Vol. 75, No. 3, March
2002
Supreme Court Orders
The Wisconsin Supreme Court will hold a public hearing on April 18, 2002, at 2 p.m. in the Supreme Court Room in the State Capitol, Madison, Wis., on Order 01-16 (Clients' Security Fund, Annual Assessments) and Order 01-18 (Rules Providing Guidance on Assistance to Individual Court Users). The court also has amended Supreme Court Rules relating to the State Bar Board of Governors and Executive Committee (Order 01-10) and the Lawyer Regulation System (Order 01-12).
- State Bar Governance
- Lawyer Regulation System
- Clients' Security Fund, public hearing on April 18
- Rules Guiding Court Staff, public hearing on April 18
State Bar Governance
In the matter of amendment of Supreme Court Rules 10.05 and 10.06
Order 01-10
On Jan. 16, 2002, the court held a public hearing on the petition filed on May 16, 2001, and amended on Nov. 30, 2001, by the Board of Governors of the State Bar of Wisconsin.
IT IS ORDERED that, effective the date of this order, Supreme Court Rules chapter 10 is amended as follows:
SECTION 1. 10.05 (1) of the Supreme Court Rules is amended to read:
10.05 (1) Composition of Board. The affairs of the association shall be managed and directed by a board of governors consisting of the 6 officers of the association, all of whom shall be ex officio members-at-large of the board, not fewer than 34 members elected from the state bar districts established under sub. (2), one member selected by the young lawyers division pursuant to its bylaws, one member selected by the government lawyers division pursuant to its bylaws, three governors selected by the nonresident lawyers division pursuant to its bylaws, one governor selected by the senior lawyers division pursuant to its bylaws, and three nonlawyers appointed by the supreme court for staggered two-year terms. No person appointed by the supreme court shall serve more than two consecutive full terms. The rights and powers of the ex officio members of the board are the same as those of elected members. All past-presidents of the Wisconsin bar association or of the state bar of Wisconsin, the Wisconsin state delegate to the American Bar Association house of delegates and the deans of the Marquette university and university of Wisconsin law schools are entitled to floor privileges, but without voting privileges.
SECTION 2. 10.05 (4) (b) of the Supreme Court Rules is amended to read:
10.05 (4) (b) The board of governors shall meet at least 4 times a
year. Twenty-three Twenty-four members present
at any meeting constitutes a quorum. Special meetings of the board of
governors may be called in accordance with the bylaws.
SECTION 3. 10.05 (4) (f) of the Supreme Court Rules is amended to read:
10.05 (4) (f) The members of the board of governors shall receive no
compensation for services to the association, but they and also members
of committees and the officers and directors of sections and of the
young lawyers division, the government lawyers division,
and the nonresident lawyers division, and the senior
lawyers division may be reimbursed for necessary expenses in the
performance of their duties.
SECTION 4. 10.05 (4) (k) of the Supreme Court Rules is created to read:
10.05 (4) (k) The board of governors shall establish and maintain a senior lawyers division. Membership in the division shall be voluntary. Those eligible for membership in the senior lawyers division shall be any members of the state bar who are age 60 years or older. The division shall be governed by bylaws not inconsistent with state bar rules and bylaws. The division bylaws and amendments thereto become effective upon approval of the board of governors. The senior lawyers division shall carry on projects that will stimulate the interest of the senior lawyers in the objectives and programs of the state bar and carry on activities which will be of assistance to senior lawyers in the practice of law.
SECTION 5. 10.06 (1) of the Supreme Court Rules is amended to read:
10.06 (1) Members; selection. The executive committee consists of the
president, the president-elect, the immediate past-president, the
chairperson of the board of governors, one representative each from the
nonresident lawyers division, government lawyers division,
and young lawyers division, and senior lawyers
division selected from their board of governors representatives and
6 additional members elected annually by the board of governors at its
final meeting of the fiscal year. The 6 additional members shall be
elected from among the governors-elect and the current governors who
will serve on the board of governors during the following fiscal year. A
vacancy occurring in the selected membership may be filled by action of
the board of governors.
