State Bar of Wisconsin

Meeting Minutes
July 31, 2002
State Bar Center, Monona Room
Madison

Present: Pam Barker, John Decker, John Frank, John Goudie, Amy Klein, Marie Koster, Frank Remington, Mary Triggiano. (Attending by Teleconference: Dean Dietrich, Mary Donohue.)

Also Present: George Brown, Dan Rossmiller

The meeting was called to order by Pam Barker at 5:00 p.m.

Task Force Chairperson Pamela Barker noted that two issues remain to be addressed by the Task Force: 1) finalizing a set of ethics rules for paralegals and 2) the drafting of the petition to the Supreme Court.

She called upon Mr. John Goudie to detail his May, 2002 meeting with Chief Justice Shirley Abrahamson. (Members received a handout from John Goudie detailing this meeting.) Atty. Goudie indicated the Chief Justice was the guest speaker for the Paralegal Association of Wisconsin's annual seminar. The meeting gave the two of them some time to discuss the licensure proposal. The handout details some of the questions raised by the Chief Justice, which are also listed here. Those questions are:

• How are paralegals who are licensed going to be monitored?
• What happens to an attorney, from a punitive standpoint, who chooses to use their legal secretary and/or legal assistant to perform functions that are described as paralegal duties?
• How will the formal definition of a paralegal be different from that provided by the ABA?
• What will be the hiring and qualifications requirements for a person who is termed a paralegal?
• How will licensure affect salaries for paralegals?

Mr. Goudie commented that the Chief Justice indicated she has kept files on the issue of paralegal regulation dating back to the 1970s and that she has, on multiple occasions, reviewed the June 2000 Task Force proposal.

A brief discussion then ensued concerning the history of efforts to license or certify paralegals in Wisconsin and the work of the Task Force to date. Task Force Chairperson Pamela Barker noted that representatives of paralegals seeking licensure had started by going to the Legislature and were now coming to the Supreme Court as a united front. She articulated a number of reasons why the approach of petitioning the Court is preferable and should be encouraged.

Chairperson Barker indicated that key issues to be addressed by any proposal advanced were identified as: 1) how to define "paralegals"; 2) how to provide assurances that paralegals licensed under such a system would practice under the supervision of attorneys; and 3) how to provide assurances that paralegals licensed under such a system would also practice under the supervision of the Supreme Court.

Atty. John Decker noted that if the Supreme Court refuses to deal with the issue, it would go back to the Legislature.

Chairperson Barker noted that Chief Justice Abrahamson had raised the question why the rules for paralegal licensure couldn't consist simply of a sort of "laundry list" that would indicate, on the one hand, what paralegals may do and, on the other hand, what paralegals may not do. In response to this approach, it was suggested that lists might not be all inclusive and that more flexibility and more guidance was needed than the list approach could provide. Thus, as the current proposal evolved, it was agreed that the rules should consist largely of guidelines in the form of ethical and educational requirements and that paralegal practice should be sanctioned only under the supervision of attorneys.

Task Force Chair Pamela Barker then reviewed the recent history of the Task Force and the actions of the State Bar of Wisconsin Board of Governors regarding the proposal.

Chairperson Barker noted that reaching agreement on the ethical rules that should govern paralegal practice has been the issue that had delayed advancement of the proposal as a whole. Originally, two versions of the ethical rules had been prepared, with the Task Force preferring the longer version. A supermajority of the Board of Governors voted to approve the Task Force Report in June 2000, with the longer set of the ethical rules, but requested that the Task Force review the ethical rules to see if they are consistent with lawyers' ethical rules.

In addition, the proposed ethical rules were reviewed by members of the Ethics Committee. Members of the Ethics Committee questioned the wisdom of the process suggesting that: some of the proposed rules should apply and some of the proposed rules are unworkable, that the process would be time consuming, and that we should let the court decide what they want to do with it, since "the Court will choose to do what they wish with the proposal anyway."

Attorney Dean Dietrich then developed new ethics language, which the Task Force unanimously supported. The Task Force was then tasked to review the new proposed ethical rules for paralegals to make sure that they are consistent with the same standards that lawyers are governed by.

At the November 2001 Board of Governors meeting, Governor Schneidman raised the question of whether there would be a recommendation as to who would enforce the rules as between the Attorney General or the Supreme Court. At that time, Chairperson Barker noted that the Chief Justice stated that this is up to the court to decide. The Task Force has since recommended that the Office of Lawyer Regulation (OLR) should regulate conduct of paralegals while the Board of Bar Examiners (BBE) should be responsible for reviewing the qualifications of prospective licensees and regulating their continuing education.

