Supreme Court balks at UPL commission

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“To some degree, we have an obligation to the public to let them know what we view as the unauthorized practice of law.” Hon. Patience D. Roggensack Wisconsin Supreme Court

The state Supreme Court is reconsidering its support of a State Bar request to create a commission to address the Unauthorized Practice of Law.

Stating concerns about the scope of such a commission and questions regarding the high court’s ability to develop an enforcement mechanism, justices last week delayed approval of the State Bar request.

Justice Jon P. Wilcox captured the mood of the justices on March 31 as they sat down to discuss the matter during an open administrative conference.

“I am not prepared today to make an ultimate decision,” Wilcox said. “It’s clear this is a troublesome area, but we need more discussion.”

As the seven justices considered the proposal to create a commission that would define the practice of law, define the unauthorized practice of law and develop guidelines for enforcement, it became clear that the court did not have a consensus regarding how the matter should be handled. The administrative session involved the review of a nine-page mission statement developed by the State Bar.

Last November, the court gave tentative unanimous approval to creating a commission, with the stipulation that the bar provide a workable mission statement.

Following approval at a January State Bar Board of Governors meeting, the mission statement was forwarded to the Supreme Court.

The proposed mission statement included sections designed to provide a “Frame of Reference for the Commission’s Task” and to discuss “What Does or Should Constitute the Practice of Law?” The proposal also set forth a three-part mission for the commission: defining the practice of law and developing a new rule, recommending a system for administering the new rule, and developing a recommendation to amend the criminal statute (Section 757.30), which currently addresses the unauthorized practice of law.

Eventually, the justices asked court staff to draft a revised mission statement that would be much shorter. That revision is expected to go back to the court for consideration next month.

For now, the justices are divided in their support of a court sponsored commission to tackle the subject.

“It would be a hard thing to convince me that the Supreme Court wants to establish an enforcement mechanism for the unauthorized practice of law. I’m not convinced we want to end up where this is going.” Hon. Ann Walsh Bradley Wisconsin Supreme Court

Justice Patience D. Roggensack supports moving forward with the proposal; however, she would like to see it include two additional elements. Roggensack said she would like the proposed commission to hold public hearings to allow for greater public input. She also would like to see the commission develop both a majority and minority report.

“To some degree, we have an obligation to the public to let them know what we view as the unauthorized practice of law,” Roggesack said. “We also have an obligation to recognize the value of what well-trained lawyers have to give.”

Justices Ann Walsh Bradley and Diane S. Sykes both questioned the court’s ability to implement an enforcement mechanism. Bradley indicated that in dealing with past cases related to the unauthorized practice of law, the court found defining the practice of law a Promethean task. She also questioned whether this was a journey the court wanted to begin.

“I would have to be persuaded,” Bradley said. “It would be a hard thing to convince me that the Supreme Court wants to establish an enforcement mechanism for the unauthorized practice of law. I’m not convinced we want to end up where this is going.”

Sykes said she was uncomfortable with the mission statement, which went well beyond developing a commission to define the practice of law to develop an enforcement mechanism. She was uncomfortable with the idea of creating a new bureaucracy under auspices of the Supreme Court to regulate non-lawyers, a task the justice indicated did not fall within the authority of the court.

Justice David T. Prosser Jr. acknowledged the challenges of addressing the issue and admitted he was unsure how the court should proceed. He noted that the State Bar had raised some legitimate concerns.

“The bar is interested in the economics of the profession and the steady incursion by non-lawyers into what has traditionally been the practice of law,” Prosser observed.

During a telephone interview following the meeting, State Bar President R. George Burnett indicated that enforcement was a key element of the group’s request. Prior case law has shown that the unauthorized practice of law falls within the Supreme Court’s purview, he noted. He indicated there were three strong reasons to move forward with the requested commission.

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“The reason we’ve asked the Supreme Court to empanel a commission is we think this is one of the most important issues facing the profession and the public,” Burnett said. “We think the recommendation by an impartial commission composed of statesmen and stateswomen is the vehicle to come forward with a recommendation that would be accepted by the general public. Number two, it would have credibility with the court. Number three, it would go a long way toward solving this problem.”

Burnett, of Liebmann, Conway, Olejniczak & Jerry SC in Green Bay, said the court does have the authority to develop an enforcement mechanism. He noted that the court has exercised that authority in past decisions regarding the unauthorized practice of law.

“That is the center piece of any work that the commission needs to do,” he said.

Several times throughout the March 31 discussions, justices raised the idea of the State Bar developing its own commission to define the practice of law and bring a recommendation to the Supreme Court. In the end, the court asked its own staff to draft a shorter version of a mission statement for a commission, which would come back to the justices for further review.

Tony Anderson can be reached by email.