyers."
You idiot - Sally is what has driven up tuition prices.
So the loan industry is giving it to you up the ass, the ABA and big law is as well, and for some of you that attended low tier law schools got it there too. And what do you nearly all of you do? A big fat nothing....oh except for gossip and try to get the person next to your cubicle (when you had one) fired because he/she's crazy/lazy/mean.
And here again as you see your jobs overseas and student loan providers yet again taking advantage you do nothing. And you have LAW degrees.
Im so glad Im out of law and to the mass majority who decided to do nothing except happily take what little crumbs came your way -- well you deserve all of this.
"Aw, fuck you! Fuck the lot of you! Fuck you all!"
"Aw, fuck you! Fuck the lot of you! Fuck you all!"
ummm take a number 12:44 cause you are WAAAAAAAAYYYY in the back of that line
What do you expect we do?
Hold a strike when there are no jobs? Call up our Congressmen? Like they are really going to listen to us when they are attending fancy retreats hosted by Sallie Mae and the student loan industry.
Protest outside the ABA or a TTT law school? Like the money whores inside give a fuck.
The fact of the matter is that the unstoppable forces causing the destruction of our country were put in motion long ago.
i have no job
i have had no job for two point five years
i have a law degree from the worst school in the country - ave maria
i have $200,000 of debt
i am in deffault on my student loans
i have no talents
i speak no foriegn languages
i got terrible grades in law school
i was just rejected for a job at starbuck's
my undergrad degree is from a shitty school
i was convicted in 2005 in my last yr of lawschool of intentionnaly killing my neighbors pooch and served 2 months in prison plus $10,000 fine plus 180 hours community service
the county refused to ixpunge my record
now i just applied for a job sweaping floors at mickdonalds
Well- I am seeing a lot of ads for Loan Modification. Why not try applying to that at least temporarily until you find something better?
Hey 4:52, did you get corn-holed in prison?
good times
I wouldn't have minded the exhorbant price of law school if they'd actually taught me something.
I graduated a top tier NYC school and didn't know how to file a motion or what the CPLR was. In one of my legal practice classes they actually taught me the wrong way to draft a legal document. And there was absolutly no information or motivation about how to solo.
What a fucking waste of money. Fuck you law school and fuck you Sallie Mae. I'm going to do my best to never pay you back.
what's a top tier nyc school?
not trying to be funny- just never heard that kind of reference before.
@ 7:21,
"I wouldn't have minded the exhorbant price of law school if they'd actually taught me something."
Like basic spelling?
Like perfect spelling matters on a blog.
It wasn't my post, but come on.
Well, even first tier lawyers are now being outsourced. Where will it end?
http://tempinfo.com/Joomla/
anyone have any info on theladders.com website touting 100k jobs for 100k people -- its a paid site?
Nobody wants to mention this, but we can't have less law schools AND acknowledge that we should definately have had the opportunity to go to law school. Mutual exclusion for whatever percentage we think is too many--incluing a disproportionate percentage of us, or we wouldn't be on this site. I've come to terms, and want to get past the denial and wild claims for ineffective action. I still go to this sounding board since it quit talking about actual jobs, and hope to be able to move on too.
You are a troll trollop. We haven't moved on, we are on ue.
We aren't talking about jobs because there aren't any to talk about. And many of us acknowledge that we would have been better off if we never had the opportunity to fall for the law school scam. As for action, we couldn't stop onshoring to less expensive areas of the U.S. so stopping offshoring would probably not be enough to get our jobs back. We are just figuring out how to survive while the legal market is falling apart. If there was a recovery and doc review jobs came back, we would gladly take the worst of them.
"that we should definately have had the opportunity to go to law school. "
Someone like you that is incapable of spelling "definitely" correctly (or at a minumum using spell check) and lacking any ability to form coherent, logical arguments, quite clearly should NOT have gone to law school.
1:23
I noticed that, too. Also:
"but we can't have less law schools AND acknowledge"
Uhhh... that should be "fewer law schools", not "less".
There are some great non-law blogs around with posters who represent a random cross-section of college graduates, few of whom possess a JD, which are vastly more literate and respectful of English grammar, spelling, and syntax than many of the people on this blog. (One example from DC: http://roissy.wordpress.com).
Which really begs the question if too many lawyers aren't being churned out by too many law schools.
"Aw, fuck you! Fuck the lot of you! Fuck you all!"
Why would anyone need spellcheck with you fucks around?
It is definitely the case that too many law schools means there are too many people graduating without critical thinking skills. I met some on doc review. I met others in different contexts.
However, I would add that this is true of many degrees on general. There is a reason for this. Employers do not want employees who think too much.
Employers want employees to go into set scenarios as defined by employer to do steps a, b and c exactly acccording to what employer trained them to do.
This is true even if steps a and b are not necessary to get to c, and the smart employee figures out how to get to c without steps a and b. The smarter employee still has to fake it or convince the employer it was the employer's idea.
2:30 can you spell anal retentive?
Is anyone working in NYC? Is there anything going on aside from the usual skeleton crews of unrelentless ass kissers at our favorite shitholes? Update please.
I saw job listing on the NYC Craigslist, looking for three NY barred attorney "from top schools" who are "fully fluent in the Bukhara dialect of Uzbek", for a doc review project that would last about 9 days.
Well, I am not quite fluent in the Bukhara dialect. I did a stint in the Peace Corps from 94-98, and I was stationed in Tashkent. There is not really that much of a difference between the Tashkent and Bukhara dialects. Technically, the Bukhara dialect is called "Kipchak", and has more vowel harmony. But they are 90% mutually intelligible.
The ad (which only appeared online for 2 hours) said to show up with your CV at 11 pm last Wednesday night behind a warehouse on the Lower East Side (I kid you not). So I showed up there, and there were like 35 lawyers in suits (mostly guys, about 4 girls) standing there waiting. We waited for about 45 minutes and then this red van pulls up with the name of the temp agency painted on the side.
Well, damn if they didn't do an impromptu test of our Uzbek language abilities right there. A Puerto Rican-looking guy named "Manny" in a white cotton shirt and yellow corduroys got up on some kind of stepstool and, with a megaphone, announced that the project would pay $27.50 an hour.
The crowd of us jostled, pushed and shoved to get close to Manny, and one guy smacked another guy, giving him a bloody nose (for which Manny called an ambulance).
Manny introduced a girl named Ludmila who was indeed fluent in the Bukhara dialect, and handed her the megaphone. She called out questions and pointed at us, in turn, as we auditioned for the part. Some of the lawyers were passionately arguing and insulting each other, accusing people of not really being fluent in Uzbek. Later, another fist fight broke out involving two lawyers who, someone told me, used to work together at USAID. (One of the female attorneys called the NYPD, but no police showed up until much later.)
Finally, by about 12:30, the auditions were over and two laywers were picked, one guy and one of the girls. Some of us begged Manny and Ludmila to consider us and take a better look at our resumes (I spent a significant amount of time working near Bukhara)... but, to no avail. Manny and Ludmila drove away in the red van with the 2 lawyers (one was from Harvard, one from UVA).
Then about 10 minutes after they drove away, as most of us were still milling about in that back alley, devastated that we weren't picked, two NYPD patrol car pull up and the cops get out and start threatening to arrest us for loitering. One guy actually did get arrested for arguing with one of the cops, and three people got citations for other stuff. The rest of us just got yelled at and told to "leave immediately", with tasers pointed at our faces.
Damn! I think I could have gotten the job, because my Bukhara accent is pretty good (at least I can fake it really well, being fluent in Tashkent-accented Uzbek), but my JD is from the University of Iowa -- arguably not a "top school", although it does rank pretty high.
110
It's slow. I asked around. The reality is that we are in a depresssion. My advice: find some work other than legal work rather than focusing on doc reviews or do more school. It's time to go into survival mode just like they did in the 30s.
1:10
They'll call you a troll, but nobody wants to admit that there is work, but it is all on the down-low. This blog used to give good advice about pay and conditions, but now that there is scarcity, the "lifers" don't want to advertise the action. Unfertunate (Alert, spell-check troll!).
If you're not able to write blog comments spontaneously in correct BASIC spelling and basic grammar - as the majority of commenters here are not able to do - then it demonstrates that you're NOT in the HABIT of using basic correct spelling and grammar, and that is a very harsh indictment of the majority of American "lawyers", yes INCLUDING most of the Ivy League.
PS from 10:47, supra,
And "spell checks" are - or ought to be - for half-educated secretaries, not lawyers.
If you're not able to write in nearly perfect grammar and spelling spontaneously and without any "checks", then you shouldn't be a lawyer.
10:47
Since most of the commenters here have, by your estimation, verbal skills that are unworthy of the profession, you assert that they don't deserve full-time employment with benefits?
Is anyone working in NYC? Is there anything going on aside from the usual skeleton crews of unrelentless ass kissers at our favorite shitholes? Update please.
__________________________
No. Ignore Trollop. It's just the usual skeletal crews and even they are not getting as much work as they used to get. From what I hear, it seems that they are just getting called back for a week here and a week there.
257, very nice writing.
Hey, are these guys real?
CONTRACT ATTORNEYS
Our clients, prestigious Manhattan law firms & corporations, seek Admitted Attorneys (any state) for Document Review.
Work up to 60-65 hours per week.
LONG/SHORT-TERM Positions in NY! NEW JD's Welcome!! Submit resume for immediate consideration to:
lo040595.tif
521 Fifth Avenue, NYC 10175 PH: 212-695-3999
FAX: 212-399-9067
E-Mail: lsp@modispro.com Visit: www.legalsupportpersonnel.com
2:31
The company looks legit, but it's very hard to say if they're actually hiring now for specific jobs. A lot of these temp agencies make regular announcements of "projects", not specifying whether there are specific projects in the docket, or just projects being vaguely anticipated in the "near future". They solicit resumes and keep them on file, so, in a crunch, they can bid on a project and be confident they can ramp up very quickly, rather than getting caught with their pants down and have to scramble to recruit people at the last minute.
So when you see an ad like this, don't automatically assume it means work RIGHT NOW. Call them and ask, and be very specific in your inquiry, as to if there are actually projects with set timeframes to start, and when exactly they anticipate the work will start.
2:31 that is an ad for LSP they are a "legit" agency, but they can also be pretty nasty to deal with. In particular Wanda Lim, who basically runs things there, has a reputation of being horrible to deal with. From what I have seen they freely blacklist people as well. If you have other options, this is an agency I would avoid working for.
None of the have the big projects they thought we would be working on now. They are starting small, week long stuff.
They are in a holding pattern, collecting resumes.
They are probably routing the very short projects to the US and the long-term ones to India.
They aren't starting small, they aren't starting. Only the usual skeletal crews are getting anything. The agency ads for English jobs are just for resume collection, even when the agecies are real. They aren't ramping up, they have nothing for us. Legit agencie do stock ads to collect resumes even when there are no actual jobs.
4:20
I agree with you. They're not ramping up to bigger projects, they're just collecting resumes. They are in stasis mode, not truthfully anticipating anything concrete at all.
Also, there will be no big backlash or rush to bring outsourced work back from India to the US. Hell, if Indian attorneys don't work out, the work could even be done marginally cheaper in Canada or Australia or Hong Kong than in NYC or DC.
"holding pattern" is another way to say they don't have any projects
riiight. No work, except the foreign language rot. Where is the English language component for all of these reviews?
hmmmm...guesses anyone?
for the criticizing douchebag at 10:47am who wrote incorrectly:
"lawyers",
go back to school
They're waiting on the stimulus package to pass and to see the details of the bank bailout plan. The banks will release the funds and then the projects will start again. For the most part, everything is on hold at the moment, even the foreign language projects.
4:38
Was your question rhetorical?
Everyone should know it's in INDIA.
To pretend or dismiss the fact that more and more English-language doc review work is going to India every day, and that this trend is increasing exponentially, because cost-consciousness is the #1 priority for everyone, and cost-consciousness is being exacerbated by the deep recession we're in, is to walk around with blinders on.
And anyone who thinks this work will suddenly spring back to the US whenever the recession ends (my guess is that will be in a long, long time, though), would be wrong. Because the recession might be the PRECIPITATING FACTOR to send more work to India, but once the savings are realized, these agencies and firms will NOT go in the opposite direction and negate those savings.
The shipment of legal doc review to India is a ONE-WAY STREET has a clear end-point, where 85-90% of ALL DOC REVIEW will be done in India or in some lower-wage place outside the USA.
The only types of projects that will exist here are very short ones (where the transaction and set-up costs of contracting with an Indian firm for such a brief project outweigh the amount of dollars saved by using the Indians), or for foreign language projects.
This is the REALITY you guys are facing and everyone had best deal with it now.
They aren't waiting on the stimulus package or anything like that. The jobs are gone from here for at least as long as the depression lasts.
4:43
The doc review work would not be in the bailout, TARP, or stimulus plans per se, but in any litigation that came about when the dust finally settles, secondary to those acts.
And my best guess is that the dust won't settle immediately. Banks will have to know if they're going to be solvent or insolvent, and indicate that to creditors up the food chain, for lawsuits to be filed.
Sure, some lawsuits have already been drafted and are waiting to be filed, but I just don't see how everyone will jump the gun immediately when Round 2 of TARP, or the stimulus package, is signed. I think that's wildly optimistic.
Jobs may come back here if there is a real economic recovery. The risk of reviews in India was a last resort tactic due to the credit crunch. If times are good again, the firms and clients may prefer to have the work here but a mild recovery would more likely send them onshore to somewhere cheaper than here. At best, we probably have no more than a very slim chance that if the economy improves, work will come back here where we can get it. Also, it doesn't seem likely to improve very fast.
In a globalized, wired world where docs can be sent digitally anywhere within seconds, it makes no sense even for the smaller agencies not to take advantage of the Indian LPOs.
A lot of US temps talk about Indian attorneys not speaking perfect English, being error-prone, etc.
First, I would point anyone to all the errors made by US attorneys right here, to show that nobody's perfect.
Second, I'd tell these people that the agencies don't really care if Indian attorneys speak in what sounds like gibberish, and don't really have a perfect grasp of American legal concepts.
Those things aren't really what's important to them. What IS important is the bottom line, and their ability to reassure clients that "attorneys" are doing the work.
First, a long time ago, it was in-house attorneys with honors degrees from top schools.
Then the work was outsourced to US-based temp agencies, employing US-educated, US-qualified lawyers.
Finally it was outsourced to foreign lawyers with foreign law degrees.
When will people understand that it's all a matter of perception, and what temp agencies can get away with, in terms of reassuring their clients?
If the price is "right", almost anything will reassure clients.
Nowadays, just saying "the work will be done by attorneys" is enough to reassure clients, because THE PRICE IS RIGHT.
Nobody asks where the attorneys are, or where they were educated, or if they are licensed in the US.
Nobody really cares.
There is NO WAY America can replace the HIBs. This is a "nation" of self-entitled scalawags who thought they deserved a middle class living after obtaining degrees in Art History and Queer Studies, and yes, TTT law. This is a culture which relentlessly makes fun of people demonstrating any interest in science or engineering, deriding them as misfits and nerds.
Witness a nation of unemployed real estate agents!
Protectionism is political rhetoric that invariably does not stand up to reality.
4:52
The banks won't lend the money to initate the reviews. Once the government says what it will do with the troubled assets, they'll resume some degree of lending.
The first and best way to "protect" American jobs is by educating Americans to do those jobs, better than foreigners are educated to do those jobs.
Since we have failed at the education part, people shouldn't be surprised that jobs are shipped overseas.
Can outsourcing jobs be banned? Absolutely, if our political leaders are not intimidated by corporations threatening to pull their campaign contributions in the next election. Will politicians be able to overcome this fear? Precisely when pigs fly.
Still, even if we banned outsourcing, that doesn't negate the fact that our educational system at every level is failing, and that people are being steered into the wrong fields. How many lawyers, communications majors, and psych majors do we really need?
If we don't start valuing science and making it cool to be a physicist or a chemical engineer, then all bets are off.
5:18
So you're saying the real bottleneck lies WAY up the food chain, with bank lending.
True as a generality. The jam-up in bank lending is in fact the immediate cause of the deepening recession.
I've never heard of a law firm or client holding up a lawsuit because they couldn't get financing from a bank. But, you may have a point there.
