By Adam Korbitz, Government Relations Coordinator, State Bar of Wisconsin
Dec. 4, 2009 – The Board of Governors today unanimously approved a resolution calling on the Wisconsin Supreme Court to adopt the State Bar of Wisconsin’s 2007 petition regarding the unauthorized practice of law.
The State Bar’s initiative, called the Legal Services Consumer Protection Act, responds to a directive issued by the court in 2004 asking the State Bar to document the consumer impact of unqualified individuals practicing law and to recommend changes. Wisconsin residents seeking legal services will gain additional consumer safeguards if the court approves the petition.
Get Involved!
The State Bar’s UPL Policy Committee joins Justice Wilcox’s call to action and urges State Bar members who are concerned about UPL to get involved in persuading the court to adopt the petition as proposed by the State Bar. Because the court is acting in a rule-making capacity, it is perfectly appropriate for members to contact the court directly and support the State Bar petition.
Letters and comments in support of State Bar petition 07-09 should be emailed to Carrie Janto and Supreme Court Clerk David Schanker. Hard copies of any such comments or letters should also be mailed to:
Wisconsin Supreme Court
110 East Main Street, Suite 215
P.O. Box 1688
Madison, WI 53701-1688
In addition, if you have examples of UPL that you are aware or if you have any questions, please contact Adam Korbitz at (800) 444-9404, ext. 6140 or (608) 250-6140. The State Bar’s activities regarding Supreme Court rule-making petitions are coordinated by the State Bar’s government relations team.
The petition asks the court, which has exclusive jurisdiction over the practice of law in the state, to take two actions: 1) Adopt a new rule to clearly define what constitutes the “practice of law” for consumer protection purposes; and, 2) Create an administrative system to enforce the new rule.
The Board of Governors’ Dec. 4 resolution urges the court to adopt the State Bar’s petition in order to protect the public from harm by those who engage in the unauthorized practice of law.
When the State Bar first filed the petition with the court in 2007, State Bar Past President Thomas Basting said, “People can get hurt when individuals without proper training or oversight handle their legal matters and we need to do a better job of protecting consumers against bad advice that can result in lost money, lost opportunities, or lost rights.”
The original State Bar petition offers dozens of examples of instances where Wisconsin consumers have been hurt when people without proper training or oversight attempt to practice law. In 2008, based on feedback from other interested parties, the State Bar filed an amended version of the petition and supporting comments.
The Supreme Court has ordered a public hearing and open administrative conference on the petition at 9:30 a.m. on Monday, March 8, 2010, in the Supreme Court’s hearing room in the Capitol. It is the second public hearing and third administrative conference to be held on the petition in the two and a half years since the State Bar filed the petition with the court.
The court previously held a public hearing and open administrative conference on the petition in December 2007, as well as two additional open conferences in March and October of 2008. The court deferred the petition last session without acting to approve it.
The State Bar’s UPL Policy Committee published a strongly-worded editorial in the October 2008 issue of Wisconsin Lawyer urging the court to approve the petition. Earlier this year, State Bar President Doug Kammer reappointed the committee and added several new members, including former Supreme Court Justice Jon Wilcox.
Justice Wilcox calls on State Bar members to support petition
Justice Wilcox recently spoke of the need for the court to approve the State Bar’s UPL petition in an address to the 2009 Class of Fellows of the Wisconsin Law Foundation. “There is a need for a mechanism to address this problem,” Wilcox told the audience as he displayed a placemat he saw in a restaurant, which read: “Paralegal services – estate planning, real estate, family, and much more.”
Justice Wilcox told the audience he went to the business, called Affordable Legal Assistance, and saw a sign outside that read: “Family law, estate planning, pro se divorce, divorce/paternity, child support, child visitation, wills, power of attorney, deeds, transfer returns, and others.”
“I believe some consumer protection is warranted here,” said Wilcox. “The Wisconsin Supreme Court has the exclusive power to regulate the practice of law. The court’s regulation of the practice of law is intended to protect society from the harm that can result from the activities of unlicensed practitioners.”
