In-House Counsel Changes

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With uniformity and simplicity in mind, the Wisconsin State Supreme Court adopted changes to Supreme Court Rule 20:5.5, including a provision for the limited licensing of in-house counsel to practice in the state.

On Jan. 9, the court unanimously voted to adopt the American Bar Association (ABA) Model Rule 5.5(d)(1) and potentially draw from two more detailed proposals, which had been drafted by attorney Dean R. Dietrich, chairman of the State Bar’s Special Committee on In-House Counsel.

The adopted ABA rule permits unlicensed in-house counsel for a single-employer to practice in Wisconsin, without having to become a member of the bar. Currently, Wisconsin does not have a rule permitting or prohibiting non-bar members from serving as in-house counsel.

Supreme Court Commissioner Julie Anne Rich said the court adopted the ABA rule to “get something on the books,” but the court will explore amendments to the ABA rule, which were included in the limited license proposal supported by the State Bar’s Board of Governors.

“The limited license proposal that the State Bar had presented was highly detailed, and had a lot of regulation,” said Rich. “This is going to be a lot simpler and the court likes the idea of uniformity.”

Dietrich indicated that the bar’s recommendations were made to ensure that if in-house attorneys would be practicing law in Wisconsin, they should be subject to the same rules and regulations as fully-licensed practitioners.

Among the recommendations that were not adopted was a requirement that in-house attorneys register with the BBE and pay an Office of Lawyer Regulation assessment. Also, time served by non-licensed attorneys as in-house counsel would “count” as credit toward full licensure in Wisconsin.

Justice Patience Drake Roggensack said that the court will seek input from the Board of Bar Examiners on the additional recommendations included in the bar proposal.

“One of the public policy considerations here was following the ABA model rule and I understand and appreciate the importance of that policy,” said Dietrich. “I’m not sure if all those pieces of the puzzle are together, so we’ll have to see how that comes out.”

The court also approved other changes to SCR 20:5.5 to include removal of language regarding a lawyer’s “good standing” in subsections c and d. Chief Justice Shirley S. Abrahamson said defining good standing of non-resident lawyers was too tedious in this context, and a report on whether the attorney is suspended or disbarred is sufficient.

The court will address other aspects of the multijurisdictional practice petition (06-06) on Feb. 22, including amendments to SCR 20:8.5 regarding disciplinary authority and the application of the Rules of Professional Conduct, and SCR 10.04(4) regarding pro hac vice.

Unlimited Testing

The court also officially adopted a petition to allow aspiring attorneys from outside of Wisconsin to take the bar exam an unlimited number of times.

After a presentation by petitioner Arnold J. Moncada Jr. at a Nov. 7 administrative hearing, the court had sought more information as to why 31 other states have no limitations.

Commissioner Rich said no discernable trend was discovered among the states which allow limitless taking of the exam.

Moncada, a graduate of Thomas Cooley Law School in Lansing, Mich., has taken and failed the Wisconsin bar exam five times.

By a 6-1 vote, with Justice Ann Walsh Bradley dissenting, the court ruled that Wisconsin would allow out-of-state law school graduates to take the exam as many times as they wish.

Bradley echoed the concerns previously expressed by Board of Bar Examiners (BBE) Director John Kosobucki, who said that given enough opportunities, a person will pass the exam or get lucky.

“It’s ‘seven come eleven’ at some point,” said Bradley. “I just don’t want Wisconsin to be one of those states that says, ‘Keep coming back.’ ”

Rich indicated that the new rule will take effect prior to July 2008 as Moncada plans to take the exam again at that time.

The state’s current rule, SCR 40.04(5), allows applicants to take the exam up to three times, with special permission from the BBE needed for any additional attempts.