I heard from a recruiter the review slow down was due to bank lending as well. I hope it is correct and projects resume.
5:25
It's my guess, but these reviews cost a lot of money. 20+ attorneys clicking away for a few months costs a couple million. It's not like firms or buisnesses just have this money lying around.
To say that all of the English language reviews will be conducted in a non-native English speaking country is rubbish. Perhaps some foolhardy corporations will insist the work be done there, but not that many. It's just too risky.
Anyone outsourcing all their work to that third world dump will get what they pay for. They could have laid off biglaw associates doing the work here in NYC. In fact, that's what's happening.
There are so many, lying sleazy LPO salesmen here.
Tom, can you check for the Indian IPS and see which horrendous LPO salemen are spamming this board?
548
That makes sense to me. I did not understand why individual law firms would all uninformly decide change business habit. The India argument did not make sense because that's still something that would require each actor to reach the same conclusion about the risks. The point about lending, however, fits for a type of event that would affect everyone uniformly.
5:58
The point I (and others) are trying to make about Indian lawyers is that they are NOT "non-native English speaking" people.
India is a huge (around 1 billion people) and very complex society, and the English language happens to be deeply embedded in its culture, as a historic legacy of British colonization.
India is a stratified society and the people at the top of the heap, where the vast majority of law school students come from, are just as likely to grow up speaking English as you or me.
Granted, it may be heavily-accented "Indian English", but it's fluent English nonetheless, and they are even sticklers for grammar, spelling, punctuation, and other "petty" rules that, all too often, Americans treat with flippancy.
Hindi is the official national language of India, but among the business and professional classes, the majority not only speak English, but speak English pretty well.
To disparage them as "non-native speakers" is very misleading. These people grow up speaking Hindi AND English, and most university and law school classes are taught in ENGLISH.
It would not be a mistake to say that India, not the USA, is the biggest English-speaking country on the planet, because there are in fact more people in India who speak English (to varying degrees of fluency) than there are such people in the USA.
It is not the same thing as American English - period. Besides a general ability in conversational English, their reading skills are quite poor. And as we know, the reading is the critical part.
Additionally, the converstional English is very poor and does not travel well.
Boy, there are a lot of LPO pigs posting today. Has the word gotten out that you need to defend yourselves here.
We are taking our work back from you sleazebags!
6:04
Maybe it's a combination of both India *and* bank lending, though.
If bank lending is holding things up, that means firms are making a financial calculation to postpone litigation until liquidity improves.
Since it's a financial calculus, though, there are various *price points* at which one type of transaction might be cost-prohibitive, but another might be cost-effective.
Maybe the slowdown in lending is not completely turning off the spigots, then, but just inducing more firms to turn to India to get work done much cheaper, with the little liquid money they have right now.
606
There is nothing disparaging about saying non-native speakers are likely to miss meaning.
By your definition, an American who knows fluent French from studying it here is equivalent to a native French speaker. Or, if I become fluent in Hindi that means I am the equivalent of the language skills of someone from India.
Most business (and doc reviews) inovlve business, everyday and legal English. Not just technical proficiency at the language.
Th language issue is real. Indian Eglish will develop into a separate language evenually, just as American English will eventually be incomprehenible to the speakers of Queen's English, Cockney English, South African English, etc.
Its nothing that cannot be overcome in a coaching clas, however.
American Englsh is on its way to death, straight-jacketed as it is into a "standard" form by Strunk & White and other grammarians and task masters.
One thing though-- The high IQ Indians go into tech. I don't think people who go into the law (outside of the top ten schools) are necessarily better than the second tier grads here. And the top ten school grads want to work at the big Indian firms serving Indian corporatios like Tata and Infosys, not in coding shops catering to American cients and their frivolous and tendentious cases.
We shall see where the chips fall.
It is not that U.S. attorneys are perfect, it is that unlike the Indian reviewers (who are not admitted here) we are attorneys. When we review the docs, there is an appearance of due diligence. When they review the docs, there Is a red flag that unmistakably shows an indifference to due diligence. Everybody knows that when the work is sent there, that isn't being done because their work is expected to be of high quality. It is like an admission of recklessness. They do not have the grasp of English required to understand the docs. Their level of English is not anywhere close to ours.
That being said, if the work goes to Indiana instead of India, we still won't have the jobs.
612
I am guessing, but I don't think that's right. Just reading the tea leaves, it sounds like a lot of the India stuff was in the planning stage, but was not ready for prime time this year. For example, one tea leave of reading between the lines is the supervisory staff, and whether they have enough. I don't think the meltdown changed that.
Read the industry reports and you will see the credit crunch is exactly what caused the sudden upsurge in the work going to India. Credit lines were pulled exactly when they were needed.
And anyone who comes here to make ludicrously inflated claims about the ability of Indian reviewers to understand English is obviously an lpo slammer as well as a liar. How idiotic and dishonest can someone be as to claim that Indians are more capable of understanding English than we are. We have all come into contact with the kind of English spoken in the outsourced call centers. It is a bad joke. The Indians doing doc review for $5 an hour don't understand it any better than the Indians working in the call centers.
Should have read lpo "spanner" not "slammer."
I love the way ipods incorrectly correct words. Meant spammer of course.
When it comes to quality, it depends. Look at the Indian novelists who've recently won the Booker Prize. They can hold their own against anyone.
The quality will come if the money is there. They will suck it up and code documents alleging that some American guy lost his left ball living under power lines for the right price.
What the smarter folks here realize is that if even 10% of the work ends up in India, there will be massive pricing pressure on the entire industry, and it will wind up going to our best tards in Mississippi or Alabama. It will not stay in Washington or Los Angeles. Once the work goes it never comes back. Name one industry where it has, please?
Slammer or spammer, the fool that made those bogus claims about the Indians is an inept liar. The don't understand the docs.
I will say it again: I am getting out of doc review regardless of what happens.
However, I think 6:51 is full of it. I am not going to go back and forth with you. Your agenda is what it is. I am not the one you are going to have to convince. I'd love to be there in with the first case in which something goes horribly wrong, and someone uses your arguments.
"Your Honor, an Indian Novelist won the Booker Prize, and, therefore, we should retain subject matter privilege although we disclosed the documents."
Indian novelists, are you kidding with this stuff? Really, it is clear that Indian doc reviewers don't understand the docs.
The jobs may me onshored elsewhere and never come back. However, there may be a difference between law and the industries that have lost jobs before. The comfort level might be better with NYC and DC attorneys and having the work done closer. Maybe but only maybe and probably not until there is a major reversal in the economy.
INDIANS ARE WAY SMARTER THAN AMERICANS, and when you learn to deal with that, you will understand why we are the only ones who doubt their ability.
Things go "horribly wrong" every day. If LPOs are horribly wrong at a far higher rate than Americans, and if the costs outweigh the advantages, then the market will decide there should be no LPO in India. As I said, we will see. You are speculating based on your biases, nothing more. You have no hard data. It's nativism couched as "argument."
7:07 obviously you are not part of "we" and you are a very inept liar making foolish claims that nobody is buying. The Indian reviewers do not have enough understanding of English to understand technical and corporate docs, including the context of those writings. It is sheer recklessness to allow them to do it.
7:09 why don't you just sign as "lpo spammer." It is a question of due diligence. When things go wrong there is no way to pretend having the docs reviewed by foreign non-attorneys was due diligence
If the lpo spammers are still out in force here, maybe they have reason to fear the outsourcing is temporary.
Is it just me, or does a post about the student loan buyout, for example, always turn into conspiracy theories about India? Most of the India fears are of the imagination.
It's you Troll(up). How is it you make a living?
Trollop
It's a combo.
a) People are unjustifiably concerned about India. It's probably the economy.
b) However, you seem to be a nut with other conservative extremists so it fuels people's concern. Many of you like to push your pet theories on people who are down and out right now.
The net positive is that you can't be that good at it. You wouldn't be here with us.
7:07
"INDIANS ARE WAY SMARTER THAN AMERICANS"
HA HA HA HA. Don't make me laugh. Have you ever been to India?
If you'd ever visited India, you would never say anything like that.
THE BOTTOM IS FALLING OUT OF THE US ECONOMY.
1155
But look at this way, we will all have tax breaks.
Indians are unlicensed, non-native speakers. It is therefore illegal for them do "attorney" work.
Period. We don't even need to get to their poor English skills. This is not a competition, this is theft.
This illicit trade, not some kind of "bake off".
Why would and self-respecting American hire an Indian to do work that takes an American's job?
Are we that greedy and lost as a country.
10:20
Show me where there's any law against "non-native speakers" practicing law in any US jurisdiction.
I know a number of attorneys licensed in the US and practicing here, who were born and grew up in non-English speaking countries, and who immigrated here relatively late in life, and learned English as adults, and who still speak English with an accent.
Are you saying it is illegal for these people to practice law? Please cite me the statute(s).
It's not the fact that they are non-native speakers, it's because they aren't licensed in a US jurisdiction.
In their zeal to allow themselves to screw their fellow attorneys out of the ability to earn a livelihood, the biglaw fools at the bar associations (who don't understand that a lot of their own work could be outsourced) have issued ethics opinions allowing outsourcing of legal work to non-attorneys provided that there is the requisite level of supervision. The language issue is very important because the lack of sufficient legal skills to understand the docs obviously shows that there is no sufficient supervision of the outsourced projects. That means that even under those incredibly irresponsible bar association ethics opinions, the outsourced projects are involved in the unauthorized practice of law. The law firms are vulnerable to malpractice claims. They try to to protect themselves from malpractice claims by getting consent forms signed by their clients, but they can't really count on that working when they don't specifically disclose that the non-attorneys they use lack sufficient legal skills to understand the docs.
should have been "sufficient language skills"
11:02
Has it occurred to you that maybe the stuff that temp lawyers are hired for (i.e., doc review) never really required a lawyer to do in the first place? That maybe the only reason we ever thought of it as "lawyer's work" was because, back in the day, when big law firms were brimming with money and clients were less sensitive to cost, those big law firms used their in-house associates to do this work?
And then when clients became more sensitive to cost, those big law firms starting using temp agencies to hire outside lawyers to do it, so they could still reassure their clients that "lawyers" were doing the work, and maybe even still bill their clients accordingly?
And then when clients became even more sensitive to cost, the LPOs entered the picture and offered far cheaper outsourced labor in India?
But maybe it was never firmly established that doc review work constituted "practicing law", so that, even though we HISTORICALLY associate it with lawyers, we are just assuming it's lawyer's work because of that historical association, and it in fact can be done by anyone with a brain who can learn simple legal concepts -- like a paralegal?
And that the only reason the LPOs use Indian-qualified attorneys at $5/hour, as opposed to, say, Indian-qualified paralegals at, say, $2/hour, is so that the claim that the work is being done by "attorneys" can be passed along down the food chain from LPO to law firm to client, thereby reassuring the client that smart people with an understanding of legal concepts are doing the work.
But that, in reality, notwithstanding all of the above stuff about the need to reassure clients, doc review work was never firmly established as constituting the practice of law in the first place?
Does that notion even begin to seep into your brain? I think it should because it is the painful reality. I sympathize with you greatly, and I actually support your cause (even though I am not a doc reviewer), but in the end, it is far better for you to understand and embrace REALITY than to continue to delude yourself.
The Indian doc reviewers are not attorneys. They are not admitted in any U.S. jurisdiction.
Doc review is the practice of law, which is why the bar associations have bothered to issue ethics opinions about it. When doc reviewers who don't have the language skills necessary to understand the docs are used, there is a lack of adequate supervision even under the standards of the ethics opinions. When paralegals here do doc review on English projects, it is under the supervision of attorneys (which is required because doc review is legal work) and that supervision is less likely to be considered bogus because the paralegals do understand English.
It is all about demonstrating due diligence if there is a disaster. That is enough to make the use of foreign non-attorneys incredibly stupid. Just using them makes it appear that due diligence wasn't even attempted.
11:27
They are not attorneys in the US legal sense, as US courts define an "attorney" for the purposes of admission to the bar and license to practice "before the courts". But even a US court would agree that they are indeed attorneys in the strict sense, in that they are licensed attorneys in India.
The fact of the matter is that use of Indian attorneys is more of a marketing gimmick than committing a fraud on a court.
Since it was never firmly established by the courts that doc review constitutes the practice of law, then by extension we can see that when US licensed attorneys were exclusively doing it, that was, at bottom, being done more to reassure clients that "very smart people with legal knowledge" were reviewing the docs, and so that law firms could bill the clients for associates work.
Now the firms are still marketing it that way, i.e. that "attorneys" are doing it, only it happens to be Indian attorneys. What's more, they are being entirely open about that. They are, I understand, disclosing to their clients very openly that Indian attorneys are reviewing the documents.
The only reason it's ANY attorneys at all, as opposed to certified paralegals or bright college students, is that the original marketing pitch that law firms used to placate and reassure their clients -- i.e., that "attorneys" were doing the doc review -- has survived -- AS A MARKETING PITCH -- to this day, only the nature of the "attorneys" has radically changed.
The question is, is it the practice of law? You rightly say that state bars have taken up the question and rendered opinions about it. But just because they have rendered opinions doesn't mean that it automatically constitutes the practice of law. As I understand it, none of the opinions so far has stated that it IS the practice of law -- am I right?
If there is such an opinion extant somewhere, please show it to me.
It doesn't matter what they are considered in India, they are not attorneys here because they are not admitted in any U.S. jurisdiction.
Under the ethics opinions, supervision of outsourced doc review is required to prevent the unauthorized practice of law.
Besides the illegality of offshoring American attorney work, it is highly unethical. If TARP money is used, it would be outrageous to use that money to outsource and "stimulate" an economy other than our own
Do you realize that African Americans and other under represented classes comprise a large percentage of the document review teams? We are exporting the work away from African Americans and others, just to save a few sheckels. It's a disgrace!
I would posit that it is actually MORE expensive, at the end of the day, to have your work performed by unlicensed foreigners than by JD holding, state bar licensed American (citizen or green card holder) attorneys.
Moreover, the risks far outweigh any pittance potentially saved.
We have been through the outsourcing issue ad nauseum. You can see the posts and the opinions on the rest of the blog.
Even outsourcers realize that they have to pretend to have supervision by a U.S. attorney because under the bar association opinions, rigorous supervision is required to protect the outsourcing from being considered the unauthorized practice of law.
Until we have our jobs back, the discussion will continue. There is no fallback of plan b. This was it.
In getting all caught up in outsourcing, we shouldn't forget that even if that stopped, the work would probably go to less expensive areas of the U.S. We would still be out. Our best chance would be a great big economic recovery. No economists, Wall Streeters, etc. seems to think that will happen this year.
I am getting sorta tired of this subject. Maybe posters don't read prior posts. Maybe they are the same people trying to invent arguments as to why off-shoring is legal.
Maybe they are just first class dumb asses who don't know any better, maybe they are just trolls, maybe they are not lawyers, maybe they are from an outsourcing agency trying to defend themselves in the court of public opinion, maybe they are Indians who are offended by some of the racist crap that has been posted here, I don't know.
What I DO KNOW though is that sending projects overseas to India to have non-U.S. licensed attorneys do this work is illegal. Period.
Look up the statue for any state and it clearly states what is practing law without a license and that it can subject a person to criminal liability, even if they are only "aiding" such practice.
Furthermore the case law on this is also well developed. It does not matter what the ABA or any other dues collecting rip off bar assication says, it does not matter what Joe Jack Ass partner at Big Law says, it does not matter what scum bag outsource-er agency head says, IT IS FUCKING ILLEGAL.
There is no debate on this, except by those who are too fucking stupid, lazy, or corrupt, or full of crap to bother looking up the law.
If you still have a question in your mind about this, I suggest you TRY to act like a lawyer for 5 god damn seconds and go look up the statute like you were taught in the opening minutes of law school and you will see it for yourself in black and white.
nice try 11:42, if its not the practice of law then why are conflict rules in place?
Why does attorney-client privilege apply, why when the firm submits papers to a court for attorney fees to courts it is listed as legal work which the court awards fees for?
It seems 11:42 that you want to tell every federal court that has awarded attorney fees to firms that have used doc reviewers that they are in fact wrong, that it was not the practice of law, and that all federal judges are too stupid to understand what attorney fees are, and that you are smarter than all of them combined, or in the alternative, all of the federal judges were involved in a massive scheme to defraud clients too?
