Feb. 2, 2010 - A Waukesha business targeting its services toward low-income Spanish-speaking immigrants raises questions about the effectiveness of a 2008 Wisconsin law intended to curb the abusive practices of some notarios who engage in the unauthorized practice of law.

The Waukesha business is possibly another example of a threat to Wisconsin consumers of legal services that members of the State Bar of Wisconsin have identified in recent months.

However, because Wisconsin Supreme Court rules currently lack both a workable definition of the practice of law and an effective enforcement mechanism, it is unlikely anything will be done about this and other possible instances of UPL in Wisconsin unless and until the Wisconsin Supreme Court adopts the State Bar of Wisconsin’s 2007 petition regarding the unauthorized practice of law.

The Supreme Court has ordered a public hearing and open administrative conference on the petition at 9:45 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 website for the Waukesha company claims to specialize is assisting low-income families. It also claims that “Our organization assists you to handle and fill out a variety of legal documents.”

Further examination, however, suggests that the company offers prospective clients far more than translation services, including services that on their face appear to constitute the unauthorized practice of law and that also may violate the 2008 notario statute.

2008 law intended to crack down on notarios

The Wisconsin Legislature enacted 2007 Act 110, which took effect in April 2008, to curtail the predatory practices of notarios who falsely hold themselves out to members of the Hispanic or Latino community as qualified lawyers.

In many Spanish-speaking countries, notarios are lawyers who, in addition to the requisite legal training, education and regulation, also act as indispensable intermediaries because of their political ties with government agencies and officials. In Wisconsin, a non-lawyer can become a notary public. Because the term “notary” translates to notario in Spanish, a member of the Hispanic community in Wisconsin may wrongly assume that a person who is advertising himself or herself as a notario in Wisconsin is a lawyer and has the same authority and expertise as does a notario in their home country.

Legislators introduced the bill leading to the enactment of 2007 Act 110 because immigrant members of the Hispanic community in Wisconsin were susceptible to unscrupulous persons who took advantage of immigrants because they have limited economic resources, limited use of the English language, and because the laws and regulations which pertain to American society and economy are unfamiliar to them. Members of the Hispanic community often face immigration problems and sometimes turn to notarios for assistance in dealing with those problems, which can lead to disastrous results for the client because of incorrect or incompetent advice, as well as exorbitant fees for the kinds of services being provided.

Act 110 made it a crime for any licensed notary public to:

1. State or imply that he or she is an attorney licensed to practice law in this state.
2. Solicit or accept compensation to prepare documents for or otherwise represent the interests of another person in a judicial or administrative proceeding, including a proceeding relating to immigration to the United States or U.S. citizenship.
3. Solicit or accept compensation to obtain relief of any kind on behalf of another person from any officer, agent, or employee of this state, a political subdivision of this state, or the United States.

Further, the 2008 law prohibits notary publics from advertising their notary services in a language other than English - or from using the phrases “notario,” “notarizaciones,” “notarizamos,” or “notario public” - unless the advertisement contains the following verbatim disclaimer in both English and the language of the advertisement: “I AM NOT AN ATTORNEY LICENSED TO PRACTICE LAW IN WISCONSIN AND MAY NOT GIVE LEGAL ADVICE OR ACCEPT FEES FOR LEGAL ADVICE.”

First offense violations of the statute are a misdemeanor; subsequent violations are treated as a felony. Like most criminal statutes, primary enforcement lies with the district attorney.

Notaries prohibited from offering representation

The company mentioned earlier may be violating the statute on its face by advertising its notary services (“servicios generales de notariado publico”) in Spanish without the disclaimer required by law. In addition, as described below, the company’s website suggests it will represent the interests of others in matters relating to immigration, citizenship, and other matters before government officials, much of which if not being performed by a licensed attorney, not only violates the notario statute but could also constitute the unauthorized practice of law

Under “about us,” the website says that “Our company is based on the belief that our clients' legal needs are of the utmost importance. Our team is committed to meeting those needs.”

In addition to offering help in completing forms related to immigration, business formation, marriage, divorce, child custody, and credit repair, the website under “other services” says the company will help with tax matters, traffic tickets and, without explanation, “association of lawyers.”

Regarding immigration matters, the website indicates the company “can assist you filling out” a host of different immigration documents although it claims it does so “without legal advice.” However, in regard to traffic violations (including speeding, OWI and driving with no license or a revoked license), the website appears to offer representation, saying, “We can help you talk with the State District Attorney in charge of your case and try to lower your ticket dollar amount and points given for the same reason.” It is unclear who would be providing the representation.

State Bar UPL petition would protect consumers

The State Bar’s initiative to curb possible UPL operations, 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 against businesses engaging in UPL if the court approves the petition.

The State Bar’s 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 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 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.

In December, the State Bar’s Board of Governors unanimously approved a resolution urging 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.

In addition, the State Bar’s UPL Policy Committee published a strongly-worded editorial in the October 2009 issue of Wisconsin Lawyer urging the court to approve the petition. State Bar President Doug Kammer reappointed the committee in July and added several new members, including former Supreme Court Justice Jon Wilcox.

A series of weekly articles being published on Wisbar.org in January and February is detailing recent examples of UPL in Wisconsin and giving State Bar members the opportunity to contact the Wisconsin Supreme Court directly and voice their support for the State Bar’s UPL petition. It is imperative that State Bar members communicate to the court their concern about the adverse impact of UPL on the public - today.

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.“I believe some consumer protection is warranted here.”

“The Wisconsin Supreme Court has the exclusive power to regulate the practice of law,” Wilcox said. “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 concluded. “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.”

• Learn more about the State Bar’s petition and the UPL Policy Committee
• History of the State Bar's UPL petition
  
  
  By Adam Korbitz, Government Relations Coordinator, State Bar of Wisconsin

Related articles:

Divorce makes easy target for UPL operators, Wisconsin-based website proves - January 25, 2010
Business guilty of UPL in Ohio now soliciting clients in Wisconsin with impunity - Jan. 20, 2010
Case of independent paralegal raises UPL questions - Jan. 13, 2010
Supreme Court must approve UPL petition to protect public, State Bar members say - Jan. 6, 2010
Board of Governors calls on Supreme Court to approve UPL petition - December 4, 2009
Retired Justice Wilcox on the unauthorized practice of law: 'Let the court know your concerns' � Inside Track, Dec. 2, 2009
Only Lawyers Need a License to Practice Law in Wisconsin � Wisconsin Lawyer, October 2009
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

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