Can the attorney skip next Tuesday’s webinar about DOCX risks? Is it okay if the attorney sends a paralegal?

I received an email message today from a paralegal who is signed up for next Tuesday’s webinar entitled “Reducing malpractice risk with $400 non-DOCX penalty that will start on January 17, 2024”.  The paralegal writes:

I am really looking forward to this webinar. I recruited fellow patent paralegals to view the webinar with me (in the same location). ☺

Despite efforts to convince attorneys to attend, there may be some who might not attend.  Will there be a small segment in the webinar where you will provide quality control tips for patent paralegals – who in real life are the ones ultimately responsible for looking after their attorneys?

This paralegal’s email inspired the blog article that you are reading now, in which I try to answer more questions, such as:

Can the attorney skip next Tuesday’s webinar about DOCX risks?

Is it okay if the attorney sends a paralegal?

Here is what I wrote, trying to answer this paralegal’s question. 

Yes, this is the never-ending problem. And there are several ways to look at how this problem can go wrong.

As we know, under ethical rules it is the attorney who is charged with training and supervising the paralegal. If it were to turn out later that something went wrong with some task carried out by the paralegal, from the ethics point of view it is the attorney who is to blame, for having failed to train and supervise in such a way as to avert the thing that went wrong.

Common sense tells us that for an attorney do do a competent job of supervising and training a paralegal on, say, the task of e-filing a patent application, there is no choice about it that the attorney needs to actually know how to e-file a patent application. Indeed, dare I say it, there is no choice about it but that the attorney needs to actually have e-filed a patent application.  Indeed probably the attorney needs to continue e-filing patent applications, at least every now and then, to keep current on how it all works and what the Best Practices might be.

And yet there are the attorneys who feel it is beneath them to actually go to the trouble to learn about the actual work of (for example) e-filing a patent application. There are the attorneys who say things like “I don’t want to have to learn about this, and that is what we pay paralegals for, so that I will never actually have to learn about this.”

The worst thing to imagine is, if things were to take a wrong turn, down the line, what if an attorney were to try to avoid responsibility by throwing the paralegal under the bus? I am sorry to have to report that over the years, teaching all sorts of educational webinars like this one, I have heard of instances where an attorney has thrown a paralegal under the bus. It’s absolutely unprofessional and the wrong thing to do, but I have heard of it happening.

Clearly what needs to happen is the attorney himself or herself attending webinars about stuff like what we will be discussing next Tuesday. Sure the paralegal is welcome to attend, but the attorney needs to attend.

And yet … I looked through our registration list earlier today, sorted by law firm. I spot-checked a dozen or so of the firms.  And in the case of about half of the law firms that have sent somebody to attend this webinar, it looks like the only people attending have a job title that is a non-attorney job title. I find this very discouraging.

One question is, what do I plan to do about this general problem? One part of the answer is that in the presentation materials I will try as best I can to include various slides, throughout the slide deck, that can be pulled out of the deck, photocopied, and stuck under the nose of the attorney. Particular slides that will hopefully somehow fit within the fruit-fly attention span of the attorney.

Another part of the answer is to try, as best I can, to lay out some Best Practices. The idea being that although it is wrong, ethically wrong, to put the responsibility on the paralegal to make the judgment calls about which risks to take and which risks to avoid (like trying desperately to save the $400 penalty), this allocation of responsibility will likely happen in some workplaces. The judgment call about that stuff needs to fall on the attorney, and through the attorney, needs to fall onto the actual client who can decide to pay the $400 to avoid risks, or who can decide to take lots of risks because the client is too cheap to pay the $400. Having said all of this, there will be workplaces where the attorneys will fail to face up to this, and the paralegals will be stuck having to make judgment calls that they should not be required to make. And by laying out some Best Practices, maybe I can try to reduce how miserable this will be for those paralegals.

I suppose for some of the paralegals who wish that their attorneys would face up to this DOCX risk problem, maybe they could print out this very blog article and stick it under the nose of the attorneys.