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State-specific practice rule bars bar admission

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“It seems formalistic … to hold the applicant to the time limits… But that’s what time limits are — formalistic, bright lines and not necessarily relevant to the merits of the issue.”

Hon. Shirley S. Abrahamson concurring

The Wisconsin Supreme Court held on March 24 that, if a corporate attorney does not practice law in the state in which he is admitted to practice, he is ineligible for reciprocal admission in Wisconsin pursuant to SCR 40.05.

Samuel Mostkoff has been a practicing lawyer for 29 years. He was admitted to practice in Michigan in 1973, and has been a corporate attorney for more than 18 years.

In 1997, Mostkoff’s employment as corporate counsel in Michigan was terminated as a result of a corporate reorganization. Mostkoff, who had moved to Ohio, became a legal consultant for Penda Corporation, located in Wisconsin. In 1998, Mostkoff became in-house counsel for Penda.

Mostkoff became a Wisconsin resident in February 1999. In May 1999, he requested an application for admission to the Wisconsin State Bar, but he did not complete it. Not until 2003 did he actually file an application for admission to the Bar, pursuant to SCR 40.05(1), based on his out-of-state practice.

The Board of Bar Examiners denied the application, because he was not actively engaged in the practice of law in a jurisdiction where he was licensed for at least three of the five years immediately preceding the application, as required by SCR 40.05(1)(b).

Mostkoff appealed, but the Wisconsin Supreme Court affirmed in a per curiam decision. Chief Justice Shirley S. Abrahamson concurred, in a decision joined by Justice Louis B. Butler, and Justice David T. Prosser dissented.

SCR 40.05 provides in relevant part:

(1) An applicant shall satisfy the legal competence requirement by presenting to the clerk certification of the board that the applicant has provided all of the following: … (b) Proof that the applicant has been primarily engaged in the active practice of law in the courts of the United States or another state or territory or the District of Columbia for 3 years within the last 5 years prior to filing application for admission….

(2) Legal service as corporate counsel or trust officer, if conducted in a state where the applicant was admitted to practice law, may be deemed to be the practice of law for the purposes of sub. (1)(b) and (c)."

What the court held

Case: In the Matter of the Bar Admission of Samuel Mostkoff, No. 03-2640-BA

Issues: Does legal service conducted in a state other than the state in which the applicant was licensed constitute the practice of law for purposes of reciprocal admission under SCR 40.05?

Holding: No. SCR 40.05(2) requires that the applicant has been licensed in the state in which he was performing legal services.

SCR 40.05(1)(b) and (2) are limited to states with which Wisconsin has reciprocal admission.

The court began by opining, "This is first and foremost a case in which an attorney sat upon his rights. It is undisputed that had Mr. Mostkoff applied for admission to the Wisconsin bar promptly upon relocating to Wisconsin in 1999, he would have been eligible for admission under SCR 40.05 based upon his corporate legal practice in Michigan, a state in which he is licensed to practice law. The question before the court is whether, nearly four years later, Mr. Mostkoff should still be entitled to admission under SCR 40.05."

Emphasizing that, pursuant to subsec. (2), the legal services of a corporate counsel must be conducted "in a state where the applicant was admitted to practice law," the court noted that, during the relevant time frame, 1998 to 2003, "the record is clear that … Mostkoff’s legal service was conducted in Wisconsin, a jurisdiction where he was not admitted to practice law."

The court acknowledged that "Most-koff was a busy corporate attorney during the relevant period of time," but held, "we must conclude that the plain language of SCR 40.05(2) precludes Mr. Mostkoff’s legal service as corporate counsel from constituting the ‘practice of law’ for purposes of admission to the Wisconsin bar under SCR 40.05."

The court added, "SCR 40.05(1)(b) and 40.05(2), read together, explicitly provide that for corporate counsel experience to be deemed the ‘active practice of law’ under SCR 40.05(1)(b), that work must have been ‘conducted in a state where the applicant was admitted to practice law.’ Mr. Mostkoff’s corporate counsel work was conducted in Wisconsin or Ohio; he is admitted to practice in neither state."

As justification, the court explained that in order to assess an applicant’s qualifications for admission to practice law in Wisconsin based on proof of practice elsewhere, the Board must be able to rely on the regulatory authorities of the other jurisdictions where the applicant has practiced to have monitored the applicant’s compliancewith CLE requirements, and where appropriate, investigated and disciplined the professional conduct of the applicant.

In contrast, where an applicant has practiced in a jurisdiction without being admitted to practice, he is not subject to that jurisdiction’s regulation of attorneys, and consequently, that information is not available to the Board for its assessment of the applicant’s qualifications and fitness to practice law in Wisconsin.

The court also upheld the Board’s decision not to grant an exception, based on extraordinary circumstances, explaining, "As we noted at the onset, had Mr. Mostkoff promptly petitioned for admission to the Wisconsin bar upon relocating to Wisconsin, he would have been eligible for admission under SCR 40.05 based on his corporate practice in Michigan, a state in which he is licensed to practice law. Mr. Mostkoff has provided no compelling explanation for his delay, other than the demands of his practice. We conclude that a decision to waive the requirements of SCR 40.05 here would excuse and endorse delay in seeking admission to the Wisconsin bar. Such a result would not serve the public’s interest in ensuring that lawyers admitted to practice in this state have established their professional competence and their compliance with continuing legal education requirements."

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Accordingly, the court affirmed the denial of Mostkoff’s application. Before concluding, the court noted that Mostkoff raised "a litany of constitutional challenges to SCR 40.05," but the court declined to address them.

Chief Justice Abrahamson wrote a concurring opinion, joined by Justice Butler, stating that she joins the per curiam opinion only "reluctantly," because she disagrees with the governing rules, and the result they compel.

Finding that Mostkoff "appears to be a competent lawyer" who would not place the people of the state of Wisconsin in jeopardy if admitted to the bar, Abrahamson wrote, "It seems formalistic, and not necessarily relevant to the issue of the applicant’s competence and public protection, to hold the applicant to the time limits, thereby denying him admission to the Wisconsin bar, at least without a Wisconsin bar examination. But that’s what time limits are — formalistic, bright lines and not necessarily relevant to the merits of the issue."

Justice Prosser dissented, reasoning, "Inasmuch as the petitioner could have been admitted without a problem in the past and may continue corporate practice without admission in the future, I see no sensible reason why we should not admit him to the bar and subject him to Wisconsin membership dues, Wisconsin continuing legal education requirements, and Wisconsin discipline. The court has the power to admit Mr. Mostkoff and I would do so. His admission could be conditioned on any reasonable requirement that reinforces the integrity of our rules on reciprocity and education."

Click here for Case Analysis.

David Ziemer can be reached by email.

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