State Bar of Wisconsin

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