“The majority of other states that have adopted a definition of the practice of law and court rule to deal with the unauthorized practice of law,” Justice Wilcox added. “Our supreme court should do no less . . . on the unauthorized practice of law question I urge you to get involved and let the court know your concerns.”
The State Bar’s petition notes that in recent years 25 other states and the District of Columbia have adopted rules or statutes similar to those proposed in the petition for Wisconsin: Alabama, Alaska, Arizona, Colorado, Hawaii, Idaho, Kentucky, Louisiana, Maine, Maryland, Michigan, Minnesota, Mississippi, Missouri, Nebraska, North Carolina, Oklahoma, Oregon, Pennsylvania, South Carolina, Utah, Virginia, Washington, West Virginia, Wyoming and the District of Columbia.
Like these other states, Wisconsin has experienced what amounts to “legal mission creep” as more people seek to offer legal services, sometimes for altruistic reasons and other times for private gain, but often at the expense of consumers. Wisconsin already enforces professional standards for nursing, accounting, landscape architecture and many other professions. Yet while the Court has adopted rules regulating who can practice law in Wisconsin, no clear definition of what constitutes the practice of law is spelled out. The State Bar’s proposed rule, which is modeled after similar initiatives successfully implemented in other states, would resolve this ambiguity and create a Legal Services Office of Consumer Protection to allow civil remedies when violations occur.
In other business, the board addressed the following issues.
Electronic discovery. The board voted to support Judicial Council Petition 09-01, to amend Wis. Stat. sections 802.10, 804.08, 804.09, 804.12, and 805.07, relating to discovery of electronically stored information.
The council proposed the amendments in response to the increase in the amount of discoverable information stored electronically, such as emails. The proposed amendments are adapted from the Uniform Rules on the Discovery of Electronically Stored Information and the 2006 amendments to the Federal Rules of Civil Procedure.
The board also requested that the justices consider adding a rule authorizing the “claw back” of materials accidentally released and reference cost shifting among parties.
The supreme court has scheduled a public hearing on this petition for Jan. 21, at 9:30 a.m.
State Bar communications. The governors voted to approve the State Bar Public Image Committee’s recommendations for better communication of the organization’s purpose to members and the public. Specifically, the governors endorsed an initiative for the use of a slogan and logo and a redesign of the State Bar’s member benefits brochure.
Public Policy on Integrity of Judicial System. The board adopted, at the request of the Criminal Law Section, a policy position affirming the importance of a criminal defendant’s constitutional right to an attorney sworn to zealously advocate for his or her client. The section’s request arose from concerns that this right had been misrepresented during the 2008 Wisconsin Supreme Court race.
Minutes will be posted to WisBar after approval at its Feb. 26, 2010 meeting.
Related UPL articles:
Retired Justice Wilcox on the unauthorized practice of law: 'Let the court know your concerns' – Inside Track, Dec. 2, 2009
Supreme Court sets 2010 schedule of rule-making proceedings – Nov. 23, 2009
Only Lawyers Need a License to Practice Law in Wisconsin – Wisconsin Lawyer, October 2009
State Bar faces busy year with Supreme Court rule-making – Sept. 21, 2009
Wisconsin Supreme Court will continue to review State Bar UPL committee – Inside the Bar, December 2008
Inside the Bar: Supreme Court moves on State Bar consumer protection petition – January 2008
Legal Services Consumer Protection Act, State Bar president statement – June 19, 2007
Legal Services Consumer Protection Act, State Bar president statement – June 19, 2007
The Unauthorized Practice of Law: Court Tells Profession, Show Us the Harm – Wisconsin Lawyer, October 2005
Rotunda Report is the State Bar of Wisconsin’s Government Relations e-newsletter that highlights legislative, judicial, and administrative developments that impact the legal profession and the justice system. It is published twice a month and is distributed free to attorneys, public officials and others who help shape public policy in Wisconsin. We invite your suggestions to make the Rotunda Report more informative and useful and we encourage you to visit our Web site for the most current information about justice-related issues.
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