By Adam Korbitz, Government Relations Coordinator, State Bar of Wisconsin
June 2, 2010 – The Wisconsin Supreme Court has voted unanimously to adopt a scaled-down version of the State Bar of Wisconsin’s 2007 petition regarding the unauthorized practice of law. The court’s adoption of the new rule creates, for the first time, a workable definition of what constitutes the practice of law in Wisconsin.
However, the court rejected several options the State Bar had presented to enforce the new rule, and in the end left enforcement to individual consumers and their lawyers to use existing statutes to enforce the rule against those practicing law without a license.
The court also adopted – over the State Bar’s objections – a number of exceptions to the rule, including an exception, without apparent limitation, for “professional activities performed as a certified public accountant.”
The court’s action during an open administrative conference on June 1, 2010, follows a unanimous vote in March 2010 to adopt in principle an earlier working draft of the UPL rule. As part of that March vote, the court chose to sunset the new rule after five years unless the court votes to continue it.
The court intends to post a draft of the new rule to its website soon, and to issue a final version of the rule later this year. (A copy of the State Bar’s final proposed draft of the rule is currently available on the court’s website, but it does not reflect numerous changes ultimately adopted by the court, including the elimination of any specific enforcement mechanism.)
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 when it voted to approve the new rule defining the practice of law.
Originally, the State Bar had proposed that a half-time attorney in the Office of Lawyer Regulation could enforce the rule, funded by an 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 approaches, including an administrator who reported directly to the court or who 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 the latter approach would affect the substantive rights of litigants, which the court cannot modify by rule under section 751.12(1), Wis. Stats.
In the end, the court adopted language stating that the new rule could be enforced “in any action as authorized by law.”
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 action on the UPL petition took place after dozens of individual attorneys around Wisconsin wrote directly to the court over the last six months, voicing their concerns about the adverse impact of UPL on consumers. Those attorneys were joined by the boards of six State Bar sections and the members of two State Bar committees in expressing support for 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, please contact Adam Korbitz, government relations coordinator.
Related articles:
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.
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