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State Bar opposes DOR petition

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“The legal profession is regulated by the Supreme Court, and if we are to be true to the founding fathers, who set up three independent branches of government, then only the court can regulate the licenses of lawyers.”

Thomas J. Basting

President-Elect, State Bar of Wisconsin

Death and taxes: The old adage reminds people of the two certainties in life.

The Board of Governors for the State Bar of Wisconsin spent a significant amount of time discussing the latter at their meeting on Sept. 29.

A proposed petition from the Wis-consin Department of Revenue (DOR) concerning a procedure to suspend or deny the license to practice law of an attorney for tax delinquency was largely met with opposition.

DOR Chief Counsel Dana Erlandsen outlined the proposal, which the board opposed by a 31-11 vote. The state Supreme Court will publicly review the petition Oct. 24.

“I was disappointed that the State Bar chose not to support the Depart-ment’s petition,” said Erlandsen. “I had hoped that our profession would recognize the interest in treating all Wisconsin licensees alike when they are able to pay taxes and refuse to do so.”

A three-tiered review process is the basis of the petition which provides extensive due process prior to suspension or revocation of an attorney’s license. Erlandsen explained that after an initial notice, there would be a hearing in front of the DOR and finally, a certification of delinquency from the state Supreme Court.

The goal is to provide rules for tax delinquency consistent with other professions, though Erlandsen admitted that attorneys would be somewhat more protected than other professionals.

“I think the proposed process is fair and objective to both attorneys and non-attorney licensees,” said Erlandsen. “It is also true that there is an extra level of due process protection built into the process for attorneys. Under the proposed rule, only attorneys or bar applicants get a ‘third step’ of an independent hearing before their licensing agency (the Supreme Court) as to whether the certification of delinquency merits license suspension or denial.”

The contingency level for attorneys allowed board members to question whether or not the process really levels the playing field for all professions.

“It’s a simple procedure, yet full of complexities,” said Gov. William J. Domina. “If you look at the details, lawyers are subject to a different appeal process and in what other profession can you go all the way to the Supreme Court?”

Resistance was furthered by the belief that neither the DOR, nor the executive branch’s involvement in lawyer regulation pertaining to tax delinquency was necessary, especially with guidelines already enforceable by the Supreme Court.

“My main concern is that I believe the issue is already covered by current Supreme Court Rules,” said President-Elect Thomas J. Basting. “I agree that lawyers who refuse to pay their taxes should be disciplined. The legal profession is regulated by the Supreme Court, and if we are to be true to the founding fathers, who set up three independent branches of government, then only the court can regulate the licenses of lawyers.”

Erlandsen noted that under the proposal, the state Supreme Court would ultimately determine suspension or revocation of law licenses, and the DOR would only serve a “request.”

She also explained that the procedure would only involve attorneys who willfully choose not to pay taxes and suspension would “only be a matter of last resort.” Determining delinquency could take “months or even years,” and upon payment, a license could potentially be restored within 24 hours.

The petition also allows for payment plans for attorneys, who without a license, may loose their primary source of income.

“It was called counter-intuitive, but with a type of payment schedule that keeps in mind family and other circumstances, I felt it was a good proposal,” said State Bar President Steven A. Levine, who prior to the BOG presentation was opposed to the petition. “It’s my understanding that it applies to attorneys who can pay taxes, but simply choose not to.”

Levine was also swayed by the statistical evidence that less than 1 percent of cases are certified for action of tax liability and although the Supreme Court provides a judicial reprimand, an administrative
back-up is worthwhile.

“I think the Supreme Court may accept it because it would be used so rarely and why not have a second policy in place,” said Levine.

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