4 - Regulation of Paralegals Flashcards
regulation
a rule or restriction designed to control the conduct of an organization or individual; regulation can be issued by a government body (e.g. an administrative agency) or by a nongovernmental body (e.g. an association or club)
practice of law
using or attempting to use legal skills to help resolve a specific person’s legal problem
professional judgment
applying the law or legal principles to the facts of a specific person’s legal problem; when communicated to this person, the result is called legal advice
legal advice
a statement or conclusion that applies the law or legal principles to the facts of a specific person’s legal problem
legal information
any statement about the law that is not directed at the facts of a specific person’s legal problem
self-help
1 - self representation; representing oneself with or without some assistance from an attorney, document service provider, online legal site, manual or other materials
2 - acting on one’s own to prevent or correct the effects of a tort or other wrong without using the courts or other public authority
pro se
on one’s own behalf; appearing for or representing oneself; also called in propria persona (in pro per)
litigants
a party in a lawsuit
pleading
a formal litigation document filed by a party that states or responds to the claims or responds to the claims and defenses the parties have against each other; major pleadings are the complaint and answer
independent contractors
a self-employed person who operates his or her own business and contracts to perform tasks for others; in general, the latter do not control many of the administrative details of how work is performed
Bankruptcy Petition Preparer (BPP)
a non-attorney who is authorized to charge fees or preparing (without attorney supervision) a bankruptcy petition or any other bankruptcy document that a self-represented debtor will file in a federal court
exemptions
1 - the right of a debtor to keep designated property rather than make it available to creditors to satisfy debts, particularly in bankruptcy
2 - not subject to a requirement
discharged
extinguish; forgive a debt so that it is no longer owed
Legal Document Assistant (LDA)
a non-attorney in CA who is authorized to charged fees for providing self-help assistance (without attorney supervision) to anyone representing himself or herself in a legal matter
Unlawful Detainer Assistant (UDA)
a non-attorney in CA who is authorized to charge fees for providing self-help assistance (without attorney supervision) to landlords or tenants in actions for the possession of land
ministerial
involving a duty that is to be performed in a prescribed manner without the exercise of judgment or discretion
bond
an obligation to perform an act (e.g. pay a sum of money) upon the occurrence of a designated condition
Legal Document Preparer (LDP)
a non-attorney in AZ who is authorized to charge fees for providing self-help assistance (without attorney supervision) to anyone representing himself or herself in a legal matter; also called Arizona Certified Legal Document Preparer (AZCLDP)
antitrust law
the law governing unlawful interferences with competition such as through price-fixing, monopolies, and other restraints of trade
statements of principles
guidelines negotiated by bar associates and specified law-related occupations that distinguish between those activities of the occupations that do not constitute the unauthorized practice of law and those that do
minimum-fee schedule
a bar-association list of the lowest fee an attorney can ethically charge for specific kinds of legal services; such lists (schedules) have been held to violate antitrust laws
counterclaim
a claim by one side in a case (usually the defendant) that is filed in response to a claim asserted by an opponent (usually the plaintiff)
court of record
a court that is required to maintain a record of the proceedings before it, including a word-for-word account of what occurred
calendar call
time in court when a case on the calendar (docket) is called for a determination by the judge of the next step in the proceeding (docket call)
continuance
the adjournment or postponement of a proceeding until a later date
ex parte
with only one side present (usually the plaintiff or petitioner) when court action is requested (ex parte order - ex. a court order requested by one party ad issued before notice is given to the other party)
uncontested
unchallenged; without opposition or dispute
pleadings
a formal litigation document filed by a party that states or responds to the claims and defenses the parties have against each other; major pleadings are the complaint and answer
memoranda of law
a written explanation of how one or more rules might apply to the factors of a client’s case (memo, memorandum, legal memorandum)
appellate briefs
a document that a party files with an appellate court (and serves on an opponent) in which the party presents arguments on why the appellate court should affirm (approve), reverse, vacate (cancel), or otherwise modify what a lower court has done
jailhouse lawyer
an inmate, usually a self-taught non-attorney, who has a limited right to provide other inmates with legal services if the institution does not provide adequate alternatives to such services (writ writer)
litigious
1 - inclined to resolve disputes through litigation
2 - quarrelsome
adversarial
involving conflict and an adversary (opponent)
adversary system
a method of resolving a legal dispute whereby the parties (alone or through their advocates) argue their conflicting claims before a neutral (impartial) decision-maker
Supremacy Clause
the clause in the US Constitution (article VI, clause 2) that has been interpreted to mean that when valid federal law conflicts with state law, federal law controls
separation of powers
the constitutional requirement that each of the legislative, executive, and judicial branches of government limit itself to the powers granted to it and not encroach upon the powers granted to the other two branches
usurp
to unlawfully exercise a position or power that belongs to another
Administrative Procedure Act (APA)
the statute that governs procedures before federal administrative agencies; many states have their own version of the APA for procedures before state administrative agencies
patent agency
a non-attorney licensed to prepare and submit patent applications before the US Patent and Trademark Office (if attorney - patent attorney)
enrolled agent
a non-attorney who is licensed to represent taxpayers before the Internal Revenue Service (attorneys and certified public accountants can provide such representation with becoming enrolled agents)
Administrative Law Judge (ALJ)
a government officer who presides over a hearing at an administrative agency, also called a Hearing Examiner (most, but not all, ALJs are attorneys)
page 52 debate
a debate on whether there should be limited licensing for paralegals (based on a recommendation in favor of such licensing on page 52 of a report of an American Bar Association commission)
Juris Doctor (J.D.)
