Wisconsin. Note: Current to March 19, 2015

Transcription

1 Note: Current to March 19, 2015 Wisconsin Unauthorized Practice of Law: Wis. Stat (2014) Penalty for practicing without license (1) Every person, who without having first obtained a license to practice law as an attorney of a court of record in this state, as provided by law, practices law within the meaning of sub. (2), or purports to be licensed to practice law as an attorney within the meaning of sub. (3), shall be fined not less than $50 nor more than $500 or imprisoned not more than one year in the county jail or both, and in addition may be punished as for a contempt. (2) Every person who appears as agent, representative or attorney, for or on behalf of any other person, or any firm, partnership, association or corporation in any action or proceeding in or before any court of record, circuit or supplemental court commissioner, or judicial tribunal of the United States, or of any state, or who otherwise, in or out of court, for compensation or pecuniary reward gives professional legal advice not incidental to his or her usual or ordinary business, or renders any legal service for any other person, or any firm, partnership, association or corporation, shall be deemed to be practicing law within the meaning of this section. (3) Every person who uses the words attorney at law, lawyer, solicitor, counselor, attorney and counselor, proctor, law, law office, or other equivalent words in connection with his or her name or any sign, advertisement, business card, letterhead, circular, notice, or other writing, document or design, the evident purpose of which is to induce others to believe or understand the person to be authorized to practice law or who in any other manner represents himself or herself either verbally or in writing, directly or indirectly, as authorized to practice law in this state, shall be deemed to be purporting to be licensed to practice law as an attorney within the meaning of this section. (4) No person shall practice law in this state under any other given name or any other surname than that under which originally admitted to the bar of this or any other state, in any instance in which the board of bar examiners shall, after a hearing, find that practicing under the changed name operates to unfairly compete with another practitioner or to mislead the public as to identity or to otherwise result in detriment to the profession or the public. Any person violating this subsection shall be subject to the penalty provided in sub. (1). This subsection does not apply to a change of name resulting from marriage or divorce. Who may practice as an attorney: Wis. Sup. Ct. R License required to practice law; use of titles. (1) RIGHT OF A PERSON TO PRACTICE LAW IN WISCONSIN. A person who is duly licensed to practice law in this state by the Wisconsin Supreme Court and who is an active member of the State Bar of Wisconsin may practice law in Wisconsin. No person may engage in the practice of law in Wisconsin, or attempt to do so, or make a representation that he or she is authorized to do so, unless the person is currently licensed to practice law in Wisconsin by the Wisconsin Supreme Court and is an active member of the State Bar of Wisconsin.

