Defining the Role of Paralegals

• What's Happening in Other States

By Dianne Molvig

To many onlookers, it may have seemed a recipe for gridlock. Take a collection of lawyers from diverse practice settings: large firms, small firms, corporate legal departments, government offices, and legal services agencies. Add several paralegals who hold conflicting views among themselves as to how to improve the stature of their profession. Then mix everyone together to create the State Bar's Paralegal Practice Task Force, asking it to examine questions that have long stirred controversy among both attorneys and paralegals: What is the role of paralegals in the legal profession? What qualifications should they bring to the job? And what exactly is a paralegal anyway?

"If you'd have asked me three years ago if we had a chance of coming up with solutions, I probably would have said, 'no, we don't have a prayer,'" confesses Pam Barker, Milwaukee attorney and chair of the task force. That feeling lingered, she notes, even after the group's first few meetings. Clearing the air had to be an initial order of business.

"During the first year we spent a lot of time just in debate," she says. "We had to get comfortable in trusting each other because this is such a controversial issue. And people hold very strong views and have different perspectives."

Barker's earlier doubts have since given way to optimism. "For about the last year-and-a-half," she says, "we've been working very well together on moving things forward. I think we're going to come out with an excellent work product. I've been astounded by the amount of energy people have put into this - because they believe in it. The lawyers believe in it. The paralegals believe in it."

The finished product, in the form of a final report to the State Bar's Board of Governors, is still months away, as the task force has yet to resolve several key issues. Task force members aren't kidding themselves, however; they know that even after they've completed and submitted their report, the debate over paralegals may rage on in the Bar for some time to come. Meanwhile, many lawyers would rather not grapple with the paralegal issue at all, preferring that it simply go away.

"The fact is we're going to need to deal with this in one fashion or another," Barker contends. "We can do it the way we're doing it now, which is to come up with what we think is the best of all worlds for everybody. Or we can go back to where we were three years ago when paralegals went to the Legislature to try to get (a licensing bill) passed on their own. Then we'll be fighting this out on a political playing field rather than working together through the State Bar to come up with solutions."

The push by paralegals for a licensing bill was one of two driving forces that once again brought the topic of paralegals to the fore. The other factor was a recommendation that came out of the State Bar's Commission on the Delivery of Legal Services. In its 1996 report, the commission advised the Bar to further study what role paralegals might play in meeting the legal needs of the unserved among the general public. The Paralegal Practice Task Force was a direct outgrowth of that recommendation.

First things first

Task force members soon realized that their first hurdle was to agree on terminology. Currently, the word paralegal is tagged onto job descriptions that may differ considerably from one law practice setting to another. Rather than using the word paralegal, the American Bar Association prefers the term legal assistant to describe the same sort of position. In some firms, neither paralegals nor legal assistants exist, but someone on staff, perhaps called a legal secretary, actually does paralegal work. To further cloud the definition issue, there is what's come to be known as the legal technician, highly suspect in legal circles, who carries out paralegal work without any supervision from an attorney.

Although the ABA considers paralegal and legal assistant to be synonymous terms, "several law firms now have both paralegals and legal assistants, and they differentiate between the two," says Lynn Retzak, paralegal program director at Lakeshore Technical College in Cleveland, Wis. "They'll have paralegals, and then instead of legal secretaries, who don't like being called that anymore, they'll have what they call legal assistants. You see the confusion?"

In an attempt to clear up that confusion, a task force subcommittee, after much discussion and debate, hammered out the following definition:

"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."

A footnote to the above clarifies that the definition assumes a "grandfather clause" for work experience, which is not specifically addressed in the definition itself. The grandfather clause, still not in final form as of mid-October, will speak to the need to give paralegals out in the field, who may not have had formal education and training, the credit they deserve for working their way up through the ranks and learning on the job.

Applying the task force's definition to new people entering the field is a much easier matter than figuring out how to bring existing paralegals under the definition. That's made writing the grandfather clause something of "a quagmire," points out Shawn Olley, a task force member and owner of Milwaukee-based Midwest Paralegal Services, which offers freelance paralegal services to attorneys. "It is difficult for us to come down and say, 'this is what makes a paralegal,'" she explains, "because there are so many different stories out there (among paralegals already in practice). But we need to do that now, so that five or six years from now, we don't have that problem anymore."

