Dec 10, 2007

HALT Opposes the Wisconsin State Bar's Proposed Regulation of the Unauthorized Practice of Law

This article is posted with permission from HALT, the nation's oldest law reform organization.

HALT Submits Comments Rejecting the Wisconsin State Bar's Proposed Regulation of the Unauthorized Practice of Law

HALT believes that consumers should have access to a continuum of legal services provided by both attorneys and qualified non-lawyers that meet the full range of their legal needs. On behalf of HALT's 50,000 members nationwide and 1,200 members in Wisconsin, HALT urged the Court to reject the State Bar's Proposed Supreme Court Rule Chapter 23, Regulation of Unauthorized Practice of Law.

The Wisconsin Supreme Court should recognize that lawyers alone cannot provide all the legal services consumers need. Study after study has shown that lawyers have priced themselves beyond the reach of average Americans. According to a 1996 ABA study, some 38 million low and moderate income American households simply cannot afford to hire a lawyer. Lawyers' fees of $100 per hour or more mean that the traditional source of legal services is out of the reach for many Americans. Wisconsin's own Access to Justice Study Committee stresses in Bridging the Justice Gap: Wisconsin's Unmet Legal Needs that more than "half a million Wisconsinites ― people with families, many of whom have jobs, own homes and pay taxes ― must contend with significant legal troubles without any legal help... because they cannot afford the professional legal help they need." Access to Justice Commissions around the country are also expressing great concern about this growing accessibility crisis.

Instead of responding to the access crisis, Wisconsin's organized Bar has asked the Court to adopt a new draconian rule that will make it all but impossible for consumers to get help when they can't afford to hire a lawyer. The Bar's sweeping new definition of the practice of law ― "the application of legal principles and judgment with regard to the circumstances or objectives of another entity or person(s)" ― covers every legal service imaginable. "Giving advice or counsel, ...selection, drafting or completion of legal documents, ...representation of another entity or person(s) in court, ...negotiation of legal rights or responsibilities on behalf of another, ...or any other activity determined to be the practice of law by the Wisconsin Supreme Court" would all become the exclusive domain of licensed Wisconsin attorneys.

Given the large number of people who cannot afford a lawyer, improving services for pro se litigants and other self-represented individuals is also an important component of improving access to the legal system. Many consumers are forced to represent themselves in court, often times without adequate support or access to appropriate resources. In some jurisdictions, up to 90 percent of all divorce cases involve at least one party without representation. In Wisconsin, more than half of the litigants in family court represent themselves. Across the nation, pro se litigants are also flooding into bankruptcy, traffic, landlord-tenant and small claims court. In fact, Wisconsin judges and court personnel recently ranked "self-represented litigants the number one concern facing the court system."

HALT urged the Court to allow innovative alternatives to flourish. Many consumers are turning to alternatives to traditional legal representation, such as legal document preparers, title agents, independent insurance adjusters and self-help books and software. The Wisconsin Bar's proposal would make almost every conceivable service that involves any legal question whatsoever the exclusive monopoly of lawyers. If the Court believes that some clarification is needed, HALT suggested a simple definition ― the unauthorized practice of law is the act of falsely claiming to be a lawyer. The defining characteristic of the practice of law is the establishment of an attorney-client relationship. The definition of the practice of law should reflect this core value. When a person hires a lawyer, she expects to receive this kind of relationship. HALT urged the Court to reject the Wisconsin Bar's transparent attempt to stifle its competition in the guise of consumer protection. We also asked the Court to reassert its commitment to expanding access to the Wisconsin judicial system and encouraging innovations that provide consumers with affordable legal assistance. Read HALT's comments at www.halt.org