Court suggests BBE, Bar revisit conditional comity proposal

Listen to this article

Pure or conditional is the choice that needs to be made with regards to a comity rule for non-resident lawyers who do not regularly practice in Wisconsin.

On Nov. 27, the state Supreme Court ruled that a petition in support of a provisional comity plan could be overly complex and the possibility of a cleaner version should be explored.

After a motion to pass the proposed petition failed on a 4-3 vote, the justices requested that the Board of Bar Examiners (BBE), the State Bar and the Non-Resident Lawyers Division revisit the proposal and determine whether or not a pure comity rule can be implemented.

All three organizations had supported a conditional amendment to SCR 31.02, which would have exempted a portion of non-resident practitioners from Wisconsin Continuing Legal Education (CLE) credits, provided they had met mandatory requirements in their home state that were “substantially similar” to those in Wisconsin.

The Same but Different

Chief Justice Shirley S. Abrahamson was particularly vocal in her support of “comity in principle,” but was also critical of the potential problems a conditional rule creates.

“What bothers me and the problem there is [that] you have to look at 50 jurisdictions to decide what is or isn’t similar to Wisconsin,” said Abrahamson, who suggested that the process would be unnecessarily burdensome on BBE staff.

“I think it’s silly to put the lawyer through double reporting, but I am just concerned that what you are doing has, for years, been what we’ve heard complaints about — that it’s too much work and too hard to evaluate,” continued Abrahamson.

According to the petition, out-of-state CLE programs would be subject to evaluation regarding content of courses, including legal ethics and professional responsibility requirements, mode of presentation and duration. The BBE would determine whether the non-resident lawyer’s home state CLE credits are similar enough to Wisconsin’s to warrant an exemption.

BBE Director John Kosobucki said attorneys in 48 states have applied for, and been approved for CLE courses, which are in accordance with Wisconsin guidelines and that minor distinctions in length and mode of presentation are acceptable.

“I don’t think the BBE board has a problem with the actual courses in other jurisdictions, whether they are 45 minutes instead of 50 or if a state has on-demand viewing instead of in person,” said Kosobucki.

Consumer Protection

While minor differences in course material may not pose significant problems, other CLE services may conflict with Wis-consin standards and put consumers at risk, according to State Bar President Thomas J. Basting Sr.

He said that consumer protection issues could be raised by a blanket comity rule and that some CLE services in other states “probably wouldn’t pass muster in Wisconsin.”

“I was a little surprised that the Court raised the issue as to why there should be pure comity,” said Basting, who expected a pure comity proposal to come before the Board of Governors in the future.

Kosobucki pointed to examples ranging from service in state Legislature to writing a book review as services, which do not qualify for CLE credit in Wisconsin, but do in other states.

“That was an initial concern raised by the board, in that we felt what other states allowed for CLE credit was so far out of line with what Wisconsin has,” said Kosobucki, who added that the BBE will revisit the proposal at its Dec. 5 board meeting.

In an effort to discern if a non-resident attorney’s credits comply with CLE standards in Wisconsin, Kosobucki said a compliance form could be drafted to ensure attorneys are abiding by state restrictions.

But Abrahamson said that avenue may set attorneys up for “lying and cheating” on the form.

“An attorney is going to file all of his or her credits and then you are going to look through all of them to make sure it’s kosher?” said Abrahamson.

Court commissioners added to Judicial Education Committee

On Nov. 27, the Wisconsin Supreme Court revised and adopted a proposal which will add two circuit court commissioners to the state Judicial Education Committee.

The Wisconsin Association of Judicial Court Commissioners and the Wisconsin Family Court Commissioners Association jointly filed the petition for representation on the 13-member committee, which oversees continuing education programs for the judiciary.

Darcy E. McManus, a Family Court Commissioner in Ozaukee County spoke in support of the petition and said the addition of commissioners will bring "a slightly different perspective" to the committee because of their behind-the-scenes work in the courts.

The petition stated a need for the approximately 155 full- and part-time commissioners in the state to have a voice on the committee because circuit court commissioners must earn 60 education credits each period of six years, which is the same as Supreme Court Justices, Court of Appeals Judges and Circuit Court Judges, who all have seats on the committee.

Justice David T. Prosser Jr. said the inclusion of the commissioners gives the Court another point of contact with all the levels of the courts.

"I think this adds a dimension which had not previously been on the table and allows commissioners to know what's happening at the state level for judicial education," said Chief Justice Shirley S. Abrahamson.

While the Court did support the commissioner additions, it did alter the manner in which they are selected. The initial petition had sought one appointment by the Wisconsin Association of Judicial Court Commissioners and one by the Wisconsin Family Court Commissioners Association.

The Supreme Court ruled that it would appoint both commissioners to the committee.