2 (2) EXCEPTIONS AND EXCLUSIONS. A license to practice law and active membership in the State Bar of Wisconsin are not required for a person engaged in any of the following activities in Wisconsin, regardless of whether these activities constitute the practice of law: (a) Practicing law pursuant to SCR 10.03(4) by a non-resident counsel or registered in-house counsel. (b) Serving as a courthouse facilitator pursuant to court rule. (c) Appearing in a representative capacity before an administrative tribunal or agency to the extent permitted by such tribunal or agency. (d) Serving in a neutral capacity as a mediator, arbitrator, conciliator, or facilitator. (e) Participation in labor negotiations, arbitrations or conciliations arising under collective bargaining rights or agreements. (f) Acting as a lobbyist. (g) Sale of legal forms in any format. (h) Activities which are preempted by federal law. (i) Selection or completion of a legal document, including a legal document created pursuant to statute, administrative rule, or Supreme Court Order, where the document may contain various blanks and provisions to be filled in or completed and selection or completion of the legal document requires only common or transaction-specific knowledge regarding the required information and general knowledge of the legal consequences. (j) Serving in a neutral capacity as a clerk or court employee providing information to the public pursuant to Supreme Court Order. (k) Any other activities that the Supreme Court has determined by rule or by published opinion do not constitute the unlicensed or unauthorized practice of law or which are permitted under a regulatory system established by the Supreme Court, Wisconsin Statutes, Administrative Code or common law. (l) Acting as a nonlawyer advocate under the direction or supervision of a lawyer. (m) Acting as a nonlawyer assistant under the supervision of a lawyer in compliance with SCR 20:5.3 of the Wisconsin Rules of Professional Conduct for Attorneys. (n) Governmental agencies, Indian tribes and their employees carrying out responsibilities provided by law. (o) Practicing within the scope of practice allowed by a current credential issued or authorized under chs. 440 to 480, stats., or performing services under the supervision of a professional holding a current credential issued under chs. 440 to 480, stats., provided that the Supreme Court has not determined by rule or by published opinion that the activity constitutes the unlicensed or unauthorized practice of law. (p) A victim service representative acting within the scope of s , stats., or a Court Appointed Special Advocate (CASA) volunteer or staff member acting within the scope of s , stats. (q) A nonlawyer entity or organization acting through lawyer employees to the extent such lawyers perform pro bono legal services for nonprofit organizations, low-income clients, or otherwise in the public interest. (r) An entity or organization in the business of insurance guarantee or indemnity, or the provision, sale or marketing of insurance or financial products or services permitted to be offered by insurance companies under s. Ins 6.75, Wis. Admin. Code, or a self-insured entity or organization, or any employee licensed under ch. 628, stats., or contractor of any of the foregoing entities or organizations when conducting their insurance business, which includes but is not limited to: (1) investigating or adjusting claims against it or its insured; (2) negotiating with other persons or entities; (3) conducting loss control functions; (4) underwriting business; (5) selling insurance or financial products or services permitted to be offered by insurance companies under s. Ins 6.75, Wis. Admin. Code, or providing advice and counsel with respect to such insurance or financial products or services; (6) the preparation of releases or settlement agreements; (7) using a lawyer employee or captive lawyer admitted to the bar in Wisconsin or otherwise permitted to practice law in Wisconsin to represent its principal or corporate affiliate, or an insured or noninsured for whom a defense is provided; and (8) any act required of an insurer by law, provided that the Supreme Court has not determined by rule or by published opinion that the activity constitutes the unlicensed or unauthorized practice of law. (s) Professional activities performed by a certified public accountant or by a person working under the direction of a certified public accountant. (t) Any state or

3 federally chartered financial institution or affiliate of such an institution when engaging in an activity that is within its authority under applicable state or federal law, including any person providing services for it in connection with that activity; provided that the Supreme Court has not determined by rule or by published opinion that the activity constitutes the unlicensed or unauthorized practice of law. (u) A benefits specialist acting in the scope of s (4), stats., or in the scope of s , stats., and s. DHS (2) (d), Wis. Adm. Code. (v) Nonlawyers making any disclosure or advisement which is required by state or federal law. (w) Teaching about the law or providing information about the law including the legal rights or responsibilities of persons under the law, in a manner that is not directed at providing specific legal advice to a specific individual in the context of a specific matter. (3) USE OF TITLES. Except as permitted by SCR 10.03(4), only a person who is currently licensed to practice law in Wisconsin and who is an active member of the State Bar of Wisconsin may represent himself or herself to the public using the words attorney at law, lawyer, solicitor, counselor, attorney and counselor, proctor, law, law office, or other equivalent words in connection with his or her name or any sign, advertisement, business card, letterhead, circular, notice, or other writing, document or design, the evident purpose of which is to induce others to believe or understand the person to be authorized to practice law in this state or otherwise qualified to provide professional legal services or advice. Wis. Stat (2014) Judge not to act as attorney, etc.; attorneys not to have office with judge. (1) No judge, while holding office, may be in any manner engaged or act as attorney or counsel; and no judge or his or her clerk or any person employed by the judge in or about his or her office, court commissioner or other judicial officer shall be allowed to give advice to parties litigant in any matter or action pending before the judge or officer, or which the judge has reason to believe will be brought before him or her for decision, or draft or prepare any papers, including wills, or other proceedings relating to any such matter or action except when expressly authorized by law; and no court commissioner or other judicial officer may be allowed to demand or receive any fees or compensation for services as such commissioner or judicial officer, except those expressly authorized by law, upon penalty, for any violation hereof, of removal from office. (2) No practicing attorney may hold office in the office of the clerk of any court in which he or she practices nor may he or she hold office in the same room with a judge. (3) No practicing attorney may have his or her office in the same room with any district attorney, municipal judge or court commissioner, unless he or she is a partner of the district attorney, municipal judge or court commissioner, in which case he or she shall not practice as an attorney before the municipal judge or court commissioner nor act as attorney in any case in which it is the duty of the district attorney to appear or prosecute for the state; except that the law partner of any district attorney may, at the request of the district attorney, without fee or compensation therefor, assist the district attorney in the prosecution of any case on the part of the state. (4) No law partner of any district attorney may act as a municipal judge or court commissioner in any case in which the state may be a party or defend in any court any person charged with any offense, or appear in any civil action against the state in which it is the duty of the district attorney to prosecute or appear for the state.

