State Bar of Wisconsin

Inside the Bar
May 2008

Supreme court moves on multijurisdictional practice and gives bar nod to further study unauthorized practice of law petition, among other actions

The Wisconsin Supreme Court ruled on several petitions in March and April.

Multijurisdictional practice (Petition 06-06).  The court tentatively adopted a number of amendments to SCR 20:5.5, recommended in State Bar Petition 06-06, pertaining to the occasional practice of law in Wisconsin by lawyers who are not licensed to practice here but are licensed in another state. The justices focused on issues concerning nonresident military lawyers, a registration form for pro hac vice admission, waivers of fees for lawyers who represent indigent persons and provide pro bono services, pro hac vice status in administrative agencies, and the definition of judges who may authorize pro hac vice.

The court reached consensus on the following pro hac vice issues:

• Definition of judges. The rule will clearly define which judges can grant pro hac vice status: either circuit and appellate court judges only or those categories plus municipal court judges, court commissioners, and reserve judges.
• Nonresident military counsel. The justices agreed that military lawyers may represent military personnel without requiring association with an active State Bar member. Although identical treatment of military lawyers by different states would be desirable, the court noted that currently there is no standard rule in other states. Several states include representation of low-income military personnel or dependents of military personnel. The court will also have to clarify whether military personnel includes reserve and retired status.
• Administrative agencies. The court accepted the Bar’s proposal to allow administrative law judges and hearing examiners to admit attorneys pro hac vice in the same manner as a court with no requirement that the applicant must associate with an active State Bar member.
• Application form. The court adopted a short application form that attorneys may use to request pro hac vice status. Use of the form will provide consistency statewide in the circuit and appellate courts. The court supported language that would require disclosure and documentation of any current complaints filed against an attorney for violation of rules of the states where he or she is admitted to practice. The attorney would be allowed to attach an explanation.
• Pro bono exemption. Fees will be waived for lawyers who are providing pro bono representation or are associated or employed with pro bono projects or nonprofit legal services organizations in civil or criminal cases.
• Pro hac vice fee. The court will require attorneys to pay a per case $50 fee to the Office of Lawyer Regulation (OLR) for each pro hac vice admission.

The court also supported a recommendation that in-house counsel attorneys must register and pay a fee for registration as an attorney practicing in the state. The attorney could, after a certain number of years, apply for reciprocity for admission, which would be accomplished according to BBE rule.

This is the third administrative conference the court has held on this petition this year. Read in-depth coverage of the Jan. 9 and Feb. 22 conferences. The changes presented in these proposed amendments coincide for the most part with the proposed changes to Model Rule 5.5 and Model Rule 8.5 to address the issues of lawyers temporarily providing legal services on behalf of a client in a jurisdiction where the lawyer is not licensed to practice.

The proposed changes to the pro hac vice rule are designed to reflect procedures for pro hac vice admission that have been recommended by the ABA to all states.

Legal Services Consumer Protection Petition. The court unanimously supported a State Bar request to grant the bar more time to analyze two proposals currently before the court that resulted from a March 14 administrative conference on State Bar Petition 07-09. The petition calls for a rule defining the practice of law and the creation or designation of an agency to administer the rule.

The State Bar’s goal is to establish an effective method for protecting the public against the unauthorized practice of law. The State Bar would like an opportunity to carefully examine and analyze the proposed modifications, resulting from the March 14 conference, to ensure that its original intent, to protect the consumer can still be served with the proposed exemptions in place. The State Bar will analyze the current proposal and submit a brief report to the court.
State Bar representatives have reviewed the two drafts, and many of the proposed modifications are acceptable. The State Bar’s main concerns pertain to the scope of some of the proposed exemptions from the application of the rule to the authority of the administrator of the rule and that perpetrators may be subject to regulation and discipline by some other governmental agencies or bodies.

Paralegal licensure. The court unanimously denied State Bar Petition 04-03 to establish a system for licensure and regulation of paralegals in Wisconsin. The court will encourage the Bar to work with other interested groups to consider creating a voluntary certification program using programs currently used in other states as models. Even though the court denied the petition, the justices emphasized that they recognize the valuable service provided by paralegals.

Acknowledging the State Bar’s efforts Chief Justice Shirley Abrahamson said, “This has been a long labor, the State Bar task force was made up of many members and worked for about seven years.” Abrahamson noted the objectives of the paralegal petition were to recognize the important role paralegals can and do play in the daily practice of law and to set standards that would include requirements for continuing education credits and maintain ethical standards.

