SCR CHAPTER 23
REGULATION OF UNAUTHORIZED PRACTICE
OF LAW
PREAMBLE
Every jurisdiction in the
The following rules are promulgated by the
Wisconsin Supreme Court pursuant to its inherent authority to define and
regulate the practice of law in this state.
The purpose of the rules is to protect the public from potential harm
caused by the actions of nonlawyers engaging in the unauthorized practice of
law.
SCR 23.01 Definition of practice of law.
The
practice of law in
(1) Giving
advice or counsel to others as to their legal rights or the legal rights or
responsibilities of others for fees or other consideration.
(2) Selection,
drafting, or completion for another entity or person of legal documents or
agreements which affect the legal rights of the other entity or person(s).
(3) Representation
of another entity or person(s) in a court, or in a formal administrative
adjudicative proceeding or other formal dispute resolution process or in an
administrative adjudicative proceeding in which legal pleadings are filed or a
record is established as the basis for judicial review.
(4) Negotiation
of legal rights or responsibilities on behalf of another entity or person(s).
(5) Any
other activity determined to be the practice of law by the Wisconsin Supreme
Court.
SCR
23.02 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
(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
(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.
COMMENT
A
nonlawyer who is an employee, member, or officer of an entity or organization
may represent such entity, organization or any corporate affiliate before an
administrative tribunal or agency of the State of
(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)
(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.
COMMENT
This
provision encompasses practical training of law students authorized by SCR Ch.
50.
(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. 895.45,
stats., or a Court Appointed Special Advocate (CASA) volunteer or staff member
acting within the scope of s. 48.236, 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 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. 46.81(4), stats., or in the
scope of s. 46.283, stats., and s. DHS 10.23 (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.
COMMENT
The exceptions may also encompass:
Nonlawyer employees of an entity or
organization that engage in giving advice or counsel to another entity or
person as to the legal rights of that entity or person; selection, drafting, or
completion, for another entity or person, of legal documents; or negotiation of
legal rights or responsibilities on behalf of another entity or person, where
the activities are undertaken for the sole benefit of the entity or
organization or any corporate affiliate;
Nonlawyer employees of an entity or
organization preparing legal documents that are incidental to the entity's or
organization's business and connected with any transaction in which the entity
has a direct, primary, and nonfiduciary interest, or a fiduciary interest
required by federal law;
Nonlawyer entities or organizations which
employ lawyer employees to perform the activities described in 23.01(1) for
such entity, other entities within the organization, or in the case of
privately held entities or organizations, for owners and their families,
officers, directors, or employees of the entity or organization;
A nonlawyer entity or organization acting
through lawyer employees providing legal services, without direct payment
therefor, to a party other than a party described in (j), in a manner
consistent with the Wisconsin Rules of Professional Conduct for Attorneys
(including, without limitation, the rules relating to conflicts of interest and
fee sharing), so long as the entity or organization has a financial interest in
the outcome of the legal services, there is a commonality of purpose between
the entity or organization and the third party, and the entity or organization
is not otherwise in the business of providing legal services except as provided
in these rules.
(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.
COMMENT
The
practice of law requires a skillful practitioner with training in how to find,
interpret and apply the law in various circumstances which involve the legal
rights and interests of the person(s) being served. Licensure and regulation of the practice of
law are necessary to protect the public interest from harm which can result
from incompetency, dishonesty, and unethical behavior. The regulation of the practice of law in
A
license to practice law in
SCR 23.03 Provision of legal services following
determination of major disaster.
(1) Determination
of existence of major disaster. Solely for purposes
of this rule, the Wisconsin Supreme Court shall determine when an emergency
affecting the justice system, as a result of a natural or other major disaster,
has occurred in:
(a) the State of Wisconsin and whether the
emergency caused by the major disaster affects the entirety or only a part of
this jurisdiction, or
(b) another jurisdiction but only after
such a determination and its geographical scope have been made by the highest
court of that jurisdiction. The
authority to engage in the temporary practice of law in the State of Wisconsin
pursuant to sub. (3) shall extend only to lawyers who principally practice in
the area of such other jurisdiction determined to have suffered a major
disaster causing an emergency affecting the justice system and the provision of
legal services.
(2) Temporary
practice in the State of Wisconsin following major disaster. Following the determination of an emergency
affecting the justice system in Wisconsin pursuant to sub. (1) of this rule, or
a determination that persons displaced by a major disaster in another
jurisdiction and residing in Wisconsin are in need of pro bono services and the
assistance of lawyers from outside of this jurisdiction is required to help
provide such assistance, a lawyer authorized to practice law in another United
States jurisdiction, and not disbarred, suspended from practice or otherwise
restricted from practice in any jurisdiction, may provide legal services in the
State of Wisconsin on a temporary basis.
