Paralegal Bought Elderly Lawyer’s Law Practice for $20

fed up
May 27, 2009 10:37 AM CST

“The article describes Abernathy as a paralegal without formal training.”  If Abernathy were a lawyer, this transaction would not likely have been questioned.

Lawyers over 65 years-old should be required to prove mental competency, or be forced to retire, for the public’s protection.

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J + Re B. McLeod "... not right .... practicing.
May 27, 2009 11:49 AM CST

Perhaps the attorney knew he should not be practicing.

If yes, then he ought to have had an attorney approve the deals and use an appropriate guardian to monitor the follow up.

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B. McLeod
May 27, 2009 4:06 PM CST

I have often thought that if the bar examiners could randomly pull a few hundred lawyers out of their offices each year, and require them to repeat the bar on a surprise basis, many would not pass.  To be honest, I am not really sure I would pass.  Yet, if the bar exam is supposed to truly represent a test for a minimum threshold of competence, shouldn’t all practicing lawyers be able to pass it on any given day of the year?

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fed up
May 28, 2009 9:14 AM CST

re6, Yes; CLE?

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tom
May 29, 2009 7:46 AM CST

What is wrong with what she did?  Let the sale go through.  If he was competent enough to practice and take on clients, he was competent enough to sell the business for $20.

To the victors go the spoils.

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B. McLeod
May 29, 2009 8:29 AM CST

MM may be right, but every jurisdiction pretends that the contrary is true, and that bar exams provide some meaningful safeguard for the public.

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flalaw2003
May 29, 2009 10:04 AM CST

Gentlemen, your gender bias is showing. The paralegal is “Mario David Abernathy.” The proper pronoun would appear to be “he.”

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B. McLeod
May 29, 2009 1:55 PM CST

#14, only Andy used the mistaken pronoun.  I do not believe you can tar an entire group of posters for “gender bias” based on one (1) pronoun slip by one (1) poster.  Also, there was a lady in my law school class who went by “Andy,” so you are making your own gender assumption there.  Possibly warranted (based on Andy’s prior expressions concerning S. Palin), but these days, one never knows.

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JLM
May 30, 2009 1:01 AM CST

This transaction would have been scrutinized even if it was done by a licensed attorney, if for no other reason that for tax purposes.  Also, most states have rules that govern the sale of a legal or medical practice which are designed to protect clients, insure all taxes are paid, and prevent fraudulent transactions.  Therefore, it is unlikely this sale would have gone undetected no matter who orchestrated this sham.

Personally, I am disappointed at the lack empathy in some of these comments.  It is downright cruel to say this elderly lawyer deserved to be taken advantage of, or that his family should be punished because he developed dementia.  Further, it is extremely presumptuous to assume this lawyer was actively practicing. Based on the facts of this article, we only know that he owned the practice; nothing more.  He could have a fully competent staff with many lawyers, and he may not have personally worked on a client issue in years.  Sale of the practice would be the same if he was a one man operation, or if he was the non-practicing owner that employs several lawyers.  Obviously, if he was indeed practicing then action should be taken to rescind his law license, but not because of his “wrong doing” or as a form of punishment. 
The man has dementia and is sick, a fact that seems irrelevant to Fedup and Tom.  For both of your sakes, I hope you are treated with more dignity and respect in your old age than your words indicate you currently deserve. 

However, the need to regulate competency is very real and will be an ever increasing concern as the BabyBoom generation ages.  I agree that the Bar Exam is a very poor indicator of competency because most lawyers do not practice in “all areas of law” and it is rare to come across situations in regular practice where complex analysis was required under a very short time frame with no outside references.  I find it unlikely that most lawyers that have been out of school for very long would be able to pass the bar without preparation.  Unfortunately, CLE’s are not a practical method for testing competency for a few reasons.  Most CLE’s are designed to only provide an overview and basic exposure to legal topics, trends, changes, and developments. There is usually little interactive time, no hands on exercises, and classes must be reasonably short to be practical.  While CLE’s are very important to the profession, they are not truly teaching the subjects.  The information gathered in most CLE’s creates an awareness of issues so they are not overlooked, and which is a starting off point for a lawyer to begin their research if it pertains to them. 

Would encouraging peer reporting of potentially “slipping” attorney’s help or be abused?  Who should be making the decision on overall competency? 

What do you all think of the legal profession adopting a medical reporting system?  The system could be similar to ones currently used that require doctors to report seizures and eye sight problems to the Department of Motor Vehicles, or the requirements on reporting certain sexually transmitted diseases and viral outbreaks to the CDC.

