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State considers potential for nonlawyer legal practitioners

By: JESSICA STEPHEN//October 3, 2013//

State considers potential for nonlawyer legal practitioners

By: JESSICA STEPHEN//October 3, 2013//

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A movement is underway to create a new class of nonlawyer legal practitioners, meant primarily to provide services to the poor.

State Supreme Courts and bar associations in Washington, New York and California are changing rules and developing pilot programs that would allow nonlawyers to provide limited legal services, including offering self-help materials or explaining documents.

Opinions are mixed about the idea in Wisconsin, where State Bar association members and even judges have begun informally exploring the concept.

“I really think it’s inevitable,” said Kevin Palmersheim, a board member and past president of the Dane County Bar Association. “It’s been discussed on a State Bar level and at the [state] Supreme Court, but very informally, as something that’s coming down the pipeline.”

Critics say the move would threaten practicing attorneys and be a disservice to the people such programs are meant to help.

“I don’t think it’s a good idea at all,” said Tom Cannon, executive director of the Legal Aid Society of Milwaukee. “I think it’s a bad idea because the proposals seem to focus on cut-rate, second-rate, dumbed-down legal services for the poor. And the poor need competent, well-trained legal assistance.”

Others say creating a mid-level class of nonlawyers could fill a service gap, however, especially in pro se heavy practice areas such as family law.

Any attempt to create such programs in Wisconsin would likely require a revision of a 2010 state Supreme Court rule defining who is authorized to practice law. Under the rule, anyone who gives legal advice, drafts legal documents or represents someone in court must be licensed. The rule is meant to “protect the public from potential harm caused by the actions of nonlawyers,” according to Chapter 23 of the state Supreme Court Rules.

“It’s kind of a rule without real teeth,” said Patrick Anderson, a prosecutor and past president of the Kenosha County Bar Association. “What are you going to do? Take away a law license from someone who doesn’t have a law license? It’s got to be a criminal penalty.”

But the rule embodies the spirit of an important protection, he said, especially in parts of southeastern Wisconsin, where the cultural interpretation of the word “notary” has led to inflated promises, if not outright fraudulent legal practices.

“If you drive around the south side of Milwaukee, even parts of Madison, in the more Hispanic neighborhoods, you’ll see signs that say ‘notary,’” Anderson said. “That word, ‘notary,’ in other countries, especially Spanish-speaking countries, means something very akin to a lawyer, almost a super-lawyer. That’s not the meaning of ‘notary’ in the United States.”

Some “notarios,” as they are referred to in Spanish, provide genuine help for the undocumented or those who cannot afford traditional attorneys. Others, however, have oversold their abilities, Anderson said, taken people’s money and “disappeared into the night.”

“I do worry that,” Palmersheim said, “there are some people who would take advantage of a new category of mid-level providers and make promises to clients that they can do or will do things they can’t or shouldn’t be doing.”

Still, he said, the idea of an unlicensed legal advocate could have merit, especially if the state Supreme Court had oversights to limit abuse.

The concept is not unprecedented, Palmersheim said. Comparable exceptions were made for real estate agents, who had to get state permission to handle contracts.

“There was a big battle and, of course, exceptions were made,” he said. “And we all think that’s normal now. Sure there might be some bickering, but the system works and it wasn’t like the sky was falling.”

Palmersheim also pointed to family law assistance centers, which often use law students to help people representing themselves in divorce actions moving through the courts.

“It’s not exactly legal advice,” he said, “but it comes awfully close.”

Cannon said any move to allow nonlawyers to offer legal advice could water down services for the people who need them most. It also could draw business away from attorneys, although that was not his primary concern.

“It isn’t a question of protecting turf; it’s a question of protecting clients,” Cannon said. “These kinds of quasi-professionals aren’t even close to being trained in the way a lawyer is trained. They’re not going to undergo three years of post-graduate legal education.

“They can’t go to court, go to trial, file written briefs or anything the clients need for proper representation.”

Wisconsin Law Journal’s sister publication, Massachusetts Lawyers Weekly, also contributed to this report.


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