Such legal services must be provided on a pro bono basis without
compensation, expectation of compensation or other direct or indirect pecuniary
gain to the lawyer. Such legal services
shall be assigned and supervised through an established not-for-profit bar
association, pro bono program or legal services program or through such
organization(s) specifically designated by this Court.
(3) Temporary
practice in the State of Wisconsin following major disaster in another
jurisdiction. Following the determination of a major
disaster in another United States jurisdiction, a lawyer who is authorized to
practice law and who principally practices in that affected jurisdiction, and
who is not disbarred, suspended from practice or otherwise restricted from
practice in any jurisdiction, may provide legal services in the State of
Wisconsin on a temporary basis. Those
legal services must arise out of and be reasonably related to that lawyer's practice
of law in the jurisdiction, or area of such other jurisdiction, where the major
disaster occurred.
(4) Duration
of authority for temporary practice. The
authority to practice law in the State of Wisconsin granted by sub. (2) of this
rule shall end when this Court determines that the conditions caused by the
major disaster in the State of Wisconsin have ended except that a lawyer then
representing clients in the State of Wisconsin pursuant to sub. (2) is
authorized to continue the provision of legal services for such time as is
reasonably necessary to complete the representation, but the lawyer shall not
thereafter accept new clients. The
authority to practice law in the State of Wisconsin granted by sub. (3) of this
rule shall end 60 days after this Court declares that the conditions caused by
the major disaster in the affected jurisdiction have ended.
(5) Court
appearances. The authority granted by this rule does not
include appearances in court except:
(a) pursuant to that court's pro hac vice
admission rule (SCR 10.03(4)) and, if such authority is granted, any fees
for such admission shall be waived; or
(b) if this Court, in any determination
made under sub. (1), grants blanket permission to appear in all or designated
courts of this jurisdiction to lawyers providing legal services pursuant to
sub. (2). If such an authorization is
included, any pro hac vice admission fees shall be waived.
(6) Disciplinary
authority and registration requirement.
Lawyers providing legal services in the State of Wisconsin pursuant to
sub. (2) or (3) are subject to the Wisconsin Supreme Court's disciplinary
authority and the Rules of Professional Conduct for Attorneys of this
jurisdiction as provided in SCR 20:8.5 of the Rules of Professional
Conduct. Lawyers providing legal
services in the State of Wisconsin under sub. (2) or (3) shall, within 30 days
from the commencement of the provision of legal services, file a registration
statement with the Clerk of Supreme Court.
The registration statement shall be in a form prescribed by this
Court. Any lawyer who provides legal
services pursuant to this Rule shall not be considered to be engaged in the
unlawful practice of law in the State of Wisconsin.
(7) Notification to clients. Lawyers authorized to practice law in another
United States jurisdiction who provide legal services pursuant to this Rule
shall inform clients in Wisconsin of the jurisdiction in which they are
authorized to practice law, any limits of that authorization, and that they are
not authorized to practice law in the State of Wisconsin except as permitted by
this Rule. They shall not state or imply
to any person that they are otherwise authorized to practice law in the State of
Wisconsin.
ABA
COMMENT
[1] A major disaster in this or another
jurisdiction may cause an emergency affecting the justice system with respect
to the provision of legal services for a sustained period of time interfering
with the ability of lawyers admitted and practicing in the affected jurisdiction
to continue to represent clients until the disaster has ended. When this
happens, lawyers from the affected jurisdiction may need to provide legal
services to their clients, on a temporary basis, from an office outside their
home jurisdiction. In addition, lawyers
in an unaffected jurisdiction may be willing to serve residents of the affected
jurisdiction who have unmet legal needs as a result of the disaster or, though
independent of the disaster, whose legal needs temporarily are unmet because of
disruption to the practices of local lawyers.
Lawyers from unaffected jurisdictions may offer to provide these legal
services either by traveling to the affected jurisdiction or from their own
offices or both, provided the legal services are provided on a pro bono basis
through an authorized not-for-profit entity or such other organization(s)
specifically designated by this Court. A
major disaster includes, for example, a hurricane, earthquake, flood, wildfire,
tornado, public health emergency or an event caused by terrorists or acts of
war.
[2] Under paragraph [(1)(a),] this Court shall
determine whether a major disaster causing an emergency affecting the justice
system has occurred in this jurisdiction, or in a part of this jurisdiction,
for purposes of triggering paragraph [(2)] of this Rule. This Court may, for example, determine that
the entirety of this jurisdiction has suffered a disruption in the provision of
legal services or that only certain areas have suffered such an event. The
authority granted by paragraph [(2)] shall extend only to lawyers authorized to
practice law and not disbarred, suspended from practice or otherwise restricted
from practice in any other manner in any other jurisdiction.
