Board of Governors weighs in on foreign lawyers,
changes to character screening of bar applicants
The Board
of Governors considered four petitions from the Board
of Bar Examiners (BBE) to the Wisconsin Supreme Court regarding
changes to examination of a bar applicant’s character and fitness
as well as a greater role for foreign lawyers.
Immunity for character references. During its Dec. 5 meeting,
the board rejected Supreme
Court Petition 08-10 aimed at granting absolute immunity from civil
liability to those who share information about a bar applicant with the
BBE as well as for BBE members and its agents.
Absolute immunity is typically given to judges or witnesses in court
proceedings. BBE Director John Kosobucki explained that without this
shield, some may not share important information with the BBE out of
fear that the applicant will bring legal action over unflattering
disclosures.
Character and fitness screening is intended to be a public protection
measure. Gov. Margaret W. Hickey urged the board to err on the side of
facilitating the fullest information before the BBE.
But State Bar Past President Thomas J. Basting Sr. questioned whether
other vocations with similar licensing processes, such as the medical
profession, extended this privilege. Basting and Gov. Robert J. Asti
suggested that such sweeping protection might invite inaccurate
information into the process. Gov. Catherine R. Grogan questioned
whether this situation differs significantly enough from that of an
employer discussing an employee under qualified immunity. Qualified
immunity is not a defense for conduct that violates clearly established
constitutional or statutory rights. A motion to oppose the petition
passed by a voice vote. A public hearing on the matter is scheduled at
9:45 a.m. on Monday, Feb. 9, 2009 in the Wisconsin Supreme Court hearing
room.
Encourage character review hearings. The governors unanimously
embraced Petition
08-11, a proposed change to the character and fitness process that
would encourage bar applicants to address questions raised about
them.
Kosobucki said that a candidate currently receives a letter stating
the application was denied but that upon a request made within 20 days
the BBE will hold a hearing to review the decision. Disappointed
applicants have rarely taken the board up on its offer because the
letter sounds as if the board had irrevocably made its mind up,
Kosobucki said.
To change that impression, Petition 08-11 directs that the board
merely state an application is “at risk of being denied” and
grant 30 days in which to request a hearing. Kosobucki said that
increasing the amount of time to seek a hearing will assist applicants
without appreciably delaying the BBE’s final decision. The
Wisconsin Supreme Court has scheduled a public hearing on this petition
at 9:45 a.m. on Monday, Feb. 9, 2009 in the Wisconsin Supreme Court
hearing room.
Greater participation for foreign lawyers in the state. Supreme
Court Petition 08-08 proposed the creation of a category of
practitioners known as legal consultants. These individuals are defined
as lawyers licensed in other nations who would be limited to advising
clients on international and foreign law. Under the proposal, a legal
consultant would not be able to practice state law except in conjunction
with a Wisconsin lawyer.
Kosobucki explained that the petition is a recognition that
Wisconsin clients may need this type of
expertise in a global economy. In turn, the proposal values greater
access for Wisconsin lawyers to foreign markets by permitting the BBE to
“take into account whether a member of the bar of this State would
have a reasonable and practical opportunity to establish an office for
the giving of legal advice to clients in the applicant’s country
of admissibility.”
However, Gov. Micabil Diaz Martinez argued this measure could
inadvertently revive the peddling of fraudulent law services to the
Hispanic residents of Wisconsin. In Mexico
and some other Latin-American countries, notaries public, known as
“notarios,” are akin to lawyers and are able to engage in
significant transactions. However, in the United
States, one can become a notary public
simply because one is an 18-year-old resident, not necessarily a
citizen, with the equivalent of an eighth grade education and without a
disqualifying criminal history. Exploiting the confusion, some notaries
public advertise themselves as “notarios” in primarily
Hispanic neighborhoods and conduct significant “legal
transactions” for unsuspecting “clients.” Those who
have entrusted critical legal matters to these unauthorized
practitioners often end up in a worsened legal predicament and fleeced
of “fees” running into the thousands of dollars.
Diaz Martinez said that state law now criminalizes this failure to
disclose the fact a person extending these services is not a lawyer, but
this BBE proposal risks opening a loophole,
Basting questioned whether the rules prohibiting registered
consultants from practicing domestic American law could be enforced in a
timely and effective manner. The mechanics of supervision is also
unclear given that consultants would not practice law and accordingly
would not have a license to revoke, Diaz Martinez said.
The motion to oppose the proposition passed unanimously. A public
hearing on the issue will be held at 9:45 a.m. on Monday, Feb. 9, 2009
in the Supreme Court hearing room.
Graduates of foreign law schools eligible to join the State
Bar. Governors approved Supreme
Court Petition 08-09 with the slight amendment recommended by the
State Bar’s BBE Review Committee. This measure would permit
graduates of law schools in other nations to take the Wisconsin bar
examination, and if successful, to be admitted to the state’s
practice of law. The BBE Review Committee modified the language of the
proposal so that a foreign applicant need be engaged in the practice of
law for three of the last five years rather than five of the past seven
before making an application.
A public hearing will be held at 9:45 a.m. on Monday, Feb. 9, 2009 in
the Supreme Court hearing room.
By Alex De Grand, Legal
Writer, State Bar of Wisconsin
