Michael Seitzinger, M.D. v. Community Health Network
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2004 WI 28 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 02-2002 Michael Seitzinger, M.D., Plaintiff-Appellant, v. Community Health Network and Berlin Memorial Hospital, Defendants-Respondents. ON CERTIFICATION FROM THE COURT OF APPEALS OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: November 4, 2003 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: Circuit Green Lake Daniel W. Klossner JUSTICES: CONCURRED: DISSENTED: March 25, 2004 ABRAHAMSON, C.J., dissents (opinion filed). BRADLEY and PROSSER, J.J., join dissent. NOT PARTICIPATING: ATTORNEYS: For the plaintiff-appellant there were briefs by Richard F. Rice and Fox & Fox S.C., Madison, and oral arguments by Nicholas Kardar, M.D. For the defendants-respondents there was a brief by James W. Greer, Dennis J. Purtell and Whyte Hirschboeck Dudek S.C., Milwaukee, and oral arguments by James W. Greer. An amicus curiae brief was filed by George Burnett, Green Bay, and Thomas Basting, Sr., Madison, on behalf of the State Bar of Wisconsin. 2004 WI 28 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 02-2002 (L.C. No. 01 CV 92) STATE OF WISCONSIN : IN SUPREME COURT Michael Seitzinger, M.D., FILED Plaintiff-Appellant, v. MAR 25, 2004 Community Health Network and Berlin Memorial Hospital, Cornelia G. Clark Clerk of Supreme Court Defendants-Respondents. APPEAL from an order of the Circuit Court for Green Lake County, Daniel W. Klossner, Judge. ¶1 N. certification PATRICK from CROOKS, the J. court Affirmed. This of Wis. Stat. § (Rule) 809.61 (2001-02).1 case is appeals before us pursuant on to Michael Seitzinger, M.D. (Seitzinger) appeals an order of the circuit court, which denied his motion for declaratory judgment and Nicholas Kadar, M.D., 1 "Wisconsin Stat. § (Rule) 809.61. Bypass by certification of court of appeals or upon motion of supreme court. The supreme court may take jurisdiction of an appeal or other proceeding in the court of appeals upon certification by the court of appeals or upon the supreme court's own motion. . . . " No. J.D.'s (Kadar) petition to be admitted pro hac vice. of appeals certified two issues to this court. 02-2002 The court The first issue certified is whether the legal representation of a physician at a peer review hearing constitutes the practice of law, thereby requiring representation by a licensed Wisconsin attorney. If we answer in the affirmative to the first issue, the second issue is whether there should be an exception to the unauthorized practice of law statute, Wis. Stat. § 757.30 (200102),2 to allow for such unlicensed representation.3 ¶2 While we do not answer the first issue certified as to all peer review hearings, we decide in this case that, as a matter of contract, the words "legal counsel" as used in the contract in question are reasonably interpreted to apply only to an attorney licensed to practice law in Wisconsin. Community Health Network's (CHN) interpretation We hold that of the words "legal counsel" in the Corrective Action Procedures and Fair Hearing Hospital Plan Addendum (Bylaws) as to the referring Medical to an Staff Bylaws attorney of licensed the to 2 Unless otherwise indicated, all references to Wisconsin Statutes are to the 2001-02 edition. 3 Seitzinger raised a third issue before the court of appeals, which asked the court to determine whether Wis. Stat. § 757.30(2) was unconstitutional as applied to hospital fair hearings. The court of appeals did not address this issue, stating that it did not have jurisdiction to decide such question because Seitzinger failed to give notice of the allegation to the attorney general as required under Wis. Stat. § 806.04(11). For the same reasons, we also decline to address the issue of whether § 757.30(2) is unconstitutional as applied to a hospital fair hearing. We therefore limit our analysis to the two abovementioned issues. 2 No. practice law in Wisconsin was a reasonable one. 02-2002 The general rule is that hospital bylaws can constitute a contract between a hospital and its staff members such as Seitzinger. Since the reasonable interpretation of the contract would require that a person representing Seitzinger be an attorney licensed in Wisconsin, and since the activities that it is reasonable to anticipate Kadar would be engaging in on behalf of Seitzinger would, at the very least, focus on legal issues, we conclude that the circuit court properly denied Seitzinger's motion for declaratory judgment and the petition for Kadar's admission pro hac vice. ¶3 While we find that Kadar's likely activities on behalf of Seitzinger would, at the very least, focus on legal issues, it is not necessary that we determine whether such representation would constitute the practice of law, since the reasonable interpretation of the contract resolves this case. reasonable person would understand that the words A "legal counsel" in the Bylaws mean an attorney licensed to practice law in Wisconsin. ¶4 We further decline to construct an interpretation, or create an exception, to Wis. Stat. § 757.30 that would permit Kadar, an attorney unlicensed in this Seitzinger at his peer review hearing. state, to represent If Seitzinger appears with an attorney, he must appear with an attorney licensed to practice law in Wisconsin, consistent interpretation of the contract. I 3 with the reasonable No. ¶5 Seitzinger is a board certified 02-2002 obstetrician- gynecologist licensed to practice medicine in Wisconsin. CHN is a not-for-profit Wisconsin corporation that owns and operates Berlin Hospital (Hospital). Seitzinger was employed with CHN from October 1995 to July 2001. ¶6 On May 14, 2001, CHN indefinitely suspended all of Seitzinger's clinical Bylaw § 1.4.4 privileges at the Hospital pursuant to CHN then sent Seitzinger a letter detailing his right to request his choice of an expedited or standard peer review hearing and explaining the hearing process generally. the letter, CHN informed Seitzinger that his suspension In was based on cases in which he "demonstrated serious errors in the preoperative, perioperative patients including (and and postoperative surgical complications management and of follow-up care post-discharge) with the potential for severe harm to the patients." After receiving this letter, Seitzinger timely requested a peer review hearing. 4 1.4 Suspension of Privileges (a) Any of the following: the executive committee, the president of the medical staff, the chief executive officer, the chief of the service in which the practitioner has privileges, the executive committee of the governing body or the governing body shall each have the authority whenever action must be taken in the best interests of patient care in the hospital, to suspend all or any portion of the clinical privileges of a medical staff member and such suspension shall become effective immediately upon imposition. 4 No. ¶7 In order to provide some insight the into 02-2002 hearing process, it is necessary to give a brief explanation of the procedures involved. In accordance with the Bylaws, the hearing is held before a hearing committee, which is comprised of three to five active members of the medical staff. hearing, the individuals affected who may practitioner serve on the is given hearing a Prior to the list of seven committee. The affected practitioner is permitted to strike two of the names. During the hearing, pursuant to Bylaw § 3.4, both parties may examine witnesses, introduce exhibits, and submit a written statement at the end of the hearing.5 5 3.4 Rights of Parties "Parties" for the purpose of this Fair Hearing Plan shall be the affected practitioner and the body whose action prompted the request for hearing. During a hearing, each of the parties shall have the right to: (a) Call and examine witnesses. witnesses, including expert (b) Introduce exhibits and present relevant evidence. (c) Question any witness on any matter relevant to the issues. (d) Impeach any witness. (e) Rebut any evidence. (f) Submit a written statement at the close of the hearing. (g) Record the hearing by use of a court reporter or other mutually acceptable means of recording. If the practitioner who requested the hearing does not testify in his own behalf, the practitioner may be 5 No. ¶8 review Bylaw hearing. § 3.3 addresses Bylaw § 3.3(a) representation explains that at the 02-2002 the peer affected practitioner is entitled to representation by a member of the active medical staff in good standing.6 Alternatively, Bylaw § 3.3(b) states that the affected practitioner may be represented by legal counsel at the peer review hearing.7 called by the Hearing Committee or the other party and examined as if under cross-examination. 6 3.3 (a) Representation By a Member of the Medical Staff The practitioner who requested the hearing shall be entitled to be accompanied by and represented at the hearing by a member of the active medical staff in good standing. The executive committee or the governing body, depending on whose recommendation or action prompted the hearing, shall appoint at least one (1) of its members and/or another person of its choosing to represent it at the hearing to present the facts in support of the professional review action, and to examine witnesses. 7 3.3 (b) Representation By Legal Counsel If the affected practitioner desires to be represented by an attorney at any hearing or at any appellate review appearance pursuant to this Plan, his request for such hearing or appellate review must so state. Such notice must also include the name, address and phone number of the attorney. Failure to notify the Hearing Committee in accord with this section shall permit the Committee to preclude the participation by legal counsel or to adjourn the hearing for a period not to exceed twenty (20) days. The executive committee or the governing body may also be allowed representation by an attorney. While legal counsel may attend and assist the respective parties in proceedings provided herein, due to the professional 6 No. ¶9 review Seitzinger hearing. gynecologist, a hired Kadar board Kadar is a to board certified assist him certified subspecialist oncology, and a member of the New Jersey Bar. at 02-2002 the peer obstetricianin gynecologic CHN objected to Kadar's representation of Seitzinger at the peer review hearing, stating that, since Kadar was not a member in good standing of CHN's medical staff, that he needed to be licensed to practice law in Wisconsin in order to represent Seitzinger. ¶10 Seitzinger filed a complaint for declaratory judgment in Green Lake County Circuit Court, seeking a declaration by the court that Kadar could represent him at the peer review hearing. In the alternative, Kadar filed a petition for admission pro hac vice for the hospital hearing and appellate review proceedings. Kadar requested that he be allowed to appear with Seitzinger at the peer review hearing and stated that Kadar would associate nature of these review proceedings, it is intended that the proceedings will not be judicial in form but a forum for professional evaluation and discussion. Accordingly, the Hearing Committee and/or appellate review body retains the right to limit the role of counsel's active participation in the hearing process. . . . 