Rule Order

On August 31, 2011, Rod W. Rogahn, Chairperson, Board of Administrative Oversight, James M. Brennan, President, State Bar of Wisconsin, and Keith L. Sellen, Director, Office of Lawyer Regulation, filed a joint petition with the Wisconsin Supreme Court. The petition seeks to create a supreme court rule for providing legal services following the determination of a major disaster. The proposed rule was based on an ABA Model Rule which had been adopted by 13 jurisdictions when the petition was filed.

The court requested and received additional information from the petitioners by letters dated October 14, 2011, and March 22, 2012. The petitioners responded, in writing, on November 14, 2011, and April 11, 2012. On April 25, 2012, the court held a public hearing on the petition. Joseph E. Redding, Board of Administrative Oversight, and Keith L. Sellen, Director, Office of Lawyer Regulation, presented the petition to the court. The court also received and considered written comments from Attorney Dean Dietrich. At its ensuing open administrative conference, the court approved the petition and adopted the proposed rule, with certain technical revisions. The proposed rule is based on an ABA Model Rule so it contained general references to "the Court" or "this jurisdiction." The court changed the language to specifically refer to the Wisconsin Supreme Court and the State of Wisconsin. The court also considered whether the Clerk of Supreme Court or the Office of Lawyer Regulation would be the more appropriate place for lawyers to file the registration statement required by the rule, and determined that the statements will be filed with the Clerk of Supreme Court.

IT IS ORDERED that, effective the date of this order, the Supreme Court Rules are amended as follows:

Section 1. SCR 23.03 of the supreme court rules is created to read:

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.

Section 2. SCR 20:5.5 of the Supreme Court Rules is amended to add the following comment:

WISCONSIN COMMENT

Lawyers desiring to provide pro bono legal services on a temporary basis in the State of Wisconsin when it has been affected by a major disaster, when they are not otherwise authorized to practice law in the State of Wisconsin, as well as lawyers from a jurisdiction affected by a major disaster who seek to practice law temporarily in this jurisdiction, but who are not otherwise authorized to practice law in the State of Wisconsin, should consult Supreme Court Rule 23.03.

IT IS FURTHER ORDERED that the Comments to SCRs 20:5.5 and 23.03 are not adopted, but will be published and may be consulted for guidance in interpreting and applying the rule.

IT IS FURTHER ORDERED that notice of these amendments of the supreme court rules be given by a single publication of a copy of this order in the official state newspaper and in an official publication of the State Bar of Wisconsin.

Dated at Madison, Wisconsin, this 5th day of July, 2012.

BY THE COURT:

Diane M. Fremgen

Clerk of Supreme Court