State Bar plans to reform UPL petition

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The State Bar of Wisconsin appears willing to revise its plan for administration of a rule defining the unauthorized practice of law, but has no plans to alter the substantive content.

On Oct. 28, the Wisconsin Supreme Court decided to continue its discussion on the merits of the UPL petition, but several justices voiced skepticism regarding enforcement of such a rule.

Attorney Thomas D. Zilavy, chair of the State Bar’s Unauthorized Practice of Law Committee, said the bar is in the process of revising its technique for administration of the rule, but does not plan to further accommodate objections raised by various business groups.

Rather than assign enforcement duties to the Office of Lawyer Regulation (OLR) as originally planned, Zilavy said the bar plans to create an independent agency housed within the State Bar to handle unauthorized practice of law complaints.

He also said that funding will still come from an additional annual assessment on attorneys. In its amended petition discussed by the court, a $10 per year charge was suggested to cover staffing costs within OLR.

The original draft of the petition, discussed on March 14, contained a $4 assessment, but OLR Director Keith Sellen indicated a $10 fee would be more realistic for proper enforcement.

Justice David T. Prosser was especially critical of the $10 annual assessment, while Justice Patience Drake Roggensack questioned whether that amount could sufficiently cover the costs of enforcement.

“The cost issue is a biggie for me,” Prosser said. “I’m not in for $10.”

Zilavy admitted that specifics of a new enforcement plan have yet to be ironed out, but his expectation was that one half-time person would be hired for the new position. He also estimated that the annual assessment will likely be in the “$10 to $20” range.

“There will have to be an assessment of lawyers, but we think considering the function we’re talking about, lawyers will accept the assessment and consider it to be reasonable,” Zilavy said.

Whether the court will view the new proposal as a viable alternative remains to be seen, since the petition was one vote away from being dismissed entirely on Oct. 28. A motion to dismiss by Justice Michael J. Gableman failed 4-3.

“I am struck by the absence of the numbers of citizens themselves who are complaining saying they have been duped or mistreated by people who hold themselves out to be attorneys,” Gableman said. “I think the petition should be denied.”

The State Bar petition suggested that between 10 and 30 complaints will be filed annually, based on the number of complaints handled by the Wisconsin Department of Regulation and Licensing for other professions.

Justice N. Patrick Crooks also expressed concern about continued objections raised by the Department of Justice which claimed the rule is too broad, as well as interest groups like the banking and insurance industries, which argued the language of the petition is too restrictive.

But Zilavy said the bar does not plan to further “dilute” the content of the petition to accommodate outside interests.

“There is not much room left at the bar to make further adjustments,” Zilavy said.

“Depending on the attitude of the bar, it may have a major impact on whether the court adopts the rule.”

“If we lose on that [substantive] basis, so be it,” Zilavy continued.

An additional hearing on the petition is expected, but has yet to be scheduled.