4 (5) Any attorney who violates sub. (2), (3) or (4), and any municipal judge or court commissioner who violates or knowingly permits any such violation, may be fined not to exceed $100 for each such offense. Case Law: State ex rel. Baker v. County Ct. of Rock County, Branch I, 138 N.W.2d 162 (Wis. 1965) The Supreme Court held that an executor, who seeks an adjudication of rights of beneficiaries, engages in the practice of law and must be represented by attorney licensed to practice law if executor is not an attorney, and that probate court has inherent power to require an executor or administrator seeking an adjudication of the rights of beneficiaries to retain an attorney. State ex rel. State B. of Wis. v. Bonded Collections, Inc., 154 N.W.2d 250 (Wis. 1967) The Supreme Court held that a collection agency which habitually engaged in course of conduct whereby it took assignments of accounts for collection, furnished an attorney, brought suit in its own name, and then pursuant to a prior agreement deducted from the proceeds, costs, and a fixed percentage as its fee and remitted the balance to the creditor was guilty of the unauthorized practice of law. Jadair Inc. v. U.S. Fire Ins. Co., 562 N.W.2d 401, 407 (Wis. 1997) The primary purpose of laws controlling the unauthorized practice of law is to protect the public. *202 Hopper v. City of Madison, 79 Wis.2d 120, , 256 N.W.2d 139 (1977). Statutes and rules that control the unauthorized practice of law assure that the public is not harmed by inadequate or unethical representation. Littleton v. Langlois, 37 Wis.2d 360, 364, 155 N.W.2d 150 (1967). Section (1), Wis.Stat., describes the penalty for practicing law without a license. Section (2), Wis.Stat., describes the practice of law for purposes of this section. The practice of law includes appearing on behalf of some other person or entity in any action or proceeding in or before any court of record, court commissioner, or judicial tribunal of the United States, or of any state. Wis.Stat (2). The practice of law also includes the giving of professional legal advice not incidental to that person's usual or ordinary business, and the rendering of any legal service for any other person or firm, partnership, association or corporation. Id. Individuals may forego legal representation by an attorney and represent themselves in court proceedings. Wis. Const. art. I, sec. 21. Under the plain language of the rules and statutes, we conclude that only lawyers can appear on behalf of, or perform legal service for, corporations in legal proceedings before Wisconsin courts. The intent of the legislature is clear. The only exception the legislature has made to the unauthorized practice of law statute is the exception contained in Wis.Stat (2) for actions filed in small claims court. When the legislature specifically enumerates certain exceptions to a statute, we will presume that the legislature intended to exclude any other exceptions. Georgina G. v. Terry M., 184 Wis.2d 492, 512, 516 N.W.2d 678 (1994). Under our authority to define and regulate the *203 practice of law, we will not devise an additional exception. State ex rel. State Bar of Wisconsin v. Bonded Collections, Inc., 36 Wis.2d 643, , 154 N.W.2d 250 (1967). In re Disc. Proceedings Against Hyndman, 638 N.W.2d 293 (Wis. 2002) Attorney's activities on behalf of his employer in small claims court and federal bankruptcy proceedings, since the revocation of his license, did not constitute the practice of law; attorney performed acts that are frequently performed by non-lawyers, and attorney took pains to note that he was acting as a layperson.

5 Carmain v. Affiliated Capital Corp., 654 N.W.2d 265 (Wis. App. 2002) Director at property management company, who was not a lawyer, could not legally appear on behalf of company, and thus her letter was not a legally recognizable answer to tenant's breach of contract complaint. Only exception to rule, providing that only lawyers can appear on behalf of or perform legal services for corporations in legal actions in Wisconsin courts, is small claims court. Seitzinger v. Community Health Network, 676 N.W.2d 426 (Wis. 2004) There is no exception to the statute requiring attorneys to be licensed in Wisconsin which would permit an unlicensed attorney to represent a physician at a peer review hearing. Ethics Opinions: (Membership in Wisconsin Bar required)