In 2007, the State Bar Board of Governors approved a petition to the Wisconsin Supreme Court seeking to create a clear definition of the practice of law and an entity to investigate and enforce the unauthorized practice of law (UPL). The entity was modeled after Washington state’s practice of law board. After years of hearings and debate and several subsequent petitions, the supreme court approved a new definition of the practice of law, found in SCR chapter 23. It did not create an entity to deal with enforcement other than what is provided in Wis. Stat. section 757.30.
Meanwhile, Washington state’s practice of law board had been charged with several things under the court rule that created it: investigate allegations of UPL; issue advisory opinions about the authority of nonlawyers to perform legal services; and make recommendations to the supreme court regarding authorizing nonlawyers to “engage in certain defined activities that would otherwise constitute the practice of law as defined in GR 24.” While the board focused on its investigation and enforcement duties, it took on with vigor its charge to use regulation to expand access to the system by licensing a new class of legal professionals. Thus, the development of limited licensed legal technicians (or Triple LTs). The first graduates of this new program, which combines an educational regimen at the community college level and a practice-area education provided through the three law schools in Washington, will soon be practicing.
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With the creation of Triple LTs and the continuing rise of online legal services (which can include live Internet consultation with an attorney), cross-border practices, and complete Internet practices, are attempts to enforce UPL regulation futile or outdated? Is the legal community fighting a battle that has already been lost?
Lawyers are trained to follow precedent. In this regard, they are like those generals who prepare for the last war, not the next one. This was no more evident than in France following World War I. France’s Marshal Joffre proposed development of a system of defensive fortifications along the entire French/German border, believing it would prevent any future invasion from the east.
The security provided by this Maginot line proved illusory as the Germans, recognizing the value of mobility, simply went around the line. France’s reliance on the line and the tremendous cost of building and supporting it came at the expense of the rest of the armed forces and resulted in France’s quick defeat.
By building a wall against the invader, those who are creating new ways of delivering legal services, have lawyers built their own Maginot line? Are we spending significant resources that might keep out some small actors while proving defenseless against a larger, quicker, more agile adversary? Would it be better to create our own practice innovations that give lawyers the weapons they need to compete and demonstrate the value they bring to clients and society? Or will we continue to fight the last war?
Last year, the State Bar recognized the innovative work of five Wisconsin lawyers who have created new ways to deliver legal services. This year, we are searching for more innovators who, in the words of Anne Smith, one of the 2014 Legal Innovators, will make “the 2014 awardees look like slackers.”