Please provide evidence of this, otherwise, I suggest you act like a lawyer and go look at the statute for what ever state you happen to reside in.
11:46 supervision does not matter, that is a red herring put up by agencies and the ABA. It is not legal under state laws concerning what practicing law without a license is.
Maybe there is another angle to this India issue. Isn't all of the legal work sent to India federal matters? If that's the case then State bars can't get involved. Any enforcement would be at the Federal level. (By the Federal District Courts etc..)
For example, State bars have been battling (unsuccessfully) immigration lawyers for years for practicing Federal law only in a State which they are not admitted. There is a landmark case. (Sperry v. Florida. Sperry won.)
That court provided that immigration law cannot be controlled by the State bars, but at the same time, the State bars may have a winning argument (That its impossible to completely avoid State issues with Federal matters e.g. patent/immigration).(There were also supremacy clause issues.)
So maybe that is why the State bars are not getting involved in a UPL investigation against firms and lawyers outsourcing doc review to India?
Ethics opinions matter in disciplinary proceedings and courts do look to them. That is why the ABA and state opinions have been looked to by biglaw firms as providing cover. They are wrong in doing it because the ethics opinions do not give cover for having the work done by non-attorneys who are incapable of understanding English sufficiently to understand the docs that are involved in a project which are frequently highly technical and filled with business-speak. If we too sometimes have difficulty with understanding what the custodians are talking about, it is unquestionable that these foreign non-attorneys can't comprehend the docs. Not having lived here, they also are unable to understand context.
While we are not perfect, there is no unauthorized practice of law issue with us as there is with them.
Bill to Increase Penalties for Unlicensed Practice of Law Clears Senate
By NAZANIN AGANGE, Staff Writer
State senators yesterday passed a bill increasing misdemeanor penalties for people who practice law or give legal advice without a license or federal court approval.
Senate Bill 1459, sponsored by Sen. Gloria Romero, D-Los Angeles, makes a misdemeanor conviction of practicing law without a license punishable by up to a year in county jail and a $1,000 fine, or both.
It also creates a minimum punishment of 90 days in jail for subsequent convictions. A sentencing court would have to explain any variation from these standards on record.
The bill passed in the Senate by a vote of 27-6 and, most likely, moves on to the Assembly’s Judiciary Committee, John Hooper, a spokesman for Senator Romero, said.
Under existing law a disbarred or suspended lawyer who practiced law could be charged with a felony. A non-lawyer could only be charged with a misdemeanor.
When introduced, SB 1459 attempted to address the discrepancy between the two charges by creating a “wobbler,” a crime that could be charges as a felony or misdemeanor, for non-lawyers convicted more than once of claiming to be licensed to practice law.
As amended, SB 1459 would no longer create a felony charge, but increases the maximum sentence for the misdemeanor from six months to one year and creates a minimum sentence of 90 days in county jail for repeat violators of the law.
Romero’s office said the bill would allow harsher penalties against individuals who targeted minority communities and people with a limited knowledge of the English language and American laws posing as immigration consultants or legal advisors.
“Right now [the penalty is] a slap on the wrist,” Hooper said. “A lot of these guys [who practice law without a license] calculate the cost of the misdemeanor in the cost of overhead. It’s a part of doing business.”
State Bar President Karen Nobumoto, who encouraged and helped create the bill based on her experience at the Los Angeles District Attorney’s Office, said the new language, which she helped draft, provides a huge increase in penalty compared with previous penalties.
“I’m grateful for [this bill passing],” Nobumoto said. “We can work with this.”
Supporters of the bill said they moved away from a felony because of concern about Three-Strikes Law implications. Hooper commented that the bill would have died in committee without easing the penalty against non-lawyers.
Under the Three-Strikes Law, anyone convicted of two felonies, with at least one specified serious or violent felony, can receive a 25-year-to-life sentence on a third felony conviction - a “third strike.”
Nobumoto noted that there was an apparent reluctance by the Senate Public Safety Committee to pass non-violent felonies.
“Recognizing this, we drafted a compromise that allowed us to have stricter penalties without going up against the reluctance of the Public Safety Committee,” Nobumoto said.
Adam Mendelsohn, a spokesman for Public Safety Committee Chairman Sen. Bruce McPherson, R-Santa Cruz, said that McPherson was supportive of the bill, whether it created a felony or misdemeanor, but understood that the makeup of the Senate-nearly two-thirds Democrat-may have “hesitated” to make a bill creating a felony law.
The bill also closes a loophole that allowed disbarred or suspended lawyers to continue acting as a lawyer, if they did not imply that they were licensed. It emphasizes that practicing law without a license includes the attempt to practice law or offer legal advice even without claiming to be a licensed lawyer.
The topic made headlines recently, when a former attorney Cristeta Paguirigan took on tasks such as preparing motions, analyzing cases, and dispensing legal advice for the city of South Gate. Because Paguirigan had been an attorney, disbarred in 1997 for forging a client’s signature on court documents, she is eligible for a felony conviction and faces a possible three years in prison.
"In getting all caught up in outsourcing, we shouldn't forget that even if that stopped, the work would probably go to less expensive areas of the U.S"
I don't think it's that easy to do. You still run into the unauthorized practice of law. How is the partner who isn't admitted in Arkansas going to sign off on the work?
Plus, it's much easier to supervise the whole process if it's done locally. There's quite a bit going on with the whole doc. review process besides temps clicking.
1:33
The state opinions do not give cover. On the contrary, they give foreign attorneys the status of non-attorneys and require hightened degrees of supervision.
I suspect the outsorcing at the moment is by big firms or corporations that can't get credit from the bank to do US based projects. Some of the larger firms might be in real trouble at the moment. They're freezing hiring and laying off associates.
Judicial Nominee Practiced Law Without License in Utah
By Carol D. Leonnig
Washington Post Staff Writer
Monday, June 21, 2004; Page A01
Thomas B. Griffith, President Bush's nominee for the federal appeals court in Washington, has been practicing law in Utah without a state law license for the past four years, according to Utah state officials.
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Griffith, the general counsel for Brigham Young University since August 2000, had previously failed to renew his law license in Washington for three years while he was a lawyer based in the District. It was a mistake he attributed to an oversight by his law firm's staff. But that lapse in his D.C. license, reported earlier this month by The Washington Post, subsequently prevented Griffith from receiving a law license in Utah when he moved there.
Under Utah law, Griffith's only option for obtaining the state license was to take and pass the state bar exam, an arduous test that lawyers try to take only once. He applied to sit for the exam, but never took it, Utah bar officials confirm.
Utah State Bar rules require all lawyers practicing law in the state to have a Utah law license. There is no general exception for general counsels or corporate counsels. Lawyers who practice only federal law or whose work is solely administrative can avoid the requirement in some cases.
Griffith has declined to discuss the matter, which is expected to be a subject of his nomination hearings tentatively scheduled for next week. But a Justice Department spokesman said Friday that Griffith sought advice from Utah State Bar officials when he inquired last year about obtaining a license, and followed their suggestions for avoiding any ethical missteps.
"The Utah State Bar advised him that to the extent that his duties as general counsel involved giving legal advice, he ought to closely associate himself with a Utah bar member," Justice spokesman John Nowacki said. "It has been Mr. Griffith's practice to closely associate himself with a Utah bar member when giving legal advice."
Nowacki declined to comment on whether the state bar advised Griffith to take the bar exam. According to sources familiar with a letter the state bar wrote to Griffith last year, bar officials recommended that Griffith take the exam, and work closely with a Utah bar member while his license application was pending.
Griffith discovered in November 2001, a year after he joined Brigham Young, that his District law license had lapsed several years earlier, in 1998, for failure to pay his dues. He immediately paid his dues and renewed his D.C. license, Nowacki said. But for the first year in Utah, he was advising Brigham Young, a Mormon university in Provo, without a current law license from any state.
A lawyer who specializes in legal ethics said Griffith's two licensing lapses should disqualify him from a lifetime appointment to one of the nation's most important federal benches, second only to the Supreme Court.
"This moves it for me from the realm of negligence to the realm of willfulness," said Mark Foster, a Zuckerman Spaeder attorney who represents lawyers in ethics matters. "People who thumb their noses at the rules of the bar shouldn't be judges."
One veteran law professor said the two incidents raised significant questions, but that "in and of itself, it is not disabling."
"It begins to look like a pattern of carelessness," said Paul Rothstein, a law professor at Georgetown University Law School. "It should cause your red flags to go up to see if there are other signs of carelessness."
Several lawyers from respected D.C. law firms, and former U.S. Court of Appeals for the D.C. Circuit chief judge Abner Mikva, have written public letters in defense of Griffith's D.C. licensing lapse, calling it a minor mistake. "In our opinion, this matter does not raise a question concerning Tom's fitness to serve on the bench," wrote a group of Williams & Connolly lawyers.
Griffith, 55, is a member of the Republican National Lawyers Association and was the lead counsel for the Senate during the impeachment trial of President Bill Clinton. Married and the father of six, he is a former partner at the D.C. firm of Wiley Rein & Fielding, whose partners served in prominent positions in past Republican administrations.
AI Cited for Unlicensed Practice of Law
By Kevin Poulsen EmailMarch 05, 2007 | 6:44:02 PM
Calculon A web-based "expert system" that helped users prepare bankruptcy filings for a fee made too many decisions to be considered a clerical tool, an appeals court said last week, ruling that the software was effectively practicing law without a license.
At issue were two websites maintained by entrepreneur Henry Ihejirika -- Ziinet.com and 700law.com -- which offered automated bankruptcy assistance. That sounded good to consumer Jayson Reynoso, who paid $219 for 60 days of access to the "Ziinet Bankruptcy Engine," described on the websites like this:
Ziinet is an expert system and knows the law. Unlike most bankruptcy programs which are little more than customized word processors the Ziinet engine is an expert system. It knows bankruptcy laws right down to those applicable to the state in which you live. Now you no longer need to spend weeks studying bankruptcy laws.
Reynoso entered his personal information, debts, income, assets and other data into a series of dialog boxes, and the program generated a complete set of bankruptcy forms, including an affidavit for Reynoso to sign claiming he'd done all the legal research on his own. (Yes, like meat-lawyers, the Ziinet Bankruptcy Engine knows how to gild the lily a little.)
When a bankruptcy trustee noticed errors in the forms, Reynoso blamed his computerized counsel, and Ihejirika joined the party in federal court. A bankruptcy judge ruled that Ihejirika had committed fraudulent, unfair, or deceptive conduct through his computer program, and had engaged in the unauthorized practice of law.
Ihejirika was fined, enjoined from offering the same service in the future, and ordered to give up the fees he'd collected from nine customers in Northern California. He appealed, and last week the 9th Circuit Court of Appeals upheld the ruling.
Another Shady Clinton Donor Investigated
A Texas businessman, who is a top Democratic fundraiser and has donated the federal limit to Hillary Clinton’s presidential campaign, is under investigation for practicing law without a license and impersonating a sheriff’s deputy to silence a woman he sexually assaulted.
Renowned in ritzy Corpus Christi circles, Mauricio Celis is one of Texas’ most generous Democratic donors ($100,000 at a single Democratic fundraiser earlier this year alone) and candidates statewide loved bragging about their friendship with him until this week’s scandalous charges were made public.
It turns out that Celis, a Mexican lawyer who is not licensed to practice law in the United States, has been impersonating an attorney for years and, recently, a law enforcement officer. That incident involved a naked woman who ran into a convenience store screaming that Celis had sexually assaulted her. Dressed in a bath robe, Celis followed her into the store, flashed a Duval County sheriff’s deputy badge and took the woman into custody.
In addition to being investigated by a Grand Jury, Celis is being sued by the Texas Attorney General for practicing law without a license because it is specifically prohibited in the state. Perhaps this explains why the Democratic recipients of his money are suddenly pretending not to know him.
Besides donating the federal limit of $2,300 to Clinton’s 2008 presidential campaign, Celis has raised hundreds of thousands of dollars for state and federal Democratic candidates over the years, including $65,000 for Chris Bell’s unsuccessful 2006 run for governor.
Referring to Clinton’s latest shady donor, one political watchdog pointed out that the New York Senator should spend a little bit of her “vast war chest” doing a little due diligence on where all this money is coming from. Not surprisingly, the Clinton camp could not be reached for comment.
No one here would try to set up a business that has no attorneys and have non-attorneys do doc review unsupervised by an attorney. They wouldn't last long if they did.
11:42
A marketing pitch. You either need to stop taking drugs or start taking them. A marketing pitch - ha ha ha.
Also if you bother to look up the NY city bar opinion you'll see in black and white that foreign attorneys are considered non-attorneys.
Unlawful Practice of Law
The practice of law in Oregon is regulated by the legislature and the courts. With some exceptions, only lawyers who are admitted to the Oregon State Bar (OSB) may practice law in Oregon. The Oregon State Bar Act says that a person may not practice law or hold oneself out as qualified to practice law unless that person is an active member of the Oregon State Bar.
The ‘practice of law’ is defined in decisions of the Oregon Supreme Court and generally includes, among other things:
* appearing on behalf of others in Oregon courts and administrative proceedings;
* drafting or selecting legal documents for another when informed or trained discretion must be exercised to meet the person’s individual needs;
* advising someone of his or her legal rights in a particular situation;
* having a law office in Oregon regardless of where clients are located;
* acting as an immigration consultant unless authorized by federal law to do so; and
* holding oneself out as a lawyer.
It is not necessary that money change hands in order for conduct to be the practice of law.
Although it depends on the specific facts of each situation, some of the commonly occurring activities that generally are not considered the practice of law in Oregon include:
* individual litigants who represent only themselves;
* representation of others in justice courts;
* out-of-state lawyers or collection agencies who send demand letters into Oregon, without more;
* properly licensed lawyers who limit their practice exclusively to certain areas of federal law, such as patent law;
* activities of licensed professionals whose actions are within the scope of their licenses; for instance, real estate professionals, title insurance companies, certified public accountants and other licensed tax professionals;
* sale of generic do-it-yourself legal publications without any further personalized assistance in preparation of documents or court papers; and
* internet discussions groups without further personalized assistance in preparation of documents or court papers.
The OSB is responsible for investigating allegations of the unlawful practice of law. Generally, enforcement of prohibitions on the unlawful practice of law is complaint driven, that is, the bar relies on the public to provide information about individuals practicing law without a license. The bar receives complaints from judges, injured consumers, lawyers and other state bar associations.
Complaints are forwarded to the Unlawful Practice of Law (UPL) Committee of the OSB. This committee consists of about sixteen lawyers and four public members, all volunteers appointed by the OSB Board of Governors. Each complaint is assigned to a member of the committee for investigation. The investigator contacts the complaining party and the person being accused of practicing law without a license, and makes other investigation as the facts warrant. The investigator then prepares a report, which is considered by the entire committee at its monthly public meetings. Except in the most complicated cases, the time from initial complaint to consideration by the UPL committee is about six months.
The UPL committee has authority to:
* dismiss a complaint;
* send a notice letter, warning that the accused’s activities could be considered the unlawful practice of law;
* issue an admonition with the consent of the accused;
* enter into a cease and desist agreement with the accused; or,
* recommend to the OSB Board of Governors that the OSB file a lawsuit against the accused to prevent him from continuing to practice law without authorization.
Occasionally, if an investigation suggests that there has been some illegal activity that the UPL committee cannot address, then the UPL committee will forward the results of its investigation to other state bars, to the Oregon Attorney General, or to another appropriate regulatory agency.
If the UPL committee refers a complaint to the OSB Board of Governors, and the Board authorizes a lawsuit, the usual relief sought is an injunction against the continuation of the unlawful practice of law. The OSB can also recover attorney fees and other expenses of litigation. Most cases are resolved before this step.
The Unlawful Practice of Law Committee takes its responsibilities very seriously and investigates every complaint of the unlawful practice of law that it receives. Of course, not every complaint results in a finding of the unlawful practice of law. However, every complaint and every investigation assist the OSB to ensure that consumers are protected from unauthorized practitioners.
If you are concerned that someone you know may be practicing law without a license, please send us a letter describing your concerns, addressed to the:
OSB General Counsel Administrative Assistant
16037 SW Upper Boones Ferry Rd
P.O. Box 231935
Tigard, OR
97281-1935
Yes it is irrelevant if someone is considered an attorney in another country. They are not attorneys in any sense of the word here because they are not admitted to practice law in any U.S. jurisdiction.
