Unauthorized entry

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A group of lawyers that has been pushing the Wisconsin Supreme Court to take stronger action against those who would practice law without a license may have found a convincing argument.

To this point, evidence had been largely anecdotal, which is one reason why the justices opted against including an enforcement mechanism when they adopted a rule defining the unauthorized practice of law in Wisconsin in June. But the recent arrest of a Milwaukee man for practicing without a license may be a good test case – as long as his other legal problems don’t overshadow the issue.

The rule took effect on Jan. 1, but State Bar of Wisconsin Past-President Douglas W. Kammer is pushing for statutory changes to strengthen the consequences for non-attorneys who illegally practice law.

Absent any specific sanctions, lawyers are left with Wis. Stat. 100.18, which allows for potential civil remedies for misrepresentation claims, including the unauthorized practice of law, and Wis. Stat. 757.30, which permits criminal prosecution of individuals who engage in the unauthorized practice of law.

Kammer and others are looking for someone to make an example of and get the attention of the justices.

“If we do it, it’s going to be with weak law, so we’d need strong facts,” said Kammer, chair of the bar’s Unauthorized Practice of Law Committee. “We’re looking for a case that is really egregious with no gray area so the court would say, ‘we can’t just let this go by.'”

They may have found their example in Thomas J. Lyon, a non-attorney, who was charged Dec. 22 with two counts of practicing law without a license under Wis. Stat. 757.30. Lyon is accused of misappropriating a real attorney’s bar number, forging the signature of a court commissioner, notarizing documents using a seal in the name of a deceased notary and cashing counterfeit bank checks.

According to the website of Thomas J. Lyon and Associates, the business advertises itself as a “professional alternative to high priced lawyers” and offered “low cost legal help” in more than 20 areas, including bankruptcy, divorce and small claims.

Calls to Lyon’s office were not returned, but Kammer said that type of offense could be exactly what the UPL committee is looking for, especially if the defendant argues that he was not practicing law.

“Then you have the rule the court adopted in June right there in front of a judge and the defendant saying ‘I didn’t do that,’ ” Kammer said. “This is definitely something I’m going to forward to the committee to see what we can do with it.”

But Kammer also said that because Lyon has nine other criminal counts pending, the unauthorized practice of law charges might just be “clutter” and therefore not be the definitive case to grab the Supreme Court’s attention.

“UPL is not likely to be the centerpiece of the prosecution and the case is an imposter case,” he said.  “We are interested in someone who does not pretend to be a licensed lawyer but does, in fact, practice law.”

A civil suit would be another option, but fellow UPL committee member Thomas J. Basting, Sr. said the decision to pursue litigation will depend on the facts and whether it’s going to be worthwhile as an investment.

He also suspected that for the State Bar to bankroll any litigation, it would need to be an extremely winnable case.

“I’d have to be certain in my mind that there is a better than 50/50 chance of success,” he said. “If the bar brings such an action and loses it badly, that could serve as more of an embarrassment to the profession than any formula for success.”

Any lawsuit would hinge on whether the accused would put up a fight, Kammer said.

“It doesn’t do any good to file suit in circuit court if the guy just folds up his tent,” he said. “What we want is a decision from the circuit court and Court of Appeals to put the fire under the feet of the Supreme Court.”

He said his focus is on suing those who don’t call themselves lawyers, but practice law.

“The problem is with the people practicing law without using the label,” he said. “For example, the ‘paralegals’ who advertise that they can do everything a lawyer can do at half the price.”

One of the reasons why it has been a struggle to find a worthwhile candidate for litigation is because on the surface, little if any harm is being done to a client.

Rarely is anyone victimized by, for example, a real estate agent working through a routine transaction, even it constitutes the unauthorized practice of law, said Gonyo Law Office attorney J. Steven Heil.

But the real estate lawyer said that if the practice continues to go unchecked without consequences, attorneys will feel the financial impact.

“Business will dry up and we’ll not have attorneys on smaller scales in smaller deals,” he said. “It’s simply an effect of the market and we will be denied from giving that advice because we won’t have much of a choice.”

Heil has already noticed a drop off in his involvement in real estate transactions.

More often, he has had clients assume that they need a real estate agent to advise them during a deal, rather than an attorney.

“Realtors are doing more than just being a pencil for the parties,” Heil said. “There’s not a real perceived value in coming to an attorney.”

He also argued that legislative efforts to seek relief from those who engage in the unauthorized practice of law may be viewed as lawyers just trying to defend their turf.

Wisconsin Realtor’s Association attorney Cori M. Lamont said the group supported the creation of the new rule, which included an exemption for real estate agents, and she questioned the need for legislative action.

“I’m not sure going to the legislature is really where we need to go,” she said. “We believe in consumer protection and that Supreme Court Rule 23 offers that.”

Kammer expects resistance from legislators “just because this is something lawyers want,” which is why he wants to broaden the scope to include individuals who infringe on other professionals such as real estate agents, bankers and accountants.

While it’s odd that attorneys would seek the help of professions that lobbied against the creation of an unauthorized practice of law rule, Kammer said a collective effort gives any legislation a better chance of success.

“I hope realtors perceive this as a threat too, because I’ve been running into CPAs at real estate closings,” he said.

But most other professions are already regulated by the state and many received unauthorized practice of law exemptions in the Supreme Court rule.

Heil doesn’t see the advantage for other professions to sign on to legislation which could limit their longstanding practices, regardless of whether it constitutes the unauthorized practice of law.

“I don’t see what carrot could be offered to sell to realtors or accountants,” he said. “They’ve grabbed onto that turf and unfortunately for our profession, we sat back and let it happen.”

On the Web:

Thomas J. Lyon & Associates

Jack Zemlicka can be reached at [email protected].