the law degree most American law school grants its graduates (Doctor of Jurisprudence)
justice gap
the large numbers of people who do not have access to legal assistance, primarily because of the cost of such assistance
Limited Practice Officer (LPO)
a non-attorney in WA who is authorized to select and prepared approved legal documents for designated property transactions
Limited License Legal Technician (LLLT)
a non-attorney in WA who is authorized to engage in the limited practice of law (without attorney supervision) in approved areas of practice
surety
one who is liable for paying another’s debt or performing another’s duty
attorney-client privilege (ACP)
a client or a client’s attorney can refuse to disclose a confidential (private) communication between them if the purpose of the communication was to facilitate the provision of legal services to the client
fiduciary
1 - (adj.) pertaining to the high standard of good faith and fair treatment that must be exercised on behalf of another
2 - (noun) a person who owes another good faith and fair treatment in protecting the other’s interest
unbundled legal services
discrete task representation for which the client is charged per task as opposed to a single fee for all tasks to be performed
e-filing
electronic filing in court of pleadings and other documents
entry-level certifications
certification acquired by meeting eligibility requirements that do not include work experience
Fair Labor Standards Act (FLSA)
the federal statute that regulates conditions of employment such as when overtime compensation must be paid
exempt
not subject to a requirement (exemption)
preempt
displace or take precedence over (preemption); under the Supremacy Clause of the US Constitution, federal laws take precedence over any inconsistent state laws when Congress a) expressly mandates the preemption, b) regulates an area so pervasively that an intent to preempt the entire field may be inferred, c) enacts a law that directly conflicts with state law
personal liability
liability that can be satisfied out of wrongdoer’s personal as well as business assets
tort
a civil war (other than a breach of contract) that causes injury or other loss for which our legal system deems it just to provide a remedy such as damages; injury or loss can be to the person (a personal tort), to movable property (personal-property tort), or to land and anything attached to the land (real-property tort)
vicarious liability
liability imposed on a person for the conduct of another, based solely upon that status of the relationship between the two (e.g. employer and employee); the person liable is not the person whose conduct led to the liabilty
negligent hiring
carelessly hiring an incompetent person who poses an unreasonable risk of harm to others
negligent supervision
carelessly monitoring or supervising an incompetent person who poses an unreasonable risk of harm to others
respondeat superior
“let the master (boss) answer”; an employer is responsible (liable) for the wrongs committed by an employee within the scope of employment
scope of employment
that which is foreseeably done by an employee for the employer’s business under the employer’s specific or general control
deep pocket
1 - an individual, a business, or another organization with resources to pay a potential judgment
2 - sufficient assets for this purpose (opposite is shallow pocket)
negligence
the failure to use reasonable care that an ordinarily prudent person would have used in a similar situation, resulting in injury or other loss
statute of limitations
a law stating that civil or criminal actions are barred if not brought within a specified period of time; the action is time-barred if not brought within that time
process
the means (e.g. a summons, writ, or other court order) used by the court to acquire its power or jurisdiction over a person
malicious prosecution
a tort with the following elements:
1 - the initiation (or procuring the initiation) of a civil or criminal legal proceeding;
2 - without probable cause;
3 - with malice or an improper purpose; and
4 - the proceedings terminate in favor of the person against whom the proceedings were brought
abuse of process
a tort consisting of the following elements;
1 - the use of a civil or criminal proceeding;
2 - for a purpose for which the process is not designed;
3 - resulting in actual damage
malpractice
1 - any professional misconduct such as an ethics violation, breach of fiduciary duty, crime, tort, or other wrongdoing
2 - negligence committed by a professional
go bare
to engage in an occupation or professional without malpractice (liability) insurance
occurrence policy
insurance that covers all occurrences (e.g. a negligent error or omission) during the period the policy is in effect, even if the claim is not actually filed until after the policy expires
claims-made policy
insurance that covers only claims actually filed (i.e. made) during the period in which the policy is in effect