Colorado Supreme Court Opinions || December 18, 2006
Colorado Supreme Court -- December 18, 2006
No. 04SA93. People v. Shell.
SUPREME COURT, STATE OF COLORADO
Two East 14th Avenue
Denver, Colorado 80203
Original Proceeding in Contempt
Case No. 04SA93
Petitioner:
THE PEOPLE OF THE STATE OF COLORADO,
v.
Respondent: SUZANNE SHELL.
CONTEMPT FOUND
EN BANC
December 18, 2006
Office of Attorney Regulation Counsel
James C. Coyle, Deputy Regulation Counsel
Denver, Colorado
Attorney for Petitioner
Paul Grant
Centennial, Colorado
Attorney for Respondent
JUSTICE EID delivered the Opinion of the Court.
This opinion considers the Presiding Disciplinary Judge’s recommendation that we hold Respondent Suzanne Shell in contempt and fine her $6,000 for engaging in the unauthorized practice of law. We agree with the Presiding Disciplinary Judge and issue the contempt citation.
For the reasons explained below, we find that Shell has practiced law without a license in three separate legal proceedings since 2002, and in so doing, she has violated both Colorado law and a previous order entered by this court enjoining her against the unauthorized practice of law. Despite Shell’s claims to the contrary, Colorado’s ban on the unauthorized practice of law is constitutional and does not violate her rights under the First Amendment. We also disagree with Shell’s assertions that she was entitled to a jury trial and that she has been deprived of due process because she was not provided with a free copy of a transcript of the proceedings below. While we fine Shell $6,000 for her unauthorized practice of law, we do not impose any additional amount for costs and attorneys’ fees.
I.
Suzanne Shell is an advocate committed to exposing what she considers to be abuses of process that occur in Colorado dependency and neglect cases. Shell is not a licensed attorney, however, and her advocacy previously has led her to cross the line between permissible activism and the unauthorized practice of law.
In May 2001, the Office of Attorney Regulation Counsel ("OARC") petitioned this court for an injunction and contempt citation against Shell. The OARC alleged that Shell engaged in the unauthorized practice of law by providing legal advice to parents involved in dependency and neglect cases, drafting pleadings for parents’ use, and attempting to represent parents in judicial proceedings. Shell denied the OARC’s allegations and claimed that she was entitled to provide legal advice and represent the parents because they had executed statutory powers of attorney authorizing her to act as their agent.
Shortly thereafter, Shell and the OARC entered into a "Stipulation" in which Shell agreed to the entry of an injunction preventing her from practicing law without a license in Colorado. Shell made several acknowledgments in the Stipulation, including (1) that she was familiar with Colorado law concerning the unauthorized practice of law, (2) that the "practice of law" includes activities such as offering legal advice and drafting or selecting legal documents for use by another person in a legal proceeding, and (3) that by engaging in such activities without a license, Shell committed the unauthorized practice of law. Shell further acknowledged that she was incorrect in her belief that a statutory power of attorney allowed her to act as the signing party’s legal representative. Shell agreed to pay administrative costs but the OARC did not pursue any fine for contempt.
This court entered an Order on October 25, 2001 (the "October 2001 Order"), accepting Shell’s Stipulation and enjoining her against practicing law without a license in Colorado. The October 2001 Order incorporated Shell’s Stipulation by reference.
Since the October 2001 Order was entered, Shell has been involved in two dependency and neglect proceedings in Colorado state courts and one civil action in the United States District Court for the District of Colorado. The OARC alleges that Shell engaged in the unauthorized practice of law in each of these cases, thereby violating Colorado law and our October 2001 Order.
The K.M. Matter, 02JV97. Shell participated in a Fremont County District Court action involving K.M., the mother of an allegedly dependent and neglected child. The court appointed attorney Daniel Kender to represent K.M. in May 2002.
Several months later, K.M. executed a statutory power of attorney providing Shell with broad powers to handle her affairs, including the power to act "in [her] stead regarding [her] Dependency and Neglect case." Shell contacted Kender in January 2003 and asked him to call her to discuss the K.M. matter. Kender testified to the hearing master below that he did not return Shell’s call.
Shell subsequently sent a faxed letter to Kender dated February 21, 2003. In the letter, Shell informed Kender that she was acting as an "agent" for K.M. "based upon the Power of Attorney" executed several weeks before. Shell stated that "[ K.M.’s] legal interests may not have been adequately represented" by Kender and that "drastic action is needed immediately to protect her rights to parent her children." Attached to the letter was a discovery request (specifically, a set of requests for admissions) directed to the caseworker assigned to the K.M. matter, the guardian ad litem, and the West Central Mental Health Center. Shell directed Kender to serve the discovery request "no later than next Tuesday," and explained that she "had great success using admissions in the past." Kender testified that he ignored Shell’s letter and did not serve the discovery request.
In March 2003, K.M., acting pro se and without Kender’s knowledge, served a discovery request on the caseworker, guardian ad litem, and West Central Mental Health Center. With the exception of very minor differences, the requests served by K.M. are identical to the requests attached to Shell’s February 2003 letter to Kender. K.M. also filed a "Motion for Clarification of Effective Assistance of Counsel" in which she challenged Kender’s representation of her interests in the dependency and neglect action. The district court struck K.M.’s pro se discovery request.
The A.F. Matter, 03JV3. While the K.M. matter was pending, Shell was involved in another dependency and neglect proceeding in Fremont County District Court, this one concerning A.F., a respondent mother. The court appointed Daniel Kender to represent A.F. A.F. subsequently executed a power of attorney authorizing Shell to act as her agent and giving Shell the power to handle her legal affairs.
As in the K.M. matter, Shell sent Kender a letter informing him that she had been engaged as an "expert consultant" by A.F. Shell advised Kender that her association with A.F. was confidential and was not to be revealed. Shell also gave Kender "information and instructions" on the defense of A.F., stating that she would provide Kender with "all the legal arguments and documentation" he might need, but admonished that they "will be useless" if Kender "fail[ed] to make the necessary arguments in court." Shell then instructed Kender to file specific documents and motions, make specific legal arguments and tender specific jury instructions. Shell also informed Kender that he should serve requests for admissions on the Department of Human Services, and directed Kender to her website to obtain a sample. Shell requested the opportunity to review the draft discovery before it was served. Kender testified that he ignored Shell’s letter.
As in the K.M. matter, A.F. filed and served pro se pleadings in her dependency and neglect action, each of which reveals a level of sophistication that is nearly impossible to attribute to A.F. given her lack of legal training. Kender was unaware that these pleadings had been filed and served by A.F. The substance and style of A.F.’s pleadings are strikingly similar to the language used in the pleadings filed in K.M.’s action, and with two trivial exceptions, A.F.’s "Motion for Clarification of Effective Assistance of Counsel" is identical to the same motion filed by K.M. in her action.
In April 2003, the Fremont County Department of Human Services requested that the trial court add Shell as a special respondent to the A.F. matter for the purpose of enjoining her against engaging in the unauthorized practice of law. Shell filed suit in federal court seeking an injunction preventing her from being added as a special respondent.
The Federal Action, 03-RB-743. Shell filed an action in the United States District Court for the District of Colorado pursuant to 18 U.S.C. section 1983 alleging that her civil rights--and those of A.F.--had been violated by eight defendants, including the Fremont County District Court and A.F.’s attorney, Daniel Kender (the "Federal Action"). Both Shell and A.F. were named as plaintiffs, with Shell purporting to represent A.F. in the case. The federal magistrate assigned to the case entered an order on May 14, 2003, holding that Shell "cannot represent [A.F.] in this matter, nor may [ Shell] sign pleadings, motions, or other documents in this case on [A.F.’s] behalf." The magistrate ordered A.F. to sign the complaint as a pro se plaintiff.
Shell--again acting on behalf of A.F.--filed a motion to reconsider, arguing that the statutory power of attorney executed by A.F. authorized Shell to act as A.F.’s legal representative. The district court denied Shell’s motion to reconsider. Subsequently, the court dismissed the Federal Action for lack of subject-matter jurisdiction and failure to state a claim for relief.
The Proceedings Below. In March 2004, the OARC petitioned this court to hold Shell in contempt for violating the October 2001 Order and Colorado law prohibiting the unauthorized practice of law. The OARC cited Shell’s activities in the K.M. matter, the A.F. matter, and the Federal Action to support its petition.
The Presiding Disciplinary Judge, acting as a hearing master, held a hearing on the OARC’s petition and considered evidence and testimony presented by both sides. Shell videotaped the proceedings in their entirety.
Shell argued to the hearing master that there was no direct evidence that she prepared the pleadings and discovery requests filed and served pro se by K.M. and A.F., or that she otherwise provided the respondent mothers with legal advice. To support her claim, Shell offered the testimony of K.M.’s mother’s boyfriend and A.F.’s mother. These relatives testified that they prepared the pleadings and discovery requests based on their research of various internet websites, and that Shell neither selected the documents nor advised the mothers to file them.
The hearing master concluded that the relatives’ testimony was not credible in light of the surrounding circumstantial evidence presented by the OARC. First, the hearing master found that it was virtually impossible for K.M. and A.F. to have prepared their pleadings without assistance, given their lack of legal training. Second, the hearing master found implausible the notion that relatives of two separate mothers involved in two separate proceedings would draft virtually identical pleadings and discovery requests. Aside from Kender, who did not know about the pro se filings until after they were served, the only connection between K.M. and A.F. was Suzanne Shell.
In addition, both proceedings contained the same sequence of events arising from Shell’s involvement as the mothers’ representative. In both cases, Shell sent a letter to Kender purporting to act as the mothers’ agent and instructing Kender to take specific legal measures. In both cases, Kender ignored Shell’s letter. And in both cases, Kender’s refusal to follow Shell’s instructions led to the mother filing pro se pleadings and serving pro se discovery requests. Not only were these pro se documents virtually identical, but their substance mirrored the arguments and instructions contained in Shell’s letters to Kender. Shell’s communications to Kender, and the subsequent pattern of events that stemmed from those communications, led the hearing master to conclude that Shell prepared or selected the pleadings and discovery requests and advised the mothers, either directly or by using the mothers’ relatives as conduits for her legal advice, to file and serve them pro se.
Based on its findings, the hearing master recommended to this court that Shell be found in contempt and fined $6,000. The hearing master also recommended that Shell be assessed an additional $5,409 for legal costs and the OARC’s attorneys’ fees. Shell appealed the hearing master’s recommendations.
Prior to filing her opening brief in this appeal, Shell requested a transcript of the proceedings below, to be paid for at state expense. Shell argued that indigence prevented her from paying for the transcript. This court denied Shell’s motion.
In this appeal, Shell offers several reasons for why the court should not accept the hearing master’s recommendation, and we consider them in turn.
Section II addresses Shell’s claim that the evidence presented below was inadequate to support the hearing master’s finding that she engaged in the unauthorized practice of law. As we explain, the evidence in the record sufficiently supports the hearing master’s findings that Shell offered legal advice, drafted legal pleadings and attempted to represent another person in a judicial proceeding, all of which constitute the practice of law.
In section III, we address Shell’s defenses against the enforcement of Colorado’s ban on the unauthorized practice of law against her in this action. In particular, Shell claims that the ban is unconstitutionally vague and violates the First Amendment. Shell further contends that the court lacks jurisdiction to punish the unauthorized practice of law in federal courts, and that therefore we cannot hold her in contempt for attempting to represent A.F. in the Federal Action. Shell also urges that the statutory powers of attorney executed by K.M. and A.F. authorized her to to act as the mothers’ legal representative. We disagree with Shell on each count.
In section IV of our opinion, we consider Shell’s claim that her right to a jury trial was violated in this case. We hold that Shell was not entitled to a jury trial because the recommended fine is not sufficiently serious to trigger Shell’s constitutional right to a jury trial, and because Shell has no independent right to a jury trial under a Colorado statute.
Section V of the opinion addresses Shell’s assertion that her right to due process was violated because she was denied a transcript of the proceedings below for use in this appeal. We find that any error resulting from the failure to provide Shell with a transcript was harmless because it did not impact this court’s ability to consider the issues raised in Shell’s appeal.
Finally, in section VI, we explain why Shell cannot be assessed costs and attorneys’ fees as a result of the contempt proceeding. Consequently, we adopt the hearing master’s recommendation as to the citation of contempt and the imposition of a $6,000 fine, but decline to follow that recommendation with respect to costs and attorneys’ fees.
II.
A.
Colorado law prohibits the unauthorized practice of law, i.e., the practice of law by a person who is not a licensed attorney in good standing with the State Bar. See Unauthorized Practice of Law Comm. v. Grimes, 654 P.2d 822, 823 (Colo. 1982). This court has the exclusive authority to punish the unauthorized practice of law with contempt. See id. Where an individual previously has been enjoined by the court against practicing law without a license, violations of that injunction are punishable in contempt proceedings conducted pursuant to C.R.C.P. 107.1Cf. Austin v. City & County of Denver, 156 Colo. 180, 184, 397 P.2d 743, 745 (1964) ("The power to punish for contempt, as a punitive measure or to coerce obedience, is an inherent and indispensable power of the courts.").
We previously have defined the "practice of law" as acting "in a representative capacity in protecting, enforcing, or defending the legal rights and duties of another and in counselling, advising and assisting him in connection with these rights and duties . . . ."Denver Bar Ass’n v. Pub. Util. Comm’n, 154 Colo. 273, 279, 391 P.2d 467, 471 (1964) . Applying this definition, we have held that an unlicensed person engages in the unauthorized practice of law by offering legal advice about a specific case, drafting or selecting legal pleadings for another’s use in a judicial proceeding without the supervision of an attorney, or holding oneself out as the representative of another in a legal action. See id.; see also Grimes, 654 P.2d at 823 (offering case-specific legal advice and selecting case-specific legal documents constitutes the practice of law); Unauthorized Practice of Law Comm. v. Prog, 761 P.2d 1111, 1115 (Colo. 1988) (same).
As we explained in Grimes, we have attempted to avoid any doubt about the activities that constitute the "practice of law" by enacting C.R.C.P. 201.3, which provides a thorough "definition of what constitutes the practice of law which is supported by long-standing case authority . . . ."654 P.2d at 824 n.1. That definition includes "[f]urnishing legal counsel, drafting documents and pleadings, and interpreting and giving advice with respect to the law," as well as "presenting cases before courts . . . ."C.R.C.P. 201.3(2) (b) (i) & (ii).
B.
Applying the standard set forth above, the hearing master found that Shell engaged in the unauthorized practice of law by sending letters to Kender directing him to follow her legal advice. The hearing master also found that Shell had advised K.M. and A.F. to file and serve their pleadings and discovery requests without the knowledge or approval of Kender, and that Shell was instrumental in preparing or selecting those pleadings and discovery. This, too, constituted the unauthorized practice of law. Finally, the hearing master found that Shell engaged in the unauthorized practice of law by attempting to represent A.F. in the Federal Action.
We accept the hearing master’s findings of fact unless they are so clearly erroneous as not to find support in the record. See Page v. Clark, 197 Colo. 306, 313, 592 P.2d 792, 796 (1979). Our consideration of the record reveals that the hearing master’s findings were not clearly erroneous, and we defer to the hearing master’s resolution of the conflicting facts in evidence.
The record sufficiently supports the finding that Shell engaged in the unauthorized practice of law in the K.M. and A.F. matters. These cases followed a remarkably similar pattern. In both cases, Shell wrote letters to the mothers’ attorney instructing him to take specific legal measures. In both cases, once Shell’s instructions were ignored, the mothers filed and served pro se pleadings and discovery requests without the knowledge or approval of their attorney. The hearing master reasonably concluded that these legal documents were the direct result of Shell’s involvement. As the hearing master found, it was impossible for K.M. and A.F. to have prepared their pleadings and discovery requests without the assistance of someone with legal experience in dependency and neglect cases.
It also defied reason that K.M. (or her family) would prepare pleadings and discovery requests that were nearly identical to pleadings and discovery requests prepared by A.F. (or her family). Not only were the documents filed by K.M. and A.F. nearly identical, but they incorporated many of the legal arguments that Shell separately provided to Kender in her letters. The only connection between K.M. and A.F. other than their common attorney, who had no knowledge of his clients’ pro se filings, was Shell. In light of this record, the hearing master reasonably concluded that Shell was providing legal advice to K.M. and A.F. and was drafting legal documents for their use.
