Get Involved!
Retired Justice Wilcox on the unauthorized practice of law: 'Let the court know your concerns' – Inside Track, Dec. 2, 2009
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.
Your action is needed today! 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.
Feb. 10, 2010 – Approximately 10 to 15 local governments in Wisconsin have paid $1500 plus expenses in consulting fees to a non-attorney for a model land-use resolution of uncertain legal effect, according to a municipal attorney familiar with the issue.
In addition, the consultant’s advice regarding the strategy, referred to as “coordination,” has no basis in Wisconsin law, say attorneys with various state agencies who have fielded demands from local governments around the state over the last year.
The consultant’s advice underlying the coordination strategy is intended to force other units of government to coordinate land-use planning with local government, but it does so by encouraging local governments to not follow existing law. 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 to examine this and other possible instances of unauthorized practice of law in Wisconsin – unless and until the Wisconsin Supreme Court adopts the State Bar of Wisconsin’s 2007 petition regarding UPL.
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.
A series of weekly articles being published on Wisbar.org in January and February is detailing recent examples of possible 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.
“Coordination”
Attorneys for state agencies such as the Departments of Administration, Transportation, Revenue and Natural Resources have all had to respond to demands for coordination by local officials who believe in the veracity of coordination demands.
In the parlance of the concept’s advocates, “coordination” is shorthand for the assertion that if a local government makes an appropriate demand, all other forms of government – including county, state and federal – must coordinate with the local government regarding any regulation of the land, resources or environment within the municipality.
Also referred to as “the coordination method of land use planning,” the backers of this approach present it in solicitations for their advice as an alternative to creating a comprehensive plan outlined in Wis. Stat. section 66.1001. Often referred to colloquially as “smart growth,” section 66.1001 specifies both the required elements of a comprehensive plan and the procedures local governments must follow to adopt such a plan.
Over the past year, coordination consultants have sent solicitations for their services to local officials and have hosted several workshops on the topic throughout the state. Under the model resolution these consultants are promoting, a local government can impose “its authority to coordinate with, and insist on coordination by, federal and state, county, city and village agencies . . . with management, oversight or planning duties regarding land and/or natural resources within the jurisdiction” of the local government.
According to a municipal attorney familiar with the issue, some basis for a legal concept like coordination does exist in certain western states where the federal Bureau of Land Management manages vast tracts of land and federal law requires the BLM to coordinate land-use planning with local governments. However, the process outlined by coordination advocates has no legal basis under Wisconsin land-use planning statutes, attorneys say.
Local governments that seek to regulate land-use in Wisconsin must follow procedures stipulated in Wisconsin statutes regarding land-use planning -- demands for “coordination” are no substitute, said the attorney.
That view has been reinforced by several attorneys working for various state agencies.
“Wisconsin law provides for multiple opportunities for public input on rules and similar state decisions . . . but the ‘coordination’ authority you propose to invoke to require Secretary [Matt] Frank’s attendance at a meeting has no grounding in Wisconsin state law,” wrote an attorney for the Department of Natural Resources in June 2009 in a series of letters to four separate local governments. Each local government had sent coordination demands to the department on various issues such as shoreland zoning and mining expansion.
Similar opinions do not appear to have been accepted by local government officials who have adopted the coordination concept.
“Your letter . . . was presented to the Board as evidence that the State . . . now recognize[s] Coordination as a legally binding term and that you must accept the municipality as an equal when it comes to decision making,” wrote a local official to another state agency attorney in April 2009. “Does [your agency] recognize Coordination as a legal term?”
A municipal attorney familiar with the issue says the entire public is adversely affected when local governments get drawn into ideas such as “coordination.” Relying on such erroneous concepts to the exclusion of legitimate legal concepts is much more damaging than just losing the money local governments paid for the coordination service in the first place, the attorney says. For example, instead of a community lawfully regulating land use, it might unintentionally adopt unenforceable ordinances due to reliance on coordination instead of following the advice of qualified legal counsel to conform with all the requirements of relevant state laws.
“That is in contrast to the usual process whereby a community’s elected leaders make informed decisions by legally enacting ordinances,” the attorney says. “Coordination circumvents that process by convincing those publicly entrusted decision makers to rely on faulty information.”
A request for an Attorney General opinion regarding coordination is pending. However, absent such an opinion or other meaningful regulation of the unauthorized practice of law, “there is not really anything to prevent this type of activity on the front end,” the attorney says.
State Bar UPL petition would protect consumers
The State Bar’s initiative to curb UPL abuses, 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 engaged 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 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 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.
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.
By Adam Korbitz, Government Relations Coordinator, State Bar of Wisconsin