7 No. with a licensed Wisconsin attorney at those 02-2002 proceedings.8 Seitzinger subsequently amended his complaint to add a second claim. The second claim alleged that CHN committed a breach of contract, which arose out of the Medical Executive Committee's recommendation that Seitzinger's clinical privileges be terminated. ¶11 CHN filed a motion to dismiss Seitzinger's first claim for failure to state a claim upon which relief can be granted. CHN alleged that Kadar's representation of Seitzinger at the hearing would violate Wis. Stat. § 757.30 because it would allow Kadar to practice law in Wisconsin, licensed to do so by this state. even though he is not With respect to Seitzinger's second claim, CHN filed a motion for summary judgment on the basis that Seitzinger was time-barred from asserting that claim. ¶12 The circuit court concluded that Kadar's representation of Seitzinger at the peer review hearing would constitute the unauthorized Wis. Stat. § 757.30(2). practice of law under The circuit court noted that at the peer review hearing Kadar would function as Seitzinger's legal 8 Seitzinger alleges that CHN originally took the position that Kadar could represent him at the peer review hearing, provided that local counsel was retained. CHN did send a memorandum to Kadar suggesting that Wisconsin counsel be involved. A reasonable interpretation of this correspondence suggests that while CHN anticipated that Seitzinger might seek counsel from Kadar, that an attorney licensed in this state would be required to appear on Seitzinger's behalf at the peer review hearing. The memo referred to § 3.3(b) of the Corrective Action Procedure and Fair Hearing Plan and stated: "This envisions that legal counsel is licensed in the State of Wisconsin." 8 No. 02-2002 counsel, as that was the only role the Bylaws permitted him to assume. The circuit court further stated that it did not have the authority to admit Kadar pro hac vice. 10.03(4) (2002)9 allows appearances in "his association with an Wisconsin . . . ." or a judge to Supreme Court Rule admit an court" and to active member of the for participate her attorney "in state bar of The circuit court concluded that because a judge could only admit an attorney for an appearance in the judge's own court, and because the rule contemplates the active involvement of an attorney licensed to practice law in Wisconsin, Seitzinger failed two conditions set forth by SCR 10.03(4). Thus, the circuit court denied Seitzinger's motion for declaratory judgment and Kadar's petition for admission pro hac vice. ¶13 noted Regarding Seitzinger's second claim, the circuit court that there was no genuine issue of material fact, as Seitzinger failed to request a hearing regarding the termination of his hospital privileges within the 45-day time limit set by the Bylaws. Thus, the circuit court concluded that CHN was entitled to judgment as a matter of law. Seitzinger appealed the circuit court's decision with respect to his first claim. ¶14 As stated previously, the court of appeals certified two issues to this court. The first issue certified is whether the legal representation of a physician at a peer review hearing 9 Unless otherwise indicated, all Court Rules are to the 2002 edition. 9 references to Supreme No. constitutes the practice of law, thereby representation by a licensed Wisconsin attorney. in the affirmative whether there to should the be first an issue, the exception to 02-2002 requiring If we answer second the issue is unauthorized practice of law statute, Wis. Stat. § 757.30, to allow for such unlicensed representation. II ¶15 In its brief, CHN asserts that, because Seitzinger failed timely to request a hearing regarding the termination of his hospital privileges, his request for a hearing is now moot. Even if Seitzinger's suspension is lifted, CHN points out that his privileges will still be terminated. ¶16 Seitzinger asserts that this case is not moot because the underlying controversy is whether CHN's suspension of his hospital privileges was justified. Seitzinger argues that this court's decision as to whether Kadar may represent him at the peer review hearing will directly affect his right to a fair hearing. Seitzinger further notes that the question before this court has already recurred in a case involving another Wisconsin obstetrician-gynecologist hospital. in that whose privileges were revoked by a This physician has also hired Kadar, and the hearing matter has been stayed pending our decision in the present case. ¶17 issues. Appellate courts will generally decline to decide moot State ex rel. Wis. Envtl. Decade Wis. 2d 234, 236, 243 N.W.2d 497, 498 (1976). when a determination is sought 10 that will v. JCRAR, 73 An issue is moot have no practical No. effect on an existing legal controversy. 02-2002 Racine v. J-T Enters. of Am., Inc., 64 Wis. 2d 691, 700, 221 N.W.2d 869, 874 (1974). ¶18 Nevertheless, this court has carved out exceptions with respect to its general policy regarding moot issues. We will decide a case, even though moot, when the issue is of great public importance, when the constitutionality of a statute is at issue, when the situation occurs so frequently that a decision is necessary to guide the circuit courts, when the issue will likely arise again and should be resolved by this court so as to avoid uncertainty, or when the issue will likely be repeated yet evade appellate review because of the length of the appellate review process. State ex rel. La Crosse Tribune v. Circuit Court, 115 Wis. 2d 220, 229, 340 N.W.2d 460 (1983). ¶19 We conclude that decision in Seitzinger's this peer case this case review not have will is a direct hearing moot, regarding since our effect his upon suspension. Simply because Seitzinger cannot appeal the termination of his hospital privileges does not mean that suspension on his record is inconsequential. the blemish of a Further, a hearing in another case is being stayed pending the outcome of this case. Thus, it is important for both Seitzinger and future parties that we address the issue before us. III ¶20 We Seitzinger now by consider Kadar at whether a the peer review representation hearing representation by a licensed Wisconsin attorney. 11 of requires In doing so, No. 02-2002 we focus on the contract between CHN and Seitzinger and its interpretation. ¶21 We conclude that contract law satisfactorily addresses the issue of whether "legal counsel," as referenced in Bylaw § 3.3(b), refers to an attorney licensed to practice law in Wisconsin. ¶22 effect The primary goal in contract interpretation is to give to the parties' intentions. Johnson Controls v. Employers Ins. of Wausau, 2003 WI 108, ¶30, 264 Wis. 2d 60, 665 N.W.2d 257. We ascertain the parties' intentions by looking to the language of the contract itself. Pleva, 155 Wis. 2d 704, 711, 456 Journal/Sentinel, Inc. v. N.W.2d 359 (1990). If the language within the contract is ambiguous, two further rules are applicable: (1) evidence extrinsic to the contract itself may be determine used to the parties' intent and contracts are interpreted against the drafter. (2) ambiguous Central Auto Co. v. Reichert, 87 Wis. 2d 9, 19, 273 N.W.2d 360 (1978); Moran v. Shern, 60 Wis. 2d 39, 48-49, 208 N.W.2d 348 (1973). are interpreted to give effect to the expressed in the contractual language. Contracts parties' intent, as Danbeck v. Am. Family Mut. Ins. Co., 2001 WI 90, ¶10, 245 Wis. 2d 186, 629 N.W.2d 150. See also N.W.2d 414 Garriguenc (1975). v. Love, Such 67 language Wis. 2d 130, is to 134-35, be 226 interpreted consistent with what a reasonable person would understand the words to mean under the circumstances. Id., ¶22. The general rule is that hospital bylaws can constitute a contract between a hospital and its staff. Bass v. Ambrosius, 185 Wis. 2d 879, 12 No. 02-2002 885, 520 N.W.2d 625 (Ct. App. 1994); Keane v. St. Francis Hosp., 186 Wis. 2d 637, 651, 522 N.W.2d 517 (Ct. App. 1994). The bylaws bind both parties to the terms contained within. 185 Wis. 2d at reviewed 885. under a Applications deferential of standard hospital of Bass, bylaws review. are Hale v. Stoughton Hosp. Ass'n, 126 Wis. 2d 267, 276, 376 N.W.2d 89 (Ct. App. 1985). Based on these cases, we conclude that a hospital's interpretation of its bylaws should stand if reasonable. ¶23 Seitzinger contends that in order to determine whether representation of an affected practitioner at a peer review hearing is the practice of law, the court must conduct a factual inquiry into the degree of legal knowledge and skill required to represent the client. Seitzinger argues that a fair hearing is not a disciplinary proceeding; thus, the hearing committee is unauthorized to take any decisive action against the affected practitioner. The committee's sole task, Seitzinger contends, is to review adverse actions that have already been implemented against the affected practitioner and determine whether those actions are Seitzinger rendering supported argues by that scientific substantial Kadar's or medical medical role would advice facts. be and Thus, confined not to protecting Seitzinger's legal rights. ¶24 In addition, Seitzinger asserts more generally that not everything attorneys do for their clients constitutes the practice of law. constitute Bylaws. the As proof that the present situation does not practice of law, Kadar points to CHN's own If a physician is capable of assuming the same role as 13 No. 02-2002 an attorney at these hearings, Seitzinger contends that simply because an attorney occupies this role at the hearing does not mean that he or she is engaging in the practice of law. Seitzinger asserts that he seeks Kadar's representation because of his ability to draw upon his medical knowledge and experience, not for the benefit of his legal services. ¶25 CHN asserts that Kadar would be advising Seitzinger of his rights and CHN's obligations, thus providing legal advice and services to Seitzinger. CHN contends that simply because the hearing does not take place in a courtroom setting does not change this fact. CHN rejects Seitzinger's portrayal of the hearing as non-disciplinary in nature. that a finding by the committee Instead, CHN asserts that there is evidence supporting the adverse action against the affected practitioner is clearly While unfavorable Kadar may also and part assist of a disciplinary Seitzinger with the process. scientific evidence he presents at the hearing, this too does not negate the fact that Kadar is rendering legal advice. CHN also points out that witnesses are examined, exhibits are introduced, and the affected practitioner may submit a written statement at the close of the peer review hearing. Thus, according to CHN, Seitzinger would clearly benefit from Kadar's legal advice and assistance. ¶26 CHN physician, services. further Seitzinger CHN argues hired contends that, Kadar that, in to although provide keeping Kadar's role was limited to that of attorney. 