September 2000

Cross-Border Practice

by Theresa L. Schulz

Geographical barriers such as the St. Croix and Mississippi rivers separating Minnesota from Wisconsin mean little to those who live along their banks. In fact, it’s not unusual for clients and cases to cross state lines. But crossing a state line may mean the world to an attorney seeking to assist a prospective client who comes seeking legal help.

That’s because professional ethical and state licensing rules prevent Minnesota attorneys who are not licensed in Wisconsin from regularly practicing in Wisconsin and vice-versa. This is true despite the fact that with technology we can maintain a virtual presence separate from our physical presence, communicate instantaneously cross-country, and access Wisconsin caselaw and statutes as easily as we access the law of Minnesota. Many feel that the restrictive attorney licensing rules that vary state by state should be discarded in favor of a nationwide licensing system.1

Until that goal is achieved, attorneys along the state border still face the real problem of what to do with cases and clients they may want to take in an adjoining state. The option of presenting yourself pro hac vice2 is feasible only if the number of cases you take from the border state is minimal. To regularly represent clients in Wisconsin cases, Minnesota attorneys need to be licensed in Wisconsin.

Because Minnesota grants reciprocity to attorneys of other states without examination under certain circumstances, Wisconsin offers the same benefit to Minnesota attorneys. To gain admission to the Wisconsin bar by reciprocity, a Minnesota attorney must be licensed to practice in Minnesota and must have actively engaged in the practice of law in Minnesota for at least five of the preceding seven years. (Requirements for attorneys licensed in other states may differ). There is a fee to be paid -- $850 as of September 1, 2000 -- and a detailed application process that must be completed. Minnesota attorneys seeking reciprocity in Wisconsin also must have received a minimum scaled score of 85 on the Multistate Professional Responsibility Examination (MPRE). Like all other applicants to the Wisconsin bar, Minnesota attorney applicants must undergo a character and fitness investigation, conducted by the Wisconsin Board of Bar Examiners, which can take several months to complete.

For attorneys who haven’t practiced long enough to utilize the reciprocity rule, Wisconsin also allows the transfer of the Multistate Bar Exam (MBE) score taken in another jurisdiction, so long as the transfer is made within 37 months of taking the MBE, the applicant was successful on the exam, and received a minimum scaled score of 145. The Minnesota attorney applying under this rule still must sit for the Wisconsin essay portion of the Wisconsin Bar Exam, a one-day exam consisting of eight essay questions. In addition, the Minnesota attorney must have received a scaled score of at least 85 on the MPRE and also must undergo Wisconsin’s character and fitness investigation. There is a $450 fee to apply for admission to Wisconsin’s bar under this rule.3

Minnesota attorneys who don’t qualify under either of the above two methods for admission to the Wisconsin bar have no choice but to take the full two-day Wisconsin Bar Exam in order to gain a license to practice law in Wisconsin. Contact the Wisconsin Board of Bar Examiners at (608) 266-9760 for more information.

Theresa L. Schulz is an attorney licensed in Minnesota, Wisconsin, and California. She offices in Lake Elmo, MN and practices exclusively employment law. She is a 1993 cum laude graduate of the University of Minnesota Law School.

"Crossing the state border is like crossing a major chasm"

Obtaining a license to practice in Wisconsin is the first step to regularly taking on Wisconsin clients and cases. The next step for someone who wants to start practicing across the border in Wisconsin, according to those who have done it, is to find mentors in Wisconsin who are willing to answer general questions.

Laura Seaton, an attorney with the LaCrosse law firm of Bosshard & Associates, says "practicing in both Minnesota and Wisconsin can be like practicing in two different countries. Crossing the state border is like crossing a major chasm." In fact the procedural differences between the two states are so significant, Seaton warns, "procedure will eat you alive. There are a million pitfalls. You really need someone you trust that you can ask questions." Seaton says she had Wisconsin mentors to turn to when she first started her practice in Wisconsin. Now she is serving as a mentor for several Wisconsin attorneys who are starting to practice in Minnesota, and finds they call her regularly with questions about Minnesota procedure. "It takes a long time to feel very comfortable practicing in both states," she says.

Tim Guth is an attorney officing in La Crosse and practicing family law and criminal defense in both Minnesota and Wisconsin. He agrees that it’s very important for those starting a cross-border practice to find colleagues who can answer the many general questions that will arise. Ed Kautzer, a St. Paul attorney practicing in both states with the firm Ruvelson & Kautzer, says that he was able to meet and develop mentor relationships with several Wisconsin attorneys by attending Wisconsin CLEs and bar association functions, introducing himself, and actively networking. The lawyers Kautzer met were then able to help him when he came across questions about Wisconsin law and procedure.