SECTION 6. 10.06 (3) of the Supreme Court Rules is amended to read:
10.06 (3) Meeting; quorum. The executive committee
shall meet at the call of the president, or at the call of the executive
director upon the written demand of at least 5 6
of its members. All members shall be given at least 48 hours' notice by
mail or telephone of the time and place of any meeting. A majority of
all members constitutes a quorum. No action may be taken by the
committee except upon the concurrence of at least a majority of all
members. The concurrence may be registered by mail, telephone,
facsimile, or email.
IT IS ORDERED that notice of this amendment of Supreme Court Rules chapter 10 be given by a single publication of a copy of this order in the official state newspaper and in an official publication of the State Bar of Wisconsin.
Dated at Madison, Wis., this 28th day of January, 2002.
By the court:
Cornelia G. Clark, Clerk of Supreme Court
In the matter of the Amendment to Supreme Court Rules relating to the Lawyer Regulation System.
Order 01-12
On Sept. 20, 2001, the court held a public hearing on the petition filed on June 22, 2001, by the Director of the Office of Lawyer Regulation seeking to amend the Supreme Court Rules, including rules in chapters 10, 11, 12, 20, 21, 22, 31, 60, and 62, as they relate to the Lawyer Regulation System. The court has considered the matters presented at the public hearing and the materials filed in the matter. On Nov. 14, 2001, the court filed an order addressing some of the amendments. The court now addresses the remaining amendments proposed by the petitioner.
IT IS ORDERED that the Supreme Court Rules are amended as follows:
Section 1. 10.03 (6m) of the Supreme Court Rules is created to read:
10.03 (6m) Petition for reinstatement from suspension for nonpayment of dues or failure to file a trust account certificate. (a) An attorney whose suspension for nonpayment of annual membership dues for state bar operations has been for a period of less than 3 consecutive years shall be reinstated as a member by the state bar board of governors if he or she makes full payment of the amount owing and an additional payment of $20 as a penalty. The secretary of the state bar shall certify the reinstatement to the clerk of the supreme court.
(b) An attorney whose suspension for nonpayment of annual membership dues for state bar operations has been for a period of 3 or more consecutive years may file a petition for reinstatement with the supreme court. A copy of the petition shall be served on the board of bar examiners and the office of lawyer regulation. Separate payments in the amount of $200 each shall be made to the board of bar examiners and the office of lawyer regulation and shall accompany the petition. Within 90 days after service of the petition for reinstatement, the board shall make a determination regarding compliance and file its finding with the supreme court. Within 90 days after service of the petition for reinstatement, the director of the office of lawyer regulation shall investigate the eligibility of the petitioner for reinstatement and file a response with the supreme court in support of or in opposition to the petition.
(c) An attorney suspended from the practice of law for failure to comply with the trust account certification requirement under SCR 20:1.15 (g) shall be reinstated as a member by the state bar board of governors if he or she files the prescribed certificate. The secretary of the state bar shall certify the reinstatement to the clerk of the supreme court.
Section 2. 10.03 (7) of the Supreme Court Rules is amended to read:
10.03 (7) Voluntary resignation of membership. If a member of the state bar files with the executive director a written notice of the member's surrender of his or her license to practice law and the acceptance by the supreme court of his or her resignation in the state bar, the person shall then cease to be a member of the state bar and his or her name shall be removed from the membership register. Before accepting a resignation, the supreme court shall request from the office of lawyer regulation information concerning whether the attorney is the subject of any pending grievances, investigations, or proceedings.
Section 3. 11.03 of the Supreme Court Rules is repealed.