14 Kadar him with is with the a legal Bylaws, Because Kadar is No. 02-2002 not a member of the active medical staff in good standing, he could not represent Seitzinger under Bylaw § 3.3(a). Although the person subject to the hearing may choose between a physician and an attorney as a representative, CHN asserts that this does not lessen the attorney's role in providing legal advice related to the hearing to his or her client. In fact, CHN contends, the only reason an affected practitioner would retain an attorney to assist at the hearing, instead of an active CHN physician in good standing, would be to have the benefit of the attorney's legal advice and services. ¶27 We counsel" in conclude the that Hospital's interpreting Bylaws to the refer words to an "legal attorney licensed to practice law in Wisconsin is clearly reasonable. To construe it otherwise might permit attorneys unlicensed in the state or non-attorneys to violate Wis. Stat. § 757.30.10 ¶28 As Wis. Stat. § 757.30 makes clear, engage in the practice of law in or out of court. 10 a person Thus, simply Wisconsin Stat. § 757.30(2) states: Every person who appears as agent, representative or attorney, for or on behalf of any other person, or any firm, partnership, association or corporation in any action or proceeding in or before any court of record, circuit or supplemental court commissioner, or judicial tribunal of the United States, or of any state, or who otherwise, in or out of court, for compensation or pecuniary reward gives professional legal advice not incidental to his or her usual or ordinary business, or renders any legal service for any other person, or any firm, partnership, association or corporation, shall be deemed to be practicing law within the meaning of this section. 15 may No. 02-2002 because the peer review hearing takes place outside the confines of a traditional courtroom does not mean that a person, acting in a representative capacity for his or her client, cannot be deemed to be practicing law. ¶29 In Jadair Inc. v. U.S. Fire Ins. Co., 209 Wis. 2d 187, 204, 562 N.W.2d 401 (1997), we stated that the legislature's intent in enacting Wis. Stat. § 757.30 was clear and, thus, held that a corporation's notice of appeal was rendered fatally defective due to the fact that it was not signed by an attorney. In reaching this conclusion, we noted that the primary purpose of statutes preventing the unauthorized practice of law is to protect the public representation. ¶30 Rice, inadequate or unethical Id. at 201-02. In State ex 236 against Wis. 38, rel. 53, Junior 294 Ass'n N.W. 550 of Milwaukee (1940), Bar noting v. the difficulty that courts generally have in defining the practice of law, this court concluded that determining whether a person is engaging in the practice of law must be conducted on a caseby-case basis. that he practice In Rice, we rejected the defendant's contention could of "incidental not law to his have violated statute11 usual because or the everything ordinary losses for insurance companies." 11 state's business unauthorized he of did was adjusting We concluded that, although a At the time State ex rel. Junior Ass'n of Milwaukee Bar v. Rice, 236 Wis. 38, 53, 294 N.W. 550 (1940), was decided, the applicable statute was Wis. Stat. § 256.30. Section 256.30 was amended, effective August 1, 1978, and renumbered as Wis. Stat. § 757.30. 16 No. layperson may adjust insurance adjuster losses was prohibited resembled the practice of law. number of activities, for insurance from doing companies, anything ¶31 an that This court, in Rice, discussed a including rendering legal advice compensation, that amounted to the practice of law. Wis. at 54-57. 02-2002 for Rice, 236 12 In State ex rel. Reynolds v. Dinger, 14 Wis. 2d 193, 109 N.W.2d 685 (1961), this court created a narrow rule that permitted a real estate broker to fill in the blank spaces on standard conveyancing forms, when transferring the title of a client's real estate, without violating the prohibition against a layperson practicing law. We stated that the regulation of the practice of law is a judicial power vested in the Wisconsin Supreme Court. Id. at 206. Nevertheless, we noted that the legislature may aid the court in exercising its power. 203. Id. at We reasoned that, although lapse of time alone does not make a legal violation attain legality, the brokers had been using these forms for over 100 years without incident. Id. at 204. Thus, we concluded that because this practice had not posed any danger to the public, or subjected it to undue expense, it would be against the public interest to halt this 12 In Rice, 236 Wis. at 53, the insurance adjuster engaged in numerous other lawyer-like activities, such as advising an insurance company as to his opinion of its potential liability, advising an insurance company whether or not to settle a claim, attempting to negotiate settlements between the insurance company and injured persons, and dictating and entering into stipulations. 17 No. long-standing method of conveyancing and require 02-2002 that licensed attorneys be permitted to complete the forms. only Id. at 205. ¶32 In State ex rel. State Bar v. Keller, 21 Wis. 2d 100, 102, 123 N.W.2d 905 (1963), we modified our earlier injunction preventing a layperson of law,13 in practice from order engaging to permit in a the unauthorized person to represent others before the Interstate Commerce Commission in Wisconsin, as authorized by the person's federal license. Keller attempted to persuade this court that, where leases and contracts were approved by the Interstate licensed by the Commission, Commerce but Commission, unlicensed by an the attorney State of Wisconsin, should be able to draft such leases and contracts. We noted: Although we recognize that he may advise whether a particular lease or contract complies with federal law or regulations, leases and contracts create substantive rights and obligations of parties and to prepare them and advise concerning their significance other than their standing under the interstate commerce laws and regulations would constitute the practice of law outside the scope of his practice before the interstate commerce commission. Id. at 103. the more Thus, we reasoned that Keller could not engage in general practice of substantive rights and obligations. Keller should be enjoined from 13 advising Id. acting parties of their We also concluded that in a representative See State ex rel. State Bar v. Keller, 16 Wis. 2d 377, 114 N.W.2d 796 (1962). 18 No. 02-2002 capacity for his clients before the Wisconsin Public Service Commission. ¶33 Id. at 104. Based on the abovementioned case law, we conclude that the reasoning regarding Wis. Stat. § 757.30 set forth in Jadair and Rice is more applicable to the present situation than the narrow exceptions recognized in Dinger and Keller. As noted in Jadair, against we are inadequate concerned with representation that provide to their clients. protecting people unlicensed attorneys the might Granted, an affected practitioner appearing at a peer review hearing may choose the assistance of an active CHN physician in good standing. However, as CHN aptly points out, if the affected practitioner selects legal counsel, instead of a physician, it would be in order to secure the benefit of representation by a person who is capable of giving accurate advice regarding legal rights under Wisconsin law. ¶34 We explained in Rice that a layperson must refrain from engaging in any acts that resemble the practice of law. Kadar suggests that he will be assisting Seitzinger only by marshalling the scientific and medical evidence presented at the hearing. Yet, as noted previously, Bylaw § 3.3(a) prevents Kadar from assisting Seitzinger in his capacity as a physician, as Kadar is not a member of the active medical staff of CHN in good standing. Thus, it is clear under the Bylaws that the only role Kadar may assume at the hearing is that of Seitzinger's legal counsel. peer review Allowing Kadar to represent Seitzinger at such a hearing where, at 19 the very least, he could be No. 02-2002 expected to focus on legal issues, would mean that he would be acting as Seitzinger's legal counsel. ¶35 Although Dinger and Keller present situations where we have held that unlicensed attorneys and non-attorneys may engage in limited lawyer-like activities, we have concluded that the holdings in those cases were sufficiently narrow, and limited in scope, so as to be inapplicable to Kadar's proposed representation of Seitzinger. ¶36 It is not necessary that we determine whether Kadar's representation of Seitzinger would constitute the practice of law for purposes of the statute, since the reasonable interpretation of the contract resolves this case. A reasonable person would understand that the words "legal counsel" in the Bylaws mean an attorney licensed to practice law in Wisconsin. ¶37 Based application of on the the Hospital's general rule, Bylaws form a which, contract under between Seitzinger and CHN, we conclude that, if Seitzinger chooses to have legal counsel present at the peer review hearing, he must choose state. an attorney CHN's who is licensed interpretation of to the practice relevant law in section this is a reasonable one. Further, the activities it is reasonable to anticipate Kadar that would be behalf of Seitzinger would, at the very least, focus on legal issues. As we stated in Rice, 236 Wis. at 54: engaging 20 on "Giving advice as to legal rights is clearly the function of a lawyer." IV in No. ¶38 02-2002 While it is not absolutely necessary to address the second certified issue, we conclude that it would be helpful to do so. Therefore, we next consider whether there should be an exception to the unauthorized practice of law statute, Wis. Stat. § 757.30, to allow for such unlicensed representation at a hospital peer review hearing. ¶39 As noted previously, the Wisconsin Supreme Court is exclusively vested with the power to determine what constitutes the practice of law. Dinger, 14 Wis. 2d at 202. we are aided in this task by the legislature. Nevertheless, Id. at 203. The only exception the legislature has made to Wis. Stat. § 757.30 is Wis. Stat. § 799.06(2), represent themselves Wis. 2d at 202. exceptions to preclude any enumerated. in small When a which the statute, we additional Id. (citing permits claims assume created attorney an exception to represent Interest of Moreover, we decline which would physician a at to exercise 209 it unless Wis. 2d 492, 512, 516 N.W.2d 678 (1994)). not Jadair, clearly that exceptions In to court. legislature may non-lawyers Angel enumerates intended specifically Lace our M., 184 The legislature has permit a to an peer review power to unlicensed hearing. create an 481, 402 exception applicable to these circumstances as well. ¶40 In State v. Olexa, 136 Wis. 2d 475, N.W.2d 733 (Ct. App. 1987), the court of appeals concluded that a defendant was not denied her due process right when she was not permitted appear on to her have an behalf attorney in unlicensed court. 