State Bar endorses, Supreme Court adopts unconditional comity rule

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The state Supreme Court has given non-resident lawyers the ability to unconditionally apply mandatory Continuing Legal Education (CLE) credits from their native state towards Wisconsin requirements.

After lengthy debate on Dec. 10 about whether to adopt a “conditional” or “pure” comity rule, the Court formally endorsed the latter with a 4-3 vote. Wisconsin joined nine other states in adopting some version of an unconditional comity rule.

“I think a pure rule is the simplest and most direct way to handle it,” said Justice N. Patrick Crooks at the Dec. 10 open administrative conference.

As proposed and supported by the State Bar of Wisconsin’s Board of Governors at its Dec. 7 meeting, the amendment to SCR 31.04 will exempt non-resident attorneys from taking Wisconsin CLE courses, provided that they have met the mandatory requirements in their home states.

Although 41 other states have mandatory CLE, the Board of Bar Examiners (BBE) expressed lingering concern as to whether those state’s standards, beyond course materials, are substantially similar to Wisconsin’s and warrant exemption.

John Kosobucki, director of the BBE, previously indicated that some states with mandatory CLE offer credit for distinctly different activities than Wisconsin, such as service in the state Legislature or speaking at a bar seminar.

The BBE discussed the revised recommendation for a pure comity rule at its Dec. 5 board meeting and officially took a neutral position on the subject, though Kosobucki called the final adoption a “workable solution.”

Members of the Board of Governors also raised questions at the board’s Dec. 7 meeting about states with more lenient CLE standards being allowed to comply with Wisconsin standards.

Gov. Margaret Wrenn Hickey said it was “disingenuous” for the Court to stress the importance of CLE in Wisconsin and then potentially allow 10 hours of self study by an out-of-state lawyer to meet state requirements.

The State Bar, its Non-Resident Lawyers Division (NRLD), and the BBE had all approved a “conditional” comity rule, which would have placed restrictions on which out-of-state CLE programs would qualify for credit in Wisconsin.

But at a Nov. 27 hearing, Chief Justice Shirley S. Abrahamson said a provisional rule could place an unnecessary burden on the BBE to investigate which states have similar CLE standards. She said a blanket rule might alleviate confusion.

Members of the NRLD and State Bar past president Steven A. Levine agreed with the Court on the grounds that all other states with mandatory CLE are significantly similar to Wisconsin and all have ethics requirements.

“Some states are more lenient, others are stricter than Wisconsin,” said Gov. Daniel F. Rinzel of Redmon, Peyton & Braswell LLP, in Alexandria, Virginia.

“The differences are insignificant and by not adopting a simple approach, you are discouraging non-resident attorneys from remaining members of the Wisconsin Bar,” Rinzel said during the Dec. 7 board meeting.

Levine noted that more than 50 percent of Wisconsin’s non-resident bar members reside in Illinois, which has a pure comity rule, and Minnesota, which does not. Adoption of a pure rule in Wisconsin could prompt Minnesota to eventually do the same.

As indicated by the petition, the new rule will take effect on Dec. 31, 2008.