Section 4. 21.05 (1) of the Supreme Court Rules is amended to read:
21.05 (1) Staff of the office of lawyer regulation
may include persons admitted to the practice of law in Wisconsin whose
duties are to conduct or assist in investigations, present matters to
the preliminary review panels, and prosecute complaints
alleging attorney misconduct and petitions alleging attorney medical
incapacity, conduct or assist in reinstatement investigations and
represent the office of lawyer regulation in hearings, and perform other
duties assigned by the director.
Section 5. 21.05 (2) of the Supreme Court Rules is amended to read:
21.05 (2) The director may retain attorneys
engaged in the practice of law in Wisconsin to assist in the performance
of the director's duty to present matters to the preliminary review
panels and , to prosecute complaints alleging
attorney misconduct and petitions alleging attorney medical
incapacity, and to conduct or assist in reinstatement investigations
and represent the office of lawyer regulation in hearings, and perform
other duties assigned by the director. Retained counsel are
independent contractors and serve at the pleasure of the director.
Section 6. 21.12 of the Supreme Court Rules is amended to read:
21.12 Roles of office of lawyer regulation, grievant, and district committees. In the investigation process and in the prosecution of complaints alleging attorney misconduct and petitions alleging attorney medical incapacity, the director and staff of the office of lawyer regulation and the district committees do not represent the complaining person, the attorney against whom a grievance has been made, the bar generally, or any other person or group. The director, staff of the office of lawyer regulation, and district committees represent the interests of the supreme court and the public in the integrity of the lawyer regulation system in its search for the truth. A grievant is not a party to a misconduct or medical incapacity proceeding brought by the office of lawyer regulation.
Section 7. 21.13 of the Supreme Court Rules is amended to read:
21.13 Official duties. When acting in the course of
their official duties under SCR chapters chs. 21
and 22, the following are acting on behalf of the supreme court in
respect to the statutes and supreme court rules and orders regulating
the conduct of attorneys:
(1) the The director and staff of the
office of lawyer regulation, .
(2) retained Retained
counsel, .
(3) members Members of district
investigative committees, .
(4) members of a special investigative panel
Special investigators, .
(5) members Members of the preliminary
review committee, .
(6) members Members of a special
preliminary review panel, .
(7) referees
Referees, .
(8) members Members of the board of
administrative oversight, and .
(9) attorneys Attorneys designated by
the director to monitor compliance with diversion agreements or
with conditions imposed by the supreme court in misconduct and medical
incapacity proceedings, or to investigate or conduct a hearing in a
reinstatement proceeding are acting on behalf of the supreme
court in respect to the statutes and supreme court rules and orders
regulating the conduct of attorneys .
Section 8. 21.14 (1) of the Supreme Court Rules is amended to read:
21.14 (1) The following may not take part in a matter in which they are a complaining person, grievant, or respondent or in which their own interests outside of their official duties under SCR chs. 21 and 22 reasonably may be perceived to impair their impartiality or when a judge similarly situated would be disqualified under s. 757.19, 1997 stats. or recusal would be required under SCR 60.04(4):
(a) The director and staff of the office of lawyer
regulation, .
(b) retained Retained
counsel, .
(c) members Members of district
investigative committees, .
(d) members of a special investigative panel
Special investigators, .
(e) members Members of the preliminary
review committee, .
(f) members Members of a special
preliminary review panel, .
(g) referees
Referees, .
(h) attorneys Attorneys designated by
the director to monitor an attorney's participation in a diversion from
discipline program or compliance with conditions imposed on the
attorney's practice of law, and .
(i) members Members of the board of
administrative oversight may not take part in a matter in which
they are a complaining person, grievant or respondent or in which their
own interests outside of their official duties under SCR chapters 21 and
22 reasonably may be perceived to impair their impartiality or when a
judge similarly situated would be disqualified under Wis. Stat.
§ 757.19 (1997-98) or required to recuse himself or herself
under SCR 60.04(4) .