21 in Although this state Olexa is No. distinguishable from this case, as it involved 02-2002 whether an unlicensed attorney could appear on behalf of a client in a Wisconsin circuit court, the message is still clear: there is no due process right to be represented by counsel unlicensed in Wisconsin. ¶41 Finally, we under SCR 10.03(4).14 conclude that Kadar cannot be admitted Supreme Court Rule 10.03(4) permits a judge to admit "nonresident counsel to appear in his or her court." Because Kadar is appearing at a hospital peer review hearing, the circuit court correctly noted that it could not admit Kadar pro hac vice. Moreover, even though Rule 10.03(4) states that nonresident counsel may appear "in association with an active member of the state bar of Wisconsin," this wording is also linked to the requirement that the proceeding be before the judge permitting the nonresident client in his or her court. attorney to represent the Clearly, Kadar cannot be admitted pro hac vice under SCR 10.03(4), and we decline to construct an 14 SCR 10.03 Membership (4) Only active members may practice law. No individual other than an enrolled active member of the state bar may practice law in this state or in any manner purport to be authorized or qualified to practice law. A judge in this state may allow a nonresident counsel to appear in his or her court and participate in a particular action or proceeding in association with an active member of the state bar of Wisconsin who appears and participates in the action or proceeding. 22 No. 02-2002 interpretation, or create an exception, which would allow for his admission under these circumstances.15 V ¶42 While we do not answer the first issue certified as to all peer review hearings, we decide in this case that, as a matter of contract, the words "legal counsel" must be interpreted to apply only to an attorney licensed to practice law in Wisconsin. the words "legal In sum, we hold that CHN's interpretation of counsel" in the Bylaws as referring to an attorney licensed to practice law in Wisconsin was a reasonable one. The general rule is that hospital bylaws can constitute a contract between Seitzinger. would a hospital and its staff members such as Since the reasonable interpretation of the contract require that a person representing Seitzinger be an attorney licensed in Wisconsin, and since the activities that it is reasonable to anticipate Kadar would be engaging in on behalf of Seitzinger would, at the very least, focus on legal issues, we conclude that the circuit court properly denied Seitzinger's motion for declaratory judgment and his petition for Kadar's appearance pro hac vice. ¶43 While we find that Kadar's likely activities on behalf of Seitzinger would, at the very least, focus on legal issues, it is not necessary that we 15 determine whether such This court currently has before it a petition asking the court to establish a committee that would, among other things, review the issue of the unauthorized practice of law. This is yet another reason that it is inappropriate, at this time, for us to establish an exception. 23 No. 02-2002 representation would constitute the practice of law under the statute, since the reasonable resolves this case. the words "legal interpretation of the contract A reasonable person would understand that counsel" in the Bylaws mean an attorney licensed to practice law in Wisconsin. ¶44 We further decline to construct an interpretation, or create an exception, to Wis. Stat. § 757.30 that would permit Kadar, an attorney unlicensed in this Seitzinger at his peer review hearing. state, to represent If Seitzinger appears with an attorney, he must appear with an attorney licensed to practice law in Wisconsin, consistent with the reasonable interpretation of the contract. By the Court. The order of the circuit court is affirmed. 24 No. ¶45 SHIRLEY S. ABRAHAMSON, C.J. (dissenting). 02-2002.ssa This case involves the interpretation of a hospital's bylaws pertaining to a doctor's right to representation at a peer review hearing to determine whether his clinical privileges should be suspended. ¶46 The relevant hospital bylaw, § 3.3, governs the representation of the parties at the peer review hearing. Bylaw § 3.3(a) provides that the charging entity shall be represented by one of its members "and/or another person of its choosing." The latter phrase does not explicitly person must be a staff doctor. state that the other The bylaw also explicitly allows the charging entity to be represented by an attorney. ¶47 Bylaw § 3.3(a) provides that the affected doctor "shall be entitled to be accompanied by and represented at the hearing by standing." a member of the active medical staff in good The bylaw also allows the affected doctor to be represented by "an attorney." ¶48 The bylaws do not specify whether an attorney representing either the charging entity or the affected doctor must be "licensed in Wisconsin."16 16 Bylaw 3.3 provides in full as follows: Representation (a) By a Member of the Medical Staff The practitioner who requested the hearing shall be entitled to be accompanied by and represented at the hearing by a member of the active medical staff in good standing. The executive committee or the governing body, depending on whose recommendation or action prompted the hearing, shall appoint at least one (1) of its members and/or another person of its 1 No. ¶49 between 02-2002.ssa The majority opinion treats the bylaws as a contract Dr. Seitzinger and the hospital, Community Health Network (CHN), and asserts that it will interpret the bylaws by applying principles of contract interpretation.17 choosing to represent it at the hearing to present the facts in support of the professional review action, and to examine witnesses. (b) By Legal Counsel If the affected practitioner desires to be represented by an attorney at any hearing or at any appellate review appearance pursuant to this Plan, his request for such hearing or appellate review must so state. Such notice must also include the name, address and phone number of the attorney. Failure to notify the Hearing Committee in accord with this section shall permit the Committee to preclude the participation of legal counsel or to adjourn the hearing for a period of not to exceed twenty (20) days. The executive committee for the governing body may also be allowed representation by an attorney. While legal counsel may attend and assist the respective parties in proceedings provided herein, due to the professional nature of these review proceedings, it is intended that the proceedings will not be judicial in form but a forum for professional evaluation and discussion. Accordingly, the Hearing Committee and/or appellate review body retains the right to limit the role of counsel's active participation in the hearing process. Any practitioner who incurs legal fees in his behalf shall be solely responsible for payment thereof. The bylaws sometimes use the word "attorney" and sometimes the phrase "legal counsel." These terms do not seem to have different meanings in the bylaws. 17 Majority op., ¶¶2, 20, 22. See Bass v. Ambrosius, 185 Wis. 2d 879, 885, 520 N.W.2d 625 (Ct. App. 1994) (treating hospital bylaws as a contract between physician and hospital); Keane v. St. Francis Hosp., 186 Wis. 2d 637, 651, 522 N.W.2d 517 (Ct. App. 1994) (same). 2 No. ¶50 The majority opinion recites several principles contract interpretation18 but fails to apply them. majority opinion adopts as reasonable 02-2002.ssa of Rather, the the hospital's interpretation of the bylaws that Mr. Kadar (a doctor who is also an attorney licensed to practice in New Jersey), whom Dr. Seitzinger hearing, wanted must Wisconsin. Kadar his an be The cannot as attorney majority "assist[] representative licensed opinion at the to practice concludes Seitzinger in that his peer review law because capacity as in Mr. a physician, as Kadar is not a member of the active medical staff of CHN in good standing[,] . . . it is clear . . . that the only role Kadar may assume at the hearing is that of Seitzinger's legal counsel,"19 and that Mr. Kadar cannot assume that role because he is not licensed to practice law in this state. majority opinion concludes that to construe the The contract "otherwise might permit attorneys unlicensed in the state or non-attorneys to violate Wis. Stat. § 757.30 [which defines the practice of law and prohibits the unauthorized practice of law]."20 ¶51 I agree that rules of contract interpretation govern this case. worn The majority opinion, however, fails to apply well- principles of contract interpretation terms of the contract. 18 Majority op., ¶22. 19 Id., ¶34. 20 Id., ¶27. See also id., ¶4. 3 in construing the No. ¶52 I set forth seven rules of contract 02-2002.ssa interpretation relevant to the present case and apply them to the undisputed facts. Each rule, and the rules read together, points to the conclusion that the hospital's bylaws should be interpreted to mean that if an attorney represents Dr. Seitzinger at the peer review hearing, the attorney need not be licensed in the State of Wisconsin. ¶53 The increasing seven scope, rules from are the set rule forth in pertaining order to the of their objective interpretation of the text of a contract to the rule requiring a court to consider interpretations. I the reasonableness conclude that the of competing majority opinion's interpretation of the hospital bylaws violates or ignores these rules and ultimately fails to reach a reasonable interpretation of the bylaws. on the vague The majority opinion's interpretation is based concept that representation at a peer review hearing would "focus on legal issues"21 or "resemble the practice of law"22 and upon its conclusion, which it purports not to have reached, that the practice of law. representation in question constitutes the The majority opinion's interpretation renders the bylaws internally contradictory, unfair to Dr. Seitzinger, and fails to foster the public policy underlying the licensing of attorneys and the prohibition on the unauthorized practice of law. For these reasons, I conclude that the majority opinion's 21 See, e.g., id., ¶¶2, 3. 22 See, e.g., id., ¶¶30, 34. 4 No. 02-2002.ssa interpretation is unreasonable and contrary to the intentions of the parties. ¶54 Rule 1. The inquiry into the parties' intent is not a search for subjective intent but rather focuses on the language the parties used.23 Words in a contract are to be read as a reasonable person would under the circumstances.24 It is the objective meaning of the contract, not the subjective intent of the parties, parties that entering presumes that contract and controls.25 into the that a contract parties they The had is subjective immaterial.26 understood the intent the intention of the "[T]he law import of their which its terms 23 11 Richard A. Lord, Williston on Contracts § 31:4 at 27172 (4th ed. 1999). 