State Bar of Wisconsin

Meeting Minutes
September 25, 1996

Chair Attorney Pamela Barker called the meeting to order at approximately 9:00 a.m. Task Force members in attendance were Attorney Cornelius Andringa, Attorney John Decker, Attorney Dan Tuchscherer, Carin Froehlich, John Goudie, Christine Ouimet-Durow, Claudia Resnick and Deanna Shimko-Herman. State Bar staff liaison Linda Barth was also present.

Mr. Andringa moved adoption of the minutes from the July 24, 1996 meeting, Ms. Froehlich seconded. Approved.

The Task Force discussed the paralegal definitions submitted by the paralegal members and distributed to all members on September 9, 1996. Ms. Barker asked Ms. Resnick if the word "retained" in her definition means under the direction of an attorney. Ms. Resnick indicated that was her intention.

Mr. Tuchsherer asked Ms. Resnick why her definition alluded to "other entities." Ms. Resnick explained that paralegals provide services like document organization to corporations.

Ms. Froehlich said her definition proposed a three-tier system because she had received feedback from others that a two-tier system is too confining. She supports providing a grandfather clause for paralegals with experience.

Mr. Goudie pointed out the big difference between the definition submitted by Ms. Shimko-Herman and himself and the definition submitted by Ms. Resnick is the fact that they have eliminated the term "under" and instead have the paralegal working "with the attorney." They said that the paralegal at the second tier would have the skill and knowledge where he or she is beyond the necessity to have every action directed by an attorney at all times and that the work "under" suggests direction by an attorney all the time.

Ms. Shimko-Herman explained that the entry level paralegal will be more "directed" but the experienced paralegal will be more self-directed and work in a collaborative relationship with the attorney.

Ms. Resnick said that the words "under" and "with" look the same to her. Mr. Andringa disagreed and said that the word "with" is just one step away from independent paralegal practice.

Ms. Barker said that it all boils down to the fact that the attorney is ultimately responsible for the work of the paralegal and the ability of the paralegal to work in a self-directed manner depends on the attorney-paralegal relationship and the confidence of the attorney in the paralegal. Ultimately, however, the paralegal's work is under the supervision of an attorney. It's no different than the supervision of an associate.

Ms. Shimko-Herman pointed out that an associate track leads to a partnership or something as the collaborative relationship grows...not so for a paralegal.

Mr. Tuchscherer asked who's client is it? He said that a paralegal has to work "under" an attorney because the client is hiring the attorney.

Ms. Resnick ask if the word "with" means independently without saying so and Mr. Goudie said it did not.

Mr. Andringa said he could see the scenario with the word "with" of some attorney practicing law from Bermuda while the paralegal does the actual work. He suggested that a subcommittee be formed to develop a definition.

Ms. Barker appointed Mr. Andringa to chair the Definition Subcommittee and asked Ms. Shimko-Herman, Ms. Resnick and Mr. Tuchscherer to serve on the subcommittee. She said that if the Task Force comes up with a definition it will be a big first step and from there the Task Force can move to the next steps which might include qualifications and certification.

Ms. Ouimet-Durow described her paralegal proposal and discussed some the requirements she had listed.

Mr. Andringa pointed out that attorneys are not required to provide mandatory pro-bono services and paralegals should not be required to provide mandatory pro-bono, either, rather paralegals, just like lawyers, should be encouraged to provide pro-bono services.

Mr. Tuchscherer said the issue that concerns him is who decides that someone has been a paralegal for a certain number of years so that they are grandfathered and who decides when there is a dispute.

Mr. Andringa pointed out that he would just write a recommendation for his secretary saying she meets the qualifications to be grandfathered.

Mr. Goudie noted that his definition would not be subjective but would require a proficiency test for those individuals who wish to be included under the grandfather clause.

Ms. Ouimet-Durow said she did not agree with the testing, since a paralegal could be in the field for 15 years but not have taken a test for 20 years.

Ms. Shimko-Herman said that the examines can be retaken and there are study materials.

Ms. Barker said that it would be like her taking a bar examine in another state-she hasn't taken a test for 18 years-it would be difficult to do. If we depend on the lawyers to supervise can't we depends on them for verification? In addition, there are different areas of the law. We would have to look at the relevant area of practice and test in that.

Ms. Resnick said that in the great barrel of paralegals, we will get a few bad apples and there is no other way than to take their word.

Mr. Andringa suggested a subcommittee on qualifications but Ms. Barker noted that the Task Force needs a definition first and the members agreed. She said that the next meeting would be devoted primarily to the definition, including discussion of specialty definitions, and then the group would tackle qualifications.

Mr. Andringa pointed out that there are no specialty categories for attorneys and Ms. Barker said that the State Bar petition regarding specialization is before the Supreme Court right now.

Mr. Decker said that getting a very basic definition and criteria will be a very big step. However, he is concerned that the Task Force may be walking into a minefield of anti-trust law. He suggested that the group consult an expert in the field.

Ms. Barker appointed Mr. Decker, Mr. Goudie, Ms. Froehlich, Ms. Ouimet-Durow and herself to the Qualification Subcommittee and indicated that Attorney Frank Remington would be the anti-trust liaison.

Discussion then turned to where any type of certification or standards would be "housed." Mr. Goudie said that originally he wanted it in the Department of Regulation and Licensing so paralegals could control their own association and that they would lose control if it were "housed" in the State Bar. If the entity was in the judicial branch, he would prefer a separate regulatory board.

Mr. Tuchscherer asked if the Board of Professional Responsibility could regulate paralegals.

Mr. Andringa pointed out that if his paralegal blows it, he gets his license revoked...How does BAPR judge paralegals if the attorney is accountable?

Ms. Barker agreed that the lawyer's license can be revoked but the rules could be revised so that the paralegal can also be suspended-it weeds out the bad apples.

Mr. Tuchscherer said another lightening rod will be court appearances. Ms. Barker said that issue will come up when the Task Forces discusses specialties.

Mr. Tuchscherer added that he had a hard time conceiving of the Legislature or the State Bar doing this without the Supreme Court.

Ms. Ouimet-Durow explained that her organization does not want regulation by agencies but the way attorneys are regulated.

Mr. Decker pointed out that the State Bar is not in the regulatory business.

Ms. Barker said that if the Supreme Court approved of this concept, she imagined the Supreme Court would reconstruct BAPR and she added that CLE requirements is another issue.

Mr. Andringa asked how a complaint would be brought against a paralegal-the former client doesn't know about the paralegal, only the attorney. Ms. Barker said that presumably, an investigation an investigation into the underlying claim would look at the paralegal's work, too.

The next meeting was set for Wednesday, November 6, 1996 at 1:00 p.m. in Madison and lunch will be served.

The meeting adjourned.

Paralegal Task Force Main