In addition to the definition, the other major piece completed by the task force so far is a set of proposed ethics rules for paralegals. These comprise a 16-page document that is based on SCR 20, the Wisconsin Supreme Court ethics rule for attorneys. Portions of that rule were extracted and adapted as appropriate. "We felt (SCR 20) would be a good starting point to see what kinds of ethics rules should apply to paralegals," says Frank Remington, a state Department of Justice attorney and a member of the task force's ethics subcommittee, "bearing in mind that we needed to make modifications clearly reflecting the fact that paralegals are working under the supervision of attorneys."

Fear of shingles

The portion of the task force's definition of paralegal that will jump out most to attorneys' eyes consists of four words: supervised by a lawyer. That phrase is key to the task force's approach, say members. "We are not working to create a group of people who will compete with lawyers in the practice of law," emphasizes Remington, "but rather to create a system that reflects what is really going on already. That is, paralegals are assisting lawyers in the practice of law. Paralegals serve a function, but that function always is carried out under the supervision of a lawyer."

Paralegals on the task force echo Remington's words, even though they historically have disagreed on various issues. Two professional organizations represent the state's paralegals: the Madison Area Paralegal Association and the Paralegal Association of Wisconsin, which has chapters in Milwaukee, Madison, the Fox Valley, and Racine/Kenosha, plus an ad hoc chapter in Wausau. The latter association is the one that pursued legislative action to license paralegals in 1995, while the Madison Area Paralegal Association opposed licensing on the grounds that, because it felt paralegals should always work with attorney supervision, licensing was unnecessary.

But even with its pursuit of licensing, the Paralegal Association of Wisconsin never sought to push for paralegals' independence from lawyers, says John Goudie, the group's president. "Our intent was to formalize the profession," Goudie says. "There are no formal standards of practice for paralegals anywhere in the United States. And we felt it was time they were needed." Goudie acknowledges, however, that the impression persists among many in the legal community that his organization's legislative goal was to win the right for paralegals to practice independently of lawyers - an impression perhaps fostered by the fact that no one outside of the Paralegal Association of Wisconsin actually saw the draft of the licensing bill, which never was introduced in the Legislature.

But even with its pursuit of licensing, the Paralegal Association of Wisconsin never sought to push for paralegals' independence from lawyers, says John Goudie, the group's president. "Our intent was to formalize the profession," Goudie says. "There are no formal standards of practice for paralegals anywhere in the United States. And we felt it was time they were needed." Goudie acknowledges, however, that the impression persists among many in the legal community that his organization's legislative goal was to win the right for paralegals to practice independently of lawyers - an impression perhaps fostered by the fact that no one outside of the Paralegal Association of Wisconsin actually saw the draft of the licensing bill, which never was introduced in the Legislature.

Now, as before, Goudie says, his organization's position - like that of the Paralegal Practice Task Force - is that paralegals should be working with attorneys. "We're not talking about paralegals hanging out their shingles, about providing services directly to the public," he says. "We're setting standards to assure that the paralegals who are providing legal services with the supervision of attorneys are qualified to do so. We see that as being important to our profession, and we think it can be beneficial to the delivery of legal services in Wisconsin. That's the key focus here."

Still, the fear runs deep that by taking steps to officially recognize paralegals, attorneys will set the stage for future competition. Give paralegals sufficient stature, so the argument goes, and soon they will be running their own businesses, with lawyers cut out of the picture.

Waukesha attorney and task force member Cornelius (Casey) Andringa takes an opposite view: Continue to avoid dealing with the place of paralegals in the legal profession, and they most certainly will become competitors. "I liken it to the days when doctors stuck their heads in the sand about chiropractors," Andringa says. "The chiropractors went their own way, and now they are totally independent. Had doctors acknowledged that chiropractors perform a service, and tried to coordinate with them, we all might have been better off for it."

If the Bar fails to recognize the crucial role of paralegals, they will look elsewhere for validation, such as once again pursuing licensing through the Legislature, Andringa predicts. That would bring paralegals under the control of the state's Department of Regulation and Licensing, which Andringa feels "would be the wrong way to go. I don't think paralegals should be licensed like barbers and plumbers. What would be their code of conduct? What would be their disciplinary structure?"

