By Adam Korbitz, Government Relations Coordinator, State Bar of Wisconsin
July 29, 2010 – The Wisconsin Supreme Court has issued its final version of a rule regarding the unauthorized practice of law.
The new rule, effective Jan. 1, 2011, is a scaled-down version of the State Bar of Wisconsin’s 2007 petition seeking to protect Wisconsin consumers from the unauthorized practice of law. The court’s adoption of the new rule creates, for the first time, a specific definition in Supreme Court rules of what constitutes the practice of law in Wisconsin.
However, the new rule does not contain any of several options the State Bar had presented to the court for enforcement of the new rule. Enforcement of the new rule will evidently be left to individual consumers and their lawyers to use existing statutes to enforce the rule against those practicing law without a license.
The new rule also contains – over the State Bar’s objections – a number of exceptions, including one, without apparent limitation, for “professional activities performed as a certified public accountant.”
No enforcement mechanism
Since the State Bar first filed the petition in June 2007, the Bar had proposed various mechanisms to enforce the proposal, but the court chose not to adopt any specific enforcement mechanism in the final rule.
Originally, the State Bar had proposed that a half-time attorney position be created in the Office of Lawyer Regulation to enforce the rule, funded by a court assessment of approximately $5 per year. In response to the court’s apparent reluctance to adopt that approach, the State Bar in recent months suggested several other options, including an administrator who would have either reported directly to the court or worked for the court as an independent contractor.
The State Bar also suggested that the court could create a rule, similar to one in Indiana, which would allow various government agencies or the State Bar to bring suit in circuit court to enjoin UPL. Several of the justices expressed concern that this approach would affect the substantive rights of litigants, which the court cannot modify by rule under section 751.12(1), Wis. Stats.
During an open administrative conference on June 1, 2010, the court indicated its intent to include language stating that the new rule could be enforced “in any action as authorized by law.” The final rule, however, does not contain this language.
Several justices suggested during the June 1 open conference that attorneys and anyone aggrieved by UPL might use existing statutes, such as sections 100.18 and 757.30, Wis. Stats., to enforce the court’s new definition of the practice of law.
State Bar members advocated for public protection
The court’s final UPL rule was issued after dozens of individual attorneys around Wisconsin wrote directly to the court voicing their concerns about the adverse impact of UPL on consumers. Those attorneys were joined by the State Bar’s Board of Governors, as well as the boards of six State Bar sections and the members of two State Bar committees in expressing support for action on the UPL petition.
In January and February 2010, a series of weekly articles published on WisBar.org detailed recent examples of possible unauthorized practice of law in Wisconsin. The State Bar’s UPL Policy Committee urged members of the State Bar of Wisconsin to contact the Wisconsin Supreme Court directly and voice their concerns.
The examples detailed in the articles touched on areas of law as diverse as child support, divorce and family law, employment litigation, real estate law, estate planning, immigrant rights, consumer debt, and even local government law.
The State Bar’s activities regarding Supreme Court rule-making petitions are coordinated by the State Bar’s government relations team. If you have questions regarding the State Bar’s UPL petition or wish to report a concern regarding UPL, please contact Adam Korbitz, government relations coordinator.
Related articles:
- Supreme Court unanimously approves UPL rule but without enforcement mechanism - June 2, 2010
- Supreme Court unanimously votes to proceed with draft UPL rule - March 9, 2010
- Only the Supreme Court can stop UPL in Wisconsin - March 1, 2010
- Internet proves to be fertile ground for UPL in Wisconsin - February 22, 2010
- Consumer debt a rich opportunity for possible UPL operations in Wisconsin - February 19, 2010
- Local governments around Wisconsin targeted by possible UPL operations - Feb. 10, 2010
- Despite notario law, UPL operations targeting immigrants persist in Wisconsin - February 1, 2010
- 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
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.
© 2010, State Bar of Wisconsin
