Feb. 23, 2010 – The Internet is proving to be fertile ground for non-attorneys apparently engaged in the unauthorized practice of law, members of the State Bar of Wisconsin are saying.

Over the last several months, State Bar members have been submitting examples of various Internet postings and websites, in which non-attorneys seek to peddle legal services to the public.

One Wisconsin attorney has reported that twice in recent months a non-attorney in the Fox Valley has advertised his services on Craigslist, most recently offering to “represent landlords or plaintiffs in small claims court actions. Experienced and reasonable.”

The individual who placed this listing followed it up later with the following: “We will represent your plaintiff in small claims court, conflict resolution, and trial dates. We will also negotiate with defendants per your wishes. You bill at your set rate, provide us with an affiant of service, court date, and any relevant information and make a referral to us. Our fee is $50.00 per diem. That rate will not increase in 2010. We provide consultation, with you (no charge) any and all appearances and written/oral feedback following each appearance.”

Unfortunately, because Wisconsin Supreme Court rules currently lack both a workable definition of the practice of law and an effective enforcement mechanism, it is unlikely anything can be done about this and other possible instances of UPL in Wisconsin – unless and until the Wisconsin Supreme Court adopts the State Bar of Wisconsin’s 2007 petition regarding the unauthorized practice of law.

The Supreme Court has ordered a public hearing and open administrative conference on the petition at 9:45 a.m. on Monday, March 8, 2010, in the Supreme Court’s hearing room in the Capitol. It is the second public hearing and third administrative conference to be held on the petition in the two and a half years since the State Bar filed the petition with the court.

A series of weekly articles being published on Wisbar.org in January and February is detailing recent examples of UPL in Wisconsin and giving State Bar members the opportunity to contact the Wisconsin Supreme Court directly and voice their support for the State Bar’s UPL petition. It is imperative that State Bar members communicate to the court their concern about the adverse impact of UPL on the public - today.

“Why hire an attorney to do a paralegal’s job?”

The website for an independent paralegal in Wisconsin asks, “Why hire an attorney to do a paralegal’s job?”

This paralegal’s website continues: “We provide low cost legal documents such as Wisconsin wills, powers of attorney for financial matters, healthcare matters, living wills, business contracts, leases, and many other documents that do not require legal advice from an attorney. Why use an attorney to do a paralegal's job? Eliminate the high cost of attorney fees for your legal documents!” [emphasis added]

Further examination of the website reveals the paralegal claims to specialize in “estate planning products, patent, trademark and copyright research and filings” including “wills, power of attorney documents, living wills, advanced directives.”

Under a frequently asked questions section, this paralegal offers brief answers to questions such as: “I’m not married, do I still need a will?” “I want to make sure my children are cared for by someone I choose. Can a will do that for me?” “What is a financial power of attorney?  Do I really need one if all my assets are jointly owned?”

While the operator of the website claims to provide legal document preparation without the provision of legal advice, it appears the services offered may go beyond the mere selection and completion of forms. (The State Bar’s petition has an exception for filling in blanks on statutory or other forms; however, the petition specifically includes as the practice of law the “Selection, drafting, or completion for another entity or person of legal documents or agreements which affect the legal rights” of other persons or entities.)

Similar to an online divorce service profiled in this earlier article, the website states prominently on its front page, “Simply click on the Get Started button and it will take you to the estate planning questionnaire!”

Clicking on the button takes one to a questionnaire of more than 20 questions regarding estate planning, which, according to the website, provide “the information basis for your legal documents and I will get started on them immediately.”

While paralegals are an indispensible part of Wisconsin’s justice system and perform essential services, the way this business seems to be structured possibly creates yet another example of the unauthorized practice of law and underscores both the legitimate role paralegals serve in our legal system and the importance of establishing a clear, rule-based definition of what constitutes the “practice of law” in Wisconsin and a mechanism to enforce that definition. The State Bar’s petition provides exceptions for non-lawyer advocates and assistants working under the supervision of an attorney.

In April 2008, the Wisconsin Supreme Court denied a petition filed by the State Bar in 2004 to create a system of regulation and licensure for paralegals.

LegalZoom sued in Missouri for UPL

In December 2009, a lawsuit was filed against LegalZoom.com, Inc. in Cole County, Missouri, alleging the company was engaged in the unauthorized practice of law and seeking to certify a class action against the company.

