Licensure & Regulation of Paralegals in Wisconsin
by Sherie A. Sasso, PP, PLS

In 1995, the Paralegal Association of Wisconsin began addressing the issues of standards and requirements of those who choose to call themselves paralegals.  They took steps to develop legislation that would require paralegal licensure through the Wisconsin Department of Regulation and Licensing.  The State Bar advocated an approach to regulation which would be overseen by the Supreme Court of Wisconsin, while at the same time allowing for input from paralegals regarding any form of regulation. 

The State Bar of Wisconsin created a Paralegal Task Force in 1996 to address the concerns of the paralegal associations as well as concerns over unmet legal needs and to pursue ways for better utilization of paralegals to help meet those needs.  The Task Force was made up of lawyers and paralegals with input from the Board of Bar Examiners and the Board of Attorneys Professional Responsibility. 

The Task Force met for 7-1/2 years, addressing topics such as attorney accountability vs. direct supervision, duties of legal secretaries vs. paralegals, interest in licensure and testing, threat to the practice of law, pro bono activities of paralegals, retroactive and/or grandfathering of practicing paralegals, educational criteria and requirements for CLE, and legal ethics. 

In December 2003, the Task Force presented a report to the State Bar which created a definition of a "paralegal"; adopted a structure for mandatory licensure of paralegals; created a grandfathering provision; set guidelines for CLE and educational requirements; and drafted a Code of Ethics for paralegals.

The definition of paralegal was "an individual qualified through education and training, employed or retained to perform substantive legal work and supervised by an attorney licensed to practice law in this state, requiring a sufficient knowledge of legal concepts that, absent the paralegal, the attorney would perform the work." 

The education and training requirements provided that to be licensed as a paralegal, an individual must complete an associates or bachelors degree with specific required coursework.  There was a grandfather clause for currently practicing paralegals that required a high school diploma and work as a paralegal for not less than 4800 hours during the 5 years preceding the time of application.  The work experience requirement must be documented by the attorney under whose supervision the work was performed.

To maintain licensure under the proposal, a paralegal must complete 10 hours of CLE within two years, a minimum of 2 hours of which must be in the area of ethics and professional responsibility.  The proposal also included "rules of ethics" that tracked Wisconsin's Code of Professional Responsibility for lawyers.

Based on the Task Force report, the State Bar of Wisconsin filed a petition with the Wisconsin Supreme Court for adoption of the proposal.  The Supreme Court held a public hearing on the proposal in October 2004.  The president of the State Bar and several paralegals spoke in support of the petition.  A few lawyers spoke in opposition to the petition.  In addition, several individuals and groups (including NALS) submitted written materials commenting on the proposal. 

During the hearing, the court identified several areas of concern.  The first questions the justices asked dealt with the need for mandatory licensure.  They asked why this state should be the first in the nation to regulate paralegals, given that lawyers already supervise them.  The justices commented that there did not seem to be a problem in need of this solution.  They asked what is to stop someone from calling themselves a "legal assistant" and still doing paralegal work.   They had many questions about the funding of this proposal.  What agency would be responsible for enforcement?   The proposal hinted that it would be the same agency that regulates lawyers in Wisconsin, but it was not clear.  There was no fiscal impact identified.  If the lawyer regulation system was to regulate paralegals, too, there would need to be additional resources allocated to the lawyer regulation system.  Who would pay for those additional resources?  Again, it was hinted that the fees charged for licensing paralegals would pay those additional costs, but it was not clear that those fees would be sufficient. 

After the public hearing, the court met in open administrative conference (meaning in full view of anyone who wished to watch and listen in the hearing room) to discuss the petition.  The members of the court discussed the various questions that had been raised during the hearing and also discussed if or how the proposal would be affected by an anticipated petition dealing with the definition of the practice of law and unauthorized practice of law (UPL).  At the end of its conference, the court decided to table the petition and discuss it again in connection with the UPL petition. 

The court did not take up the petition again until April 2008.  By that time, it had had several hearings and discussions on the UPL petition and had determined that the paralegal petition would not impact or be impacted by the UPL provisions because paralegals would still be supervised by licensed attorneys under the proposal before the court.  On April 7, 2008, the court met again in open conference to discuss the paralegal licensure proposal.  The court recognized the enormous amount of time, thought, and energy that had gone into the petition, but remained concerned about the fiscal impact of and need for such a sweeping, mandatory proposal.  It encouraged the State Bar, paralegal groups, and other interested parties to look at voluntary licensing and regulation plans adopted by states such as Florida. 

The Wisconsin Association for Legal Professionals has appointed a task force of five members to monitor further action on this topic.