Vol. 84, No. 9, September 2011
As an association of lawyers, the State Bar of Wisconsin strives to uphold the nobility and respect of the legal profession against diverse challenges. One such challenge is the unauthorized practice of law (UPL), like the activities of notarios who misrepresent themselves as attorneys to members of the low-income Spanish-speaking immigrant community.
Although the State Bar, the Wisconsin Supreme Court, and the Wisconsin Legislature have addressed UPL in the past 10 years, it remains a serious threat to the public and the profession and continues to be a matter of great concern to lawyers.
In July 2010, the supreme court granted the State Bar’s petition (Petition 10-09) to define the practice of law (earlier efforts to curb UPL had stalled for years due to the lack of working definitions). Previously, it seemed that only lawyers who continued to practice with suspended licenses merited criminal prosecution while a growing number of nonlawyers worked undeterred by civil liability or regulatory enforcement. Then, in 2010, the supreme court exercised its inherent authority to define and regulate the practice of law in Wisconsin and adopted rules intended to protect the public from potential harm caused by nonlawyers engaging in UPL. The court, however, declined to establish enforcement authority or declare remedies to police UPL.
Protecting people victimized by UPL is left to lawyers, prosecutors, and civil litigators. The likely context for the court’s next pronouncements on UPL is a case currently under appeal in which the petitioners seek relief from the effects of UPL, not a petition for rule-making. Attorneys at Quarles & Brady are providing pro bono representation to the petitioners. I call on Wisconsin lawyers to undertake this special type of pro bono, to establish case law that protects consumers and defends the profession from unauthorized practice.
I appeared at the March 2010 public hearing on Petition 10-09 to offer a consumer perspective on the harm caused to immigrants by notarios. Public interest lawyers, like those at Catholic Charities, provide thousands of free consultations each year to immigrants. My 10-years’ experience with these consultations has yielded insights into the obstacles and barriers facing immigrants, particularly as it pertains to UPL. The combination of the complexity of immigration law, a small immigration bar, and a large community of unsophisticated immigrants creates a market ripe for exploitation by nonlawyers. A compounding factor is that most Spanish-speaking immigrants come from civil-law jurisdictions, in which all notaries (“notarios”) are specially qualified and highly skilled attorneys. Immigrants expect notarios to handle their most important legal matters, unaware that in Wisconsin a notary public need not be a lawyer but only an eighth-grade graduate without a felony conviction. Moreover, notarios operate without formal ethical and competency standards, regulatory oversight, and malpractice insurance in a caveat emptor environment, thus endangering trust and confidence in lawyers and the justice system for an entire generation of immigrants.
When notarios make mistakes, the consequences may be disastrous for immigrants and their families, often separating parent and child. In one recent consultation, two brothers said that they went to a notario for help filing applications to become permanent residents through a petition filed by their sister, a U.S. citizen. The notario erroneously filed applications as though each brother was married to a citizen and therefore immediately eligible to immigrate. Immigration authorities put each brother into removal (deportation) proceedings. For one brother, there was no immigration remedy for the notario’s malpractice. His four children, all U.S. citizens, and his wife, a lawful permanent resident, will lose their working father and husband. The harsh effects on families are compounded by impediments to justice after a person’s physical removal from the country. This sad story is not atypical.
SCR chapter 23, regulating UPL, took effect Jan. 1, 2011, and applies to many nonlawyers. Many nonlawyer activities, in addition to the notario business, threaten the profession and the public alike. For the foreseeable future, however, enforcement of UPL is left to private litigants and public prosecutors. In the meantime, the State Bar will work through its committees and sections to create the litigation tools and training needed for this special type of public service. Wisconsin pro bono lawyers, like those at Quarles and Brady in Milwaukee, have already begun the litigation process of making case law protecting consumers from notario abuse. Regardless of the outcome of litigation efforts, every lawyer must take appropriate action when UPL takes place for the sake of both the public and the profession.
For more information about the State Bar’s efforts in the fight against the unauthorized practice of law, please visit www.wisbar.org/upl.