24 Danbeck v. Am. Family Mut. Ins. Co., 2001 WI 91, ¶10, 245 Wis. 2d 186, 629 N.W.2d 150. 25 Williston, supra note 23, § 31:4 at 280-83, § 32:2 at 405; State ex rel. Siciliano v. Johnson, 21 Wis. 2d 482, 487, 124 N.W.2d 624 (1963). 26 Kernz v. J.L. French Corp., 266 Wis. 2d 124, 139-41, 667 N.W.2d 751 (Ct. App. 2003) ("[T]he creation of an enforceable agreement is usually predicated on the language used in the contract and the expressed intentions of the parties."). See 17A Am. Jur. 2d Contracts § 352, 368 (1991) ("It is not necessarily the real intent, but the expressed or apparent intent, which is sought. Indeed, a party's subjective, undisclosed intent is immaterial to the interpretation of a contract. The court will not attempt to ascertain the actual mental processes of the parties in entering into the particular contract; rather the law presumes that the parties understood the import of their contract and that they had the intention which its terms manifest."). 5 No. manifest."27 02-2002.ssa The common meaning of language will be given to the words of a contract.28 ¶55 As the majority opinion recognizes, the primary goal of contract interpretation is to give effect to the parties' intentions.29 Our cases have frequently stated that judicial interpretation of a contract is not to determine what the parties "intended to agree to, but what, in a legal sense, they did agree to, as evidenced by the language they saw fit to use."30 The majority opinion recites this rule and repeatedly states that "a reasonable person would understand that the words 'legal counsel' in the Bylaws mean an attorney licensed to practice law in Wisconsin," but provides no reasoning to support this assertion.31 ¶56 The parties' intentions are set forth in the language of the contract. Here the contract uses the word "attorney." The contract's language is not limited to a lawyer licensed to practice in Wisconsin. ¶57 The drafter, the hospital, easily could have inserted words limiting the state of licensure. 27 It did not. Applying Williston, supra note 23, § 31:4 at 275-77. 28 Id., § 32:3 at 408; 5 Margaret A. Kniffen, Corbin on Contracts, § 24.6 at 27 (rev. ed. 1998). 29 Majority op., ¶22. 30 Miller v. Miller, 67 Wis. 2d 435, 442, 227 N.W.2d 626 (1975) (citations omitted), cited with approval in Koenings v. Joseph Schlitz Brewing Co., 126 Wis. 2d 349, 366, 377 N.W.2d 593 (1985), State ex rel. Journal/Sentinel Inc. v. Pleva, 155 Wis. 2d 704, 711, 456 N.W.2d 359 (1990). 31 Majority op., ¶¶3, 36, 43. 6 No. 02-2002.ssa Rule 1, I conclude that because the text does not delineate the state of licensure, the parties did not intend to limit attorneys who provide representation at peer review hearings to those licensed in Wisconsin. ¶58 Rule 2: A court should not add terms or provisions to the contract.32 "In construing a contract, 'courts cannot insert what omitted has been or rewrite a contract made by the parties.'"33. ¶59 The majority opinion does not mention this rule but violates it practice law nonetheless in the by state adding of the words Wisconsin" "licensed after the to word 32 Williston, supra note 23, § 31:6 at 313 ("Traditionally, the general rule which prohibits a court from rewriting the parties' agreement while purporting to construe it also precludes the court from adding terms or provisions to the contract. Additional obligations or undertakings may not be imposed upon a party to a contract under the guise or authority of contractual construction."). 33 Columbia Propane, L.P., v. Wis. Gas Co., 2003 WI 38, ¶12, 261 Wis. 2d 70, 661 N.W.2d 776. See also Danbeck, 245 Wis. 2d 186, ¶10 (Courts are "to avoid rewriting the contract by construction and imposing contract obligations that the parties did not undertake."); Levy v. Levy, 130 Wis. 2d 523, 533, 388 N.W.2d 170 (1986) ("In the guise of construing a contract, courts cannot insert what has been omitted or rewrite a contract made by the parties."); Jones v. Jenkins, 88 Wis. 2d 712, 722, 277 N.W.2d 815 (1979) ("The court cannot redraft the agreement, but must adopt that construction which will result in a reasonable, fair and just contract as opposed to one that is unusual or extraordinary."); Batavian Nat'l Bank of LaCrosse v. S. & H. Inc., 3 Wis. 2d 565, 569, 89 N.W.2d 309 (1958) ("In the name of construction, courts cannot insert what has been omitted or rewrite a contract made by parties."); Jarvis v. Northwestern Mut. Relief Ass'n, 102 Wis. 546, 549, 78 N.W. 1089 (1899) ("Such a construction of the insurance contract would be exceedingly unreasonable, would add, we may say, something not found in the language used in the contract by any rational construction of it, and would be contrary to all authority on the question."). 7 No. "attorney." Flouting this rule, the majority 02-2002.ssa opinion nevertheless claims to have made a reasonable interpretation. It is highly dubious that an interpretation that rewrites the contract language is reasonable. ¶60 Applying Rule 2, I would not add words to the bylaws. I would stick to the words of the bylaws as written and conclude that the attorney parties intended regardless of the the word state in "attorney" which the to mean attorney any is licensed. ¶61 Rule 3. If a contract is characterized as ambiguous because it can be interpreted in more than one reasonable way,34 extrinsic evidence may be used to determine the parties' intentions.35 ¶62 The bylaws are silent on the subject of an attorney's state of licensure and thus may be viewed, for purposes of this case, as susceptible to at least two interpretations: (1) the attorney needs to be licensed in Wisconsin, or (2) the attorney need not be licensed in Wisconsin. The hospital argues that the bylaws require a Wisconsin-licensed lawyer to appear at the peer 34 Danbeck, 245 Wis. 2d 186, ¶10 ("Contract language is ambiguous if it is susceptible to more than one reasonable interpretation."); Dieter v. Chrysler Corp., 2000 WI 45, ¶15, 234 Wis. 2d 670, 610 N.W.2d 832 (same); Donaldson v. Urban Land Interests, Inc., 211 Wis. 2d 224, 230-31, 564 N.W.2d 728 (1997) (same); Tempelis v. Aetna Cas. & Sur. Co., 169 Wis. 2d 1, 9, 485 N.W.2d 217 (1992) (same). 35 Majority op., ¶22. Words in a contract are ambiguous when they are susceptible to more than one reasonable interpretation. Just v. Land Reclamation, Ltd., 155 Wis. 2d 737, 744-45, 157 Wis. 2d 507, 456 N.W.2d 570 (1990). 8 No. 02-2002.ssa review hearing; Dr. Seitzinger argues that any lawyer can appear on his behalf. ¶63 Although Rule 3 is recited by the majority opinion,36 this rule has no application to the present case. No evidence (extrinsic or otherwise) was presented in the circuit court. The parties merely presented briefs and argued the law before the circuit court. ¶64 Rule 4. If a contract is characterized as ambiguous because it can be interpreted in more than one reasonable way, the contract is to be interpreted against the drafter because the language was presumptively within the control of the party drafting the agreement and that party could have made it clear.37 "[A]mbiguous agreements against maker 36 the or are to drafter."38 be construed This rule most is strongly especially Majority op., ¶ 22. 37 Williston, supra note 23, § 32:12 at 471-72 ("Ambiguity the possibility that a word or phrase in a contract might be reasonably and plausibly subject to more than one meaning frequently occurs in the language used by the parties to express their meaning. Since the language is presumptively within the control of the party drafting the agreement, it is a generally accepted principle that any ambiguity in that language will be interpreted against the drafter."). 38 Moran v. Shern, 60 Wis. 2d 39, 49, 208 N.W.2d 348 (1973). See also Dieter, 234 Wis. 2d 670, ¶15; Tempelis, 169 Wis. 2d at 10; Just v. Land Reclamation, Ltd., 155 Wis. 2d 737, 745, 456 N.W.2d 570 (1990); Capital Invs., Inc. v. Whitehall Packing Co., 91 Wis. 2d 178, 190, 280 N.W.2d 254 (1979); Cent. Auto Co. v. Reichert, 87 Wis. 2d 9, 19, 273 N.W.2d 360 (1978); Strong v. Shawano Canning Co., Inc., 13 Wis. 2d 604, 609, 109 N.W.2d 355 (1961). 9 No. 02-2002.ssa applicable when the drafter wants to interpret the ambiguous language in its favor.39 The majority opinion recites Rule 4,40 fails to apply ¶65 it, and proceeds to violate it. ¶66 against The rationale for construing an "ambiguous agreement" the drafter is well articulated (Second) of Contracts, § 206, Comment A: power to make standardized the contract contract had clear the and stronger in the Restatement The drafter had the the drafter bargaining of a position. Comment A reads as follows: Where one party chooses the terms of a contract, he is likely to provide more carefully for the protection of his own interests than for those of the other party. He is also more likely than the other party to have reason to know of uncertainties of meaning. Indeed, he may leave meaning deliberately obscure, intending to decide at a later date what meaning to assert. In cases of doubt, therefore, so long as other factors are not decisive, there is substantial reason for preferring the meaning of the other party. The rule is often invoked in cases of standardized contracts and in cases where the drafting party has the stronger bargaining position, but it is not limited to such cases. ¶67 The hospital's bylaws appear to constitute the kind of standardized contract between two parties of unequal bargaining 39 Corbin, supra note 28, § 24.27 at 282-83 ("If, however, it is clear that the parties did attempt to make a valid contract and the only remaining question is which of two possible and reasonable meanings should be adopted, the court will often adopt the meaning that is less favorable in its legal effect to the party who chose the words. This technique is known as 'contra proferentem.'"). See Donaldson v. Urban Land Interests, Inc., 211 Wis. 2d 224, 230-31, 564 N.W.2d 728 (1997) (applying rule of contra proferentem). 40 Majority op., ¶22. 10 No. 02-2002.ssa power that particularly justifies an interpretation against the drafter. over the bargain Dr. Seitzinger, in all probability, had no control language for more of the bylaws favorable and was language in when no he position to obtained his "ambiguous" and employment. ¶68 applying Assuming that Rule I 4, this contract conclude that the is bylaws should be interpreted against the hospital and that Dr. Seitzinger, who wishes to appear at the hearing with an attorney licensed in another state, should be allowed to do so. ¶69 Rule 5: Interpretation of a contract is a question of law for the court if the contract is unambiguous or if the contract is presented.41 ambiguous but no extrinsic evidence has been "Construction of bylaws and their application to undisputed facts present a question of law that we review de 41 Williston, supra note 23, § 30:7 at 92-93; Corbin, supra note 28, § 24.30 at 338. 