What's Happening in Other States

Defining the Role of Paralegals

Para-legal: 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.

By Dianne Molvig

"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.

Next Page