We acknowledge that conflicting evidence was presented to the hearing master regarding Shell’s contact with K.M. and A.F. Specifically, family members of K.M. and A.F. testified that Shell had no involvement in drafting the pleadings and discovery requests that the mothers filed pro se. These family members testified that they prepared the legal documents based principally upon internet research. The hearing master, however, concluded that the family members’ testimony was simply incredible given the unlikelihood that two separate families would prepare legal documents that were virtually identical both to one another and to the advice that Shell provided to Kender in her letters. Since there is sufficient evidence in the record refuting the family members’ testimony, we defer to the hearing master’s factual conclusion that Shell did in fact provide legal advice to K.M. and A.F. and draft legal pleadings and discovery requests for their use. See Page, 197 Colo. at 313, 592 P.2d at 796. Providing legal advice to K.M. and A.F. and preparing legal documents for use in their dependency and neglect proceedings constituted the unauthorized practice of law. See C.R.C.P. 201.3(2) (b) (i); Prog, 761 P.2d at 1115.
Beyond Shell’s involvement in the two dependency and neglect proceedings, there is no question that Shell filed the Federal Action on behalf of herself and A.F., and that she subsequently filed a motion asserting her right to prosecute A.F.’s claims in the Federal Action. Drafting and filing a legal pleading on behalf of another person and without a license is clearly the unauthorized practice of law. See C.R.C.P. 201.3(2) (b) (i) & (ii).
Our review of the record reveals no reason to disturb the hearing master’s factual findings that Shell engaged in the unauthorized practice of law. These facts having been established, we now turn to considering Shell’s challenge to the enforcement of the ban against her in this case.
III.
A.
Shell claims that Colorado’s ban on the unauthorized practice of law violates her right to due process because it is unconstitutionally vague, both on its face and as applied to her in this case. We disagree.
The vagueness doctrine is rooted in the right to due process of law, which requires that a law provide "fair notice of the conduct that has been determined to be unlawful." Smith v. Charnes, 728 P.2d 1287, 1290 (Colo. 1986) . Thus a law offends due process if "it does not provide fair warning of the conduct prohibited or if its standards are so ill-defined as to create a danger of arbitrary and capricious enforcement." Parrish v. Lamm, 758 P.2d 1356, 1367 (Colo. 1988) . Under this standard, a law "is not void for vagueness if it fairly describes the conduct forbidden, and persons of common intelligence can readily understand its meaning and application." Id. Shell bears the burden of establishing the unconstitutional vagueness of our ban on the unauthorized practice of law beyond a reasonable doubt. See People v. Baer, 973 P.2d 1225, 1230 (Colo. 1999).
Furthermore, for Shell to succeed on her challenge that the ban is facially void for vagueness, she must show that it is incomprehensible in all of its applications. See People ex rel.
City of Arvada v. Nissen, 650 P.2d 547, 550 (Colo. 1982). Shell’s claim immediately fails this test, because C.R.C.P. 201.3(2) (b) unambiguously defines the practice of law to include "drafting documents and pleadings," "giving advice with respect to the law," and "presenting cases before courts"--in other words, exactly the activities in which Shell engaged in the K.M. matter, the A.F. matter, and the Federal Action. The activities delineated in C.R.C.P. 201.3 were not pulled from thin air, but were grounded in prior decisions of this court describing the nature of the practice of law. See Grimes, 654 P.2d at 824 n.1 (explaining that the definition of "practice of law" in C.R.C.P. 201.3 is "supported by long-standing case authority") . We believe that the activities described in Rule 201.3 and our controlling caselaw are specific enough to provide a person of common intelligence with notice of what activities constitute the practice of law, and thus the ban on the unauthorized practice of law is not facially void for vagueness. See People v. Hickman, 988 P.2d 628, 644 (Colo. 1999) (rejecting facial vagueness challenge where law was "sufficiently specific to provide the constitutionally required guidance to individuals seeking to comply with the law . . . . ").
Shell’s claim that our ban is unconstitutionally vague as applied to her similarly fails. To prevail, Shell must show that the ban on the unauthorized practice of law "does not, with sufficient clarity, prohibit the conduct against which it is enforced." People v. McIntier, 134 P.3d 467, 475 (Colo. App. 2005). The clarity of the ban is viewed in light of Shell’s knowledge that her conduct was prohibited. See Parker v. Levy, 417 U.S. 733, 756 (1974). In 2001, Shell expressly stated that she understood that our ban forbids drafting legal pleadings, providing legal advice, and attempting to represent another person in a legal proceeding without a license. These are the very activities in which Shell engaged in the K.M. matter, the A.F. matter, and the Federal Action, and thus she cannot claim that Colorado law is void for vagueness as applied to her. See id.
B.
Shell also claims that her actions were permissible exercises of her First Amendment freedom of speech and freedom to petition the government for a redress of grievances. We reach a different conclusion.
In general, Colorado’s ban on the unauthorized practice of law does not implicate the First Amendment because it is directed at conduct, not speech. See Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456 (1978) (suggesting that the government’s regulation of the practice of law is a regulation of conduct, not speech); S. Christian Leadership Conference v. Sup. Ct. of La., 252 F.3d 781, 789 (5th Cir. 2001) (finding that state prohibition on unlicensed students practicing law in state courts did not regulate speech); Drew v. Unauthorized Practice of Law Comm., 970 S.W.2d 152, 155 (Tex. App. 1998) (holding that ban on unauthorized practice of law did not implicate the First Amendment); Fla. Bar v. Furman, 376 So.2d 378, 379 (Fla. 1979) (rejecting argument from unlicensed attorney that ban on unauthorized practice of law violated freedom of speech).
The fact that our ban touches on the legal content of the advice offered or the pleadings drafted by an unlicensed person is of no constitutional significance, since "it has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed."Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502 (1949) (emphasis added); see also Ohralik, 436 U.S. at 456 (applying Giboney in the context of attorney regulation case) . In this respect, our ban on the unauthorized practice of law is no different from state laws prohibiting bribery (section 18-8-302, C.R.S. (2006)), extortion (section 18-3-207, C.R.S. (2006)), or criminal solicitation (section 18-2-301, C.R.S. (2006)) . Each of these unlawful activities requires some method of communication, and yet it is "well established that speech which, in its effect, is tantamount to legitimately proscribable nonexpressive conduct may itself be legitimately proscribed, punished, or regulated incidentally to the constitutional enforcement of generally applicable statutes." Rice v. Paladin Enter., Inc., 128 F.3d 233, 243 (4th Cir. 1997) (citing Cohen v. Cowles Media Co., 501 U.S. 663, 669 (1991)).
It is true that some activities constituting the practice of law are difficult to disentangle from the exercise of free speech. See Lawline v. Am. Bar Ass’n, 956 F.2d 1378, 1386 (7th Cir. 1992) ("While the practice of law and the exercise of free speech are not indistinguishable, neither are they mutually exclusive.") . However, none of Shell’s actions at issue in this case presents such a difficulty. Any impact on speech in this case "is merely the incidental effect of observing an otherwise legitimate regulation." Id.
We also find no basis for Shell’s claim that our ban is an unconstitutional abridgement of her right to petition the government for a redress of grievances. As we held in Grimes, the First Amendment right to file a lawsuit does not extend to filing a lawsuit on behalf of another, nor does it prohibit the state from restricting legal representation to licensed attorneys. See 654 P.2d at 824; see also Turner v. Am. Bar Ass’n, 407 F. Supp. 451, 478 (D. Ala. 1975) (rejecting claim that individual has right to legal representation by an unlicensed attorney based on the right to petition for redress of grievances); Lawline v. Am. Bar Ass’n, 738 F. Supp. 288, 296 (N.D. Ill. 1990), aff’d 956 F.2d 1378 (7th Cir. 1992) (applying Turner) . Shell offers no legal authority that persuades us to revisit our decision in Grimes, and therefore, her First Amendment challenge lacks merit.
The court also is unpersuaded by Shell’s claim that the ban on the unauthorized practice of law is unconstitutionally overbroad. The overbreadth doctrine arises from the concern that a law’s scope may be so broad that it either restricts speech protected by the First Amendment or has a chilling effect on such speech. See People v. Shepard, 983 P.2d 1, 3 (Colo. 1999) . The alleged overbreadth "must be real and substantial, judged in relation to the statute’s plainly legitimate sweep." Id.
As this case reveals, one of the touchstones of Colorado’s ban on the unauthorized practice of law is an unlicensed person offering advice or judgment about legal matters to another person for use in a specific legal setting. See Denver Bar Ass’n, 154 Colo.at 280, 391 P.2d at 471. The ban’s focus on case-specific legal practice keeps it from becoming so malleable as to restrict Shell’s right to criticize legal rulings or advocate for the reform of Colorado’s legal system. Any potential limitation on protected speech or conduct caused by the ban "is not real and substantial as compared" to the legitimate and permissible ban on the unauthorized practice of law, which concerns "a whole range of easily identifiable and constitutionally proscribable conduct." Shepard, 983 P.2d at 4. We therefore cannot agree with Shell’s claim of overbreadth.
C.
We also are unpersuaded by Shell’s assertion that the court lacks jurisdiction to sanction her for practicing law without a license in federal court.
This court has the authority "to regulate and control the practice of law in Colorado," Grimes, 654 P.2d at 823, and to that end, we previously have punished violations of the professional rules of conduct committed in federal court proceedings. See People v. Heyer, 176 Colo. 188, 489 P.2d 1042 (1971) (sanctioning attorney for violations of rules of conduct in Colorado federal court) . Other states have acted similarly. See, e.g., Disciplinary Counsel v. Givens, 832 N.E.2d 1200, 1201 (Ohio 2005) ("[ W]e are also authorized to enjoin the unauthorized practice of law before federal courts located in this state."); Kennedy v. Bar Ass’n of Montgomery County, Inc., 561 A.2d 200, 208-09 (Md. 1989) (holding that state court could regulate the practice of law in federal courts located in the state); State ex rel. Disciplinary Comm’n v. Crofts, 500 N.E.2d 753, 756 (Ind. 1986) (same) . In keeping with these decisions and our mandate to regulate the practice of law in Colorado, we construe our ban on the unauthorized practice of law to include the practice of law in Colorado federal courts.
It is certainly true that the Colorado federal courts can allow individuals to engage in legal practice in federal courts who would not otherwise be allowed to practice law in Colorado state courts. See Sperry v. Florida ex rel. Fla. Bar, 373 U.S. 379 (1963) (holding that, under the Supremacy Clause, a state court could not enforce a prohibition on the unauthorized practice of law against an individual who was permitted to practice law under the rules of a federal court located in the state’s jurisdiction) . Nevertheless, the Supreme Court made clear in Sperry that "the State maintains control over the practice of law within its borders except to the limited extent necessary for the accomplishment of . . . federal objectives." Id. at 402.
There are no such "federal objectives" in this case. The United States District Court for the District of Colorado, the federal court in which Shell filed the Federal Action on behalf of A.F., restricts the practice of law to those individuals who are "licensed by the highest court of a state, federal territory, or the District of Columbia where a written examination was required for admission . . . ." D.C.Colo.LCivR 83.3(A); see also D.C.Colo.LCivR 11.1(A) ("Only pro se individual parties and members of this court’s bar may appear or sign pleadings, motions, or other papers.") . Shell does not meet this standard for practice in the Colorado federal district court because she is not licensed as an attorney in any state or territory. In the absence of preemption by the federal courts, this court has the power to sanction Shell for her unauthorized practice of law in the Federal Action.
D.
Shell asserts that the statutory powers of attorney executed by K.M. and A.F. authorized her to act as the mothers’ legal representative in their dependency and neglect proceedings. However, Shell acknowledged in her 2001 Stipulation with the OARC that a statutory power of attorney did not give her the ability to practice law without a license. The doctrine of judicial estoppel binds Shell to her previous acknowledgment that a power of attorney is not a proxy for a law license. See Estate of Burford v. Burford, 935 P.2d 943, 947 (Colo. 1997) (explaining judicial estoppel) . Judicial estoppel is "an equitable doctrine by which courts require parties to maintain a consistency of positions," thereby "preventing the parties from deliberately shifting positions to suit the exigencies of the moment." Id.
Under this doctrine, Shell cannot contradict her acknowledgment in her 2001 Stipulation that statutory powers of attorney do not allow her to practice law. See Leonia Bank v. Kouri, 772 N.Y.S.2d 251, 255-56 (N.Y. App. Div. 2004) (holding that stipulation precluded litigant from asserting contrary position in subsequent case); see also Hall v. GE Plastic Pac. PTE Ltd., 327 F.3d 391, 396 (5th Cir. 2003) (explaining that litigant could not assert position inconsistent with one taken in previous proceeding, even though the previous proceeding did not amount to an adjudication of the issue); In re Adoption of S.A.J., 838 A.2d 616, 621 (Pa. 2003) (same). Thus judicial estoppel prevents Shell from resurrecting an argument that she previously acknowledged was incorrect. See Scarano v. Cent. R.R. Co., 203 F.2d 510, 513 (3d Cir. 1953) (applying judicial estoppel doctrine) (quoted in Estate of Burford, 935 P.2d at 947).
* * *
To summarize, Colorado’s ban on the unauthorized practice of law is not vague and does not violate the First Amendment. We also hold that, in this case, our ban extends not only to Shell’s unauthorized practice of law in state courts, but also to her unauthorized practice of law in the Federal Action. Finally, Shell cannot claim to have relied on the statutory powers of attorney executed by K.M. and A.F., because she previously has acknowledged in a written stipulation with the OARC (incorporated by reference in the October 2001 Order) that such statutory powers of attorney do not allow her to act as an attorney at law. We next consider whether Shell should have received a jury trial on the OARC’s petition for contempt.
IV.
Shell contends that she was entitled to a jury trial under the Federal and State Constitutions and section 16-10-101, C.R.S. (2006) . We hold otherwise.
A.
Section 16-10-101 provides, in relevant part:
The right of a person who is accused of an offense other than a noncriminal traffic infraction or offense, or other than a municipal charter, municipal ordinance, or county ordinance violation . . . to have a trial by jury is inviolate . ...
(emphasis added). Shell argues that the plain language of section 16-10-101 entitles her to a jury trial on the OARC’s contempt petition. This argument, however, ignores the definition of the term "offense" used in the statute.
An "offense," as used in section 16-10-101, has been defined by the General Assembly as "a violation of . . . any state statute for which a fine or imprisonment may be imposed." § 18-1-104(1), C.R.S. (2006) (emphasis added). By its plain terms, therefore, section 16-10-101 extends a statutory right to a jury trial only to violations of state statutes. Contempt, of course, is not a statutory offense, but instead is "an inherent and indispensable power of the court and exists independently of legislative authorization." People v. Barron, 677 P.2d 1370, 1372 (Colo. 1984) . The General Assembly recognized this distinction when it abolished all common-law crimes in Colorado, but simultaneously noted that such abolition "does not affect the power of a court to punish for contempt ... ."
§ 18-1-104(3). Thus the plain language of section 16-10-101 relates only to offenses properly classified as crimes defined by statute, not to contempt charges, and Shell has no right to a jury trial on the OARC’s contempt allegation under the statute.2
B.
Having rejected Shell’s statutory claim, we turn to her argument that the Federal and State Constitutions guarantee her a jury trial. See U.S. Const. amend. VI ("In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury . . . ."); Colo. Const. art. II, § 16 ("In criminal prosecutions the accused shall have the right to . . . a speedy public trial by an impartial jury ....") . The constitutional guarantee of a jury trial in criminal cases does not extend to non-serious or "petty" offenses. See Duncan v. Louisiana, 391 U.S. 145, 158 (1968); Austin v. City & County of Denver, 170 Colo. 448, 456, 462 P.2d 600, 604 (1969) . In the same vein, the right to a jury trial
equally applies to serious contempt charges, but not to non-serious or "petty" contempt charges. See Taylor v. Hayes, 418 U.S. 488, 495 (1974).