Section 9. 21.14 (2) of the Supreme Court Rules is amended to read:
21.14 (2) Allegations of misconduct or malfeasance
against the director, staff of the office of lawyer regulation,
retained counsel, a member of a district committee, a member of
a special investigative panel
investigator, a member of the preliminary review committee, a
member of a special preliminary review panel, a referee, an attorney
designated by the director to monitor an attorney's participation in a
diversion from discipline program or compliance with conditions imposed
on the attorney's practice of law, or a member of the board of
administrative oversight shall be governed by the procedures set
forth in under SCR 22.25.
Section 10. 21.15 (5) of the Supreme Court Rules is created to read:
21.15 (5) An attorney found guilty or convicted of any crime on or after July 1, 2002, shall notify in writing the office of lawyer regulation and the clerk of the Supreme Court within 5 days after the finding or conviction, whichever first occurs. The notice shall include the identity of the attorney, the date of finding or conviction, the offenses, and the jurisdiction. An attorney's failure to notify the office of lawyer regulation and clerk of the supreme court of being found guilty or his or her conviction is misconduct.
Section 11. 21.19 of the Supreme Court Rules is amended to read:
21.19 Privileges, Immunity. Communications
with the director or , staff of the office of
lawyer regulation, a district committee, a member of
a special investigative panel
investigator, retained counsel, the preliminary review committee,
and a special preliminary review panel alleging attorney misconduct or
medical incapacity and testimony given in an investigation or proceeding
under SCR chapter ch. 22 are privileged,
and no . No lawsuit predicated on those
these communications may be instituted against any grievant or
witness. The director, staff of the office of lawyer regulation,
members of a district committee, members of a special
investigative panel investigators, retained
counsel, members of the preliminary review committee, members of a
special preliminary review panel, referees, and members
of the board of administrative oversight, and attorneys designated by
the director to monitor compliance with diversion agreements or with
conditions imposed on the attorney's practice of law, shall be
immune from suit for any conduct in the course of their official
duties.
Section 12. 21.21 of the Supreme Court Rules is amended to read:
21.21 Cost of lawyer regulation system. The cost of
the office of lawyer regulation, the district committees, the
preliminary review committee, all matters relating to investigation and
prosecution of possible attorney misconduct and medical incapacity,
reinstatement investigations and hearings, and the board of
administrative oversight shall be paid from the appropriation provided
in Wis. Stat. § 20.680 (3) (h) (1997-98)
s. 20.680 (3) (h), 1997 stats.
Section 13. 22.02 (4) of the Supreme Court Rules is amended to read:
22.02 (4) The staff shall notify the grievant in
writing that the grievant may obtain review by the director of the
staff's closure of a matter under sub. (2)(c) by submitting to the
director a written request to the director within 90 days
after being notified . The request for review must be
received by the director within 30 days after the date of the letter
notifying the grievant of the closure. The director may, upon a
timely request by the grievant for additional time, extend the time for
submission of additional information relating to the request for
review. The decision of the director affirming the closure or
referring the matter to staff for further evaluation is final, and there
shall be no review of the director's decision.
Section 14. 22.02 (6) (a) of the Supreme Court Rules is amended to read:
22.02 (6) (a) Close the matter for lack of an allegation of possible misconduct or medical incapacity or lack of sufficient information of cause to proceed. The director shall notify the grievant in writing that the grievant may obtain review by a preliminary review panel of the director's closure by submitting a written request to the director. The request for review must be received by the director within 30 days after the date of the letter notifying the grievant of the closure. The director shall send the request for review to the chairperson of the preliminary review committee, who shall assign it to a preliminary review panel. Upon a timely request by the grievant for additional time, the director shall report the request to the chairperson of the preliminary review committee, who may extend the time for submission of additional information relating to the request for review.
