Supreme Court denies State Bar paralegal petition, asks for more work; adopts rule changes for jury management and videoconferencing, among other actions

On April 7 and 8 the Wisconsin Supreme Court denied a State Bar petition regarding licensure of paralegals. The court adopted several petitions filed by the director of state courts regarding the jury selection process and videoconferencing, electronic filing, and electronic signatures in court proceedings.

Paralegal licensure. The court unanimously denied State Bar Petition 04-03 to establish a system for licensure and regulation of paralegals in Wisconsin. The court will encourage the Bar to work with other interested groups to consider creating a voluntary certification program using programs currently used in other states as models. Even though the court denied the petition, the justices emphasized that they recognize the valuable service provided by paralegals.

Acknowledging the State Bar’s efforts Chief Justice Shirley Abrahamson said, “This has been a long labor, the State Bar task force was made up of many members and worked for about seven years.” Abrahamson noted the objectives of the paralegal petition were to recognize the important role paralegals can and do play in the daily practice of law and to set standards that would include requirements for continuing education credits and maintain ethical standards.

“Although there was discussion at various times as to whether the paralegal could have self contained entities not connected with a lawyer’s supervision, the ultimate decision of the task force was that paralegals would work under licensed lawyers,” said Abrahamson. “It was not clear in the State Bar’s petition what board or entity would regulate the fulfillment of the standards and the ethical requirements.”

Justice Crooks noted that, “No other state has adopted a program similar to what is proposed here. A number of states have adopted a voluntary certification program. I believe those states are Delaware, Florida, Louisiana, New Mexico, North Carolina, Ohio, and Texas. It is my understanding that Florida has a voluntary certification program that went into effect recently and is tied into the State Bar of Florida. That seems to be a solution that would meet the needs of the paralegals.

“It is my understanding that there is an inclusion in the State Bar petition to define the practice of law, that would exclude paralegals from any allegation of the unauthorized practice of law as long as they were working under the supervision of a lawyer. I would like the court to invite a petition that would set up a voluntary system such as the one in Florida,” he said.

The court noted that the task force modeled its proposal on the Attorneys’ Rules of Professional Conduct, which have seen significant changes since the petition was submitted. The court also noted that budget and the cost of a regulatory agency is an issue with State Bar Petition 07-09, Defining the Practice of Law, which is currently before the court. The same budget issue exists with the paralegal petition.

The court has received comments from interested parties, including the Revisor of Statutes, paralegal groups, the new Florida Registered Paralegal Program, the ABA Model Guidelines for Utilization of Paralegal Services, and various persons.

History.On Feb. 13, 2004, the State Bar filed Petition 04-03. A public hearing was conducted on Oct. 27, 2004, and numerous persons testified. At the ensuing open administrative conference the court took the matter under advisement pending determination of certain issues, including ramifications of State Bar Legal Services Consumer Protection Petition 07-09,which proposed a rule that defines the practice of law and asked the court to create a system to administer the rule. The Wisconsin Supreme Court held an administrative conference on 07-09 on March 14, 2008 and will address the petition again on April 24, 2008.

Management of Jurors in the Circuit Courts. After more than five hours of discussion and debate, the court tentatively amended Chapter 756 of the Wisconsin Statutes relating to juries, as requested in Petition 08-01. The court will consider the various lists recommended for use in jury selection and specific information to be included on that list. The petition was filed by A. John Voelker, Director of State Courts, on behalf of the Committee of Chief Judges and the Chief Judge Subcommittee on Juror Treatment and Selection.

Racine County Circuit Court Judge Gerald Ptacek, Chief Judges Committee on Jury Treatment Selection chair told the court, “The goal of the rule change is to improve and clarify provisions regarding jury management. One area of concern is the list of prospective jurors that is compiled and provided to each county on an annual basis. Under our current system we use the Department of Transportation list, which comes through the CCAP jury management system. The clerk of courts asks the director of CCAP to supply a certain number of jurors for the year. The clerks of court send out jury summonses, and that’s where our problem begins.

“Many come back as undeliverable, some don’t come back and we assume they are delivered, and some jurors don’t respond,” said Ptacek. “Our petition asks you to change the law with respect to getting better lists. The lists we are proposing are voter registration, tax filers, child support payors and payees, unemployment compensation information, and residents who have licenses with the Department of Natural Resources.”

CCAP would merge the lists into one master list for distribution to the clerks of court. “The issue here is, how do we identify people who have duplicate names?” said Ptacek. “The best unique identifier is the social security number. That information would be kept at the director’s office and the list itself would go to the clerk of courts with the name and address. Merging several source lists rather than depending on the DOT list should decrease undeliverable returns and increase participation by minority groups.”

Protection of the confidentiality of the social security number is included in the proposal. There also are increasing concerns in society concerning the use and release of personal identifying information such as home address, phone numbers, employers, and information on family members. A court must obtain the information necessary to legally qualify a potential juror for service. Some courts in Wisconsin, although not all, have developed the tradition of requesting supplemental information, such as noted above, for use by attorneys during voir dire. The petition allows for the collection of this information and its use by attorneys during voir dire, but protects the privacy of jurors by returning the information to the court at the conclusion of voir dire. Once voir dire is complete, all qualification forms and any supplemental information a court requests on potential jurors shall be confidential and released only upon the order of the court upon a showing of good cause.

Ptacek told the court that the Center for Jury Studies states that more than one-third of courts report they do not even provide attorneys with a full street address. More than one-quarter report they provide no address information on jurors at all. This petition provides attorneys in voir dire full information, but joins the trend to increased privacy by limiting the public list of jurors to name, and village, town or city of residence.

