Justices continue to wrestle with law practice petition

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Defining the practice of law is something even Merriam-Webster might struggle with, so the fact that the Wisconsin Supreme Court is taking its time reviewing a proposal to classify what qualifies as legitimate legal service in the state is understandable. However, following a lengthy discussion, the justices appeared no closer to reaching a consensus on what exactly the proposal should say and who should be protected.

On March 14, court members spent more than five hours working through aspects of a petition initially submitted by the State Bar of Wisconsin in 2007 that would define the practice of law and identify what constitutes the unauthorized practice of law.

Justices also discussed potential ways to alleviate concerns expressed by several non-legal organizations.

Despite an attempt to blend in exceptions to accommodate banking, real estate, accounting and other organizations, the court did not formally adopt any aspects of the petition and they may never.

Justices Louis B. Butler Jr. and Ann Walsh Bradley were particularly skeptical as to whether any version of the rule that comes before the court will effectively satisfy everyone involved, as well as preserve the State Bar’s goal of protecting the consumer.

“I’m not persuaded that this will be successful, but, nevertheless, the bar strongly wants this and it’s worth pursuing,” said Bradley. “I’m not jumping on the bandwagon though.”

Attorney Thomas D. Zilavy, who chairs the Bar’s Unauthorized Practice of Law Committee, said he worries the growing complexity of the petition will weaken its purpose of consumer protection.

Rather than endorse a tighter model rule used in Washington D.C. and recommended by the Wisconsin Department of Justice, the court elected to draw from a more detailed Nebraska rule.

Zilavy noted that bar leaders in attendance for the discussion had not seen the enhanced version of the petition, which Supreme Court Commissioner Julie Rich issued to the Supreme Court. He declined to comment on whether discussion by the justices will alter the original intentions of the petition.

“I think there is a risk of it being substantially diluted and if so, I don’t think the State Bar can support it,” said Zilavy. “But I won’t know for sure until we see something in black and white.”

Beyond the Substantive

Rich indicated a rough draft of the rule will be publicly available prior to the next discussion on either April 14 or April 24 and open for comment. During one of those two dates, the court may also expand its take on how the rule will be enforced.

Chief Justice Shirley S. Abrahamson indicated that the Office of Lawyer Regulation (OLR) did not want the responsibility of handling complaints and assessing punishment.

But OLR Executive Director Keith Sellen said his office is neutral in its position on being the enforcement body.

“We’re willing to do whatever the court wants us to and [we are] not opposed if it wants to [assign] this to us,” said Sellen, who added that he would seek additional staffing and space to accommodate the additional burden on OLR.

At least one full-time litigation lawyer and an assistant are essential needs for OLR to initially handle the enforcement of the rule, according to Sellen. Justices discussed an increased annual assessment on attorneys as a potential means for funding.

Initially, a bump of $4 per attorney was proposed, but Sellen said $10 seemed more realistic.

Zilavy reiterated the State Bar’s stance that it does not want to be responsible for the enforcement of the rule, since it creates a conflict of interests. However, he said bar leaders are receptive to the $10 increase in dues to fund the enforcement through OLR.

“The State Bar would pay for it through added assessment,” said Zilavy. “We think it would be about $10 per lawyer and that would generate enough money to cover operating costs.”

Whether that dollar amount will stick remains to be seen, as the issue will likely come before the Board of Governors for approval.

Rich said she expects the Supreme Court will ultimately weigh the need for a rule to define the practice of law against the costs associated with administering such a rule during future discussion.

“My sense is the court may say we’re looking at a complex rule and it’s going to cost money to administer it,” said Rich. “On the other hand, 30 states have adopted this type of rule, so maybe it’s worth it.”