According to the complaint, LegalZoom has been investigated by the North Carolina State Bar (a state agency) regarding complaints that it was engaged in UPL. In May 2008, the North Carolina State Bar’s Unauthorized Practice Committee summarized the charges and LegalZoom’s business model as follows:

“Among the documents LegalZoom prepares or offers to prepare are articles of incorporation, wills, trusts, divorce pleadings, and deeds. LegalZoom represents that it prepares the articles of incorporation and ‘customized bylaws and resolutions’ for its business formation customers. The legal documents are prepared through LegalZoom’s website where, once the customer purchases the service, the customer is presented a questionnaire that the customer completes online. LegalZoom transcribes the responses onto a form template that LegalZoom has determined appropriate for the customer’s legal document and in a form or manner determined by LegalZoom or through software developed by or on behalf of LegalZoom. The customer is presented with a finished document that is represented to be legally sufficient for the customer’s needs without review or edit and has not been approved by an attorney.”

LegalZoom subsequently filed a notice of removal on February 5, 2010 seeking to remove the case to federal court under the Class Action Fairness Act (CAFA), 28 USC 1332(d) and 28 USC 1453. (Under CAFA, a district court has original jurisdiction over a class action with at least 100 plaintiffs, an amount in controversy over $5,000,000, and with minimal diversity between the defendant and at least one plaintiff.)

In its removal notice, LegalZoom denied any wrongful conduct and said it will “file at an appropriate time a dispositive motion showing that they are entitled to judgment as a matter of law.”

State Bar UPL petition would protect consumers

In Wisconsin, the State Bar’s initiative, called the Legal Services Consumer Protection Act, responds to a directive issued by the court in 2004 asking the State Bar to document the consumer impact of unqualified individuals practicing law and to recommend changes. Wisconsin residents seeking legal services will gain additional consumer safeguards against businesses engaged in UPL if the court approves the petition.

The State Bar’s petition asks the court, which has exclusive jurisdiction over the practice of law in the state, to take two actions: 1) Adopt a new rule to clearly define what constitutes the “practice of law” for consumer protection purposes; and, 2) Create an administrative system to enforce the new rule.

The court previously held a public hearing and open administrative conference on the petition in December 2007, as well as two additional open conferences in March and October of 2008. The court deferred the petition last session without acting to approve it.

The original State Bar petition offers dozens of examples of instances where Wisconsin consumers have been hurt when people without proper training or oversight attempt to practice law. In 2008, based on feedback from other interested parties, the State Bar filed an amended version of the petition and supporting comments.

In December, the State Bar’s Board of Governors unanimously approved a resolution urging the court to adopt the State Bar’s petition in order to protect the public from harm by those who engage in the unauthorized practice of law.

In addition, the State Bar’s UPL Policy Committee published a strongly-worded editorial in the October 2009 issue of Wisconsin Lawyer urging the court to approve the petition. State Bar President Doug Kammer reappointed the committee in July and added several new members, including former Supreme Court Justice Jon Wilcox, who  issued a call last year for State Bar members to write to the court and urge justices to support the State Bar’s petition.

Retired Justice Wilcox on the unauthorized practice of law: 'Let the court know your concerns'

• Learn more about the State Bar’s petition and the UPL Policy Committee
• History of the State Bar's UPL petition

Related articles:

Consumer debt a rich opportunity for possible UPL operations in Wisconsin - February 19, 2010
Local governments around Wisconsin targeted by possible UPL operations  - Feb. 10, 2010
Despite notario law, UPL operations targeting immigrants persist in Wisconsin - February 1, 2010
Divorce makes easy target for UPL operators, Wisconsin-based website proves - January 25, 2010
Business guilty of UPL in Ohio now soliciting clients in Wisconsin with impunity - Jan. 20, 2010
Case of independent paralegal raises UPL questions - Jan. 13, 2010
Supreme Court must approve UPL petition to protect public, State Bar members say - Jan. 6, 2010
Board of Governors calls on Supreme Court to approve UPL petition - December 4, 2009
Retired Justice Wilcox on the unauthorized practice of law: 'Let the court know your concerns' – Inside Track, Dec. 2, 2009
Only Lawyers Need a License to Practice Law in Wisconsin – Wisconsin Lawyer, October 2009
Legal Services Consumer Protection Act, State Bar president statement – June 19, 2007
The Unauthorized Practice of Law: Court Tells Profession, Show Us the Harm – Wisconsin Lawyer, October 2005

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