State Bar of Wisconsin

Paralegal Task Force Interim Report

December 1997

The State Bar of Wisconsin Paralegal Practice Task Force was created in response to the concerns expressed over unmet legal needs in the State Bar's Commission on the Delivery of Legal Services. The Commission recommended that better utilization of paralegals and changes in the unauthorized practice of law statutes, especially in domestic abuse cases, may help meet some of the legal needs that presently go unserved.

The creation of the Task Force also addressed the concerns of state paralegal groups over the professionalism of a paralegal career. Currently, with no standards or requirements, anyone can claim to be paralegal. The Paralegal Association of Wisconsin was addressing this issue by drafting legislation that would require paralegal licensure through the Wisconsin Department of Regulation and Licensing.

The Task Force pulled together the talents and resources of attorneys, members of the Paralegal Association of Wisconsin, members of the Madison Area Paralegal Association and paralegal educators to work together to explore the possibility of creating a professional track for paralegals and better incorporating their skills and services to meet the legal needs of low and moderate income individuals in Wisconsin.

Assessing the Task at Hand

First, the members of the Task Force assessed the issues surrounding paralegal practice. They reviewed the American Bar Association report on Paralegal Practice, the report of the Commission on the Delivery of Legal Services and paralegal certification programs in other states.

The Task Force saw the following issues surface around the topic of paralegal practice:

• Concerns of Lawyers
  • Accountability vs. direct supervision
  • Threat to the practice of law
• Perceptions of Paralegals
  • Duties of a legal secretary versus paralegal responsibilities
  • Interest in licensure and testing
  • Possibility of probono paralegal services
• Licensure
  • Cost to attorneys
  • Cost to paralegals
  • Who regulates: Supreme Court vs. Department of Regulation and Licensing

Defining Paralegal Practice

The next step of the Task Force was to create a definition of paralegal practice. The following definition was adopted with two dissenting votes:

A "Paralegal" is an individual qualified through education and training, employed or retained to perform substantive legal work and supervised by a lawyer licensed to practice law in this State, requiring a sufficient knowledge of legal concepts that, absent the Paralegal, the attorney world perform.

The Task Force also adopted the following footnote regarding grandfathering paralegals with work experience as part of the definition:

We assume a "Grandfather Clause" for work experience. All the members of the Committee agreed that the words, "work experience" could be removed from the definition so long as any ultimate program implemented as a result of the work of this committee would provide a "Grandfather Clause" for those "Paralegals" already working in the field.

No criteria were set forth by the Definition Subcommittee at that time.

Standards for Paralegal Practice

Still in the middle of its task, a Subcommittee on Standards began with a lengthy discussion of the components of qualifications and criteria for paralegal standards. They created the following list of qualifications:

1. Education
2. General Minimum Requirements
3. Training/Work Experience
4. Continuing Paralegal Education
5. Grandfather Clause

The Subcommittee first tackled minimum requirements which include the following:

• good moral character should parallel the SCR governing attorneys
• paralegals should have to make full disclosure as in SCR 22.29
• requirements should parallel SCR 20.02 and 20.06
• SCR 22.26 should be broadened to include that an attorney who is disbarred or suspended cannot be a paralegal

The group agreed that there should be some type of exam. They saw two different alternatives for testing. One method would be a proficiency exam that is state-specific and covers topics such as confidentiality, legal terminology, legal research and legal writing. It was also mentioned that the schools could administer the exam as a type of exit exam. In addition, individuals who have not gone to school could take and pass the exam to become a paralegal.

The other method would be to establish a more extensive exam, analogous to the bar exam. Anyone graduating for an ABA-approved paralegal school would not be required to take this more extensive examination.

The Subcommittee also agreed that there is a need for continuing legal education requirements and this issue should be explored further.

Ethics for Paralegal Practice

Also, still hard at work, the Ethics Subcommittee has reviewed the Supreme Court Rules governing attorney practice and identified those rules that should apply to paralegal practice. They are currently working on re-writing the following provisions in SCR 20 to apply to paralegals:

SCR 20:1.1 Competence
SCR 20:1.2 Scope of Representation (as Scope of Assistance or Services)
SCR 20:1.3 Diligence
SCR 20:1.6 Confidentiality of Information
SCR 20:1.8 Conflict of Interest: Prohibited Transactions
SCR 20:1.10 Imputed Disqualification: General Rule
SCR 20:1.11 Successive Government and Private Employment
SCR 20:1.12 Former Judge or Arbitrator (municipal judge)
SCR 20:1.16 Declining or Terminating Representation

SCR 20:3.1 Meritorious Claims and contentions
SCR 20:3.3 Candor Toward the Tribunal
SCR 20:3.4 Fairness to Opposing Party and Counsel
SCR 20:3.5 Impartiality and Decorum of the Tribunal
SCR 20:3.6 Trial Publicity
SCR 20:3.7 Lawyer as a Witness (Paralegal as a Witness)
SCR 20:3.9 Advocate in Nonadjudicative Proceedings
SCR 20:3.10 Threatening Criminal Prosecution

SCR 20:4.1 Truthfulness in Statements to Others
SCR 20:4.2 Communication with Person Represented by Counsel
SCR 20:4.3 Dealing with Unrepresented Person
SCR 20:4.4 Respect of Rights of Third Persons
SCR 20:6.1 Pro Bono Publico Services (must be redrafted)
SCR 20:6.3 Membership in Legal Services Organization
SCR 20:6.4 Law Reform Activities Affecting Client Interests

SCR 20:7 (totally redrafted)

SCR 20:8.1 Bar Admission and Disciplinary Matters (reworked)
SCR 20:8.2 (a) only Judicial and Legal Officials
SCR 20:8.3 Reporting Professional Misconduct (paralegals reporting paralegals)
SCR 20:8.4 Misconduct (need a paralegal oath)
SCR 20:8.5 Disciplinary Authority: Choice of Law

Input from BAPR and BBE

The Paralegal Practice Task Force met with Attorney Gerald Sternberg, Director of the Board of Attorneys Professional Responsibility (BAPR), and Attorney Gene Rankin, Director of the Board of Bar Examiners (BBE).

The Task Force asked these experts in legal licensing and professional regulation for their input on regulating paralegal practice. Both Attorney Sternberg and Attorney Rankin said that they could only provide their personal opinions and that they were not representing their Boards.

Attorney Sternberg said that he felt there were two critical issues:

1. The Supreme Court has a constitutional responsibility to regulate the legal profession and paralegals are a component of that service.
2. What mechanism should be used to regulate and license?

Attorney Rankin agreed that the Supreme Court is the best route to pursue in paralegal regulation.

Both Attorney Sternberg and Attorney Rankin suggested that the Task Force should consider a joint petition to the Supreme Court between the State Bar and BBE and BAPR. They recommended a presentation to the State Bar Board of Governors to get an indication of how to proceed. Then both agencies could go to their Boards for direction on the issue.

They discussed whether or not paralegal regulation and licensing would be part of the current BBE and BAPR offices or if it would be separate. They decided that those type of details would be determined after the various boards provide some early input.

Attorney Rankin said that it would be productive for all the entities to join hands on this project.

Task Force member Attorney Mary Lynne Donohue summarized by saying the fact that Attorney Rankin and Attorney Sternberg have provided positive input and that all the Task Force members are on the same page is a major victory.

Paralegal Task Force Main