Inside the Bar
January 2008

Supreme Court rules on State Bar petitions, grants nonresidents "pure" CLE comity, moves on consumer protection

On Dec. 10, the Wisconsin Supreme Court held an administrative hearing and open conference on several State Bar petitions. The court approved a pure CLE comity rule and limited the number of terms a member can serve as State Bar president. The court adopted several recommended changes to State Bar bylaws but denied the request seeking formalization of the statewide rotation of elections for the office of president-elect. The court asked for more work on the Legal Services Consumer Protection petition, which would define the unauthorized practice of law and create an administrative process within the Office of Lawyer Regulation (OLR) to enforce it.

CLE Comity. The court adopted a pure comity rule for CLE requirements for State Bar nonresident members. Pure comity respects the CLE requirements of other states without demanding that they be identical or nearly identical to Wisconsin’s. Nonresidents who do not have mandatory CLE requirements in their home state must meet Wisconsin CLE requirements.

At its Nov. 27 hearing, the court ruled that petition 07-08 in support of a provisional comity plan was too complex. Chief Justice Shirley Abrahamson and other members of the court expressed concern with the proposed rule’s conditional nature, under which the rule would extend CLE comity to State Bar members residing in other states only on condition that the BBE examined and approved those states’ CLE requirements. The court asked the State Bar and the BBE to revisit the proposal and determine if a pure comity rule could be implemented.

On Dec. 7, the State Bar Board of Governors supported an unconditional (pure) version of the CLE comity rule. The BBE advised the court that it had nothing more to recommend regarding the petition.

In their response to the court, the Nonresident Lawyers Division (NRLD) and the State Bar BBE Review committee stated that:

• pure comity follows the lead of most other states;
• CLE requirements of other states are similar enough to Wisconsin’s to adequately keep State Bar members who practice mainly in other states up-to-date on legal developments and protect the public; and
• an unconditional comity rule would encourage neighboring states to adopt unconditional comity rules, which would be to the advantage of resident Wisconsin lawyers who are also licensed in those states.

“CLE comity represents a vast improvement for thousands of nonresident lawyers in the State Bar of Wisconsin,” says NRLD President Donna Jones. “We want to thank the supreme court for approving and the Bar for supporting CLE comity. It will make the reporting process more efficient and effective for our members.”

Justices Abrahamson, Butler, Crooks, and Prosser supported pure comity. Justices Bradley, Roggensack, and Ziegler dissented.

Legal Services Consumer Protection Petition. The court heard testimony during the 4 ½-hour hearing from 15 representatives of the paralegal, banking, accounting, real estate, engineering, and architectural professions, along with a private citizen, in opposition to Petition 07-09, which would define the practice of law.

State Bar President Tom Basting told the court, “The State Bar is not here because we are seeking special treatment for lawyers, but because we are seeking consistency with how the unauthorized practice of other professions is handled in Wisconsin. The object of requiring licenses for professionals is to protect the public from those who would prey upon the weakest in our society.”

Speaking in opposition to the petition on behalf of the Wisconsin Realtors Association, Madison attorney Brady C. Williamson, reminded the court that in 1961 the Wisconsin Supreme Court decided Reynolds v. Dinger, in which it said that some services offered by real estate licensees amount to the practice of law and that such activity is permissible.  Williamson argued that the phrase “unauthorized practice of law” cannot be the hinge for regulation in light of Dinger. “The language in the petition referencing ‘fill in the blanks’ won’t work either,” said Williamson.  “It is a question of what is permitted by the Department of Regulation and Licensing, and most other professions opposing the petition are indeed regulated.”

The justices asked all appearing in opposition to the petition whether their organizations would be willing to write a statement that would be satisfactory as an exemption and submit it to the Bar. All respondents were amenable to this request.

Ann Ustad Smith, Chair of the OLR's Board of Oversight, appeared in opposition to the petition. Smith told the court that costs associated with the petition are likely to be significantly higher than projected and expressed concern about the staffing projections and the underlying rationale of the placing the responsibility of administration in the OLR.

Smith added that since the Board of Oversight would be charged with the responsibility in the State Bar petition, “We would now have a situation where we would have additional duties and we would be looking at nonlawyers … not just lawyers. An oversight board for nonlawyers does exist in several other states, however, the State Bar petition does not look at that option.”

When asked why the Bar did not consider itself as the body overseeing the unauthorized practice of law, Basting responded that the committee did not think that the court would want to relinquish its control over the practice of law. Basting told the court that assigning responsibility to regulate the unauthorized practice of law to a nongovernmental body would not be sound public policy.

Basting said the State Bar would welcome suggested amendments from the professions that appeared before the court in opposition to its petition. He also noted the absence of the Office of the Commissioner of Insurance at the hearing and said that perhaps not all regulated professions have a problem with the petition as written.

In addition to requesting suggested exemption language from groups that oppose the petition, the court requested additional documentation of likely administrative needs and an assessment of organizational alternatives.

Other rulings. The court created a supreme court rule limiting to one term the number of terms a member can serve as State Bar president. The court also adopted the State Bar’s requested changes to Article II, sections 1 - 4, of the State Bar Rules and Bylaws, but denied a request seeking a formalized system requiring the statewide rotation of elections for the office of president-elect.

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