State Bar of Wisconsin

Supreme court ponders rule to permit foreign lawyers limited practice in Wisconsin

Feb. 11, 2009 – On Feb. 9, the Wisconsin Supreme Court took public comment and then debated the merits of a proposed rule opening the door to foreign lawyers to the limited practice of law in the state.

Proposal 8-08 would permit a foreign lawyer to offer advice on international law in Wisconsin as a “registered legal consultant.” James Huston, vice-chair of the Board of Bar Examiners, spoke on behalf of this rule change sponsored by his organization. Huston said there is a great need in the modern global economy for these services among Wisconsin businesses expanding into overseas markets and immigrants seeking counsel on legal issues arising in their countries of origin.

Justices identified areas of concern and directed the BBE to rework the draft rule. Among the issues to resolve:

• Justice N. Patrick Crooks said that it gave him pause that the State Bar’s Board of Governors unanimously opposed this petition. The governors were concerned that the rule 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. Huston said these concerns were “purely speculative” because no state with this type of law has reported such problems.
  
• The State Bar also questioned whether the rules prohibiting registered consultants from practicing domestic American law could be enforced in a timely and effective manner. State Bar governors worried that the mechanics of supervision under the proposed rule were unclear given that consultants would not practice law and accordingly would not have a license to revoke. Huston said that legal consultants would be disciplined no differently than a regularly licensed Wisconsin attorney. However, Huston told Justice David T. Prosser that a consultant is only an “adjunct of the bar” rather than a full member. Chief Justice Shirley S. Abrahamson recommended that the rule better explain the nature of that relationship and what rights a consultant could exercise within the bar organization.
  
• Looking to a similar rule from Minnesota, the justices considered whether the Wisconsin version should incorporate some of the requirements imposed on legal consultants in Minnesota. Among these stipulations, a legal consultant in Minnesota must show proof of liability insurance. Abrahamson noted that no Wisconsin lawyer needs to prove insurance coverage. The court called for further research into whether Minnesota requires proof of insurance from all of its lawyers or just of legal consultants. 
  
• Justice Patience D. Roggensack questioned how the rule would ensure the quality of some countries’ legal education. Huston said that the BBE intends to rely upon letters of recommendation and certificates from the home country. He also said that the rule grants the BBE to use discretion to disqualify suspicious applications. Abrahamson questioned whether the BBE presently has the resources to adequately investigate foreign applicants. Huston acknowledged that investigation of an applicant’s education and even a criminal background check could be challenging in countries with unreliable record keeping. On the related matter of criminal background checks, Huston said the BBE can look to FBI and immigration checks for the period of time that an applicant is in the United States,. But inquiries into applicants’ histories in their home countries could be less straightforward, he said.
  
• The rule forbids a legal consultant from practicing American law, but Prosser pointed out that the rule does not restrict a consultant to advising just on the law of his home country. Rebutting concern that a legal consultant could improperly stray into other areas of international law, Huston said the consultant is bound by Wisconsin’s ethical rules concerning competent representation. Abrahamson noted that the Minnesota rule explicitly restricts consultants to their home countries’ law, but she said allowance should be made for instances such as European lawyers who are admitted into the courts of all European Union member states.
  
• An applicant must demonstrate sufficient years of practice in the foreign country to be able to assert some familiarity with that law, the court reasoned. Accordingly, the court voted to require an applicant to possess five years of legal experience, turning away efforts to drop the requirement to three years. An age requirement of 26 imposed on applicants was sent for further study.

By Alex De Grand, Legal Writer, State Bar of Wisconsin