Board supports petitions: defining practice of law, earning
on-demand CLE, comity for nonresidents, and more
At its Dec. 8 meeting, the Board of Governors
supported petitions that concern defining the practice of law, earning
on-demand CLE credits, comity for nonresidents, and nonresident member
board representation, among other actions.
Unauthorized Practice of Law (UPL). The board
approved the UPL Policy Committee’s proposed
changes to SCR Chapter 23, Regulation of the Unauthorized Practice of
Law. The new rule defines the practice of law and places the
investigation of and enforcement to prohibit UPL with the Office of
Lawyer Regulation (OLR).
“The committee gathered complaints from lawyers
around the state as to particular instances of UPL where it has been
harmful to the public, which was one of the issues the supreme court
raised when it rejected the petition submitted in 2002,”
President-elect and UPL Policy Committee member Tom Basting told the
board.
According to committee chair Tom Zilavy, when the
court rejected the petition it did not turn down the idea of creating a
rule defining the practice of law. “The court asked the State Bar
to draft a rule in preference to the court creating a commission as
proposed in the 2002 petition,” he said, noting that the committee
worked with the OLR on its recommendations.
Read the committee’s full
report. The committee will prepare and submit a petition to the supreme
court for approval.
On-demand CLE credits.
The board unanimously supported amendments to a Board of Bar Examiners
(BBE) petition regarding “on-demand” continuing legal
education programs. The petition expands the nature of CLE to allow
limited CLE credits for on-demand CLE programs and to grant ethics and
professional responsibility (EPR) credits for concentrated work on OLR
district committees as special investigators.
On-demand programs are rebroadcasts of live or
real-time programs that can be viewed online at any time. Under the
current rules, CLE credit is allowed for a video seminar only if the
program is accompanied by a “live” question-and-answer
session. Credits earned through on-demand programs will be limited to
one-third of a lawyer’s CLE requirement, will not be allowed for
EPR credit, and will be accepted only for active status
members.
On Dec. 11 the supreme court approved this
petition.
CLE comity. The board
unanimously approved in concept the idea of petitioning the supreme
court to adopt a comity rule regarding CLE reporting by nonresident Bar
members. The board also directed the State Bar BBE Review Committee,
which initiated the request, to continue negotiating with the BBE as to
the proposed rule’s specific language.
The rule would allow nonresident members to comply
with Wisconsin’s CLE requirements by certifying that they have
complied with the CLE requirements of the state in which they practice.
The committee will prepare a petition for the supreme court, which it
will bring to the board for approval before submittal.
Nonresident representation. The board approved a
Nonresident Lawyers Division (NRLD)
request to petition the supreme court to amend SCR 10.05 to increase the
representation of nonresident lawyers on the Board of Governors from
three to five. The NRLD requested the increase to more accurately
represent the division, which comprises 23 percent of active State Bar
members. The board opposed, 26 - 19, a NRLD request to petition the
supreme court to amend SCR 10.04 to allow nonresident members to serve
as State Bar officers.
Alternative dispute resolution (ADR) binding
agreements. After a lengthy discussion, the
board took no position on a petition relating to settlements reached
through ADR. The board unanimously supported authorizing
interested sections to appear before the supreme court on this
matter.
The petition, first filed with the supreme court in
February 2005 by Donald L. Bach, vice chair of the Judicial Commission,
requests the creation of a new rule, which states that if an agreement
is not in writing or made under specific conditions that document the
agreement in court, then it is not binding.
The ADR section, which opposes the rule, believes the
proposed language affects all mediations, not just those legal
proceedings covered by Wis. Stat. section 807.05, thus importing into
mediation the formalities of litigation practice that likely would do
little good but much harm.
The Family Law Section also opposes the petition. The
Litigation Section supports it with one modification, which would allow
attorneys to sign agreements on behalf of their clients.
On Dec. 11, the supreme court decided in principle to
address this petition by inserting a comment to existing statutes. The
court will circulate draft language for the comment before taking up the
matter at a future conference for a final decision.
Other actions. The board
unanimously supported a resolution recognizing the Legal Aid Society of
Milwaukee on its 90th anniversary.
The minutes will be posted on WisBar after approval at
the March 9 meeting.
