Wisconsin Lawyer: Ethics: New Rules Affect In-House Counsel:

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  • Wisconsin Lawyer
    November
    04
    2008

    Ethics: New Rules Affect In-House Counsel

    Dean R. Dietrich

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    Under recently adopted amendments to SCR 10.03(4), effective Jan. 1, 2009, non-Wisconsin licensed lawyers who are employed by a single entity to provide legal services to their employers must register with the Board of Bar Examiners and meet other requirements.

    Wisconsin LawyerWisconsin Lawyer
    Vol. 81, No. 10, October 2008

    Ethics

    New Rules Affect In-House Counsel

    Under recently adopted amendments to SCR 10.03(4), effective Jan. 1, 2009, non-Wisconsin licensed lawyers who are employed by a single entity to provide legal services to their employers must register with the Board of Bar Examiners and meet other requirements.

    Briefcase by Dean R. Dietrich

    Question

    I am employed by a Wisconsin corporation, but I am not licensed as a lawyer in Wisconsin. Are there new requirements for me to follow in Wisconsin?

    Answer

    There are new requirements for a non-Wisconsin licensed lawyer who is providing legal services to a sole employer in Wisconsin, typically as in-house counsel. The Wisconsin Supreme Court recently adopted amendments to SCR 10.03(4) that apply to a non-Wisconsin licensed lawyer who is employed by a single entity and providing legal services to his or her Wisconsin employer. The requirement is that the lawyer register with the Board of Bar Examiners (BBE) by submitting an application and paying a $250 fee.

    Supreme Court Rule 10.03(4)(f) now provides as follows:

    (f) Counsel not admitted to the practice of law in this jurisdiction but admitted in any other U.S. jurisdiction or foreign jurisdiction, who is employed as a lawyer in Wisconsin on a continuing basis and employed exclusively by a corporation, association, or other nongovernmental entity, the business of which is lawful and consists of activities other than the practice of law or the provision of legal services, shall register as in-house counsel within 60 days after the commencement of employment as a lawyer or if currently so employed then within 90 days of the effective date of this rule, by submitting to the Board of Bar Examiners the following:

    1. A completed application in the form set forth in Appendix B to this rule;

    2. A nonrefundable fee of two hundred and fifty dollars ($250) to the Board of Bar Examiners;

    3. Documents proving admission to practice law in the primary jurisdiction in which counsel is admitted to practice law; and

    4. An affidavit from an officer, director, or general counsel of the employing entity attesting to the lawyer's employment by the entity and the capacity in which the lawyer is so employed.

    Dean 
Dietrich

    Dean R. Dietrich, Marquette 1977, of Ruder Ware, Wausau, is chair of the State Bar Professional Ethics Committee.

    Wisconsin Comment: A registered in-house lawyer is authorized to provide legal services to the entity, client, or its organizational affiliates, including entities that control, are controlled by, or are under the common control with the employer, and for employees, officers and directors of such entities, but only on matters directly related to their work for the entity and only to the extent consistent with SCR 20:1.7. A lawyer registered under this section may provide pro bono legal services to qualified clients of a legal service program. Counsel who provide legal services in this jurisdiction under SCR 20:5.5(d)(1) that desire to appear, either in person, by signing pleadings, or by being designated as counsel in actions filed in courts, administrative agencies, or other tribunals in this state, must file a separate motion for pro hac vice admission.

    Under this rule, a lawyer who is not licensed to practice law in Wisconsin but provides legal services solely to a Wisconsin-based company is to register with the BBE to document his or her engagement in the practice of law in Wisconsin. An important feature of this registration requirement is that the time spent by the lawyer providing legal services for a Wisconsin entity will now count toward the practice requirements for a lawyer to petition and become licensed in Wisconsin based on practice in another state. This was not the case previously. Lawyers therefore may count the time that they are serving as in-house counsel for a Wisconsin entity toward the practice requirement under SCR 40.05(1)(b). With the proper passage of time while engaged as in house counsel, a lawyer may petition to become licensed in Wisconsin.

    The registration process is simple and requires the lawyer to complete a form and document the admission to practice in a primary jurisdiction. An affidavit is submitted with the application attesting to the lawyer's employment by the Wisconsin entity and the capacity in which the lawyer is employed.

    The amendments to SCR 10.03(4) become effective Jan. 1, 2009. As a result, lawyers have until April 1, 2009, to register by submitting the application to the BBE. Lawyers are to file the application with the BBE along with the $250 nonrefundable fee. The State Bar is working with the BBE to ensure that the $250 fee payment will be credited toward an application for Wisconsin licensure if the lawyer qualifies for admission based on practice requirements.