Governor Schneidman had also inquired whether the Task Force had heard from Atty. Keith Sellen, Director of OLR. At that time, the Task Force had not heard from Director Sellen. Governor Schneidman then asked the Task Force to provide a fiscal impact assessment on the effect of adopting this regulatory mechanism on the Office of Lawyer Regulation. He questioned whether this could be reliably estimated with in-house resources or whether there needed to be a dialogue with OLR and BBE to get accurate numbers of how many paralegals would apply for licensure and what the fee for licensure should be. At the time, Chairperson Barker indicated that this would be the next step, but would not be made part of petition. She noting that Atty. Dietrich had pointed out the disclaimer that the proposal he drafted does not change the lawyer's authority to oversee paralegals under his or her supervision.

Attorney Dean Dietrich noted that the rules as he had re-drafted them were basically a rewrite of the national association's draft rules and that an option to consider would be to look at court interpreter rules as a guide. Atty. Dietrich noted that the Supreme Court is appointing a Study Committee to review the ABA's Ethics 2000 Model Rules of Professional Conduct. He observed that one option would be to have the Study Committee look at this but he added that this would not resolve the issue.

It was suggested that the Task Force can take either of two approaches: One approach is to take the language of Chapter 20 of the Supreme Court Rules (narrow confining language) or to use Atty. Dietrich's approach, which was more conversational and less legalistic.

Discussion turned to the second draft of the proposed Supreme Court Rules of Professional Conduct for Paralegals. This draft attempted to conform the rules to Chapter 20 of the existing Supreme Court Rules of Professional Conduct for Attorneys, but in a more informal style.

Members received a handout from Atty. Keith Sellen, Director of the Office of Lawyer Regulation, regarding his concerns, chief among them that the rules be drafted in a way that: a) synchronizes a paralegal's duty to a client with the supervisory responsibility of the attorney, and b) reinforces and supports an attorney's supervisory responsibilities under SCR 20:5.1 and 5.3. Director Sellen expressed his viewpoint that enforcement should be under the Supreme Court.

Members also reviewed a handout from Assistant Attorney General Frank Remington and Paralegal Patricia Klitzke-Wickersham. The response noted that they had earlier expressed a preference for the longer version of the proposed ethical rules and that the comments in the memo/handout were directed toward the longer version. The memo expressed a concern that the proposed rules seemed to impose dramatically different obligations on paralegals than are required of attorneys and suggested a number of revisions.

Finally, members received an e-mail from Atty. Gene Rankin, Director of the Board of Bar Examiners. Atty. Rankin indicated that he would support the proposed ethics rules if his suggested changes were made but would not support the proposed ethics rules if his suggested changes were not made.

The discussion then focused on the specific concerns raised in the various memos/handouts and the broader concern of how to achieve the goal of synchronizing the duties of the paralegal to a client with those of the supervising attorney.

A number of specific concerns about the draft were addressed:.

• It was agreed that draft rule 1.2(f) regarding "indiscreet communications" concerning clients" seems to go beyond the requirement for attorneys and is not clearly defined.
• A number of concerns were recognized with draft rule 1.4(a) regarding "ex parte communications."
• It was agreed that it is improvident to highlight provisions in the draft rule regarding billing practices (see draft rule 1.8) and those provisions should be removed from the proposal.
• It was agreed that the provisions of the draft rule 1.9(a) and (b) imply that there is a direct economic relationship between the paralegal and the client and that enforcement of these provisions would place an attorney and a paralegal at odds with each other. I t was recommended that therse provisions should be replaced with a version of SCR 20:1.5 which holds the attorney responsible for safekeeping and accounting for property.

Atty. Dean Dietrich offered to redraft the ethical rules, taking into account the comments of members and the written submissions, and to share the redraft with the members of the Task Force.

Staff was directed to update e-mail addresses for members of the Task Force in order that a listserv could be set up. The list serv should include Atty. Dean Dietrich. The redrafted ethical rules will be shared via the new listserv as should comments on the redraft.

It was decided that the next meeting would focus on implementation and issues with OLR and BBE.

The meeting was adjourned at 7:00 p.m.

Respectfully submitted

Daniel Rossmiller, Reporter

Paralegal Task Force Main