State Bar of Wisconsin

Meeting Minutes
November 6, 1996

Attorney John Decker was designated as acting Chair and called the meeting to order at approximately 1:00 p.m. Other present were Attorney Cornelius Andringa, Carin Froehlich, John Goudie, Attorney Donald Lubner, Christine Ouimet-Durow, Attorney Fank Remington, Claudia Resnick, Deanna Shimko-Herman, Attorney Daniel Tuchscherer. Also present was Crystal Hyslop on behalf of Task Force member Attorney John Ebbott and State Bar staff liaison Linda Barth. Attorney Pam Barker arrived later in the meeting and assumed the chair.

Mr. Andringa moved and Ms. Froehlich seconded approval of the minutes from the September 25, 1996 Task Force meeting.

Mr. Andringa reported on the activities of the Definition Subcommittee at their October 29, 1996 meeting. On a 3 to 1 vote, the Subcommittee adopted the following definition, Ms. Shimko-Herman cast the "no" vote:

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

Mr. Andringa also discussed the differences in the Subcommittee's definition and the definition submitted by Ms. Shimko-Herman.

Mr. Tuchscherer asked about the situation where a paralegal is hired by a lawyer in Illinois to work in Wisconsin. Mr. Remington asked if the lawyer is not licensed in the state but hires a paralegal to practice in Wisconsin, isn't that unauthorized practice of law? Mr. Tuchscherer said that someone from Illinois could be hurt in Madison and hire a paralegal to gather documents. Mr. Remington said that the Illinois lawyer could call a lawyer in Wisconsin to hire the paralegal for this matter. Ms. Resnick said that paralegals are employed by attorneys outside of Wisconsin. Mr. Andringa agreed that an out-of-state attorney could try to use a paralegal in lieu of hiring a Wisconsin attorney.

Ms. Shimko-Herman said that the definition supported by the Subcommittee is more adaptable to a regulatory plan which is something the Task Force has not decided. She would prefer a more general definition and customize the definition after or if a regulatory system is adopted. In addition, she recommended leaving experience in the definition and not limiting the definition to "supervised by an attorney licensed to practice law in this State".

Mr. Decker recommended that language dealing with out-of-state counsel should be in the standards or requirements and not in a general definition.

Mr. Andringa said if that is the case then he would suggest taking out "that absent the paralegal".

Mr. Remington summarized the issues of disagreement:

1. Should "work experience" be included?
2. Should the definition include "retained" or "supervised" by an attorney?
3. Should the attorney be required to be licensed in Wisconsin.

He said that in the case of #3, if it is work that otherwise would be performed by an attorney, then an outside attorney can't hire a non-attorney to do the work. He or she would have to be licensed in Wisconsin. Under #1 he asked, what does work experience give that training and education do not?

Ms. Shimko-Herman answered that work experience more accurately pinpoints the distinction between training and education-training is more structured like an internship or clerkship. Work experience may not be training in that sense because it comes about in a more serendipitous way. However, along the way that person has acquired skills to work as a paralegal.

Mr. Andringa explained that individuals with work experience would be grandfathered but in the future there would be education and training requirements.

Ms. Shimko-Herman said it is appropriate that down the road when no one is coming to the paralegal profession without education and training to eliminate work experience. But for now, work experience must remain in the definition...until regulations and criteria are established.

Ms. Resnick said that the definition is based on the assumption that criteria should follow.

Ms. Shimko-Herman said that the criteria must come first, then the definition can be fashioned.

Mr. Lubner noted that now the University of Wisconsin-Eau Claire has a four-year paralegal degree and that the ABA is requiring liberal arts, ethics and philosophy courses. He pointed out that paralegals are not going to be able to come into the field any cheaper than attorneys. He then asked if under the definition, disbarred attorneys can work as paralegals?

Mr. Andringa said that about 10 years ago doctors refused to admit that chiropractors exist. Now they are recognized. He wants to see the State Bar make room to work with the body of individuals who have earned the title of paralegal and that he believes they should be supervised by the Supreme Court and attorneys...all work together as a team to serve the client.

Mr. Remington reminded everyone of the Task Force's purpose. It is an outgrowth of the Commission on the Delivery of Legal Services. It is an attempt to see if paralegals may be a remedy to unmet legal needs. The Paralegal Association of Wisconsin was simultaneously pushing legislation.

He asked Ms. Shimko-Herman if she would be amenable to address work experience later in the criteria and she agreed. He said the next questions is whether or not a paralegal should be "supervised" by a lawyer.

Ms. Shimko-Herman said there are other scenarios. For example, it is cheaper to hire a paralegal in the Midwest than the East Coast so East Coast attorneys hire paralegals in the Midwest. She clarified that Wisconsin paralegals are not hired by out-of-state attorneys to do Wisconsin work, but work specific to that attorney's state of licensure.

Mr. Andringa said that if the work is not for a Wisconsin client then it's New Jersey's problem.

Mr. Decker recapped: There are two definitions on the table. We agree on education and training through performing substantive legal work. We disagree on "supervised by an attorney" .

Mr. Andringa said the two go hand-in-hand. If an individual is performing substantive legal work than he or she must be supervised by an attorney.