11 No. novo."42 02-2002.ssa The court need not give deference to the drafter's interpretation.43 ¶70 the The majority opinion does not recite Rule 5. majority opinion ignores this rule and Instead, violates it by asserting that "[a]pplications of hospital bylaws are reviewed under a deferential standard of review" and that "a hospital's interpretation of its bylaws should stand if reasonable."44 support its conclusion, the majority opinion relies on To (but misreads) Hale v. Stoughton Hospital Ass'n, 126 Wis. 2d 267, 376 N.W.2d 89 (Ct. App. 1985). ¶71 The Hale decision does not support the majority opinion's conclusion that "a hospital's interpretation of its 42 Keane v. St. Francis Hosp., 186 Wis. 2d 637, 649, 522 N.W.2d 517 (Ct. App. 1994). 43 Danbeck, 245 Wis. 2d 186, ¶10 ("The interpretation of an insurance contact is a question of law subject to de novo review."); Dieter, 234 Wis. 2d 670, ¶15 ("We review the interpretation of a warranty or any other contract de novo, and in doing so, our primary purpose is to ascertain and give effect to the intent of the parties."); Tempelis, 169 Wis. 2d at 9 ("Contracts of insurance are controlled by the same principles of law that are applicable to other contracts . . . . The construction of an insurance contract is a question of law which we review de novo.") (quoting Cardinal v. Leader Nat'l Ins. Co., 166 Wis. 2d 375, 382, 480 N.W.2d 1 (1992)); Katze v. Randolph & Scott Mut. Fire Ins. Co., 116 Wis. 2d 206, 212, 341 N.W.2d 689 (1984) ("[T]he construction of the words and clauses in an insurance policy is a question of law for the court."). 44 Majority op., ¶22. 12 No. 02-2002.ssa bylaws should stand if reasonable."45 In Hale, the bylaw at issue an required the hospital to have honest belief termination was in the best interests of the hospital. that There was no dispute over the legal meaning of the phrases "honest belief" or "best interests" as used in the bylaws. The court of appeals in Hale did not show deference to the hospital's legal interpretation of these phrases. Rather, the court of appeals deferred to the board's substantive determination of what was in the best interests of the hospital. The court of appeals concluded that it would not "inquire into the board's decisionmaking process to determine whether its decision is correct. Inquiry is limited to whether the board really believed Hale's termination was in the hospital's best interests."46 ¶72 In Keane v. St. Francis Hospital, 186 Wis. 2d 637, 522 N.W.2d 517 (Ct. App. 1994), a case subsequent to Hale, when an interpretation of hospital bylaws was at issue, the court of appeals did not defer to the hospital's proposed interpretation of its bylaws bylaws and but their rather concluded application to that "[c]onstruction undisputed question of law that we review de novo."47 facts present of a This correct and 45 Majority op., ¶23. Although "courts normally do not interfere with a reasonable management decision concerning staff privileges . . . hospitals must adopt rules, regulations, and bylaws concerning procedures for admission to staff membership, and they may not arbitrarily prevent otherwise qualified doctors from exercising staff privileges." Belmar v. Cipolla, 475 A.2d 533, 538 (N.J. 1984) (citation omitted). 46 Hale v. Stoughton Hosp. Ass'n, Inc., 276, 376 N.W.2d 89 (Ct. App. 1985). 47 126 Wis. 2d 267, Keane v. St. Francis Hosp., 186 Wis. 2d 637, 649, 522 N.W.2d 517 (Ct. App. 1994). 13 No. 02-2002.ssa relevant statement of the law should be followed in the present case. The majority opinion cites Keane but does not abide by it.48 ¶73 Applying Rule 5 and using the objective standard of interpretation, not adding words to the bylaws, and interpreting language against the drafter, I conclude as a matter of law that the parties attorney did must not be intend licensed the in bylaws Wisconsin to to provide that an appear with an affected doctor at a peer review hearing. ¶74 Rule 6: "The contract must be read as a whole and every part will be read with reference to the whole."49 "The general rule as to the construction of contracts is that the meaning of particular provisions in the contract is to be ascertained with reference to the contract as a whole."50 ¶75 violates 48 The majority opinion fails to recite this rule and it by ascertaining the meaning of a bylaw without Majority op., ¶22. 49 Williston, supra note 23, § 32:5 at 420-21 ("A contract will be read as a whole and every part will be read with reference to the whole. If possible, the contract will be so interpreted as to give effect to its general purpose as revealed within its four corners or in its entirety."), § 32:11 at 464 ("A contract must be construed as a whole and the intention of the parties is to be collected from the entire instrument . . . ."). 50 Tempelis, 169 Wis. 2d at 9; see also McCullough v. Brandt, 34 Wis. 2d 102, 106, 148 N.W.2d 718 (1967) ("In the interpretation of a contract, the contract must be considered as a whole in order to give each of its provisions the meaning intended by the parties."); Corbin, supra note 28, § 24.21 at 204 ("[T]he terms of a contract are to be interpreted and their legal effects determined as a whole."). 14 No. considering the bylaws as a whole. bylaws limit the scope of 02-2002.ssa In this case, the hospital's representation at the peer review hearing so that it is evident that the parties did not intend that an attorney must be licensed to practice law in Wisconsin in order to assist at the peer review hearing. ¶76 The bylaws refer to the hearing as a non-judicial forum at which the hospital is free to limit the role of an attorney's active participation. Specifically, Bylaw § 3.3(b) provides that "[w]hile legal counsel may attend and assist the respective parties in proceedings provided herein, due to the professional nature of these review proceedings, it is intended that the proceedings will not be judicial in form but a forum for professional evaluation and discussion. Accordingly, the Hearing Committee and/or appellate review body retains the right to limit the role of counsel's active participation in the hearing process." ¶77 While Bylaw 3.3(b), which governs the scope of an attorney's participation at a peer review hearing, prohibits an attorney from acting in certain capacities, it does not explain in what ways representative review a of hearing. representative the charging The scope of of the entity each affected doctor participate party's at and a a peer activities (and therefore those of each of their representatives) are governed by Bylaw 3.4. Bylaw 3.4 explains that each party has the right to call and question witnesses, rebut evidence, and submit a written statement at the close of the hearing. provides as follows: 15 Bylaw § 3.4 No. 02-2002.ssa Each of the parties shall have the right to: (a) Call and witnesses. examine witnesses, including expert (b) Introduce exhibits and present relevant evidence. (c) Question any witness on any matter relevant to the issues. (d) Impeach any witness. (e) Rebut any evidence. (f) Submit hearing. a written statement at the close of (g) Record the hearing by use of a court reporter or other mutually acceptable means of recording. ¶78 members The hearing committee is ordinarily composed of 3 to 5 of the medical officer.51 presiding staff, Under with certain officer may preside over the hearing. the chairman circumstances being a the hearing The hearing officer may, but need not, be an "attorney-at-law," but must be experienced in conducting hearings.52 ¶79 evidence Bylaw § 3.8 sets forth the that govern the hearing. rules of According procedure to § 3.8, and the "hearing need not be conducted strictly according to rules of law relating to the examination of witnesses or presentation of evidence. Any relevant evidence shall be admissible if, in the judgment of the presiding officer, it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs." The 51 Bylaw §§ 2.9, 3.2. 52 Bylaw Bylaw § 9.2. 16 further provides that "the No. presiding officer shall have the power to 02-2002.ssa rule on the admissibility of pieces of evidence." ¶80 These enumerated procedures are common to many types of hearings. Some are conducted by and with attorneys licensed to practice law in Wisconsin. ¶81 Some are not. As is evident from the bylaws, the expectation is that the peer review hearings may be totally conducted by and with medical staff. will require procedure. The bylaws do not envision that the hearings persons knowledgeable in Wisconsin law or The hearings are not conducted in reliance on any specialized knowledge of the law, to say nothing of Wisconsin law or procedure, particularly given that the peer review hearing is explicitly described as not being a "judicial forum." ¶82 In fact, laypersons routinely perform the activities set forth in the bylaws for the peer review hearings in other contexts, such as governmental administrative hearings. For instance, non-attorneys may serve in a representative capacity in worker's compensation cases. Wisconsin Admin. Code § DWD 80.06 provides that "parties to the controversy . . . may appear in person or by an attorney or agent." established in § DWD 80.20 by the The licensing procedure Department of Workforce Development does not require that an individual appearing before the Department be an attorney.53 53 Wisconsin Stat. § 102.17(1)(c) governs the licensing of non-attorneys who appear in worker's compensation hearings. It provides: Any party shall have the right to be present at any hearing, in person or by attorney or any other agent, and to present such testimony as may be pertinent to 17 No. ¶83 The rules governing the procedure in a 02-2002.ssa worker's compensation hearing are substantially similar to those of the hospital peer review hearing. Wisconsin Admin. Code § 80.12 provides that "[t]he rules of practice before the department shall be such as to secure the facts in as direct and simple a manner as possible."54 Furthermore, the examiner in a worker's compensation hearing "may limit testimony to only those matters which are disputed"55 and "may not allow into the record, either on direct or cross-examination, redundant, irrelevant or repetitive testimony."56 ¶84 In other words, at a worker's compensation hearing, laypersons are authorized to present and rebut evidence, crossexamine and impeach witnesses; the proceedings are recorded.57 the controversy before the department. No person, firm, or corporation, other than an attorney at law who is licensed to practice law in the state, may appear on behalf of any party in interest before the department or any member or employee of the department assigned to conduct any hearing, investigation, or inquiry relative to a claim for compensation or benefits under this chapter, unless the person is 18 years of age or older, does not have an arrest or conviction record, subject to ss. 111.321, 111.322 and 111.335, is otherwise qualified, and has obtained from the department a license with authorization to appear in matters or proceedings before the department. Except as provided under pars. (cm) and (cr), the license shall be issued by the department under rules promulgated by the department. 