To determine whether an offense should be characterized as "serious" or "petty," we first look for "objective indications of the seriousness with which society regards the offense." Lewis v. United States, 518 U.S. 322, 325 (1996) (quoting Frank v. United States, 395 U.S. 147, 148 (1969)). These "objective indications" often are found in the "legislature’s judgment about the offense’s severity," whether in the legislature’s explicit designation of an offense as serious or petty or in "the maximum penalty attached to the offense . . . ."Lewis, 518 U.S. at 326. In Colorado, the General Assembly has designated a category of criminal actions as "petty offenses" that are separate from misdemeanors and felonies and carry a maximum fine of $500. See § 18-1.3-503, C.R.S. (2006). We have held that the legislature’s categorization of "petty offenses" is an objective indication that the legislature generally considers misdemeanors and felonies to be "serious" offenses that must be tried to a jury. See Christie v. People, 837 P.2d 1237, 1241 (Colo. 1992) (holding that a criminal offense carrying a maximum punishment in excess of $500 requires trial to a jury); Austin, 170 Colo. at 456, 462 P.2d at 604 (same).
The "objective indications" that we followed in Christie and Austin and applied to statutory offenses are unavailable to us in this case because the General Assembly has not classified contempt as either "petty" or "serious" in the Colorado statutes, and contempt does not carry a legislatively determined sentence. For this reason, the categories of criminal offenses created by the General Assembly--and their attendant maximum penalties--are not applicable to contempt charges.
In the absence of an "objective indication" from the legislature, the determinant of whether a particular contempt charge is sufficiently serious to require a jury trial is the severity of the fine actually imposed upon the contemnor. See Frank, 395 U.S. at 151. The United States Supreme Court "has not specified what magnitude of contempt fine may constitute a serious criminal sanction" for purposes of the Sixth Amendment, but it has held that contempt fines of $5,000 for individuals, and $10,000 for non-individuals such as corporations, are presumptively "petty" and do not require a jury trial. See Int’l Union, UMW of Am. v. Bagwell, 512 U.S. 821, 837 n.5 (1994).
Shell argues that the hearing master’s recommendation of a $6,000 fine for contempt exceeds the $5,000 threshold and entitles her to a jury trial. We disagree. The Supreme Court has made clear that $5,000 carries no "talismanic significance,"
and that the critical question remains whether the fine imposed is "of such magnitude" that a jury trial is warranted. Muniz v. Hoffman, 422 U.S. 454, 477 (1975) . Shell offers no explanation for why a $6,000 fine, rather than a $5,000 fine, is of "such magnitude" that it should entitle her to a jury trial under this criterion. We agree with the opinions of other courts that have held that fines in excess of $5,000--so long as they are reasonable--do not give rise to a constitutional right to a trial by jury. See United States v. Clavette, 135 F.3d 1308, 1309-10 (9th Cir. 1998) (holding that $25,000 fine did not trigger defendant’s constitutional right to a jury trial); United States v. Unterburger, 97 F.3d 1413, 1416 (11th Cir. 1996) (holding that fine of $10,000 was not sufficiently serious to trigger the defendant’s jury trial right) . While we take no position on whether the courts in Clavette or Unterburger were correct that fines of $25,000 or $10,000, respectively, are petty, we agree with the reasoning of these decisions that $5,000 is not talismanic. Applying this principle, we find that the hearing master’s recommendation of a $6,000 fine for contempt in this case is petty such that it does not trigger Shell’s constitutional right to a jury trial.
V.
Shell contends that she is entitled to a new hearing on the OARC’s contempt petition because she was not provided with a copy of the transcript from the proceedings below. This court denied Shell’s petition for a transcript at state expense.
Upon an adequate showing of economic hardship, "destitute defendants must be afforded as adequate [ an] appellate review as defendants who have money enough to buy transcripts." Jurgevich v. Dist. Court, 907 P.2d 565, 567 (Colo. 1995) (quoting Griffin v. Illinois, 351 U.S. 12, 19 (1956)) . Consequently, "the state must provide either a free transcript or other means of affording adequate and effective appellate review to indigent defendants." Id. The failure to provide an indigent defendant with a transcript is reversible error only if it prevents the appellate court from adequately reviewing the issues raised by the defendant on appeal. See People v. Shearer, 181 Colo. 237, 242, 508 P.2d 1249, 1252 (1973).
The OARC argues that there is no error because Shell failed to adequately demonstrate that she was indigent. We need not reach this issue, however, because Shell has not been harmed by the lack of a transcript. Shell videotaped the entire proceedings before the hearing master, and was able to provide this court with citations to the videotapes of the hearing. The court had the opportunity to review the video recordings to the extent necessary to consider the issues raised in Shell’s appeal. Since we were able to adequately consider the issues raised by Shell on appeal, she is not entitled to a new hearing. See id. at 242, 508 P.2d at 1252.
VI.
Finally, Shell argues that the hearing master erroneously recommended that this court award costs and attorneys’ fees to the OARC as part of the contempt citation. We agree with Shell and decline to adopt the hearing master’s recommendation as to costs and attorneys’ fees.
Rule 107 of the Colorado Rules of Civil Procedure recognizes two types of sanctions for contempt of court: "remedial sanctions," which are imposed "to force compliance with a lawful order or to compel performance of an act within the person’s power or present ability to perform," C.R.C.P. 107(a) (5), and "punitive sanctions," which are imposed as "[p]unishment by unconditional fine, fixed sentence of imprisonment, or both, for conduct that is found to be offensive to the authority and dignity of the court," C.R.C.P. 107(a) (4). Rule 107(d) (2) permits the assessment of costs and attorneys’ fees where remedial sanctions are imposed against a contemnor. In contrast, the provisions relating to punitive contempt sanctions do not authorize the assessment of costs and attorneys’ fees. See C.R.C.P. 107(d) (1).
We interpret rules of procedure consistent with principles of statutory construction. See Leaffer v. Zarlengo, 44 P.3d 1072, 1078 n.6 (Colo. 2002). These principles teach that words or provisions should not be added to a rule, see People v. Cross, 127 P.3d 71, 73 (Colo. 2006), and that the inclusion of certain terms in a rule implies the exclusion of others, see Zab, Inc. v. Berenergy Corp., 136 P.3d 252, 261 (Colo. 2006) (Eid, J., concurring) . Applying these principles, we hold that costs and fees cannot be assessed when the court imposes punitive sanctions against a contemnor, because C.R.C.P. 107(d) (1) does not expressly authorize their assessment. We find the rule’s silence dispositive in light of the language in C.R.C.P. 107(d) (2) permitting the assessment of costs and fees when a remedial sanction is imposed. See In re Lopez, 109 P.3d 1021 (Colo. App. 2004) (holding that costs and fees cannot be assessed when a court imposes punitive sanctions); Eichorn v. Kelley, 56 P.3d 124 (Colo. App. 2002) (same).
The sanction for contempt recommended by the hearing master in this case clearly is punitive--not remedial--in nature. Shell is not given the choice of accepting the $6,000 fine or complying with the court’s October 2001 Order, and such a choice is indispensable in order for the sanction to be remedial. See C.R.C.P. 107(a) (5) (explaining that remedial sanctions are imposed to compel compliance); C.R.C.P. 107(d) (2) (stating that remedial sanctions must be accompanied by a written order explaining how the contemnor "may purge the contempt and the sanctions" through compliance) . Since the recommended sanction against Shell is punitive, costs and attorneys’ fees cannot be awarded. See C.R.C.P. 107(d) (1). We agree with Shell and we do not assess costs and attorneys’ fees.
VII.
Suzanne Shell has engaged in the unauthorized practice of law in direct violation of both Colorado law and this court’s October 2001 Order enjoining her against engaging in legal practice without a license. We hereby hold her in contempt of this court and fine her $6,000. We do not assess any additional amount for costs and attorneys’ fees.
The court’s Order of October 25, 2001, enjoining Shell against practicing law without a license in Colorado remains in effect.
1. Shell argues in passing that the proceedings below were constitutionally insufficient. We find her claim meritless. Rule 107 entitles the alleged contemnor to notice of the charges and an opportunity to respond at a trial on the merits by cross-examining adverse witnesses and by presenting evidence and witnesses of her own. See C.R.C.P. 107(d) (1). Shell received the full panoply of these protections in the proceedings below, consistent with the demands of due process. See Harris v. United States, 382 U.S. 162, 166 n.4 (1965) ("Due process of law ...in the prosecution of contempt, except of that committed in open court, requires that the accused should be advised of the charges and have a reasonable opportunity to meet them by way of defense or explanation."(citation omitted)).
2. The court of appeals reached the same conclusion in Kourlis v. Port, 18 P.3d 770 (Colo. App. 2000).
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Unauthorized Practice of Law
What is the Unauthorized Practice of Law?
In order to practice law in South Carolina, an attorney must be licensed by the Supreme Court of South Carolina. The authority of the Supreme Court can be found in the South Carolina Code of Laws at Section 40-5-220, available online or at a local library.
Except where a person is representing his or her own cause, practicing law without a license is strictly prohibited by state law. Section 40-5-310 states that practicing law without a license is a felony, with a penalty of up to five years in prison and/or five a thousand dollar fine. As of 2002, Section 40-5-80 was amended to prohibit the representation of another, with or without permission from a court.
The biggest problem in determining whether someone is engaged in the unauthorized practice of law is determining whether his or her conduct is actually the "practice of law." It is up to the South Carolina Supreme Court to decide whether someone is engaged in the practice of law. Code Section 40-5-20 allows the Supreme Court to adopt rules "defining and regulating the practice of law."
What is considered the "practice of law"?
The practice of law is more than just appearing in court on behalf of a client. Though no concise definition of practice of law exists, certain characteristics make it more likely that the Court will view certain conduct as the practice of law. An early South Carolina case, cited by other jurisdictions as well, stated that the practice of law includes "the preparation of legal instruments of all kinds, and in general all advice to clients and all action taken for them in matters connected with the law." In re Duncan, 65 S.E. 210 (S.C. 1909). The practice of law "extends to activities in other fields which entail specialized legal knowledge." South Carolina v. Buyers Serv. Co., 357 S.E.2d 15 (S.C. 1987).
Additionally, whether an individual is paid for his or her services is irrelevant. The reasons for prohibiting the unauthorized practice of law are not to protect licensed attorneys from losing business to unlicensed individuals. Rather, the purpose is to protect the public from consequences resulting "from the erroneous preparation of legal documents or the inaccurate legal advice given by persons untrained in the law." South Carolina v. McLauren, 563 S.E.2d 346 (S.C. 2002).
Examples from South Carolina Supreme Court decisions:
Inmates. The Supreme Court ruled that it was the unauthorized practice of law for a state prison inmate to help other inmates prepare applications for post-conviction relief, even though he was not paid and never appeared in court on the other inmates' behalf. South Carolina v. McLauren, 563 S.E.2d 346 (S.C. 2002).
Real Estate Closings. Preparation of deeds, mortgages and other legal instruments related to transfers of real estate falls within the practice of law. Additionally, the Supreme Court ruled that "real estate and mortgage loan closings should be conducted only under the supervision of attorneys, who have the ability to furnish their clients legal advice should the need arise . . . ." South Carolina v. Buyers Serv. Co., 357 S.E.2d 15 (S.C. 1987); Doe v. Condon, 568 S.E.2d 356 (S.C. 2002). While the Bar's Ethics Advisory Committee is limited to issues of professional conduct by South Carolina attorneys and does not issue opinions as to what constitutes the unauthorized practice of law, the Committee does acknowledge a significant number of inquiries about UPL by lenders in the real estate field. Click here for more information.
3rd Party Insurance Adjusting. Public insurance adjustment does not necessarily constitute the practice of law, and is regulated by SC Code section 38-48-70.Insurance adjustment is limited to include: (a) estimations of property damage and repair costs, (b) inventory of loss, (c) delivering claim to insurance company, and (d) negotiating with insurance company relating to property-damage valuations.
Insurance adjustment violates restrictions on unauthorized practice of law when conduct includes: (a) advising clients of their rights under an insurance policy, (b) advising on whether to accept settlement offers, (c) becoming involved in coverage dispute between the client and the insurance company, and (d) advertising that adjuster offers services that require legal skill. Linder v. Ins. Claims Consultants, Inc., 560 S.E.2d 612 (S.C. 2002).
Unsupervised paralegal. A disbarred attorney prepared and filed a deed for a small fee. Though he argued that he was merely acting as a paralegal, his conduct constituted the practice of law. Paralegals do not engage in the practice of law as long as their work is �of a preparatory nature, such as legal research, investigation, or the composition of legal documents, which enable a licensed attorney-employer to carry a given matter to a conclusion through his own examination, approval or additional effort." Matter of Easler, 272 S.E.2d 32 (S.C. 1980).
Estate planning seminar. A paralegal wanted to conduct unsupervised "wills and trusts" seminars for the public. Because the paralegal planned to advise potential clients of their need for particular estate planning devices, such advice requires professional judgment by a licensed attorney. Doe v. Condon, 532 S.E.2d 879 (S.C. 2000).
Paralegal advertising. A paralegal advertised, "If your civil rights have been violated, call me." It was illegal for the paralegal (not a licensed attorney) to solicit the cause of another person. At the time of the case, it was legal for a non-lawyer to defend the cause of another after receiving permission by the court. Now, it is illegal for an unlicensed person to represent anyone other than himself or herself. South Carolina v. Robinson, 468 S.E.2d 190 (S.C. 1996).
Pro bono paralegal. A certified paralegal offered voluntary services for persons in need of assistance with housing and landlord-tenant issues. The paralegal prepared and filed a complaint (lawsuit) in federal court relating to unlawful eviction. He also prepared pleadings filed in state circuit court alleging unlawful termination of public assistance benefits. The fact that the paralegal was not paid was irrelevant. The Supreme Court ruled that his actions amounted to the practice of law, which includes "the preparation of pleadings and the management of court proceedings." The Hous. Auth. Of the City of Charleston v. Key, 572 S.E.2d 284 (S.C. 2002).
Corporations. Though someone may represent himself or herself pro se, this exception applies only to individuals. A non-lawyer (officer, agent or employee) can only represent a corporation in civil magistrate's court. Because a corporation is an artificial entity created by law, it cannot represent itself. A corporation must be represented by a licensed attorney in circuit and appellate courts. Renaissance Enterprises, Inc. v. Summit Teleservices, Inc., 515 S.E.2d 257 (S.C. 1999).
A non-lawyer insurance representative/employee appeared before a State commissioner. Though an individual can appear on behalf of him or herself, a corporation cannot appear or act in person, and cannot practice law. The Court reasoned that, "[i]f a corporation could appear in court through a layman upon the theory that it was appearing for itself, it could employ any person, not learned in the law, to present it in any or all judicial proceedings." State ex rel. Daniel v. Wells, 5 S.E.2d 181 (S.C. 1939).
Legal document computer programs. A businesswoman used a computer program to generate legal documents for other persons to be filed in family court. The Supreme Court found this activity amounted to the unauthorized practice of law when it involves "the giving of advice, consultation, explanation or recommendations on matters of law," and "instructing other individuals in the manner in which to prepare and execute such documents." South Carolina v. Despain, 460 S.E.2d 576 (S.C. 1995).
Exceptions. In addition to pro se representation and representation of a corporation before a magistrate's court, the Supreme Court has provided for several exceptions allowing a non-lawyer to engage in legal proceedings. State agencies may permit non-lawyers to appear and represent clients before it. Certified public accountants (CPAs) maintain a special status before the court. It is not the unauthorized practice of law for a CPA to represent clients before an agency or Probate Court if it is within his or her professional expertise and qualifications. Lastly, an arresting police officer does not engage in the unauthorized practice of law when he or she prosecutes traffic offenses in magistrate's court or a municipal court. In re Unauthorized Practice of Law Rules Proposed by the South Carolina Bar, 422 S.E.2d 123 (S.C. 1992).
Finees Miqueas Casado was arrested Dec. 7 for practicing law without a licence.
Scott Rogers (The Times)
1 of 1
By Stephen Gurr
sgurr@gainesvilletimes.com
POSTED Feb. 3, 2008 5:04 a.m.
1 Image
Finees Casado looked the part of a lawyer and acted the part, but lacked the credentials, authorities say.
Casado, who operates Casado’s Associates LLC, a storefront office on Jesse Jewell Parkway offering assistance in immigration and tax matters, faces possible grand jury indictment after being charged with felony theft by deception last month.