Guth also says attorneys practicing across state borders need to be very organized and have well-trained staff, because the forms and procedures for practicing in the two states can differ greatly. Guth regularly calls on his Wisconsin colleagues if he needs a particular form that he doesn’t already have in his office. Kautzer says he has always done the same thing, but notes that very recently, all Wisconsin criminal, juvenile, family and probate forms became available on disk. Obtaining these forms on disk will greatly simplify anyone’s cross-border practice, he says, because all the Wisconsin court-approved forms in those practice areas will be easily available.

Kautzer, who practices family law, criminal law, and real estate in Wisconsin, in addition to his Minnesota general practice, recommends several Wisconsin legal publications as particularly helpful for Minnesota attorneys who are practicing over the river. For example, he recommends the Wisconsin Attorney’s Desk Reference, which provides a summary of every area of law and important details like the Wisconsin statute of limitations for every cause of action. Kautzer also likes the Wisconsin State Bar CLEs and publications that serve as valuable resources for those with cross-border practices.

Just getting used to the differences and nuances of practicing in two different states takes some time. Seaton, who practices primarily family law in both Minnesota and Wisconsin, observes that divorce cases in Minnesota are much more expensive and cumbersome than in Wisconsin because they are based on an affidavit practice. Wisconsin is not known for its speedy divorces, though, because the state has "long paternalistic waiting periods that slow the process down" explains Seaton. For example, Wisconsin has a minimum waiting period between the time the petition for divorce is filed and the time the divorce is granted. Then, once a Wisconsin divorce is granted, the state imposes a six-month moratorium on either party getting remarried. During that six-month period, if the parties decide to reunite, the divorce decree is erased and the parties do not have to remarry.

Seaton says she has found Minnesota courts to be much stricter than Wisconsin courts in enforcing the rules of civil procedure. In criminal procedure, Guth finds Minnesota to be more progressive than Wisconsin. Guth also finds Minnesota judges to be more objective and less "prosecutorially minded" than their Wisconsin colleagues, who tend to run on a "tough on crime" platform.

Kautzer says that when practicing in border counties, he has found Wisconsin judges to be very tolerant and accepting of Minnesota lawyers. He says "they don’t home town you" in the border counties, but are much more likely to do that in Madison, Milwaukee, or other more distant Wisconsin cities.

The professional ethical rules in Minnesota and Wisconsin are very similar, as both are based on the ABA’s Model Rules of Professional Conduct. Be aware of the ethical rules pertaining to an attorney’s duty to third parties, warns Kautzer, because Wisconsin’s rules are stronger in that area. There are also some differences in how alleged ethical violations are investigated, but Guth notes that Wisconsin is currently reformulating the procedures followed by that state’s Board of Attorneys Professional Responsibility.4

Cross-border attorneys also must comply with both states’ continuing education requirements. While Minnesota has a three-year reporting period, Wisconsin’s reporting period is every two years. In addition to the standard CLE credits, Wisconsin requires a certain number of Ethics and Professional Responsibility (EPR) credits; Minnesota, on the other hand, requires Ethics credits and Elimination of Bias credits. Wisconsin allows attorneys to carry over a certain number of CLE credits from one reporting period to the next. Cross-border attorneys report that it is not difficult to find continuing education courses that count for credit in both Minnesota and Wisconsin.

If you’re considering starting a practice in Wisconsin in addition to Minnesota, you should also take a close look at the financial costs involved to decide if it will help or hurt your firm’s bottom line. Wisconsin has an integrated bar, meaning all attorneys are required to be members of the state’s bar association, which charges membership dues each year. In addition, the application process for admission into Wisconsin’s bar can be costly. You don’t need separate malpractice insurance and you don’t need to set up separate IOLTA accounts for each state. However, a cross-border practice will cost more time and money in terms of traveling between the two states, paying for long distance telephone calls, and keeping up with the substantive and procedural differences between the two states.

Kautzer recommends that Minnesota attorneys wait to see if their Minnesota practice is drawing a lot of cases and clients from Wisconsin, before making the leap to become licensed in Wisconsin. "If you find you have a fair number of clients wanting you to represent them in Wisconsin, then consider it" suggests Kautzer. Seaton also recommends first becoming familiar with and comfortable practicing Minnesota law, before tackling another state’s law and procedure.

1. Proposals are under discussion for establishing a joint admission process for the states of Idaho, Utah, Washington, and Oregon. See John A. Bailey, Jr., "Joint Admissions?" 43-MAR Advocate 4, March 2000.

2. By bringing a motion pro hac vice, an out-of-state lawyer may be admitted to practice in a local jurisdiction for a particular case only. The motion generally must be brought and supported by an attorney admitted to practice in that jurisdiction.

3. The fees for admission to the Wisconsin bar exam cited herein are for those applications timely made; all late applications are subject to an additional $200 late fee.

4. Effective September 2000, the former Wisconsin Board of Attorneys Professional Responsibility is being replaced by two new boards, the Preliminary Review Committee and the Board of Administrative Oversight. In addition, an Office of Lawyer Regulation is being established. See Wisconsin SCR Chapters 21 and 22, which describe the state’s lawyer regulation system.