54 Wis. Admin. Code § DWD 80.12(1)(a) (Nov. 2002). 55 Wis. Admin. Code § DWD 80.12(1)(b) (Nov. 2002). 56 Wis. Admin. Code § DWD 80.12(1)(c) (Nov. 2002). 57 See Wis. Admin. Code § DWD 80.14(1) (Nov. 2002). 18 No. There seems to be little procedures in a worker's review hearing. licensed if any compensation difference hearing 02-2002.ssa between and in a the peer Similarly, a person who is not a Wisconsin attorney may represent a person in an unemployment compensation proceeding58 and perform activities similar to those performed by a representative in a peer review hearing.59 ¶85 In considering whether the parties intended that a person who is not a licensed attorney in Wisconsin may appear as a representative for an affected doctor, I apply Rule 6. the bylaws as a whole and give effect to the I read bylaws' characterization of the venue as a non-judicial forum and the bylaws' preclusion of an attorney from acting as an attorney at the peer review hearing. I also give effect to the bylaws' 58 Unemployment insurance appeals also do not require attorney representation. Wisconsin Admin. Code § 140.02 (Sept. 2000) provides that: Any party may appear on the party's own behalf at any hearing under this chapter or appear with or by a representative. The representative shall be presumed to have full authority to act on behalf of the party, including the authority to file or withdraw an appeal. The representative shall have authority to act on behalf of the party until the party or the representative terminates the representative's authorization and notifies the department that such representation has ended. The Department of Workforce Development's website further clarifies that a representative need not be an attorney. See http://www.dwd.state.wi.us/uibola/BOLA/FAQs/Representation2.htm. 59 See Wis. Admin. Code § DWD 140.15(1) (Sept. 2000) ("Each party shall be given an opportunity to examine and cross-examine witnesses."); § DWD 140.16(1) (Sept. 2000) (statutory and common law rules of evidence do not apply). 19 No. statement of procedure. the rights of the parties and 02-2002.ssa the rules of In discerning the parties' intent, I look at whether a person who is not a licensed Wisconsin lawyer can appear to perform similar hearings. functions in governmental administrative On the basis of all of these factors, I conclude that the parties did not intend the bylaws to limit representation of an affected doctor by an attorney before the peer review board to an attorney licensed in Wisconsin. ¶86 Rule 7: "[A]n interpretation which gives a reasonable, lawful, and effective meaning to all the terms is preferred to an interpretation which leaves a part unreasonable, unlawful, or of no effect."60 "[W]here one construction would make a contract unusual and extraordinary while another [construction] equally consistent with the language used would make the contract reasonable, just, and fair, the latter must prevail."61 ¶87 Although the majority opinion asserts that its interpretation of the bylaws is reasonable, I conclude, for the following reasons, that the majority opinion has adopted an unreasonable interpretation of the bylaws and therefore one that violates the intent of the parties. A. The majority opinion's determination that its interpretation is reasonable rests on its conclusion that 60 Restatement (Second) of Contracts, § 203(a) (1981). See also Williston, supra note 23, § 32:11, at 453-64; Corbin, supra note 28, § 24.22, at 232-48. 61 Capital Invs., 91 Wis. 2d at 193 (quoting Bank of Cashton v. LaCrosse County Scandinavian Town Mut. Ins. Co., 216 Wis. 513, 257 N.W. 451 (1934)). 20 No. 02-2002.ssa a representative of an affected doctor at a peer review hearing could be expected to focus on legal issues or engage in activities that resemble the practice of law and that therefore the parties intended that the bylaws require a Wisconsin-licensed lawyer. "Focus[ing] on legal issues" and "resembl[ing] the practice of law" are vague, broad, undefined phrases. The concept that activities "focusing on legal issues" or "resembling the practice of law" can be performed only by a Wisconsinlicensed lawyer is foreign to our jurisprudence and creates an unworkable rule of law. B. The majority opinion's determination that its interpretation is reasonable rests on its conclusion that a representative of an affected doctor at a peer review hearing engages in the practice of law and that therefore the parties intended that the bylaws require a Wisconsinlicensed lawyer. Despite its repeated protestations that it need not and does not determine whether representation at a peer review hearing constitutes the practice of law, the majority opinion concludes that such representation does constitute the practice of law. C. The majority renders opinion's provisions of interpretation the bylaws of the bylaws contradictory and therefore results in a rewriting of the bylaws to make the provisions consistent. Such an interpretation is not reasonable the and cannot be intent of the parties. According to the majority opinion, an attorney must be 21 No. licensed to practice law in 02-2002.ssa in order Wisconsin to represent an affected doctor at a peer review hearing. But the bylaws allow a staff doctor to represent the charging entity and allow any person of choosing to represent the charging entity. the entity's The bylaws also allow an attorney to represent the charging entity. A doctor may not practice law any more than an attorney not licensed opinion's in Wisconsin. interpretation of Therefore, the bylaws the majority either renders them internally contradictory or rewrites them to read that only a Wisconsin-licensed attorney can represent a doctor or the charging entity at a peer review hearing. D. The majority opinion's interpretation of the bylaws is unreasonable because it is unfair. It denies Seitzinger access to the attorney of his choice. Dr. Yet the proceeding has very significant consequences to him, and the bylaws allow the charging entity to be represented by anyone it chooses. Such an interpretation is unreasonable and cannot be said to be the intent of the parties, no matter how many times the majority opinion flatly insists that a reasonable person would view them that way. E. The majority opinion's interpretation is unreasonable because it does not foster the public policy underlying the licensing unlawful of practice lawyers of and law. the The prohibition on the justification for licensing lawyers and the public policy underlying the 22 No. 02-2002.ssa prohibition on the unauthorized practice of law is to protect consumers of legal services. implicated in hearings. the hospital Accordingly This policy is not bylaws the and peer majority review opinion's interpretation is unreasonable and cannot be said to be the intent of the parties. A ¶88 that a The majority opinion's conclusion that the bylaws mean non-Wisconsin licensed Seitzinger at the peer review attorney hearing cannot rests represent on the Dr. majority opinion's characterization that representation at a peer review hearing "at the very least . . . could be expected to focus on legal issues."62 Such an interpretation cannot be reasonable and the intent of the parties. The concept that an activity that "focuses on legal issues" or "resembles the practice of law" can be performed only by a Wisconsin-licensed lawyer is foreign to our jurisprudence and creates an unworkable rule of law. ¶89 The majority opinion states several times that Mr. Kadar's likely activities would closely "focus on legal issues"63 or "resemble the practice of law"64 and that "a layperson must refrain from engaging in any acts that resemble the practice of law."65 In a similar vein, the majority opinion reasons that 62 Majority op., ¶34. 63 Majority op., ¶¶3, 43. 64 Majority op., ¶¶30, 34 65 Majority op., ¶34. 23 No. 02-2002.ssa because Mr. Kadar might provide legal advice at the peer hearing despite the bylaws' limitations on any attorney who represents an affected doctor, a reasonable interpretation of the bylaws is that a non-Wisconsin licensed attorney cannot represent an affected doctor.66 ¶90 The record does not disclose the activities a doctor's representative performs, and the majority opinion provides no explanation, justification, or citation of authority for drawing a line between activities that can or cannot be performed by non-Wisconsin licensed practice of law. attorneys by their resemblance to the "Focus[ing] on legal issues" or "resemble[ing] the practice of law" are broad, vague, and undefined phrases that encompass the activities of many professionals who are not licensed attorneys. Such an interpretation can only cause problems in the future. ¶91 Although the majority opinion relies on State ex rel. Junior Ass'n of Milwaukee Bar v. Rice, 236 Wis. 38, 294 N.W.550 (1940), for the notion that an unlicensed person's activities may not "resemble the practice of law,"67 the Rice decision never uses that or any similar phrase. The Rice case (and our other cases) speak of activities that constitute the practice of law, not those that merely focus on legal issues or resemble the practice of law.68 66 Majority op., ¶¶27-37. 67 Majority op., ¶34. 68 See, e.g., Lathrop v. Donohue, 10 Wis. 2d 230, 248, 102 N.W.2d 404 (1960); aff'd, 367 U.S. 820 (1961). 24 No. ¶92 the 02-2002.ssa The majority opinion claims that its interpretation of bylaws is required because another interpretation "might permit attorneys unlicensed in the state or non-attorneys to Wis. Stat. § 757.30."69 violate What does "might" permit unlicensed persons to engage in the practice of law mean? Why is it reasonable to conclude that the possibility that a person might engage in providing legal services while he or she is providing non-legal services is a sufficient basis to interpret the hospital bylaws as barring a non-Wisconsin licensed attorney from appearing at a peer review hearing? Many professionals who are not Wisconsin-licensed attorneys engage, as I explain later, in a myriad of diverse acts that focus on legal issues, resemble the practice of law, or put the professional in a position in which he or she "might" engage in the practice of law. cases do not take the approach that an activity's Our merely resembling the practice of law or focusing on legal issues bars a non-Wisconsin licensed lawyer from engaging in it. Rather, our cases analyze each activity challenged and determine whether that activity does or does not constitute the practice of law.70 ¶93 I therefore conclude that the majority opinion's interpretation is contrary to the intent of the parties and that no reasonable person would understand the words "legal counsel" in the Bylaws to mean an attorney licensed to practice law in Wisconsin. 