The arrest serves to underscore a more disturbing trend of people providing legal services without authority that has victimized Hall County’s sizable Hispanic immigrant population, one local attorney said.
Casado, 37, did not return a message left at his office seeking comment on his arrest. District Attorney Lee Darragh, whose office investigated and is prosecuting the case, wouldn’t discuss the case, citing his policy of not commenting on the facts of pending cases.
According to court documents, Casado was representing a client on a felony forgery charge in a plea hearing last October in front of Senior Superior Court Judge John Girardeau. Casado’s client, 31-year-old Jose Lopez-Vasquez, was accused of possessing a fake green card. The plea, signed off by Casado and his client, would result in a sentence of four years in probation, plus fines and fees.
At some point after the Oct. 10 hearing, Girardeau was informed that Casado was not a member of the state bar of Georgia. The judge ordered another plea hearing with a public defender representing the defendant and resentenced him on Oct. 24.
On Dec. 7, after an investigation by the district attorney’s office, Casado was arrested on a charge of felony theft by deception.
Warrants allege Casado "took (more than $500) by a deceitful means and artful practice by accepting retainer fees holding himself out to be a lawyer, which was untrue, resulting in a void plea and sentence."
Darragh would not say whether Casado represented any other criminal defendants whose cases might be affected.
On his Web site and the sign above his office, Casado primarily advertises for services in immigration law, taxes and as a notary public.
Gainesville immigration attorney David Kennedy said he was not familiar with Casado before his arrest, but noted that Casado could have legally practiced federal immigration law if he was licensed in another state and had been admitted to practice in that state’s highest court.
Casado set up his office in Gainesville in 2006 after practicing law in Massachusetts and New Hampshire, according to his Web site.
Casado would have broken the law, however, if he was unlicensed in Georgia and tried to practice law in a state court without first getting special permission from a judge.
Gerald Edenfield, president of the State Bar of Georgia’s executive committee, said the organization’s Unauthorized Practice of Law division is set up to find and report such cases.
"We take it very, very seriously," Edenfield said. "That’s one thing we believe you need to protect the public from."
Cases like Casado’s are relatively rare — officials say more common are lawyers who continue to practice after failing to pay their state bar fees, or non-lawyers who give legal advice or file pleadings without authority.
Kennedy said the larger problem for area immigrants is the legal advice given by Spanish-speaking notary publics who are making decisions in immigration cases that only lawyers should make. In Mexico, the term "notario publico" refers to a person trained in the law, while virtually anyone can be a notary public in the United States, Kennedy said.
Kennedy said when "notarios" in Hall County consult their clients on immigration cases, many times they are irrevocably damaged.
"I still see an awful lot of cases where people come to my office having been to these ‘notorios,’ and their cases are all messed up," Kennedy said.
Casado advertises himself as a "notario publico" and an "abogado de immigracion," or "immigration lawyer."
Whether Casado is licensed to practice law in other states could not be determined Tuesday. And while the state bar recommends the safeguard of requiring an attorney to provide his bar number in all documents he files with the court, most folks who come to court are taken at their word when they say they are lawyers.
"If you walk in there wearing a suit and act like you know what you’re doing, I can’t imagine them stopping you," Kennedy said.
THE UNAUTHORIZED PRACTICE OF LAW IN NEW YORK
Under Section 478 of the New York Judiciary Code, an out-of-state lawyer may not render legal services "without having first been duly and regularly licensed and admitted to practice law in the courts of record of this state."57 Thus, New York does not provide an exception to out-of-state lawyers providing legal services or counsel in New York on a temporary basis.
In Spivak v. Sachs, the Court of Appeals in New York held that a California attorney who came to New York, where he had not been admitted to practice, in order to assist in matrimonial litigation on behalf of the wife and who advised and consulted with the wife and her New York attorneys, practiced law and therefore could not recover legal fees for services rendered.58 In concluding that the California lawyer had engaged in the unauthorized practice of law in New York, the court stated, "[n]ot only did he give her legal counsel as to those matters but essayed to give his opinion as to New York's being the proper jurisdiction for litigation concerning the marital res and as to related alimony and custody issues, and even went so far as to urge a change in New York counsel."59 The court determined that the lawyer's action violated the unauthorized practice of law provision despite the fact that the client had sought his assistance and specifically urged him to come to New York and that the lawyer had informed her that he was not licensed in New York and could do no more than consult with her, advise her, and recommend New York counsel.60 Furthermore, although the court professed to recognize the importance of multi-state transactions and relationships of modern times, it nevertheless believed that not to conclude that the lawyer's action violated the unauthorized practice of law provision would defeat the policy of "[protecting] citizens against the dangers of legal representation and advice given by persons not trained, examined and licensed for such work, whether they be laymen or lawyers from other jurisdiction."61
Sad But True: Perverse Incentives in On-Shore Document Review
04:19:10 pm, Categories: Legal Process Outsourcing, In the News, Case Studies
In the December, 2008 issue of the ABA Journal, the “flagship magazine of the American Bar Association,” there is a feature article about the anonymous life of a contract document review attorney in New York City:
Down in the Data Mines
A tale of woe from the basement of legal practice.
The anonymous author describes the bleak work environment and perverse incentives of lawyers living the document review life in New York and, presumably, elsewhere.
Aside from the unpleasant work environment and seeming lack of respect accorded to these attorneys, in-house counsel should be keenly interested in the perverse incentives under which such lawyers work.
The anonymous author describes how he makes “$35 an hour for the first 40 hours and $52.50 for each hour thereafter.” The economic incentive, then, is to work more than 40 hours per week, despite the fact that the 41st hour (or 51st or 61st) is no more effective than the 40th hour. It is difficult to maintain consistent high quality when attorneys are reaching for more than 40 hours week after week just to make more money.
Beyond this striving for overtime, however, is an even worse incentive. As the author says:
“The reality is even worse: If I review 100 documents per hour (a very fast pace), I get paid the same hourly rate as if I review 30. More-over, each project consists of a finite number of documents; so the faster I work, the sooner I am out of a job and need to start hustling for the next project.
‘Don’t work us out of a job,’ a veteran contract attorney once derided me in private after I reviewed too many documents on the first day of a new project. And the firm is usually OK with this attitude; in my experience, speed and accuracy have always taken backstage to billable hours.”
There is a better way.
Pangea3 has moved to a unit pricing model for document review. We charge by the document, the page and the gigabyte. Aside from absolute lower costs for off-shore review what are the benefits?
1. Incentives Are Aligned: We work for speed and accuracy, not project longevity. Because we don’t charge overtime, it makes no economic sense for us to artificially extend projects. Because we don’t pay our people overtime, it makes no economic sense for them to work inefficiently or past the point where they are working effectively.
2. Fixed Costs: By charging by the document, page or gigabyte, our clients can easily know the cost of a review before the review commences.
If you haven’t tried off-shore review, give us a call and we’ll show you how going off-shore, where our incentives are aligned with yours, can lower costs and increase quality.
Permalink 453 words by Jonathan Goldstein, 16 views • Send f
Why post an ad for offshoring doc review here?
The bottom line is that it is the unauthorized practice of law and malpractice to have foreign non-attorneys who can't understand the docs they are reviewing do the work.
Biglaw firms can try and draft ironclad consent forms to protect against malpractice but they cannot admit in those forms that they are knowingly having the work done by reviewers who don't understand English well enough to comprehend what they are supposedly reviewing. The waivers they draft would be challenged very quickly in the event of a disaster.
Having the work offshored to foreign non-lawyers is like putting up a sign that says, "no due diligence here." No biglaw firm can really afford a risk like that. Those who try it are being incredibly stupid and short-sighted.
3:37 and 4:45
The loophole they're trying to exploit is that the work is sanitized by having a US attorney look it over. How they intend to do this and remain profitable is anyone's guess.
I think they might also be able to get around it when the work is done in anticipation of litigation, but not as a response to a request.
514
I think you are right about how they think they will around it, but as you say- the problem is that this is still a gamble. I might add not just because of cost, but because they do not know yet the outcome of what constitutes sufficient sanitation. They are taking not just a financial, but also legal risk.
As for your example of work being done in anticipation rather than as a response to a request, I have to say that's also seems like wasted money. It still remains the illusion of due diligence rather than the thing itself. It's only good so long as no one actually ever needs to check the work product. It becomes a waste of money once someone does.
By now, they must be doing reviews in response to discovery requests also.
Having a U.S. attorney look it over won't pass the laugh test. A U.S. attorney could not single-handedly check all those docs. If they hired enough U.S. attorneys to do that, the projects would be here not there. Having reviewers who are incapable of understanding the docs pretend to review them and then having a U.S. attorney sign off on the work is the unauthorized practice of law and would make the U.S. attorney vulnerable to disciplinary charges.
You can't be rigorously supervising a foreign doc review project if you are allowing reviewers who can't understand English well enough to understand the docs participate in the review. That by itself is participating in the unauthorized practice of law.
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ABA Ethics Committee Issues Opinion Detailing Lawyer Responsibilities
When Outsourcing Legal Work Domestically or Internationally
CHICAGO, Aug. 25, 2008 - U.S. lawyers are free to outsource legal work, including to lawyers or nonlawyers outside the country, if they adhere to ethics rules requiring competence, supervision, protection of confidential information, reasonable fees and not assisting unauthorized practice of law.
Those are the conclusions of the American Bar Association Standing Committee on Ethics and Professional Responsibility, which describes outsourcing as a salutary trend in a global economy. Many lawyers do outsource work, using lawyers or nonlawyers as independent contractors, hiring them directly or through intermediaries and on temporary or ongoing bases, says the committee.
Outsourcing can reduce client costs and enable small firms to provide labor intensive services such as large, discovery intense litigation, even though the firms might not maintain sufficient ongoing staff to handle the work, according to a new ethics opinion issued today. Ethics Opinion 08-451 details ethics obligations of lawyers and firms that do elect to outsource legal work.
Outsourcing lawyers are subject, like all lawyers, to an obligation to render competent legal services, and lawyers who supervise other lawyers or nonlawyers in performing legal services are responsible for assuring the individuals they supervise comply with ethics rules governing lawyers. The committee notes that outsourcing lawyers may face challenges in assuring competence and in overseeing work by others, particularly when separated by thousands of miles and substantial time differences. Minimally, outsourcing lawyers should conduct reference checks and background investigations of lawyer or nonlawyer service providers and any intermediaries. They may also wish to interview principal lawyers on a project, assessing their educational background, and evaluate the quality and character of any employees likely to access client information, review security systems, and even visit the premises of the service provider.
If the provider is in a foreign country, the outsourcing lawyer should determine whether the legal education system in that country is similar to that of the U.S., and whether professional regulatory systems incorporate equivalent core ethics principles and effective disciplinary enforcement systems. Some circumstances may require more rigorous supervision than others, according to the committee. The outsourcing lawyer also should determine whether the foreign legal system protects client confidentiality and provides effective remedies to the lawyer’s client in case disputes arise.
Depending on the level of supervision contemplated by the outsourcing lawyer, it might be necessary to obtain informed client consent before engaging outside assistance. Informed consent also may be required to reveal confidential information, and the outsourcing lawyer should recognize and minimize the risk that a service provider might breach confidentiality, says the committee, suggesting written confidentiality agreements are “strongly advisable.”
Regarding fees, the opinion says outsourcing lawyers may pass along to the client the costs of using the service provider, including a reasonable allocation of associated overhead expenses, but “no markup is permitted.” The committee also acknowledges it lacks authority to express an opinion about whether any particular service provider is engaging in unauthorized practice of law, but cautions that if the service provider is found to be not authorized to practice law, and the outsourcing lawyer facilitated that violation, the outsourcing lawyer will have violated ethical rules.
The ABA Standing Committee on Ethics and Professional Responsibility periodically issues ethics opinions for the guidance of lawyers, courts and the public interpreting and applying the ABA Model Rules of Professional Conduct to specific issues of legal practice and client-lawyer relationships.
The opinion is available from the ABA Center for Professional Responsibility at http://www.abanet.org/cpr.
With more than 413,000 members, the American Bar Association is the largest voluntary professional membership organization in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.
That's all well and good, but the ABA opinion is worth the paper it's published on. If it is published electronically.
The state bar opinions are the key opinions. The ABA is always pubslishing a bunch of useless junk (including their worthless magazine). The only good thing about them is the committes, but they're not worth the outragous fees.
your post does not matter 7:43 the ABA is NOT the law. They are an group of people that has an opinion on something, much like the KKK has an opinion on race, which is also NOT the law.
The ABA can say what it wants, but the statutes are what govern. If you were a lawyer you should understand that.
My guess is you are someone who is engaged in the illegal practice of work, maybe for Pangea.
7:43 the artilce you posted clearly states that the ABA is NOT saying that outsourcing is legal, it actually clearly states that it offers no opinion on the matter.
The article merely provides a check list of things that one should do if they do outsource to not violate ethics rules, which is NOT the same thing.
They bend over backwards to make sure it is clear that in fact they are not saying that this is legal, and they offer NO thoughts on whether this is unauthorized practice of law, and they add a caution as well.
I would not go to court, with my license or firm and career in jeopardy, claiming that this was all fine and well on the basis of this. To ask a client to go along with this is also most likely malpractice.
posting such long comments is idiotic, this is a blog just leave a decent sized comment or a link
I have nothing to add, but neither do you. That's all I wanted to say.
actually the info did one think- it shut up the trolls at least for this thread. they could not just out and out make shit up. I can't say i wanted to put that kind of research effort into proving them bogus, but still.
That ABA "ethics" opinion is based on some very spurious reasoning.
How is it that they condone international outsourcing of legal work to non US-barred lawyers, yet they don't condone, say a lawyer who is only barred in Michigan walking into a court in California and practicing law there?
The two situations are completely analogous.
Or are there different "tiers" of legal work, to which different standards of scrutiny apply?
Under that interpretation, doc review is on the lowest rung, and can be done anywhere by virtually anyone, as long as an appropriate degree of supervision is provided.
Whereas representing a client in court is on the highest rung, which can never be condoned except on the express permission of the court (as the granting of a license pro hac vice).
If that is the case, and there are separate standards depending on the nature of the work, the ABA opinion completely skirts that issue, and doesn't mention any gradations of what constitutes legal work. "Legal work" would still seem only to be a black-and-white thing.
Which leads me to believe that opinion was written for, and at the behest of, powerful law firms with a vested financial interest in seeing to it that international outsourcing continues.
So much for the independence and integrity of the ABA.
By that very same ABA opinion, as long as an "outsourcing" lawyer makes all the appropriate "reference checks" and investigates whether the foreign jurisdiction has the proper standards of legal education and ethics as the US jurisdiction, than outsourcing of legal work is A-OK.
Well, why wouldn't that apply, for instance, to a law firm in Connecticut who wants to outsource legal work to a group of lawyers in Mississippi? Just check those references and make sure the legal education standards are roughly (?) similar, and that they apply standards of professional ethics... right?
Why is all this background-checking and ethics investigative work sufficient to permit the Connecticut lawyer to hire Indian lawyers to do his work, but it's insufficient if he wants to hire lawyers in Mississippi to do the exact same work?
It is not sufficient in any U.S. jurisdiction to have foreign non-lawyers who do not understand English well enough to understand the docs act as reviewers. That should go without saying. Yet that is exactly what is going on with the outsourced projects. That is why even under the ethics opinion standards, they are engaged in the unauthorized practice of law. The biglaw firms are acting as though there are no standards. That is amazingly reckless. In ignoring the standards, they are openining themselves up to sanctions and malpractice claims. It is breathtakingly stupid.
Nobody has given biglaw permission to do the crackpot shoddy nonsense they are pulling on these outsourced projects. And when the inevitable screw-up happens, nobody will believe that they even attempted to use due diligence.
I urge everyone to file a bar complaint against David Perla, who is barred in NY and MASS, and is clearly assisting in the unauthorized practice of law. The general complaint form is below.
General Complaint Form (NY)
The Fourth Department Attorney Grievance Committees review all complaints against lawyers in their jurisdiction.
There are no standard forms for filing a complaint. However, to assist you in submitting your complaint, listed below are some general guidelines to follow.
