Vol. 76, No. 10, October
2003
Supreme Court Orders
On Nov. 18, the Wisconsin Supreme Court
will hold a public hearing on the State Bar's petition regarding the
unauthorized practice of law.
Unauthorized Practice of
Law
In the matter of the definition of the Practice of Law and
the Unauthorized Practice of Law, Appointment of Committee to promulgate
rules, and establishment of a regulatory system.
Order 03-05
On April 23, 2003, the Board of Governors of the State Bar of
Wisconsin filed a petition requesting the court appoint a committee to
submit specific recommendations for the adoption of Supreme Court Rules
defining the practice of law and unauthorized practice of law and the
establishment of a comprehensive system to administer the guidance and
regulation of lay persons engaged in limited practice of law.
IT IS ORDERED that a public hearing on the petition shall be held in
the Supreme Court Room in the State Capitol, Madison, Wis., on Tuesday,
Nov. 18, 2003, at 9 a.m.
IT IS FURTHER ORDERED that the court's conference in the matter shall
be held promptly following the public hearing.
IT IS FURTHER ORDERED that notice of the hearing be given by a single
publication of a copy of this order and of the petition in the official
state newspaper and in an official publication of the State Bar of
Wisconsin not more than 60 days nor less than 30 days before the date of
the hearing.
Dated at Madison, Wis., this 30th day of June, 2003.
By the court:
Cornelia G. Clark, Clerk of Supreme Court
Petition
To: The Honorable Justices of the Wisconsin Supreme Court:
The Board of Governors of the State Bar of Wisconsin by Patricia K.
Ballman, President of the State Bar of Wisconsin, petitions this
Honorable Court to appoint a committee consisting of members of the
judiciary, lawyers, and nonlawyers to make specific recommendations for
adoption of Supreme Court Rules on the following matters of serious
concern to the bar and to the public.
A. The court should adopt a Supreme Court Rule defining the practice
of law and the unauthorized practice of law with clarity and specificity
so as to provide better guidance to the public and to the courts than is
now available.
B. The court should consider certain limited exceptions to the
definition of the practice of law to guide and regulate the numerous
businesses and professions that give legal advice and assistance as part
of the services they offer to the public for compensation.
C. The court should consider certain limited exceptions to the
definition of the practice of law to guide and regulate nonlawyers
employed by agencies assisting persons of limited means when those
employees provide legal advice and assistance to the agencies'
clientele.
D. The court should establish a comprehensive system to administer
the guidance and regulation of those persons falling within the
exception to the definition of the practice of law and to enforce by
injunction or civil contempt the unauthorized practice of law. An
administrative arm of the court, such as the Office of Lawyer
Regulation, could provide uniform and fair regulation of lay persons
engaged in limited practice of law, could informally prevent the
unauthorized practice of law without resorting to criminal prosecution,
could provide uniform and fair interpretation of the unauthorized
practice of law throughout the State of Wisconsin and could enforce this
court's rules by injunction or contempt.
The grounds for this petition are as follows:
1. With increasing frequency and with increasing seriousness, the
State Bar of Wisconsin receives complaints from the public and from
lawyers involving allegations of the unauthorized practice of law.
Currently, for example, the Latino community in Wisconsin is
particularly susceptible to the sometimes fraudulent practice of
nonlawyers advising on immigration matters. The State Bar of Wisconsin
has no authority to advise citizens as to the legality of their conduct
nor does it have authority to protect potential victims from
inappropriate conduct; nevertheless, the public repeatedly looks to the
State Bar of Wisconsin for guidance and enforcement, and the public is
frustrated by the State Bar's inability to respond.
2. The State Bar of Wisconsin has evidence of serious misconduct by
individuals who have deceived the public by offering legal services by
nonlawyers.
3. Employees of agencies providing assistance to low-income citizens
often provide legal advice and assistance in a well-meaning effort to
assist their clientele, but those employees are now without clear
guidance as to what they can or cannot do, and their advice and
assistance may or may not be appropriate.
4. Numerous businesses and professions provide limited legal
assistance and advice within the narrow range of the services that they
provide to the public. Again, those professions and businesses have no
guidance as to what they can or cannot do to protect themselves or their
clientele. When the Board of Governors took up this issue, it heard from
numerous businesses and organizations such as the bankers association,
title companies, professional planners, engineering and consulting
firms, estate planners, architects, accountants, and others. They are
but a few examples of businesses and professions that routinely provide
legal assistance as part of their day-to-day affairs.
5. Section 757.30, Stats., a criminal statute, is so vague and
ineffective that it provides little guidance to the lay public and does
not establish a defensible standard for enforcement of the unauthorized
practice of law. Further, for many citizens, criminal prosecution or the
threat of criminal prosecution is too severe for the circumstances and,
therefore, the statute does not adequately protect the public.
6. District attorneys and the Wisconsin Department of Justice are
disinclined to expend their limited resources on the investigation and
prosecution of the unauthorized practice of law.
7. The issue of the unauthorized practice of law and the protection
of the public has long been the concern of the Consumer Information and
Protection Committee of the State Bar. Attached hereto as Exhibit A is a
copy of that Committee's report to the Board of Governors.
8. Recently, the MDP Commission of the State Bar of Wisconsin
considered these issues and made a report to the Board of Governors. The
pertinent pages are attached hereto as Exhibit B.
9. The American Bar Association recently established a Task Force on
the Model Definition of the Practice of Law to report to the ABA Board
of Governors in August 2003. Its proposed draft is attached hereto as
Exhibit C.
10. These issues are receiving attention now because the evolution of
our society and economy into complex and interdependent relationships
among consumers and service providers has resulted in a significant
social need to clarify the roles of the service providers. By virtue of
the authority inherent in the court, this can best be accomplished by
the promulgation of a new Supreme Court Rule.
11. The problems arising in Wisconsin from having an inadequate
definition of what constitutes the unauthorized practice of law have
occurred in other jurisdictions and have caused other states to take
action to clarify the definition and to establish a system for
administering new rules.
12. Attached hereto as Exhibits D and E are rules adapted by the
Supreme Court of Washington and the Supreme Court of Colorado, each
establishing a comprehensive system for regulating and enforcing the
practice of law by nonlawyers.
13. Attached hereto as Exhibit F is a copy of the rules submitted to
the Supreme Court of Illinois proposing similar regulation.
14. The issues raised by this petition are complex and compelling,
but study and resolution of those issues is essential to protection of
the public and to establishment of a well-regulated society.
15. The State Bar urges the court to consider including on the
committee a representative from the Office of Lawyer Regulation, a
representative from the State Bar Board of Governors, one or more
members of other interested groups, a member of the general public, a
representative of organizations which provide legal advice or service to
low- or moderate-income individuals, a representative from the State Bar
Multi-jurisdictional Practice Committee, one or more members of the
State Bar Consumer Information and Protection Committee, and a
representative of the Indian Law Section. We suggest that the committee
or commission appointed be separate from the Wisconsin Study Commission
on Ethics appointed by the Supreme Court.
Respectfully submitted on behalf of the Board of Governors of the
State Bar of Wisconsin this 23rd day of April, 2003.
Patricia K. Ballman, President
State Bar of Wisconsin
[Exhibits are available at the Office of the Clerk of the Supreme
Court.]
Wisconsin Lawyer