69 Majority op., ¶27. 70 See, e.g., State ex rel. Junior Ass'n of Milwaukee Bar v. Rice, 236 Wis. 38, 53 294 N.W.550 (1940). 25 No. 02-2002.ssa B ¶94 The majority opinion is internally contradictory. Despite its repeated protestations that it need not and does not determine whether hearing] would "such representation constitute the practice [at a peer law,"71 of review the only possible reading of the opinion is that representation at the peer review hearing constitutes the practice of law. ¶95 The majority construe the bylaws to opinion refer explicitly to a states that non-Wisconsin to licensed attorney "might permit attorneys unlicensed in the state" to engage in the unauthorized practice of law.72 What does this sentence mean if it doesn't mean that an appearance at a peer review hearing is the practice of law? If there is any doubt about the meaning of the sentence, we need only examine the section of the majority opinion devoted to discussing the interpretation of the bylaws.73 Eight of the 15 paragraphs of the majority opinion,74 ¶96 that is, majority approximately opinion spills two-thirds on the of the substantive "total ink" analysis of the the bylaws, address cases defining the unauthorized practice of law. If the majority opinion does not conclude that Mr. Kadar's appearance is the practice of law requiring a Wisconsin license, 71 Majority op., ¶¶3, 36, 39, 41, 43. 72 Majority op., ¶27. 73 Majority op., ¶¶27-41. 74 Majority op., ¶¶28-35. 26 No. 02-2002.ssa why does the majority opinion engage in this lengthy discussion? If the majority opinion does not conclude that Mr. Kadar's appearance is the practice of law requiring a Wisconsin license, what is the basis for the majority opinion's interpretation that the bylaws were intended to bar an out-of-state attorney from appearing at the peer review hearing? ¶97 deciding I am sympathetic with the majority's attempt to avoid what unauthorized constitutes practice of the law. practice Defining of law and terms these the has generated a great deal of discussion among lawyers, judges, and non-lawyers for many years. In the last year or so, both the American Bar Association and the State Bar of Wisconsin have independently abandoned their respective attempts to reach an acceptable definition or approach to defining the practice of law or the unauthorized practice of law. ¶98 As the majority opinion points out, the State Bar of Wisconsin has petitioned our court to appoint a committee to study this area of the law.75 of consumer groups, Numerous lawyers, representatives non-lawyers, and trade association representatives appeared before this court at its hearing on the Bar's petition. These persons carefully explained (and gave many examples) how professionals engage in activities on a daily basis that sometimes practice of law. have a legal focus and resemble the To name a few such professionals: financial advisers, investment advisers, accountants, bankers, mediators, arbitrators, 75 trust officers, engineers, Majority op., ¶41 n.15. 27 geologists, realtors, No. paralegals, and land planners. in activities that focus 02-2002.ssa That many professionals engage on legal issues or resemble the practice of law presents one of the key difficulties in trying to define the practice of law and the unauthorized practice of law. ¶99 Because the majority opinion contradicts itself by addressing an issue it denies addressing, I conclude that the majority opinion's interpretation of the bylaws is contrary to the intent of the parties and that no reasonable person would understand that the words "legal counsel" in the Bylaws mean an attorney licensed to practice law in Wisconsin. C ¶100 The majority opinion's bylaws internally contradictory. interpretation renders the Such an interpretation cannot be reasonable and intended by the parties. ¶101 Why is it reasonable to interpret the bylaws as not allowing an out-of-state attorney to represent an affected doctor when the bylaws allow a staff doctor to represent an affected doctor at the hearing and allow any choosing to represent the charging entity? person of its A non-lawyer, as well as an out-of-state lawyer, cannot engage in the practice of law in Wisconsin. Carried to its logical conclusion, the majority opinion bars any person who is not a Wisconsin-licensed attorney from representing an affected doctor or the charging entity at a peer review hearing. Indeed, the majority opinion states that interpreting the bylaws as allowing a non-Wisconsin 28 No. 02-2002.ssa licensed attorney to appear "might permit . . . non-attorneys" to engage in the unauthorized practice of law.76 ¶102 If it is reasonable to interpret representation of an affected doctor at a peer review hearing as an activity in which laypersons cannot engage, as the majority opinion does, then it is reasonable for the majority opinion to render the hospital's authorization of its staff doctors to provide representation at these hearings to either the affected doctor or to the charging entity an illegal authorization of the staff doctors and other non-lawyers to engage in the practice of law.77 A reasonable person would not think that the same activities that can be performed by a doctor require an attorney licensed in the State of Wisconsin. 76 Why is it reasonable for the majority opinion to Majority op., ¶27. 77 An interpretation of a contract that could produce unlawful results is not reasonable. Restatement (Second) of Contracts, § 203(a)(1981) ("[A]n interpretation which gives a reasonable, lawful, and effective meaning to all the terms is preferred to an interpretation which leaves a part unreasonable, unlawful, or of no effect."). See also Williston, supra note 23, § 32:11 at 453 ("Consonant with the principle that all parts of a contract be given effect where possible, an interpretation which renders a contract lawful is preferred to those which render it unlawful."). See also Glendale Prof'l Policemen's Ass'n v. City of Glendale, 83 Wis. 2d 90, 102, 264 N.W.2d 594 (1978) ("[A] contract provision interpreted to permit an employee to violate an ordinance requiring him to live within the city was illegal."); WERC v. Teamsters Local No. 563, 75 Wis. 2d 602, 612-13, 250 N.W.2d 696 (1977) ("Just as a contractual provision to directly violate the law is void, a contractual provision conferring upon a third party the power to interpret the contract in such a manner that a violation will occur is also void."). 29 No. adopt an interpretation of one provision of the 02-2002.ssa bylaws that renders other provisions invalid and changes the procedures set forth in the bylaws? My answer is that such an interpretation is not intended by the parties and that no reasonable person would understand that the words "legal counsel" in the bylaws mean an attorney licensed to practice law in Wisconsin. D ¶103 The majority opinion's interpretation unreasonably denies to Dr. Seitzinger the right to a representative of his choice under the circumstances of the case. of representation, yet allows the represented by anyone it chooses. to Dr. Seitzinger. It limits his right charging entity to be This case is very important His livelihood and professional reputation are in jeopardy at the peer review hearing. His choice of Mr. Kadar falls within the text of the bylaws and within the wellworn rules majority of contract opinion's interpretation. interpretation of the Accordingly, hospital bylaws the is contrary to the intent of the parties and no reasonable person would understand that the words "legal counsel" in the Bylaws mean an attorney licensed to practice law in Wisconsin. E ¶104 The majority opinion's interpretation is unreasonable because it licensing does not of lawyers practice of law. foster and the public the policy prohibition on underlying the the unlawful The policy consideration underlying licensure and the prohibition on unauthorized practice is the protection of consumers of legal services from harm that might be visited 30 No. 02-2002.ssa upon them by persons presumably untrained and incompetent in the law who will provide inadequate or unethical representation.78 ¶105 This public policy is not implicated in interpreting the hospital bylaws in favor of Dr. Seitzinger. Here, the activities of a representative at the hearings are limited by the bylaws: the forum is non-judicial and the representative's activities are restricted to non-attorney functions. to the bylaws, the hospital will restrain an According attorney from engaging in the practice of law. ¶106 Under these circumstances, interpreting the bylaws to require a licensed Wisconsin lawyer does Seitzinger as a consumer of legal advice. not protect Dr. The licensing of lawyers and the prohibition on the unauthorized practice of law do not exist to protect Accordingly, I the conclude economic that the livelihood majority of lawyers. opinion's interpretation of the bylaws is contrary to the intent of the parties and that no reasonable person would understand that the 78 See majority op., ¶29, citing Jadair Inc. v. U.S. Fire Ins. Co., 209 Wis. 2d 187, 201-02, 562 N.W.2d 401 (1997) (primary purpose of statute preventing the unauthorized practice of law is to protect against inadequate or unethical representation); ¶31, citing State ex rel. Reynolds v. Dinger, 14 Wis. 2d 193, 109 N.W.2d 685 (1961) (allowing real estate brokers to complete conveyancing forms because this practice does not pose a danger to the public). 31 No. 02-2002.ssa words "legal counsel" in the Bylaws mean an attorney licensed to practice law in Wisconsin.79 ¶107 In sum, the majority opinion follows its own approach to contract interpretation in this case rather than heeding the general rules of contract interpretation that have long guided Wisconsin courts. unreasonable As a result, the majority opinion opts for an interpretation, rather than for a reasonable interpretation, of the bylaws. ¶108 For the reasons set forth, I dissent. ¶109 I am authorized to state that Justices ANN WALSH BRADLEY and DAVID T. PROSSER join this dissent. 79 The majority opinion argues that Mr. Kadar cannot be admitted pro hac vice under SCR 10.03(4) and declines to construct an interpretation or create an exception that would allow for his admission for the hearing. Majority op., ¶41. It makes little sense that Wisconsin courts can and do allow pro hac vice admissions of out-of-state lawyers, including those appearing before this court, but cannot authorize the appearance of an out-of-state lawyer at a peer review hearing. If the rule is the problem, then the rule should be changed. Furthermore, at least one jurisdiction has recognized that a lawyer can be admitted pro hac vice even if not expected to appear in court. See Permission to Practice, Connecticut Law Tribune, Feb. 23, 2004, at 8. 32 No. 1 02-2002.ssa
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