Vol. 82, No. 10, October 2009
The State Bar of Wisconsin finds itself at a crossroads concerning the issue of the unauthorized practice of law (UPL). Despite all its best efforts to advance a petition that, in our view, would strengthen enforcement of UPL rules in Wisconsin, the State Bar has been placed in a veritable holding pattern without any indication or assurance from the Wisconsin Supreme Court that it will render a decision on the State Bar’s petition in the foreseeable future. The UPL Policy Committee is disturbed by the court’s inaction and therefore strongly feels that the entire State Bar membership should be made aware of the situation that the Bar currently faces.
The unauthorized practice of law is very much alive in Wisconsin due to the absence of a workable definition of what constitutes the practice of law and an effective enforcement mechanism. For more than two decades, the State Bar has received complaints from Bar members and consumers alike regarding observed instances of UPL involving real harm to consumers. The State Bar has never had the power or the authority to deal with UPL. It has monitored the evolution of UPL through certain committees and has lent a sympathetic ear to complainants. On occasion, complaints have been forwarded to district attorneys in the hope that they would prosecute under Wis. Stat. section 757.30, but prosecutions are extremely rare.
The State Bar petition currently before the Wisconsin Supreme Court was carefully thought out and developed by Bar members who have devoted years of study and countless hours of committee work to this problem. This is actually the second petition that the State Bar has filed with the court. In 2002 the Bar petitioned the court to appoint a commission to study the UPL problem and draft a court rule modeled after an approach that proved successful in Washington state. However, the court rejected our proposal for the creation of a commission and instructed the State Bar to develop its own plan for dealing with UPL and to be prepared to demonstrate that UPL is causing harm to consumers. The court encouraged the State Bar to file another petition once this was accomplished. In June 2007, the State Bar filed the petition that is currently before the court.1
The State Bar has faithfully and dutifully complied with the court’s instructions every step of the way. Before filing the current petition, the UPL committee meticulously analyzed the various approaches adopted by other states and concluded that the best system for Wisconsin would be one in which a rule defining the practice of law would be created and enforced by an office that would be responsible for investigating complaints and, when appropriate, proceeding against violators of the rule using civil law mechanisms, including cease and desist orders, injunctive relief, and civil contempt proceedings. The State Bar also created a form for reporting UPL practices and encouraged its members to provide examples of UPL practices observed by them or their clients that caused actual harm to the consumer. This information was appended to the current petition and, in our view, sufficiently justifies the need for court action in this regard.
In addition, the committee anticipated that other professionals and service providers would react negatively to the State Bar’s petition. Before filing the petition, the State Bar reached out to these groups in an attempt to discuss their concerns. We painstakingly reviewed the multitude of activities that were excepted and exempted by other states and settled on a list of activities that we felt were historically accepted as beneficial or of unique value to the public, posed a low risk of harm to consumers, and yet still provided some avenue of accountability and redress for consumers. Even after the filing of the petition, we continued to be receptive to other points of view made during administrative and public hearings and proffered an amendment to our proposed rule to placate some of these concerns. In our view, the State Bar has been more than fair and reasonable.
Wisconsin is sorely lagging behind the majority of states that have acted aggressively to deal with UPL by adopting court rules or statutes that define the practice of law and provide some remedy or vehicle for dealing with UPL. These states recognize the potential consumer harm that can result from the activities of nonlawyers who lack legal training and expertise.2 The licensure of lawyers is primarily intended to protect consumers by promoting confidence that lawyers possess a minimum level of fitness and competence before being admitted to practice. Lawyers are required to remain current in the law through continuing legal education. If a lawyer commits a negligent or dishonest act, there are remedies in place for consumers to seek accountability and recompense. Consumers who are aggrieved by nonlawyers engaging in legal practice rarely have such luck. Despite what detractors may say, UPL enforcement is about protecting the consumer.
Despite several public and administrative hearings on the State Bar’s petition, the petition still languishes with the supreme court. It is not clear if and when the court will act. The court’s apparent reticence to deal with the UPL problem to protect consumers is troubling.3If the court’s regulation of the practice of law is intended to protect society from the harm that can result from the activities of unlicensed practitioners, we do not understand why the court is so reluctant about adopting a rule regulating what people who are not licensed as attorneys do when they engage in the practice of law. Other state bar associations that have proposed similar initiatives have received the credence of and serious attention from their state supreme courts and legislatures. The State Bar of Wisconsin’s efforts to address the problem of unregulated UPL deserve the same respect and attention from the Wisconsin Supreme Court.4