Court delays action on MJP

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Expansion of the practice of law beyond state and even national borders is a reality attorneys and judges alike are willing to acknowledge.

In fact, many are embracing it, which is one of the reasons the Wisconsin Supreme Court recommended a petition to amend rules for multijurisdictional practice be further reviewed.

Despite the extensive work of Dean R. Dietrich, Ruder Ware LLSC, who served as chairman of the Multijurisdictional Practices Working Group, the Supreme Court raised several concerns regarding reciprocity, international practice and federal practice during its open administrative conference on April 12.

The Supreme Court unanimously decided to delay consideration of the amendments to Supreme Court Rules (SCR) Chapter 20, regarding the Rules of Professional Conduct for Attorneys, until a series of open administrative conferences in the fall of 2007.

“There is really a need to address these issues and not in a piecemeal way,” said Justice Ann Walsh Bradley. “I think it’s a wise decision.”

The petition seeks to amend SCR 20:5.5 to allow out-of-state lawyers not licensed in Wisconsin to temporarily practice in the state with protections against the unauthorized practice of law. Also in the proposal are revisions to SCR 20:8.5 regarding application of Rules of Professional Conduct and SCR 20:10.03(4) pertaining to pro hac vice admission.

“I think one of the most important things here is the rule proposal tries to give the ability to the client to chose the lawyer that they want to represent them,” said Dietrich. “At the same time it gives protection to the consumer by ensuring that a lawyer, who is not licensed in Wisconsin and provides service in Wisconsin, is subject to the jurisdiction of the regulatory agencies, the Supreme Court or the Office of Lawyer Regulation.”

Beyond Borders

Chief Justice Shirley S. Abrahamson directed much of the discussion and sought clarification of several points including how the amendment would deal with federal practitioners coming into the state.

Dietrich explained that the petition would permit federal practitioners from outside Wisconsin to temporarily operate inside the state, but they would be subject to local rules.

“We’re not trying to cut off someone’s right to be a practitioner under federal law,” said Dietrich. “We’re just saying that if someone is coming to Wisconsin and they’re holding themselves out as only practicing in the area of federal law, they still have to comply with these basic rules like any other lawyer.”

Abrahamson also noted the need to include provisions for international lawyers who venture into Wisconsin. She speculated that perhaps European labor lawyers currently work in conjunction with state attorneys on projects and despite not being highly visible cases, there is a need to monitor their practice.

“I don’t think this is an issue limited to east coast states or west coast states,” said Abrahamson, who noted that other states have adopted the ABA Model Rule for international practice. “We can either get regulated on this, or take a proactive approach.”

A provision was not included in the petition because the working group did not consider the issue if high importance, according to Dietrich. He stated that the group chose to let other states tackle the topic first and then revisit the situation as it pertained to Wisconsin.

While the petition drew largely from the ABA Model Rule 5.5 and the Minnesota Rule, Justice N. Patrick Crooks stressed the need for the amendments to be suitable for Wisconsin.

“We certainly don’t want to fall behind, but we also don’t want to just say what worked in Minnesota will work here,” said Crooks.

Give and Take

Thirty-two states have adopted rules relating to temporary multijurisdictional practice which should make interstate work less taxing, but Justice Patience Drake Roggensack wondered if Wisconsin’s proposal put too much of a burden on state lawyers.

“Is it really a case of ‘If we let you in, will you let us in?’,” said Roggensack, who supported further study of reciprocity.

Abrahamson brought up the option of admission by motion, whereby an out-of-state lawyer in good standing and meeting guidelines consistent with the ABA Rule would be allowed to practice in Wisconsin.

Dietrich explained that the procedure was “negatively received” by the Wisconsin State Bar Board of Governors in 2004 and the option was pulled from the petition.

“In our rule — which is not clear in the debate we had — is also a protection for a Wisconsin lawyer,” said Dietrich. “If an out-of-state lawyer can come in and engage in some practice in Wisconsin, then a Wisconsin lawyer can engage in that same type of practice in that other state and not be subject to being accused of the unauthorized practice of law in Wisconsin.”

Wisconsin State Bar President, Steven A. Levine appeared independently to oppose the petition on the grounds that the changes, especially to the pro hac vice standards, only added time and cost to the process.

Levine took issue with the more intense application process for pro hac vice status and the presumed application fee.

“I would just as soon adopt the ABA model rule right now,” said Levine. “It’s one small paragraph the State Bar’s is three pages long and you need a lawyer to interpret it. There’s no need to impose a huge application and cost when there’s no problem right now.”

Dietrich contended that the fee issue really focuses on situations where a l
awyer comes into Wisconsin and is admitted so that they can engage in handling of one case.

“All we’re doing is establishing as part of the pro hac vice status is some type of administrative fee to cover the cost of keeping track of who is administered and allowed in,” said Dietrich. “And any cost of any type would be for regulatory enforcement. I don’t have a specific number, but it’s not going to be a major thing.”