More than 20 years ago, the Paralegal Association of Wisconsin started looking into voluntary certification for paralegals.
Decades later, and following the rejection of two similar proposals, the association has yet to make good on its original intentions. But a third attempt, now underway, may be gaining ground.
“It’s a matter that the paralegal association has never let die,” said Kathryn Bullon, chair of the State Bar’s committee on continuing legal education. “They have continued to work on it through all of these years using different mechanisms.”
In the latest attempt to get standards in place, the State Bar’s Board of Governors plans to hear a detailed proposal in April concerning what bar-regulated voluntary certification for paralegals might eventually look like. Action could be taken in June at the earliest.
Setting the bar
John Goudie, professional responsibility and development committee coordinator for the Paralegal Association of Wisconsin and a paralegal at Gimbel Reilly Guerin & Brown, has paid close attention to the discussion over the past few decades.
What association officials have wanted from the beginning, he said, has been a set of formal standards that a person must meet to carry the title of certified paralegal. The Paralegal Association of Wisconsin, a voluntary group, now has between 250 and 260 members, he said.
Even so, according to the state, there are 3,600 paralegals practicing in Wisconsin.
“You can hire anybody to be a paralegal,” Goudie said. “You can call them a paralegal. You can pay them and put them to work as a paralegal. But there’s no criteria as to who is qualified to be a paralegal.”
Despite those arguments, there are at least two hurdles that the proposal will have to overcome, Goudie acknowledged.
“There’s still a certain degree of misperception on the part of attorneys that this is in some way authorizing paralegals to go out and practice law,” he said. “It does not. It specifically requires that you work with the supervision of an attorney.”
Then there is the notion that paralegals need not be regulated as long as lawyers are being held responsible for their actions.
Paralegal Kim Finnigan doesn’t buy that argument. She said she supports having voluntary certifications that would set education requirements. At the same time, though, she is concerned about any proposal that would set up a separate disciplinary process for those in her line of work.
“I’ve definitely seen court decisions where the attorney will say to the court ‘Oh, my paralegal didn’t serve that,” Finnigan said. “And the court clearly says that, ‘Well, that’s your problem as much as it is your office’s problem. You can’t use that as a scape goat.’”
She said the proposers of any sort of disciplinary process should take care to make sure it is not onerous and that it does not take responsibility away from lawyers.
“I would hate for there to be an ethical component where the attorney then is not responsible for the work, that he can blame it on the paralegal, and the client suffers because there was no supervision,” Finnigan said. “I think that would leave room for a blame game.”
A pattern of rejection
The push for voluntary certifications goes back at least to the 1990s, when the Paralegal Association of Wisconsin tried to follow an example being set by a national paralegal association.
The association set out to establish standard education requirements for paralegals, standards for continuing education and a code of ethics and professional responsibility.
“We as an association always felt that we really belonged under the Department of Regulation and Licensing, much the same as physician’s assistants,” Goudie said, “because if you look at the regulatory scheme of a PA, and you look at the regulatory scheme proposed by (PAW), they’re very similar.”
The Paralegal Association of Wisconsin then drafted legislation calling for certifications that would be administered by the then-Department of Regulation and Licensing, which is now the Department of Safety and Professional Services.
But the plan met with resistance from the State Bar and state Supreme Court because both believed paralegal work involves the delivery of legal services, which the Supreme Court is charged with regulating.
The Wisconsin Association of Paralegals responded by working with the State Bar to devise a proposal that the Supreme Court would administer. About five or six years later, the bar petitioned the court to regulate paralegals.
The high court rejected the petition in 2008 for several reasons. The justices, for one, found they did not have standing to regulate non-lawyers. Second, although they thought the proposal was a good one, the justices decided the court’s budget could not support the additional expense of regulating paralegals. It instead recommended that the responsibility fall to the bar.
Resurrecting a plan
Twelve years later, a proposal is close to being fully drafted. The road ahead is still far from easy, though.
Among the questions still to be answered: Which of the bar’s departments would take on the certification responsibility? And which areas of the law will be emphasized?
“Wisconsin needs to be moving forward on this,” he said. “Other states have gotten in behind us and they’ve sailed right through their state bars and legislatures … Their paralegals sit on committees and do an awful lot of other things within their state bar. Is that disheartening? Yes. Has it been an issue, no. It’s only germane in your own state.”