Vol. 78, No. 2, February 2005

Where Do We Go Now?

by Michelle A. Behnke

Recently, the Wisconsin Supreme Court denied the State Bar's petition to define the practice of law and create a mechanism to enforce the definition. The court reasoned, in part, that there was no empirical proof of an unauthorized practice of law (UPL) problem. The court also questioned its ability to regulate nonlawyers found to be engaging in UPL activities. Less than a month later, the supreme court granted the Wisconsin Trust Account Foundation (WisTAF) petition to impose a mandatory assessment of $50 against each active Wisconsin lawyer to help fund civil legal services. The court reasoned, in part, that lawyers have a very unique role in the legal profession and therefore have a special obligation to assist in the funding of civil legal services.

Can the court impose a tax on lawyers? Can the court compel a contribution to a specific charitable entity? The answers are not clear. What effect will the assessment have on lawyers providing pro bono services, lawyers like those who receive the State Bar pro bono award each year for going far beyond the call of duty to provide pro bono legal services, or the lawyers who have made quiet contributions in their communities by providing pro bono services to individuals and organizations, or the lawyers who voluntarily write a check to the Dane County Pro Bono Fund or Milwaukee Legal Aid Society or the Allied Drive Legal Defense Fund or other such entities? What will happen to the fundraising efforts of other legal service providers that do not receive funds from WisTAF? There are many questions and few answers, but what is clear is that the lawyers in this state, through the State Bar, must work to ensure a broader solution to the problem of how to fund civil legal services.

If lawyers must now pay the mandatory assessment to WisTAF, I think it is also important to acknowledge that lawyers are not the only people providing legal services. Various groups are quick to point out the "special obligations of lawyers" when it comes to pro bono and assisting those people who do not have adequate means to access the justice system. Yet few of those same groups will acknowledge that lawyers are not alone in the practice of law and that those who are not regulated by the supreme court but who provide "legal services" operate without the same educational, licensing, and regulatory obligations and costs placed on lawyers.

In both of these recent decisions, the State Bar made extraordinary efforts to get input from our members and tried to craft solutions to work through complex issues. However, the court's decisions have caused some of our members to wonder whether there is a true opportunity for lawyers' input in devising solutions.

The legal profession is different from all others, and we must work to help the public understand what we do and why we are regulated. If the court only has authority to regulate people (lawyers) rather than to regulate the practice of law, then a lawyer would only need to surrender his or her license, become a "consultant familiar with the legal system," and be free from the trust account rules, the Rules of Professional Conduct, State Bar dues, and the assessments for the Board of Bar Examiners, the Office of Lawyer Regulation, and now WisTAF. Why does the regulation of the practice of law matter? Because regulating the practice of law is for the protection of the public. The regulations ensure a certain level of training and knowledge to represent the interests of others. Are lawyers the only people who may have the training to represent others? Perhaps not, but, without examining the definition and establishing a mechanism for enforcement, we must ask, what does it really mean to be licensed to practice law? Surely it means more than the right to pay a mandatory assessment.

Where do we go from here? I believe we must undertake a study of the legal needs of the poor similar to the study conducted in Washington state. This study will help determine ways to serve the legal needs that are not currently being met. There is no one-size-fits-all solution. I believe we also must study the definition of the practice of law and ensure that the public interest is protected.

Wisconsin Lawyer