Vol. 79, No. 2, February
Letters to the editor:
The Wisconsin Lawyer publishes as many letters in each issue as space
permits. Please limit letters to 500 words; letters may be edited for
length and clarity. Letters should address the issues, and not be a
personal attack on others. Letters endorsing political candidates cannot
be accepted. Please mail letters to " Letters to the Editor," Wisconsin
Lawyer, P.O. Box 7158, Madison, WI 53707-7158, fax them to (608)
Legal Profession Should Better 'Police' Its
Own Before Campaigning Against UPL
The State Bar's renewed crusade against the unauthorized practice of
law (UPL) will probably be a great crowd-pleaser within the
organization. However, many thoughtful outside observers consider such
initiatives to be self-serving efforts to eliminate legitimate
competition. Before pouring precious resources into chasing the UPL
bogeyman, the State Bar should consider how to address a problem that
may be even more damaging to the public: the incompetent practice of law
by licensed attorneys.
For each example of UPL cited in the October article "The
Unauthorized Practice of Law: Court Tells Profession, Show Us the
Harm," there is probably at least one similar example committed by
a member of the bar. Incompetent lawyering is a more dire threat to the
public than UPL, because laymen rely on the attorney licensing process
to ensure basic competence. A citizen who obtains poor legal services
from a nonlawyer probably knew better; however, a citizen who obtains
poor legal services from a licensed attorney will understandably blame
the State Bar for granting a license to an incompetent.
For the 10 years that I have been a member of the State Bar, I have
carefully read the Lawyer Discipline section in the Wisconsin
Lawyer. I have always been astounded at the egregious level of
misconduct that is required before an attorney's license is suspended or
revoked. The failure of the legal profession to adequately police
criminals and incompetents in its own ranks makes it very difficult to
justify the argument that we should have exclusive access to consumers
of legal services.
Before we engage in arguably anticompetitive
behavior by launching a
new campaign against UPL, we should make more determined efforts to
ensure the high quality of our own profession.
Atty. Kenneth Bullock
Response: Mr. Bullock has questioned the motives of
the State Bar regarding its efforts to deal with the issues and problems
for consumers that result from the unauthorized practice of law (UPL).
He also contends that incompetent lawyering by licensed attorneys is a
more serious societal problem and that the State Bar has been lax with
respect to lawyer licensing standards and discipline.
First, the practice of law in Wisconsin is regulated by the
Wisconsin Supreme Court, not by the State Bar. The court is the entity
that establishes and administers attorney licensing standards and
oversees lawyer discipline through the Office of Lawyer Regulation
(OLR). The court, not the State Bar, decides what discipline should be
imposed. As is the case with other professions, the circuit courts
handle legal malpractice claims and provide remedies to persons damaged
by legal malpractice. Further, State Bar members finance the Wisconsin
Lawyers Fund for Client Protection, which reimburses clients who have
suffered financial loss due to the dishonest conduct of their attorneys.
Finally, the OLR statistics recently published in the November
Wisconsin Lawyer reveal that a small percentage of licensed
lawyers are the subject of complaints. (See "Regulating
the Profession: OLR Annual Report, Fiscal 2005," November 2005.)
The State Bar has nothing to be ashamed of in this regard.
Second, the State Bar has no authority to deal with UPL. The State
Bar, after several years of study, has determined that UPL is a
significant societal problem that causes harm to consumers. The State
Bar will have to convince the Wisconsin Supreme Court that controlling
UPL through the exercise of the court's exclusive authority to regulate
the practice of law is in the public interest. The State Bar's efforts
to deal with UPL present an easy target for those who are cynical about
the State Bar's motives, but Mr. Bullock's remarks reflect a
misunderstanding by the public and even by some attorneys about the
regulation of the practice of law in Wisconsin.
Atty. Thomas D. Zilavy, State Bar UPL Policy Committee
Why Discipline a Deceased
The December Wisconsin Lawyer publicly disciplined a named
individual with full knowledge that he had previously passed away. What
was your reasoning? Your purposes could easily have been accomplished
anonymously, with sensitivity and respect for the dead. Just another
example of high-handedness and questionable judgment on the part of a
compulsory "membership" organization. It would be nice to
suspend your license to send junk mail for six months, but, at a
minimum, you owe this individual's survivors an apology.
Atty. Steven R. Schilke
Response: The State Bar and the Office of Lawyer
Regulation extend their sympathies to the lawyer's family. In Wisconsin,
the Supreme Court Rules that regulate the practice of law require
publication in the Wisconsin Lawyer of all dispositions of
public disciplinary proceedings, which summarize the supreme court
discipline cases that are published in the Wisconsin Reports.
George C. Brown, State Bar executive director
Atty. Keith L. Sellen, Office of Lawyer Regulation director
Applicability of International Law in
Domestic Courts Analysis is Dead On
Mr. Brauch's analysis of the applicability of international law in
domestic courts in "What Every Lawyer Should Know About
International Law" (December 2005) is dead on. I have used the same
arguments in state and federal court for 10 years as have many others
for at least 25 years. The theory is unassailable and well-settled.
Alas, the judiciary has, with a few rare and brave exceptions, failed to
recognize that any of Mr. Brauch's arguments are relevant. (See
State v. Ostensen, Ct. App., U.S. v. Komisaruk, 9th
Circuit, and U.S. v. Sprong and Urfer, 7th Circuit.) I
respectfully suggest that Mr. Brauch conduct a judicial education
seminar on the topic in his article. Perhaps then his theories will have
some practical impact.
Atty. John C. Bachman
Eau Claire, Wis.