Ms. Shimko-Herman said that under supervision means the work is authorized and it is his or her work.

Mr. Tuchscherer said that the Board of Professional Responsibility requires supervision and accountability, but paralegals are doing work for insurance companies, on probate issue and it isn't supervised.

Mr. Decker said that the words "retained" and "supervised" are redundant. Mr. Andringa pointed out that a client retains but does not supervise.

Ms. Shimko-Herman said that at the Commission on the Delivery of Legal Services public hearings in Eau Claire and Green Bay there was testimony by paralegals who work for corporations but are not supervised by an attorney (the attorney is working in another state at another branch office). We see more and more of this.

Ms. Resnick said that in these situations there are usually visits by the attorney and the work product is sent back and forth for review. The attorney ultimately approves the work.

Mr. Remington asked about administrative or court authority. Paralegals are representing clients at tribunals. Mr. Andringa said that the definition doesn't deal with those circumstances because an attorney is not required for those types of hearings.

Mr. Goudie explained that he is a licensed agent in Workers Compensation. I am required to be licensed and renew every year. However, attorneys are not required to be licensed. We should be careful not to eliminate paralegals from something they can already do.

Ms. Shimko-Herman pointed out that her definition doesn't exclude that practice.

Mr. Andringa maintained that an individual does not have to be a lawyer in the first place.

Mr. Decker asked if immigration agents and UC agents would become paralegals under Ms. Shimko-Herman's definition. Mr. Goudie said they probably would.

Ms. Shimko-Herman noted that the pilot program in Brown County allows paralegals to work with court authority. Mr. Tuchscherer said that the pilot program facilitates pro se as distinguished from legal advise.

Mr. Remington as why the employing entity had to be listed. Ms. Resnick said she did not have a problem with removing everything from law office to supervised by lawyer.

Ms. Shimko-Herman said that "entity" is used outside of government and law offices and the term is coming on the scene as paralegals are employed by corporations.

Mr. Andringa said he had no objection to removing employed to supervised. It is only there to enlighten as to the relationship but the bottom line is that it is not necessary.

Mr. Tuchscherer said that it is more instructive for what is not there-not the word "individual"-in other words, the client hires the attorney.

Mr. Remington asked about a situation where the paralegal hangs out a shingle and takes clients but works under the supervision of an attorney.

Ms. Resnick suggested keeping "employed or retained by a lawyer" in the definition.

Mr. Remington added that in government there is the term "legal assistants".

Ms. Shimko-Herman agreed that the group could leave in retained or employed...

Mr. Remington asked if an entity could include self-employed and Mr. Goudie said then we would need to start listing.

Ms. Froehlich said there would be a lawyer somewhere supervising-like an in-house counsel.

Ms. Shimko-Herman said that if the terminology did not include a situation then it could be interpreted that it is prohibited. She said the group must be careful.

Mr. Andringa moved and Ms. Resnick seconded the revised language. It was adopted with Ms. Shimko-Herman and Mr. Goudie voted no:

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 would perform.

Mr. Remington said there are two points: First, the footnote grandfathering paralegals with work experience is 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. The subcommittee did not attempt to set forth any criteria for the Grandfathering provision.

Second, we agree that the purpose of the definition is to go forward with qualifications and certification.

Ms. Barker assumed the chair and asked for a few minutes of brainstorming on the agenda for the Subcommittee on Qualifications. Mr. Goudie suggested the subcommittee look at the ABA Standards of Paralegal Education Program and that the subcommittee consider work experience (in addition to who certifies work experience) and how long work experience is included in the qualifications.

Mr. Tuchscherer recommended the subcommittee specifically look at the ABA Report on pages 142-150.

Ms. Barker said that now that we have a definition, we must go the next step and that a definition goes part and parcel with qualifications.

Mr. Remington said that the group can go about this issue in a macro approach which they are doing or in a problem-solving aspect.

Ms. Barker explained that there was a real sense of need for a basic set of criteria to move forward and tie into the Commission's goal of dealing with unmet legal needs. In less than three meetings we came up with a definition. The Commission couldn't do that in two years. We are making great progress.

Mr. Lubner asked to be on the Subcommittee on Qualifications and he said he is against adopting the ABA standards and feels the paralegals should adopt their own standards. Ms. Barker agreed to put him on the Subcommittee. Mr. Lubner then explained that paralegal schools are very proprietary and that there is a move to four-year degrees for paralegals. He said that paralegals should have their own accrediting organization.

Mr. Andringa disagreed to the extent that if a paralegal is supervised by an attorney, there should be a joint effort.

Mr. Lubner said it becomes the employer calling all the shots.

Ms. Barker said that looking at who is going to certify a program is the next step. Right now, we will look at qualifications and work experience. It is easier to work in small steps.

Ms. Shimko-Herman added her support for a collaborative effort with educators and attorneys.

Ms. Barker said that the Task Force probably has a better shot at getting approval from the State Bar Board of Governors if certification is through the Supreme Court.

She announced that the Subcommittee on Qualifications will meet next and the date will be set by survey.

The Task Force adjourned.

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