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Bar board splits on BBE plans

By: dmc-admin//December 15, 2008//

Bar board splits on BBE plans

By: dmc-admin//December 15, 2008//

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State Bar of Wisconsin leaders have no problem with giving foreign attorneys a chance to become licensed practitioners in the state.

But short of passing the bar exam, members of the Board of Governors do not think foreign attorneys should be allowed to engage in any legal activities in Wisconsin.

The board unanimously endorsed at its Dec. 5 meeting a proposal from the Board of Bar Examiners to allow graduates of law schools outside the country to take the bar exam in Wisconsin. However, the board opposed a petition to permit foreign attorneys to serve as “legal consultants” in the state, without having to become licensed.

Both petitions will be discussed during an administrative hearing at the state Supreme Court on Feb. 9, 2009.

Illegal Advice

Gov. Micabil Diaz Martinez suggested that the latter petition would perpetuate the problem of unqualified foreign professionals providing legal advice.

“We just closed the door on the notario issue,” Martinez said. “I will tell you the reality in our community is we will have people who graduated from law schools in Latin America who will say, ‘I will represent you.’”

BBE Director John E. Kosobucki said the petition explicitly forbids consultants from practicing law in Wisconsin and they would only be able to offer advice on legal issues relevant to their country.

Kosobucki added that the petition is designed to comply with foreign treaties, such as the General Agreement on Trade Services (GATS) and 28 other states adopted similar rules.

“The train is leaving the station on these issues and we’re going to have to get on that train eventually,” Kosobucki said.

But if those foreign consultants certified to give advice in the state exceed their limitations, past-president Thomas J. Basting Sr., questioned the ability of the Office of Lawyer Regulation (OLR) to effectively discipline offenders.

Basting suggested that during a potentially lengthy investigation by OLR, the offender could still be illegally providing legal services to clients in the state.

Even if a foreign legal consultant was found to have practiced without a license, Martinez said any discipline could be moot.

“Investigations can take a long time, and at that point the person may have returned to his or her home country,” Martinez said. “Then guess what, I have a client standing here with a major problem with no recourse.”

“I don’t think this rule has the teeth to do what you want it to do,” Martinez said to Kosobucki.

Testing Patience

Though Kosobucki said he was disappointed with the board’s opinion on foreign legal consultants, he was encouraged by its support for a proposal which would give graduates of law schools outside the country the opportunity to practice in Wisconsin.

Kosobucki said he receives several phone calls a month from attorneys licensed outside the United States who ask if they can take the bar exam in Wisconsin.

“It’s tough to hear the disappointment when I tell them that, no, you are not eligible,” Kosobucki said. “But, I also say there is a petition before the court which may change that and they are happy to hear it.”

While support was unanimous, President Diane S. Diel recommended a slight modification in the BBE petition to remain consistent with reciprocity rules amongst states. Instead of requiring foreign attorneys to practice law five of the last seven years to become eligible for the bar exam, only three of five years will be necessary.

Kosobucki said he did not have a preference either way, but noted that of the 22 states which have reciprocity rules, only two have a three-year practice requirement. All other states have a variation of a five- or seven-year requirement.

On Nov. 18, the state Supreme Court adopted a reciprocity rule requiring a three-year proof of practice requirement before attorneys from other states can take the bar exam in Wisconsin. The rule takes effect Jan. 1, 2009.

The board also reviewed two additional BBE petitions submitted to the Supreme Court.

Members unanimously supported a proposal to give bar applicants 30 days notice if their application is at risk of being denied.

The board opposed a proposal which would give absolute immunity to people who offer information about a bar applicant’s character and fitness prior to admission.

Basting said the rule would provide the opportunity for “too much mischief.”

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