Better to bring paralegals under the jurisdiction of the Wisconsin Supreme Court, Andringa contends. "Paralegals are part of our profession," he says. "So let's get them inside the fold, where the supreme court and the Bar have some influence over their work, which is so closely related to ours. It's really part of ours."

More work in progress

Besides the completed paralegal definition and code of ethics, and the grandfather clause still being written, another key component of the task force's work is the educational criteria - covering both training for paralegals entering the field and continuing education for those already practicing.

Not all paralegals agree in this area, either. Many view educational requirements as a quality control measure for their profession. Others see such requirements, especially continuing education, as just more hoops to jump through in order to keep doing the job they're already doing.

"I think we're looking at the integrity of the profession," says paralegal instructor Retzak, chair of the task force's education subcommittee. "As an educator, I believe in lifelong learning, and this is one way to ensure that."

Paralegals themselves stand to gain from having clear educational standards, says Retzak. "The profession is growing," she notes, "and there have been lots of training programs coming out over the Internet or in videotape - the 'weekend wonders' as we call them. You watch 20 hours of videotape, and now you're a paralegal. But we find the quality of education is not there. People are being taken advantage of, and attorneys don't know the difference" when they hire someone claiming to be a paralegal. In fact, as matters now stand, nothing can stop people who have had absolutely no paralegal training from calling themselves paralegals and offering their services in the marketplace.

Educational standards would help ensure that those who claim to be paralegals have indeed completed proper training, thus protecting those who do go to the trouble and expense to attend school - as well as giving attorneys a better idea of what they're getting when they hire a paralegal. In the end, this also becomes a question of consumer protection. Clients have the right to know that the paralegals their attorneys are using - and for whose services they're being billed - are qualified.

But, some attorneys would argue, how can you devise training standards for paralegals who ultimately may do totally different kinds of work in different settings: small firm or large, rural or urban, private practice or government agency? "How do attorneys do it?" Retzak counters. "It's the same thing. When (paralegal) students graduate, even from a four-year degree program, they still need additional on-the-job training - just like attorneys do" when they leave law school. In fact, her institution, Lakeshore Technical College, recommends, but does not require, that paralegal students serve internships, much like law students work as law clerks, to better prepare them for the world of work.

As for her subcommittee's final recommendations, still taking shape, Retzak says they're likely to address quantity of education, but not specifics about what types of courses that should include. "The consensus seems to be that for Wisconsin, a two-year degree is adequate because we're such a rural state," she explains. "We recognize in larger cities, such as Milwaukee, Madison, or Green Bay, a lot of firms may prefer four-year degrees" for their paralegals.

The sum of the parts

Once the task force has finalized a definition, grandfather clause, code of ethics, and educational requirements - challenging work in itself - then comes the even more difficult work. "After we have all the pieces," says chairperson Barker, "then we need to fit this all together to come up with an overall structure." That leads to numerous questions. What will be the disciplining body for paralegals? An arm of the Board of Attorneys Professional Responsibility? Or a completely separate unit? Might the Board of Bar Examiners, or an equivalent, handle some sort of licensing or certification process for paralegals?

So that these boards aren't surprised later, representatives from both have been involved in task force discussions, as nonmembers. "It's a little chicken and egg," Barker admits, "because obviously they can't really get into this and decide what to do with it until they know what we're going to recommend. But we've had good dialogue with representatives from both boards. Our goal is to have them comfortable with whatever we recommend, so that ultimately if and when the Bar goes to the supreme court with a proposal, we'll be speaking with one voice."

The question remains as to whether a proposal ever will reach the Wisconsin Supreme Court. First the task force must submit its report to the Bar's Board of Governors and win support there. Knowing the years-long history of controversy and conflict over this issue, task force members are realistic about their chances, yet hopeful that, at last, real progress might be made in bringing paralegals and attorneys to the same side of the table, rather than on opposite sides.

"What we're going to give to the Bar as a whole is what this group - this very diverse group - believes," says Christine Ouimet-Durow, past-president of the Madison Area Paralegal Association. "We've put a lot of work into this - into the definition of a paralegal, the rules of ethics, the educational requirements. We will have done the legwork."

Wisconsin Lawyer