Professor Michael McChrystal once pointed out that in the State of Wisconsin, the penalty for working as a beautician without a license is not much different from the penalty for practicing law without a license.<\/p>\n
Someone who practices as a barber or cosmetologist without a license \u201cshall be fined not less than $100 nor more than $5,000 or imprisoned for not less than 10 days nor more than 90 days or both.\u201d\u00a0 Wis. Stat. \u00a7 454.16.\u00a0 Similarly, someone who practices law without a license \u201cshall be fined not less than $50 nor more than $500 or imprisoned not more than one year in the county jail or both, and in addition may be punished as for a contempt.\u201d\u00a0 Wis. Stat. \u00a7 757.30(1).<\/p>\n
Granted, the penalties aren\u2019t identical and we can scrutinize the differences.\u00a0 In any case, it seems a little unsettling to me that the penalty for giving a bad haircut (assuming it\u2019s done without a license) is pretty close to the penalty for a non-lawyer giving bad legal advice.\u00a0 Let\u2019s face it, hair will grow back, but the harm from getting legal advice from someone who isn\u2019t properly trained can be devastating.<\/p>\n
Humor me while I take this analogy a bit further: even if the unlicensed barber delivers the best haircut of your life (perhaps now is a good time to refer to my photograph, email me if you want my stylist\u2019s number (he has a license, by the way)), he is still subject to sanctions under Section 454.16.\u00a0 However, the Wisconsin Supreme Court has suggested that correct legal advice given by a non-lawyer, at least in relatively simple situations, is protected speech under the First Amendment.\u00a0 See<\/em> Hopper v. Madison<\/em>, 79 Wis.2d 120, 134 (1977).<\/p>\n What\u2019s more, Chapter 454 establishes a whole administrative board to deal with licensing and disciplining cosmetologists, while the unauthorized practice of law (UPL) lacks an effective enforcement mechanism.<\/p>\n The last several years have seen a lot of attempts by the State Bar and other advocates to find a way to effectively regulate UPL.\u00a0 Unfortunately, it has been a slow process.\u00a0 In the meantime, more and more people\u2014usually among the most vulnerable\u2014are falling victim to unlicensed practitioners.<\/p>\n In my practice area, I see a lot of the ugly fallout from those who get advice from notarios<\/em>: non-lawyer notaries public who misuse their designation to present themselves as immigration experts.\u00a0 However, the problem goes far beyond the immigrant community.<\/p>\n There have been increasing problems with bankruptcy petition preparers.\u00a0 The bankruptcy code allows non-lawyers to help prepare petitions for debtors, subject to restrictions.\u00a0 11 U.S.C. \u00a7 110.\u00a0 Often, however, the preparers do not do a good job of informing their clients of what the fee they collect, about $100-$200, covers\u2014debtors enter bankruptcy court unaware that they need to pay a filing fee to the court.\u00a0 Worse, these debtors may have received poor advice from the preparer, or even thought the preparer was an attorney.\u00a0 The bankruptcy court can ban deadbeat preparers, but the barred preparers tend to continue their scheme under borrowed or phony names.<\/p>\n Problems also have been reported with online service providers that advertise online help with anything from estate planning to family law.\u00a0 These providers try to fit their users\u2019 needs into one-size-fits-all forms\u2014a practice that should make any decent lawyer cringe.<\/p>\n While the harms of UPL are serious, efforts to strengthen unauthorized practice mechanisms have been slow\u2014you can get a sense of how things have developed by looking at the UPL policy committee page on the State Bar website here<\/a>.<\/p>\n