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B. McLeod
May 30, 2009 12:47 PM CST

Where the competency issue is related to dementia, typically it is ignored.  I am aware of four cases over the years, which had different outcomes.  In one, the person with the problem was a judge, but the problem was ignored by the bar and by the appellate court for years, until finally, substantially all the practicing lawyers in the county met with the judge one Friday in his chambers, threatening to drive en masse to the state supreme court to seek action if he would not resign (which he did).  In the second case I was aware of, the attorney kept practicing in litigation cases until disciplinary cases arose due to the results of his practice.  In the context of the disciplinary cases, he was allowed to take “inactive” status and retire, rather than receiving formal discipline.  In the third case, the lawyer’s firm helped supervise and take care of him, and he practiced on that basis until progression of the condition forced him to retire.  The remaining one is still practicing in transactional areas, I hope with the help and awareness of his firm (but I am not sure they realize the situation).  There are probably a lot more of these out there.  The simple fact of the matter is that most lawyers (myself included) don’t feel like they have the medical background to send in a complaint based on another attorney’s mental condition.  Also, nobody wants to be the one to raise the issue, where the effect may be to force a colleague out of practice in circumstances where there may be no other source of financial support.  My guess is that in most cases, these situations will continue to be ignored until disciplinary cases from actual damage to clients force retirement on one basis or another.

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Appalled
May 31, 2009 4:51 AM CST

I have to say I’m appalled at most of the comments I have seen posted here.  If you are attorneys or paralegals, shame on you.  JLM, thank you for the intellegent well thought responses.

Speaking as a “paralegal,” two years isn’t enough time for this crook.  While he may fancy himself as a paralegal, the lack of “formal training” disqualifies him as such.  In the State of California (and other states as well) there are certain requirements you must meet in order to hold yourself out as a paralegal. 

In California, those requiements are:

Business and Professions Code § 6450, the California paralegal definition statute,1 took effect on January 1, 2001. B&P Code § 6450 defines a paralegal as a non-lawyer who performs substantive legal work under the supervision of an attorney, meets defined educational, training or work experience
qualifications, and participates in Mandatory Continuing Legal Education as required by law.

Educational Requirements:  B&P Code § 6450 requires those individuals who hold themselves out as paralegals to possess at least one of the following:
·  A paralegal certificate from an ABA-approved paralegal program;
·  A certificate from an accredited paralegal program that requires at least 24 semester units in law-related courses;
·  A bachelor’s (or advanced) degree and one year of law-related experience under the supervision of an attorney who has three years’ experience practicing law in California, and a written declaration from such attorney that the person is qualified to perform paralegal tasks; and

Paralegals, like attorneys, have MCLE requirements.

I wish I knew a little more about this guys law practice.  With the brief description provided by the article, it’s immpossible to know all of the circumstances.  Still, I’m disturbed that no one else within the law firm, be it an attorney, paralegal, legal secretary, receptionist, etc. did not see fit to report this so called paralegal to the police, much less, make any inquiries to the California State Bar for investigation into the matter.  If this attorney could be taken advantage of in such a gross manner, you would think that there would be outward signs that others might see.

The sad reality is that there is nothing that would prevent this guy from working in a law office again.  How many law firms really do a criminal background check, or even an educational background check?  In any job I have ever applied for, I’ve always provided a copy of my paralegal certificate dispite the fact that I have never been asked to do so.

There’s a push for regulating paralegals and legal assistants to require that they pass an exam similar to the bar exam that an attorney is required to pass and then be registered with an appropriate body or association.  I’m all for that.  The substantive legal work that we routinely perform is not much different than that of an attorney.  We just can’t advise clients or appear in court on behalf of a client.  Behind every good attorney is usually a good paralegal.  While the attoeny’s signature may be on that brief, etc., a lot of times it’s the paralegal that writes a substantiial portion of it, if not all of it.  Regulation brings with it spme accountability.  If regulation existed and this guy were “disbarred” for lack of a better word, it’s more likely than not, that he would never be able to work in another law office ever again

So, how do we deal with law office staff that are not capable of performing their duties anymore?  In an age where we live so much longer, is mandatory retirement really feasible?  I don’t think so.  There are brilliant attorneys still practicing long past the age of 65.  We can’t negate them in order to “be safe.”  Are attorneys and legal staff, are we really willing to step up to the plate and self-report?  Probably not, but we should.  If we can’t police ourselves, who do we expect to do it?

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