STATE COURT MULLS RULE CHANGE ON UNLICENSED GC's

SUPREMES MEET ON LICENSURE CHANGE

Could Get Unlicensed GC’s Off Hook in State

[A Special for the Readers of Milwaukeeworld.com, particularly the ones who are lawyers. It will be rather dry read for the rest of us. – Ed.]

By Michael Horne

© 2007 Milwaukeeworld Publishing LLC.

Have the brightest minds of Wisconsin’s legal system finally devised a rule to regulate unlicensed corporate counsels in this state? Maybe, maybe not. Not even the head of the State Board of Bar Examiners seems sure.

The Wisconsin Supreme Court made this announcement about a hearing to be held on the subject Thursday, April 12^th, 2007, at 9:30 a.m. in the Supreme Court Hearing Room on the second floor of the Capitol’s East Wing.

The court has been accepting comment on a State Bar of Wisconsin proposal to “change the rules governing lawyers who provide legal services in jurisdictions where they are not licensed to practice, otherwise known as multijurisdictional practice (MJP).”

The State Bar Board of Governors’ proposal is predicated on the concept “that the modern practice of law requires Wisconsin lawyers to transact business across state lines and to advise clients about legal problems encountered outside of Wisconsin,” according to the Court’s release. The bar’s motion would make it easier for Wisconsin lawyers to serve clients in other jurisdictions.

Also, it appears to partially answer questions about the issue of in-house counsel who serve Wisconsin corporations, yet may be licensed elsewhere. (As you know, milwaukeeworld has exposed a number of these lawyers operating in Wisconsin in previous postings about unlicensed corporate counsels).

The change in the practice of law suggested by the Bar . provides, in relevant section that:

“(b) An out-of-state lawyer is "eligible' for admission pro hac vice if that lawyer:

i. lawfully practices solely on behalf of the lawyer's employer and its commonly owned organizational affiliates, regardless of where such lawyer may reside or work”

According to the Court’s press release:

“The Board of Governors’ proposal tracks a model rule developed by the American Bar Association (ABA) in many respects, but does not recommend the Court adopt ABA Model Rule 5.5(d) (1), which addresses the issue of in-house counsel for national or international corporations who may be licensed elsewhere but asked to serve in the company’s Wisconsin office for a period of time.”

You can figure out what that means.

The current regulation does not seem to have a lot of play in it. It reads:

“No individual other than an enrolled active member of the state bar may practice law in this state or in any manner purport to be authorized or qualified to practice law.”

That seems rather harsh.

However, it is not at all certain that the Board of Governors has figured out what to do about the Unauthorized Practice of Law in Wisconsin. (It actually has a committee on the subject.) According to the minutes of the last meeting of the Board, in December, 2006, the following exchange took place:

“Atty. John Kosobucki, Director of the Board of Bar Examiners, wondered if this answered the question of in-house legal counsel.

“President-elect Basting said that in the context of this rule, it did not specifically address the issue of in-house counsel for corporations in Wisconsin who are not licensed in Wisconsin but giving legal advice within the confines of their companies. He indicated that this issue would need to be dealt with, if at all, in another way.”

"If at all?" Some find the matter of considerable urgency. Based on the pioneering work of this website, Corporate Counsel Magazine did a survey and found 8 counsels from the top 250 publicly traded firms were not properly licensed in the state in which they did business. Worse, the publication also found inconsistencies in response to its inquiries when contacting officials of a state, for example, Maryland.

The Association of Corporate Counsel fired off a letter about the proposed changes / non-changes to the Wisconsin court saying:
"We are hard-pressed to understand why the bar has given such careful consideration to very difficult questions regarding temporary practice incursions and decided to endorse the wisdom of the ABA MJP Commission provisions and yet has “punted” the relatively uncontroversial issue of in-house counsel authorization."

Hey! This is still a mess!

Written comment on the proposed changes may be submitted to Assistant Deputy Clerk Carrie Janto at carrie.janto@wicourts.gov .

If you would like to listen to a live streaming audio of the hearing, go to this link tomorrow beginning at 9:30 a.m. http://www.wicourts.gov/supreme/petitions_audio.htm

--Michael Horne