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Reciprocity rule hampers tribal attorney’s ability to practice, sparks call for rule change

By: Erika Strebel, [email protected]//February 9, 2017//

Reciprocity rule hampers tribal attorney’s ability to practice, sparks call for rule change

By: Erika Strebel, [email protected]//February 9, 2017//

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The Stockbridge-Munsee Community legal staff of General Counsel Dennis Puzz (from left), Tribal Prosecutor Laura Vedder, Staff Attorney April Dunlavy, Assistant Bertha Bowman and Senior Counsel Bridget Swanke gather Thursday in the community’s council/hearing room. Based on current state rules, Vedder is unable to practice in Wisconsin without taking the bar exam, so Puzz must tap other staff to represent the tribe in state court matters. (Staff photos by Kevin Harnack)
The Stockbridge-Munsee Community legal staff of General Counsel Dennis Puzz (from left), Tribal Prosecutor Laura Vedder, Staff Attorney April Dunlavy, Assistant Bertha Bowman and Senior Counsel Bridget Swanke gather Thursday in the community’s council/hearing room. Based on current state rules, Vedder is unable to practice in Wisconsin without taking the bar exam, so Puzz must tap other staff to represent the tribe in state court matters. (Staff photos by Kevin Harnack)
Tribal Prosecutor Laura Vedder and General Counsel Dennis Puzz gather Thursday at the Stockbridge-Munsee Community administration building. Because of the Wisconsin Supreme Court’s ruling in a 2002 case, Vedder cannot be admitted to the bar despite her 7-1/2 years of experience working for a federally recognized Native American tribe.
Tribal Prosecutor Laura Vedder and General Counsel Dennis Puzz gather Thursday at the Stockbridge-Munsee Community administration building. Because of the Wisconsin Supreme Court’s ruling in a 2002 case, Vedder cannot be admitted to the bar despite her 7-1/2 years of experience working for a federally recognized Native American tribe.

Dennis Puzz, general counsel for the Stockbridge-Munsee Community, was looking to hire some fresh talent for the tribe’s legal team. In Laura Vedder, he believed he had found the perfect fit.

Vedder, a graduate of the University of St. Thomas Law School in Minneapolis, had 7-1/2 years of experience in Indian law and had worked her way up from being a tribal attorney to legal director for the Leech Lake Band of Ojibwe. All the while, Vedder had kept her Minnesota law license in good standing.

Puzz hired her in July 2016 to fill a position for a tribal prosecutor on his team. He expected Vedder’s extensive legal experience would give her fairly easy admission to the Wisconsin state bar.
That didn’t happen.

In its official explanation, the tribe says the approval of Vedder’s application has been delayed because of a peculiar reciprocity rule that prevents the legal work Vedder has done for other tribes from counting toward the waiver of certain requirements to Wisconsin’s bar. Now the tribe is asking the Wisconsin Supreme Court to allow legal work for a federally recognized tribe to count as proof of practice, allowing her to gain admission without having to take the bar exam.

Before scheduling a public hearing on the request, the justices voted at a meeting held Jan. 12 to ask both the tribe and the Board of Bar Examiners to provide the court with more information. The BBE is the 11-member board appointed by the high court to admit lawyers to practice in Wisconsin and ensure they fulfill their continuing-education requirements.

Lawyers can be admitted to practice in Wisconsin in three ways. They can: sit for the bar exam; attend and graduate from an in-state law school and thus gain access through the so-called diploma privilege; or present proof that they have practiced in another state or territory or for the federal government for three of the past five years.

The rules enter a bit of a gray area, though, when it comes to legal practice for federally recognized tribes. The Wisconsin Supreme Court justices provided some clarity in 2002 when, in the case of In re the bar admission of Wendy Helgemo, they found that practice as an in-house counsel for tribes cannot be the grounds for an attorney to be waived into the bar.

The resulting rule, known as the Helgemo rule, is the reason that Vedder’s experience as in-house counsel for a federally recognized Native American tribe has not been enough for her to be allowed to practice in the state or appear in Wisconsin’s courts. Rather, the only way for Vedder to get licensed to practice law in Wisconsin is to take the state’s bar exam.

That was a surprise to Vedder’s new boss.

“I never thought that even with her extensive background that the Helgemo rule would be applied to her,” said Puzz. “Lo and behold, it has been.”

Because of the Helgemo rule, Vedder is now barred from handling matters falling under the Wisconsin courts’ jurisdiction. For example, her role as tribal prosecutor has her at times called on to handle collections. But because such matters are usually left to state courts, Puzz often finds himself having to tap another lawyer to fill in.

Puzz said the current rules have struck the Stockbridge-Munsee Community as being unfair. The result has been a petition, filed in November, to prevent other tribes in the state from running into the same difficulties when trying to hire qualified legal representation. Vedder agrees.

“The work I did for my clients should absolutely be counted,” she said. “This rule should change.”

Puzz noted that Vedder, when she worked for the Leech Lake Band of Ojibwe in Minnesota, handled loan documents and similar matters and appeared in both Minnesota and federal court. These are all tasks that, in the private sector, would often be handled by registered corporate in-house counsel.

Shannon Holsey, Stockbridge-Munsee tribe president, stands under the community’s seal on Thursday in the tribe’s council/hearing room. Holsey filed a petition on behalf of the Stockbridge-Munsee Community asking the Wisconsin Supreme Court to change its reciprocity rules so work done for federally recognized Native American tribes counts as experience in Wisconsin.
Shannon Holsey, Stockbridge-Munsee tribe president, stands under the community’s seal on Thursday in the tribe’s council/hearing room. Holsey filed a petition on behalf of the Stockbridge-Munsee Community asking the Wisconsin Supreme Court to change its reciprocity rules so work done for federally recognized Native American tribes counts as experience in Wisconsin.

In Wisconsin, in-house counsel who do not have a state-issued license can still practice if they obtain a special registration. Some argue that tribal lawyers should be subject to similar rules. Tribal attorneys, they note, are similar to in-house counsel in several ways, not least in the fact that they primarily represent one client.

The Stockbridge-Munsee Community’s request is coming at an important moment for tribal attorneys and their clients. Many are being consulted regularly about the legal questions surrounding tribal gaming, which is the main revenue source for tribes, Puzz said.

“As tribes have more resources they’re able to flex their sovereign muscle and pursue more governmental activities and economic development activities,” Puzz said. “So our interactions with outside jurisdictions have increased over time as the tribe has expanded its reach both governmentally and economically.”

He also noted that there has been more rapport and understanding in recent years between the tribal court judges association and the Wisconsin Supreme Court.

So far the tribe seems to be winning at least some support for a rule change. Gov. Scott Walker submitted a letter to the justices on Dec. 5 backing the proposal.

The bar’s Indian Law Section has also weighed in with support, noting in a letter to the state’s Board of Governors that tribal attorneys must be able to move easily between tribal, state and federal jurisdictions. The board will be voting Friday on whether to support the tribe’s petition. A 60 percent majority is required for approval.

“We believe the amendment proposed in Rule Petition 16-09 is needed to accurately reflect the legal work tribal attorneys do on a daily basis. And ultimately it is the fair and just manner to address reciprocity,” according to the section’s letter.

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