“Although there was discussion at various times as to whether the paralegal could have self contained entities not connected with a lawyer’s supervision, the ultimate decision of the task force was that paralegals would work under licensed lawyers,” said Abrahamson. “It was not clear in the State Bar’s petition what board or entity would regulate the fulfillment of the standards and the ethical requirements.”

Justice Crooks noted that, “No other state has adopted a program similar to what is proposed here. A number of states have adopted a voluntary certification program. I believe those states are Delaware, Florida, Louisiana, New Mexico, North Carolina, Ohio, and Texas. It is my understanding that Florida has a voluntary certification program that went into effect recently and is tied into the State Bar of Florida. That seems to be a solution that would meet the needs of the paralegals.

“It is my understanding that there is an inclusion in the State Bar petition to define the practice of law, that would exclude paralegals from any allegation of the unauthorized practice of law as long as they were working under the supervision of a lawyer. I would like the court to invite a petition that would set up a voluntary system such as the one in Florida.”
The court noted that the task force modeled its proposal on the Attorneys’ Rule of Professional Conduct, which have seen significant changes since the petition was submitted. The court also noted that budget and the cost of a regulatory agency is an issue with State Bar Petition 07-09, Defining the Practice of Law, which is currently before the court. The same budget issue exists with the paralegal petition.

The court has received comments from interested parties, including the Revisor of Statutes, paralegal groups, the new Florida Registered Paralegal Program, the ABA Model Guidelines for Utilization of Paralegal Services, and various persons.

History. On Feb. 13, 2004, the State Bar filed Petition 04-03. A public hearing was conducted on Oct. 27, 2004, and numerous persons testified. At the ensuing open administrative conference the court took the matter under advisement pending determination of certain issues, including ramifications of State Bar Legal Services Consumer Protection Petition 07-09, which proposed a rule that defines the practice of law and asked the court to create a system to administer the rule. The Wisconsin Supreme Court held an administrative conference on 07-09 on March 14, 2008 and will address the petition again on April 24, 2008.

Videoconferencing in the courts.  The court adopted in principle a statute governing the use of videoconferencing in the courts, as requested in Petition 07-12.

The court studied a redraft of the proposed rule, which was modified after a Jan. 8 administrative conference. The court still had some concerns and will continue its work on the proposed rule. Some of the substantive changes addressed the court’s concern that the proposed rule protect a defendant’s right to a speedy trial in criminal cases. The court agreed that the defendant has the right to oppose the use of videoconference. The court also discussed victims’ rights with regard to the discretion of a court to allow or disallow videoconferencing, and the justices agreed that videoconferencing is appropriate in circuit courts but not appellate courts.

The proposed rule provides legal guidance to the courts on the appropriate and effective use of videoconferencing to maximize the use of videoconferencing within the court system while maintaining the integrity of the judicial branch and the constitutional rights of all litigants.

The petition, submitted by A. John Voelker, Director of State Courts, on behalf of the Planning and Policy Advisory Committee (PPAC), is supported by the State Bar.

Read in-depth coverage of the Jan. 8 public hearing and the first administrative conference.

[On May 1, the court issued its final order, effective July 1, 2008. The order will be published in the June Wisconsin Lawyer.]

Management of Jurors in Circuit Courts. The court continued its discussion of Rules Petition 08-01: In the matter of the Amendment of Rules of Pleading, Practice and Procedure: Wis. Stat. ch. 756, Juries.

At an April 7 administrative hearing the court tentatively agreed to use Social Security numbers as unique identifiers for jury lists, as requested in the petition. Since that hearing, the court has learned that the state Department of Transportation (DOT) does not include Social Security numbers with the information it provides the court and does not necessarily choose to share Social Security numbers. The court will continue to work with the DOT to determine the appropriate unique identifier for juror arrays.

The court unanimously agreed to place a three-year sunset provision on any ruling it might make, at which time a determination will be made if the changes have achieved the goals of increasing participation by minority groups and decreasing undeliverable returns in jury arrays.

Current juror arrays are selected from a list provided by the DOT. The petition seeks to expand the juror selection list to include lists of registered voters, tax filers, child support payors and payees, unemployment compensation recipients, and state residents who have licenses with the Department of Natural Resources. Inclusion of these lists would create the largest potential jury array possible with the most current addresses.

The petition was filed by A. John Voelker, Director of State Courts, on behalf of the Committee of Chief Judges and the Chief Judge Subcommittee on Juror Treatment and Selection. Read in-depth coverage of the April 7 public hearing and administrative conference.

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