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    Wisconsin Lawyer
    February 01, 2006


    George Brown; Thomas Zilavy; Kenneth Bullock; Steven Schilke; Keith Sellen; John Bachman

    Wisconsin LawyerWisconsin Lawyer
    Vol. 79, No. 2, February 2006


    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) 257-4343, or email them.

    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
    Springfield, Va.

    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 Lawyer?

    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
    Genoa, Wis.

    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.

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