Include the following information in your correspondence :
Name, office address, and telephone number of the lawyer
Your mailing address and telephone number, so we may contact you
If this is/was your attorney, explain specifically what you retained the lawyer to do, what you paid him, and what the lawyer subsequently did or did not do
Send copies of any documents which support your allegations or that you believe will assist us in investigating your complaint
If you have a complaint against a lawyer who does not represent you, include a brief explanation of the circumstances surrounding your involvement with this attorney.
Once your complaint is ready, mail it to the appropriate Grievance Committee office listed below:
First Department:
Alan W. Friedberg, Chief Counsel
Bronx, New York Counties: First Judicial Department Departmental Disciplinary Committee
61 Broadway, 2nd Floor
New York, New York 10006
Phone: 212/401-0800
Fax: 212/401-0810
http://www.courts.state.ny.us/ad4/AG/Page8.AGCadds.htm
Also be advised all NY barred lawyers have an ethical duty to report the known misconduct of another NY attorney.
New Jersey has similar rules. For example, there have been cases documented where a NJ attorney was aware of the misconduct of another lawyer, and failed to report the misconduct to the bar. That lawyer was suspended from practice.
yeah but you have to have "actual knowledge" for that to apply, which I am not sure how many of us that would actually include.
So, does everyone think it equally unethical for non-barred JDs to perform document review?
You can't have it both ways.
Personally, I think doc review IS practice of law since there is so little supervision. Our judgment IS being relied upon entirely. However, many firms use non-barred JDs to do the review. How is that different than outsourcing?
Just look at the Pangea3 web site, including the blurb posted above. He clearly is doing all kinds of things that lawyers would never do here.
Take a look at his billing practices, sweatshop working conditions, fee splitting arrangements, etc, etc. There are probably dozens of areas that could be investigated.
Also, there are other US barred scabs working as managers in these sweatshops.
Umm...it's being performed in a foreign country! Besides, most doc reviews require US barred attorneys.
Additionally, having a JD is a lot more than the India trained attorneys have. They haven't even attended American law school, and have no JD. So your comparison proves our point!
So once again, you are proving our point that you Indian morons have no idea what you are talking about. You aren't aware that American lawyers have JDs.
10:48 No one is going to stop interns and second year associates from getting experience at law firms on the basis of unauthorized practice of law. Paralegals are definitely being inappropriately used, but all of the above understand English and work inside law firms here, surrounded by the firms' attorneys. That is very different from what is happening in the sweatshops in India where the non-attorneys doing our jobs for $5 an hour lack the grasp of English necessary to understand the docs.
I am playing Devil's advocate here...
If firms in NYC CAN use non-barred JDs, i.e. non-lawyers, for document review under the rhetoric that it is not "practice of law," then why does it matter if an Indian in India is doing the same work.
Personally, I think that doc review IS the practice of law and firms are not only encouraging and enabling unauthorized practice, but under the same logic, outsourcing to India to non-legally trained, non-lawyers is equally problematic.
I encourage you to think like a lawyer, consider both sides, and come up with a coherent and persuasive argument to present to the attorney disciplinary committees so that they can actually render an opinion on the issue and decide it once and for all.
So, does everyone think it equally unethical for non-barred JDs to perform document review?
No--I don't think it is unethical for someone with an American legal education to perform document review under the on-site supervision of a licensed atorney.
If the lawyers they were using in India had American JDs and were being supervised by licensed American attorneys to the same extent as non-licensed American JDs, I wouldn't see an unauthorized practice problem.
The point is (1) off-shored attorneys neither have American licensure nor an American legal education and (2) there is no way that they can be supervised by licensed American attorneys even to the same lax degreee as American doc reviewers unless the former are actually on-site. Since neither (1) nor (2) are true, this is pure unauthorized practice.
Right, they have even less than American grads of good undergrad schools. They are educated in a different system, different degree, different language, it goes on and one.
No comparison. Outsourcing is a fraud and a joke.
The non-JDs who do doc review here aren't doing it under rhetoric that it is not practice of law any more than second year associates assist with legal research, etc. under rhetoric that what they are doing is not the practice of law. They are working on-site in the firms as part of the firms, with the firms' attorneys all over the place and, unlike the Indians in the sweatshops there, they are actually fluent in English.
On-site - Does that mean in the same room?
I haven't ever had an associate lower themselves and be present in any review room I have ever worked in.
What about firms that send the review to a cheaper location in the city? Does an associate have to be present at all times at the off-site facility?
Law firms, which have been billing out our doc review work all along, should be estopped from claiming it is not the practice of law. It is the practice of law which is why actual supervision by U.S. admitted attorneys is required. Even the outsourcers know that. They are engaging in the unauthorized practice of law because there is no adequate supervision where the non-attorneys allowed to participate are not fluent in English.
Doc review often is done inside law firms here. On the projects I've been on, almost all the reviewers have been admitted attorneys and associates have often been present at least a couple of times a week. They have also been in contact by phone and could be called when questions arose.
Biglaw firms have billed out our work as legal work and charged hundreds of dollars an hour for it from day one. They should be estopped from denying that it is legal work.
On lots of projects, being an admitted attorney is required. I take it that the requirement is used because there is no question that it is legal work. The supervision issue is not even involved when all of the reviewers are admitted. They are authorized to practice law.
Right, 11:35 obviously doesn't grasp the concept.
If the doc review is being performed in NYC by NY barred lawyers, no supervision required. If its JDs, then supervision is required.
And even if some of the reviewers on the NYC site are barred in NJ and never visited by the firm's associates, the NY barred attorneys cover the requirement, because they are authorized and can supervise the NJ lawyers, when they themselves are ultimately supervised by the firm.
Have you ever seen a NYC gig staffed by all NJ attorneys? Never happens.
On every doc review project either everyone has to be barred in the U.S. or there is at least a pretense of supervision by a U.S. admitted attorney. I take it that biglaw does that because it is legal work.
In fact, I DO grasp the concept. I am a) a NY barred attorney b) who works for a firm who believes that it is not required to have barred attorneys perform document review. Not only does the firm not support our efforts to do our CLE, it tells us that we are exempt from CLE because document review is NOT practice of law, supervised or not.
If we are supervised, it is once at the beginning of a review to announce protocol and at that point it's usually done by a newly hired first year who is, in most cases, not admitted yet or by a more senior associate who never communicates with us again.
Are there any document review projects out there? Has this line of work dried up completely? If so, how do I properly fake a disappearance?
12:52 it sounds strange to say a firm would claim you are exempt from CLE if you do doc review. If you want to keep registered as an attorney, you better do CLE. If you are an NY admitted attorney, you should realize that regardless of what they say to you, they are having you do it because they know it is legal work. Ever get a chance to see what they are billing it as?
12;52, if you are a NY barred attorney, there is no unauthorized practice of law issue. They don't have to have you supervised to avoid being involved with the unauthorized practice of law. You are authorized.
12:55 there is nothing. Even the skeletal crews that usually have steady work only get crumbs here and there.
Question:
What is it specifically about document review that makes it the practice of law?
Could it just be tradition?
Could it just be that, traditionally, this work was assigned to first-year associates at largelaw firms, because it was a relatively simple task and didn't require a massive amount of experience?
Could it be that it was given to first-year associates (even though it could just as well have been assigned to paralegals), because it was labor-intensive and firms could bill out a lot of hours at associates' rates?
Then, as clients grew more cost-conscious, the same work was outsourced to temp firms using US-educated JDs or barred attorneys who weren't firm associates?
And that two things were driving this:
1) Firms wanted to "reassure" clients that attorneys were doing the work, i.e. that it was being done competently.
2) Firms wanted to continue to bill the work out at associates' rates.
Then when clients got even more cost-conscious, the same work was outsourced to LPOs in India who could get it done for a lot less?
And the only reason they use Indian attorneys, as opposed to Indian paralegals or just run-of-the-mill Indian "smart people" off the street, is that the same things are driving this -- firms want to reassure clients by using the word "attorney", and they want to bill the clients at some rate which at least represented the Indian attorneys' supervision by Western-trained lawyers?
At the end of the day it may come down to just a matter of marketing and billing that's driving this.
Of course the flip side of that is GREED. It is unequivocally GREED that is driving this.
But if you look at the work itself, WHAT is it about the work that inherently constitutes the practice of law?
All around the US, there are firms that regularly push the envelope and assign "legal work" to paralegals, with different degrees of supervision by lawyers.
This is also analogous to what's happened in the medical profession, where Nurse Practitioners and Physician's Assistants now are permitted to make diagnoses and prescribe medications under the "supervision" of physicians.
But what does "supervision" mean? When I go to my doctor, sometimes the Nurse Practitioner examines me and she often prescribes medications. The doctor is in the next room, but isn't DIRECTLY supervising her.
Must supervision be DIRECT, regular, and immediate, or can it be indirect, irregular, and from a distance?
Don't get me wrong, I am THOROUGHLY in support of the US-licensed attorneys who are having their jobs taken away from them wholesale by greedy firms and LPOs.
But I think that if a successful case is ever to be made banning the practice of outsourcing legal work, the case must be AIRTIGHT and very well thought-out. It must clearly and concretely define ALL terms, such as "practice of law", "supervision", and even "attorney". It must have statutory and case-law back-up for all these definitions. It must present case law where certain precedent has been established, as one poster said, to estop the other side from arguing to the contrary. And it must anticipate ALL possible counter-arguments and nuances of meaning and precedent, that can be used to refute our arguments, because the other side will be very shrewd, and try to twist things their way -- and remember, it is THEY who represent the big money -- NOT the American temp lawyer community!
Enough with this already, the problem with the Indian sweatshops is that they use non-attorneys who don't understand the docs that they are reviewing. They are not fluent in English and not having lived here they can't put anything in context anyway. That is not comparable to having the work done here by English-speaking reviewers in a law firm full of attorneys.
The bar ethics opinions require rigorous supervision to avoid the unauthorized practice of law. No biglaw firm that is involved in doc review would ever have it done without either using only U.S. admitted attorneys or at least having some fall-back pretense of supervision by a U.S. admitted attorney. Every outsourcer pretends to have the work supervised by a U.S. admitted attorney. Additionally, for as long as there has been doc review, biglaw has billed it out as legal work. That too is because they realize that it is legal work.
12:55
There's stuff, but it's specialized. IP or foreign language.
What's happened is that the work had dried up at the firms so associates are doing the temp work. They're usually not qualified to do the specilized stuff (the firm doesn't have enough patent barred attorneys on staff and the associated don't speak a foreign language) so they hire some temps to do it. If it's run of the mill English stuff they give it to the associates without any work. That way they don't have to start laying off trained associates.
1:26 have you noticed that there are no non-attorney firms doing doc review? Have you noticed that vendors don't try to do doc review with non-attorneys? How long do you think a non-attorney firm that claimed it could offer cheaper rates because no attorneys were involved would last?
1:26
You're getting paranoid. The above post will explain why there isn't any temp work.
There are no English doc review projects. Someone please name one English project (not in-house) IP or otherwise in NYC. What agency? When did it start? What firm? There is nothing but the on again off again, week here and couple of days there stuff that is being given to the usual skeletal crews.
50% of biglaw has laid off associates. The legal market is going through a crash like a stock market crash.
I don't think there is anything in New York right now except some very short project.
I am aware of a Cravath project starting this week, but that's it.
What's really scary is all the Euro language reviews have dried up as well, a tell-tale sign of a worldwide economy in shambles.
I have friends who are literate in 5 or 6 different languages and they have been out of work for months.
1:39
FYI, I am the commenter at 1:26.
As someone who has never done doc review, but might have to soon, and someone who fully supports efforts to have Indian outsourcing of doc review and other legal work banned, let me say unequivocally that your comments are utter poppycock and the sign of an absolute drooling ignoramus.
Stupid Repeated Comment #1 by You: That Indian doc reviewers are "non-attorneys".
Utter bullshit! They are ATTORNEYS. They just aren't attorneys licensed in any US jurisdiction.
Would you tell a partner in a London law firm, a licensed as a Queen's Counsel, that he isn't an attorney just because he's not barred in a US jurisdiction? You wouldn't even have the balls to say that BS if it pertained to a US case, because it's garbage.
If we are ever going to make an airtight argument about this thing, it will have to start with us establishing the true and correct definitions of all these loaded terms, like "attorney".
True, in some courts around the country, attorneys trying to get their colleagues from other states disqualified on cases may argue to the judge, "Your Honor, Mr. Smith here is NOT an attorney".
That kind of argument and self-serving twisting of the word "attorney" is a colloquialism, a historic parochialism common among US lawyers, but it's not true. The correct argument should be, "Your Honor, Mr. Smith here is NOT licensed in the State of Mississippi, and therefore cannot lawfully represent his clients in this court."
The facile use of "non-attorney" has to stop. Anyone licensed to practice law in any internationally-recognized court system, is, per force, an attorney. I don't care if that court system is in the US, India, or Mozambique. If they are licensed to practice law there, they merit the nomenclature "ATTORNEY" anywhere in the world.
Your facile argument doesn't hold up there. It is weak and lazy, and will torpedo any efforts to have outsourcing banned.
Stupid Repeated Comment #2 by You: These Indian people "do not understand English" or "they are non-native English speakers".
Again, trite, insipid, bogus BULL SHIT.
As I've mentioned before, the English language is deeply-embedded in Indian culture because of the long period of British rule there, when the British Empire not only exported its language to India, but also its legal system.
Indian law schools recruit students mainly from the educated classes and castes of society where people are very well-exposed to English from childhood, in school, in business, and at home.
Most Indian law schools teach mainly in English, from beginning to end.
The vast majority of Indian lawyers are bilingual either in Hindi and English, or even trilingual in Hindi, English, and another regional Indian language.
Saying that these Indian lawyers (or JDs or whatever you want to call them) don't speak English, or aren't proficient in English, is utter garbage and won't hold up anywhere. Have you EVER traveled outside of the friggin' US? Haven't you been exposed to foreigners from countries where English isn't the main official language, who can speak English fluently????
To confuse their accent with non-fluency, is BULL SHIT and again, will torpedo right back against us if we ever make that argument, because it is based on sheer ignorance, from beginning to end, and IGNORANCE WILL ALWAYS LOSE.
2:09 you are the dumbest troll yet. Only U.S. admitted attorneys are attorneys in the U.S. and no matter how many times you trolls lie about it, everybody knows that the Indian non-attorneys working for $5 an hour in those sweatshops don't understand English any better than the Indians we encounter in those nightmarish call centers, which is to say, not at all.
2:09
You are clearly a N33B.
Non-attorney IS in fact the shorthand for "Your Honor, Mr. Smith here is NOT licensed in the State of Mississippi, and therefore cannot lawfully represent his clients in this court."
However, I would add that anyone performing doc review should be licensed to practice in the state in which the review is being conducted. Otherwise this activity would be the unauthorized practice of law.
Lawyers do other things besides go to court!
Can't wait until you join the ranks!
2:09
"Non-attorney IS in fact the shorthand"
Oh, I agree it's the shorthand all right, but when did "shorthand" ever have any legal standing under serious scrutiny?
When a whole case may turn on the definitions of words like "attorney", continuing to use that term in a parochial "shorthand" sense just won't cut it.
The court will have to break down what the statutes and ethics rules say, and how they have been interpreted.
Very often "shorthand" words and definitions are used in court arguments, and the court lets them slide for efficacy's sake. But when a whole case may turn on those definitions, the court will take a whole different tack and be VERY strict with their meanings.
If a strong enough argument can be made that those Indian attorneys are (1) actual attorneys somewhere, which enables them to be supervised by US attorneys while still using the term "attorney" to define them; and (2) not unlawfully holding themselves out as attorneys to clients in a US jurisdiction -- and I think that argument is a slam-dunk -- then the court will simply make a judicial finding that they are indeed "attorneys" and move onto the next issue.
When the laughter dies down in the court -- at the fools who blithely asserted the Indians weren't attorneys -- then more substantive issues will be addressed.
2:29 you are making a fool out of yourself, these make it up as you go along arguments of yours are a joke. If you are not admitted in the U.S., you are not considered an attorney here. Plain and simple. If your level of English is on a par with that of the Indians in those horrendous call centers, you don not understand English well enough to do doc review involving, sophisticated and often highly technical corporate docs. Plain and simple.
2:29, I get the distinct impression that you would be the one laughed at in court. Of course, you probably wouldn't be in a U.S. court as an attorney for anyone anyway.
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