Sign In
    Wisconsin Lawyer
    October 01, 2003

    Supreme Court Orders

    On Nov. 18, the Wisconsin Supreme Court will hold a public hearing on the State Bar's petition regarding the unauthorized practice of law.

    Wisconsin Lawyer
    Vol. 76, No. 10, October 2003

    Supreme Court Orders


    On Nov. 18, the Wisconsin Supreme Court will hold a public hearing on the State Bar's petition regarding the unauthorized practice of law.

    Unauthorized Practice of Law

    In the matter of the definition of the Practice of Law and the Unauthorized Practice of Law, Appointment of Committee to promulgate rules, and establishment of a regulatory system.

    Order 03-05

    On April 23, 2003, the Board of Governors of the State Bar of Wisconsin filed a petition requesting the court appoint a committee to submit specific recommendations for the adoption of Supreme Court Rules defining the practice of law and unauthorized practice of law and the establishment of a comprehensive system to administer the guidance and regulation of lay persons engaged in limited practice of law.

    IT IS ORDERED that a public hearing on the petition shall be held in the Supreme Court Room in the State Capitol, Madison, Wis., on Tuesday, Nov. 18, 2003, at 9 a.m.

    IT IS FURTHER ORDERED that the court's conference in the matter shall be held promptly following the public hearing.

    IT IS FURTHER ORDERED that notice of the hearing be given by a single publication of a copy of this order and of the petition in the official state newspaper and in an official publication of the State Bar of Wisconsin not more than 60 days nor less than 30 days before the date of the hearing.

    Dated at Madison, Wis., this 30th day of June, 2003.

    By the court:

    Cornelia G. Clark, Clerk of Supreme Court

    Petition

    To: The Honorable Justices of the Wisconsin Supreme Court:

    The Board of Governors of the State Bar of Wisconsin by Patricia K. Ballman, President of the State Bar of Wisconsin, petitions this Honorable Court to appoint a committee consisting of members of the judiciary, lawyers, and nonlawyers to make specific recommendations for adoption of Supreme Court Rules on the following matters of serious concern to the bar and to the public.

    A. The court should adopt a Supreme Court Rule defining the practice of law and the unauthorized practice of law with clarity and specificity so as to provide better guidance to the public and to the courts than is now available.

    B. The court should consider certain limited exceptions to the definition of the practice of law to guide and regulate the numerous businesses and professions that give legal advice and assistance as part of the services they offer to the public for compensation.

    C. The court should consider certain limited exceptions to the definition of the practice of law to guide and regulate nonlawyers employed by agencies assisting persons of limited means when those employees provide legal advice and assistance to the agencies' clientele.

    D. The court should establish a comprehensive system to administer the guidance and regulation of those persons falling within the exception to the definition of the practice of law and to enforce by injunction or civil contempt the unauthorized practice of law. An administrative arm of the court, such as the Office of Lawyer Regulation, could provide uniform and fair regulation of lay persons engaged in limited practice of law, could informally prevent the unauthorized practice of law without resorting to criminal prosecution, could provide uniform and fair interpretation of the unauthorized practice of law throughout the State of Wisconsin and could enforce this court's rules by injunction or contempt.

    The grounds for this petition are as follows:

    1. With increasing frequency and with increasing seriousness, the State Bar of Wisconsin receives complaints from the public and from lawyers involving allegations of the unauthorized practice of law. Currently, for example, the Latino community in Wisconsin is particularly susceptible to the sometimes fraudulent practice of nonlawyers advising on immigration matters. The State Bar of Wisconsin has no authority to advise citizens as to the legality of their conduct nor does it have authority to protect potential victims from inappropriate conduct; nevertheless, the public repeatedly looks to the State Bar of Wisconsin for guidance and enforcement, and the public is frustrated by the State Bar's inability to respond.

    2. The State Bar of Wisconsin has evidence of serious misconduct by individuals who have deceived the public by offering legal services by nonlawyers.

    3. Employees of agencies providing assistance to low-income citizens often provide legal advice and assistance in a well-meaning effort to assist their clientele, but those employees are now without clear guidance as to what they can or cannot do, and their advice and assistance may or may not be appropriate.

    4. Numerous businesses and professions provide limited legal assistance and advice within the narrow range of the services that they provide to the public. Again, those professions and businesses have no guidance as to what they can or cannot do to protect themselves or their clientele. When the Board of Governors took up this issue, it heard from numerous businesses and organizations such as the bankers association, title companies, professional planners, engineering and consulting firms, estate planners, architects, accountants, and others. They are but a few examples of businesses and professions that routinely provide legal assistance as part of their day-to-day affairs.

    5. Section 757.30, Stats., a criminal statute, is so vague and ineffective that it provides little guidance to the lay public and does not establish a defensible standard for enforcement of the unauthorized practice of law. Further, for many citizens, criminal prosecution or the threat of criminal prosecution is too severe for the circumstances and, therefore, the statute does not adequately protect the public.

    6. District attorneys and the Wisconsin Department of Justice are disinclined to expend their limited resources on the investigation and prosecution of the unauthorized practice of law.

    7. The issue of the unauthorized practice of law and the protection of the public has long been the concern of the Consumer Information and Protection Committee of the State Bar. Attached hereto as Exhibit A is a copy of that Committee's report to the Board of Governors.

    8. Recently, the MDP Commission of the State Bar of Wisconsin considered these issues and made a report to the Board of Governors. The pertinent pages are attached hereto as Exhibit B.

    9. The American Bar Association recently established a Task Force on the Model Definition of the Practice of Law to report to the ABA Board of Governors in August 2003. Its proposed draft is attached hereto as Exhibit C.

    10. These issues are receiving attention now because the evolution of our society and economy into complex and interdependent relationships among consumers and service providers has resulted in a significant social need to clarify the roles of the service providers. By virtue of the authority inherent in the court, this can best be accomplished by the promulgation of a new Supreme Court Rule.

    11. The problems arising in Wisconsin from having an inadequate definition of what constitutes the unauthorized practice of law have occurred in other jurisdictions and have caused other states to take action to clarify the definition and to establish a system for administering new rules.

    12. Attached hereto as Exhibits D and E are rules adapted by the Supreme Court of Washington and the Supreme Court of Colorado, each establishing a comprehensive system for regulating and enforcing the practice of law by nonlawyers.

    13. Attached hereto as Exhibit F is a copy of the rules submitted to the Supreme Court of Illinois proposing similar regulation.

    14. The issues raised by this petition are complex and compelling, but study and resolution of those issues is essential to protection of the public and to establishment of a well-regulated society.

    15. The State Bar urges the court to consider including on the committee a representative from the Office of Lawyer Regulation, a representative from the State Bar Board of Governors, one or more members of other interested groups, a member of the general public, a representative of organizations which provide legal advice or service to low- or moderate-income individuals, a representative from the State Bar Multi-jurisdictional Practice Committee, one or more members of the State Bar Consumer Information and Protection Committee, and a representative of the Indian Law Section. We suggest that the committee or commission appointed be separate from the Wisconsin Study Commission on Ethics appointed by the Supreme Court.

    Respectfully submitted on behalf of the Board of Governors of the State Bar of Wisconsin this 23rd day of April, 2003.

    Patricia K. Ballman, President

    State Bar of Wisconsin

    [Exhibits are available at the Office of the Clerk of the Supreme Court.]


Join the conversation! Log in to comment.

News & Pubs Search

-
Format: MM/DD/YYYY