Other substantive changes. A fine of $40 for failure to appear when summoned (unchanged since at least 1969) is increased to match the existing $500 forfeiture for failure to return a questionnaire or willfully misrepresent information on the questionnaire.

The jury selection section (Wis. Stats. s. 756.06) is modified to reflect the decision of the court in State v Hansford, 219 Wis. 2d 226 (1998), which held that a six-person jury in a misdemeanor case was unconstitutional. Therefore 756.06(2)(am) is changed to a 12-person jury.

Background.  In June 2006, a subcommittee of the Committee of Chief Judges reviewed jury management practices and measured them against ABA Standards and reforms being implemented in courts across the country. It recommended: 1) implementing means and methods of increasing minority representation in those jurisdictions where it may be a concern, either through rule, policy or legislation; and 2) developing a plan for improved juror privacy. The subcommittee researched existing Wisconsin law on these topics and relevant laws in selected other states, conferred with jury management experts in the National Center for State Courts and solicited feedback from clerks and judges about areas where current law is not clear. The resulting changes were adopted by the Committee of Chief Judges on Nov. 30, 2007 and presented in Petition 08-01.

Electronic filing in the circuit courts.The court agreed to create a new statute implementing electronic filing in the Wisconsin circuit courts as requested in Petition 06-08. The petition was filed by the Director of State Courts at the request of the CCAP Steering Committee.

Judge Ptacek, who also chairs the Electronic Filing Committee spoke to petitions 06-08 and 06-07, Electronic Signatures by Court Officials, “I’d like to talk about security since that is always an issue when we talk about computers. We will rely on the security that is provided to us by the CCAP system, and they will guarantee the authenticity of electronic documents. Documents will be stored in a secure database and registered users only will view documents through the efiling Web site and will have viewing rights only to cases that they are attorney or party to.”

“In the circuit courts, we are already using the electronic process in many ways. As we bridge the gap from the paper process to the paperless process, we are basically not changing what we do with respect to the procedures of the law, we are simply changing the means by which it is done.”

WashingtonCounty conducted a pilot efiling program in 2005 in its small claims court working with money judgment issues and one law firm, later Kenosha County and a second law firm were added to the pilot. Washington County Clerk of Circuit Court, Kristine Deiss, told the court, “The consensus of the staff from Washington and Kenosha counties was unanimous. The system was very user friendly. The ability of the system to automatically populate the data when we initiate an efile document into our case management system as well as the capability to populate the return document from data we had entered into case management was wonderful. We have found efiling to be a timesaver. If parties choose not to submit their documents electronically, we are able to scan their documents, which allows us to manage entire cases electronically.

“Since 2005, we have entered 1,000 cases. We did not experience any problems with untimely filings, lost documents, or notices not being received, and neither county maintained a paper version of the efiles. Courts are constantly struggling with retention of court records. Counties spend huge dollars on storage of paper records both onsite and offsite. It makes sense to store this data online," Deiss said.

[The supreme court issued its final order on May 1. The order, effective July 1, 2008, will be published in the June Wisconsin Lawyer.]

Electronic signatures by court officials. The court agreed to create a rule authorizing the use of electronic signatures by court officials as requested in Petition 06-07. The petition was filed by the Director of State Courts at the request of the CCAP Steering Committee and the Records Management Committee.

Ptacek told the court that as with electronic filing, “Signatures will be held in a secure database and registered users will view documents through the efiling Web site and will have viewing rights only to cases that they are attorney or party to.”

Electronic signature technology has been developed by CCAP as part of the court electronic filing pilot project. To use the technology, a court official logs onto the case management system, using his or her regular user name and password, and brings up a form or order to be reviewed. When the document is ready to be signed, the court official indicates approval of the document, causing the official's name to appear on the signature line of the document. Court commissioners and clerks of circuit court have been applying electronic signatures to small claims judgments and orders as part of the electronic filing pilot project since April 2005, without any problem or objection.

Documents such as certifications of pending cases, requests for judicial assignment, and interpreter reimbursements will no longer need to be faxed in order to preserve a signature, and their information may be stored electronically in lieu of paper copies.

A court official’s electronic signature is identified with the official personally and can only be applied through programs provided by CCAP. Designees may apply an official's electronic signature when authorized to do so through the user security procedures of the case management system.

For judges, the technology represents a more secure and controllable version of a signature stamp. Since current practices vary widely with respect to signature stamps and delegated signing powers, this rule allows each court to develop a system that works most efficiently for it and encourages the use of electronic processes by judges.

[The supreme court issued its final order on May 1. The order, effective May 1, 2008, will be published in the June Wisconsin Lawyer.]

Videoconferencing in courts. The court agreed to create a statute governing the use of videoconferencing in the courts, as requested in Petition 07-12. The petition, submitted by A. John Voelker, Director of State Courts, on behalf of the Planning and Policy Advisory Committee (PPAC), is supported by the State Bar. A public hearing and an administrative conference were held on Jan. 8, 2008. For in-depth coverage, read the February Inside the Bar.

The rule provides legal guidance to the courts on the appropriate and effective use of videoconferencing to maximize the use of videoconferencing with the court system while maintaining the integrity of the judicial branch and the constitutional rights of all litigants.

[The supreme court issued its final order on May 1. The order, effective July 1, 2008, will be published in the June Wisconsin Lawyer.]

By Deb Heneghan, Publications Writer, State Bar of Wisconsin