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Fee assessment, other changes likely for visiting attorneys

By: dmc-admin//March 3, 2008//

Fee assessment, other changes likely for visiting attorneys

By: dmc-admin//March 3, 2008//

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Attorneys gaining permission to temporarily practice in Wisconsin can soon expect an annual expense attached to their visit.

On Feb. 22, the state Supreme Court tentatively agreed to impose a $50 per case assessment on out-of-state lawyers practicing pro hoc vice as part of the proposed changes to SCR 10.03(4) regarding multijurisdictional practice.

As discussed, the fee would go to the Office of Lawyer Regulation (OLR) in support of any disciplinary costs associated with attorneys temporarily practicing in the state.

Modest Fee

Although there are currently no assessed fees for attorneys practicing pro hoc vice, the court determined a modest administrative charge may be warranted, as opposed to the request that attorneys annually pay $250 to the Wisconsin Trust Account Foundation (WisTAF) for legal services for the poor.

“I think the amount is something the court was concerned about as well as how that fee should be applied,” said DeEtte Tomlinson, executive director of WisTAF. “Since there wasn’t a fee in place, we thought we’d ask and see what the court deems is appropriate.”

In the initial petition submitted by the State Bar of Wisconsin, an assessment was recommended, but no dollar amount was specified. A revised version submitted to the court in December 2007 included the recommendation of a $250 fee for legal services.

Dean R. Dietrich, chairman of the special committee on multijurisdictional practice, indicated the bar did not plan to pursue the provision further and their proposal of an assessment was “open-ended.”

Past-president Steven A. Levine said he was disappointed that the court favored any assessment, but did acknowledge the standard of fairness associated with the proposal.

“Can anyone say there is equal protection when you are charging in-state attorneys $50 and out-of-state attorneys $250?” said Levine.

Future Considerations

In addition to solidifying the amount of an assessment, the court is expected to review additional changes to 10.03(4) at an open conference on March 14.

Several points were discussed on Feb. 22, including whether administrative agencies have the authority to grant attorneys temporary practice and what details should be included in an application for pro hoc vice.

The State Bar proposal supported the ability of administrative law judges and hearing examiners for state agencies to permit non-resident attorneys to appear without having an association with a local attorney.

Chief Justice Shirley S. Abrahamson suggested that agencies could make their own determination as to whether an association is necessary, although the court will likely discuss the issue further in March.

Levine hoped the court would formally adopt the recommendation, in an effort to save nonresident attorneys the additional cost of having a member of the bar present at some proceedings.

“There are situations when affiliation isn’t necessary such a when an out-of-state attorney comes in to represent a family member,” said Levine.

Intricate Application

The Supreme Court was less receptive to an intricate application proposed by the bar for those attorneys seeking to temporarily practice in the state. Specifically, the bar sought detailed documentation of prior disciplinary actions filed against an applicant during the five years prior to the application.

Several justices questioned the need for a complicated screening process, when the current method of simply requiring an attorney to be in “good standing” in his or her native state appears to work.

“Unless I see some information on there being a problem with the current process, I don’t see a need for a new rule,” said Justice Patience Drake Roggensack, who was also concerned about privacy issues for those attorneys who received private reprimands.

“Just by listing it on a form, you will remove that level of privacy,” said Roggensack.

The court discussed developing a shorter application form which would be uniformly used throughout the appellate and circuit courts in Wisconsin.

Choice of Law

After minor modifications, the court unanimously adopted proposed amendments to SCR 20:8.5, relating to disciplinary authority for attorneys practicing pro hoc vice.

While rules of professional conduct may vary depending on the jurisdiction, the rule states that an attorney who provides legal services in Wisconsin and is not member of the Bar will still be subject to the disciplinary authority of OLR.

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