[3] Paragraph [(2)] permits lawyers authorized to
practice law in an unaffected jurisdiction, and not disbarred, suspended from
practice or otherwise restricted from practicing law in any other manner in any
other jurisdiction, to provide pro bono legal services to residents of the
affected jurisdiction following determination of an emergency caused by a major
disaster; notwithstanding that they are not otherwise authorized to practice
law in the affected jurisdiction. Other
restrictions on a lawyer's license to practice law that would prohibit that lawyer
from providing legal services pursuant to this Rule include, but are not
limited to, probation, inactive status, disability inactive status or a
non-disciplinary administrative suspension for failure to complete continuing
legal education or other requirements.
Lawyers on probation may be subject to monitoring and specific
limitations on their practices. Lawyers on inactive status, despite being
characterized in many jurisdictions as being "in good standing," and
lawyers on disability inactive status are not permitted to practice law. Public protection warrants exclusion of these
lawyers from the authority to provide legal services as defined in this
Rule. Lawyers permitted to provide legal
services pursuant to this Rule must do so without fee or other compensation, or
expectation thereof. Their service must
be provided through an established not-for-profit organization that is
authorized to provide legal services either in its own name or that provides
representation of clients through employed or cooperating lawyers. Alternatively, this court may instead
designate other specific organization(s) through which these legal services may
be rendered. Under paragraph [(2),] an emeritus lawyer from another United States
jurisdiction may provide pro bono legal services on a temporary basis in this
jurisdiction provided that the emeritus lawyer is authorized to provide pro
bono legal services in that jurisdiction pursuant to that jurisdiction's
emeritus or pro bono practice rule. Lawyers may also be authorized to provide
legal services in this jurisdiction on a temporary basis under Rule 5.5(c) of
the Rules of Professional Conduct.
[4] Lawyers authorized to practice law in
another jurisdiction, who principally practice in the area of such other
jurisdiction determined by this Court to have suffered a major disaster, and
whose practices are disrupted by a major disaster there, and who are not
disbarred, suspended from practice or otherwise restricted from practicing law
in any other manner in any other jurisdiction, are authorized under paragraph
[(3)] to provide legal services on a temporary basis in this jurisdiction. Those legal services must arise out of and be
reasonably related to the lawyer's practice of law in the affected
jurisdiction. For purposes of this Rule,
the determination of a major disaster in another jurisdiction should first be
made by the highest court of appellate jurisdiction in that jurisdiction. For the meaning of "arise out of and
reasonably related to," see Rule 5.5 Comment [14], Rules of Professional
Conduct.
[5] Emergency conditions created by major
disasters end, and when they do, the authority created by paragraphs [(2)] and
[(3)] also ends with appropriate notice to enable lawyers to plan and to
complete pending legal matters. Under
paragraph [(4),] this Court determines when those conditions end only for
purposes of this Rule. The authority granted under paragraph [(2)] shall end
upon such determination except that lawyers assisting residents of this
jurisdiction under paragraph [(2)] may continue to do so for such longer period
as is reasonably necessary to complete the representation. The authority created by paragraph [(3)] will
end [60] days after this Court makes such a determination with regard to an
affected jurisdiction.
[6] Paragraphs [(2)] and [(3)] do not authorize
lawyers to appear in the courts of this jurisdiction. Court appearances are
subject to the pro hac vice admission rules of the particular court. This Court
may, in a determination made under paragraph [(5)(b),] include authorization
for lawyers who provide legal services in this jurisdiction under paragraph
[(2)] to appear in all or designated courts of this jurisdiction without need
for such pro hac vice admission. If such an authorization is included, any pro
hac vice admission fees shall be waived.
A lawyer who has appeared in the courts of this jurisdiction pursuant to
paragraph [(5)] may continue to appear in any such matter notwithstanding a
declaration under paragraph [(4)] that the conditions created by major disaster
have ended. Furthermore, withdrawal from
a court appearance is subject to Rule 1.16 of the Rules of Professional
Conduct.
[7] Authorization to practice law as a foreign
legal consultant or in-house counsel in a United States jurisdiction offers
lawyers a limited scope of permitted practice and may therefore restrict that
person's ability to provide legal services under this Rule.
[8] The ABA National Lawyer Regulatory Data
Bank is available to help determine whether any lawyer seeking to practice in
this jurisdiction pursuant to paragraphs [(2)] or [(3)] of this Rule is
disbarred, suspended from practice or otherwise subject to a public
disciplinary sanction that would restrict the lawyer's ability to practice law
in any other jurisdiction.
Adopted July 27, 2010.
Amended July 5, 2012.