Section 15. 22.03 (4) of the Supreme Court Rules is amended to read:
22.03 (4) If the respondent fails to respond to the
request for written response to an allegation of misconduct or fails to
cooperate in other respects in an investigation, the director, or a
special investigator acting under SCR 22.25, may file a motion with
the supreme court requesting that the court order the respondent to show
cause why his or her license to practice law should not be suspended for
wilful willful failure to respond or cooperate
with the investigation. All papers, files, transcripts,
communications, and proceedings on the motion shall be confidential and
shall remain confidential until the supreme court has issued an order to
show cause. The license of an attorney suspended for willful failure to
respond or cooperate with an investigation may be reinstated by the
supreme court upon a showing of cooperation with the investigation and
compliance with the terms of suspension. The director or the special
investigator shall file a response in support of or in opposition to the
reinstatement within 20 days after the filing of an attorney's request
for reinstatement. Upon a showing of good cause, the supreme court may
extend the time for filing a response.
Section 16. 22.03 (8) of the Supreme Court Rules is amended to read:
22.03 (8) The director, or a special investigator acting under SCR 22.25, may subpoena the respondent and others and compel any person to produce pertinent books, papers, and documents. The director, or a special investigator acting under SCR 22.25, may obtain expert assistance in the course of an investigation.
Section 17. 22.04 (1) of the Supreme Court Rules is amended to read:
22.04 (1) The director may refer a matter to a
district committee for assistance in the investigation. A respondent has
the duty to cooperate specified in SCR 21.15(4) and 22.03(2) in respect
to the district committee. The committee has the power
to may subpoena and compel the production of documents
specified in SCR 22.03(7) and 22.42.
Section 18. 22.04 (2) of the Supreme Court Rules is amended to read:
22.04 (2) When the director refers a matter to a committee, the respondent may make a written request for the substitution of the investigator assigned to the matter by the committee chairperson, or may provide a written waiver of the right to request substitution. The request for substitution shall be made within 14 days after receipt of notice of the assignment of the investigator. One timely request for substitution shall be granted as a matter of right. Additional requests for substitution shall be granted by the committee chairperson for good cause. When a request for substitution is granted, the investigator initially assigned shall not participate further in the matter.
Section 19. 22.05 (2) of the Supreme Court Rules is amended to read:
22.05 (2) The director shall notify the grievant in
writing that the grievant may obtain review by a preliminary review
panel of the director's dismissal of a matter under sub. (1) by
submitting to the director a written request to the
director within 90 days after being notified
. The request for review must be received by the director within 30
days after the date of the letter notifying the grievant of the
dismissal. The director shall send the request to the chairperson of the
preliminary review committee, who shall assign it to a preliminary
review panel. Upon a timely request by the grievant for additional
time, the director shall report the request to the chairperson of the
preliminary review committee, who may extend the time for submission of
additional information relating to the request for review.
Section 20. 22.05 (3) of the Supreme Court Rules is amended to read:
22.05 (3) The preliminary review panel may affirm
the dismissal or, if it determines that the director has exercised the
director's discretion erroneously, refer the matter to the director for
further investigation. A majority vote of the panel is required to
find that the director has exercised discretion erroneously. The
panel's decision is final, and there shall be no review of the panel's
decision. The director chairperson of the
preliminary review committee shall notify the grievant and the
respondent in writing of the panel's decision.
Section 21. 22.08 (1) (a) of the Supreme Court Rules is amended to read:
22.08 (1) (a) If the preliminary review panel determines that the director has not established cause to proceed in the matter, the director may dismiss the matter, which is a final decision, or the director may continue the investigation and resubmit the matter to the same panel within a reasonable time after the panel's determination. The director shall notify the respondent and the grievant of the decision to dismiss the matter or continue the investigation.
Section 22. 22.08 (1) (c) of the Supreme Court Rules is amended to read:
22.08 (1) (c) The chairperson of the committee shall
notify the grievant in writing that the grievant may obtain review by a
referee of the chairperson's dismissal of a matter by
filing submitting to the director a written
request with the director within 90 days after being notified of
the dismissal . The referee shall be selected by the clerk of
the supreme court, based on availability and geographic proximity to the
respondent's principal office, and appointed by the chief justice or,
in his or her absence, by the senior justice. The request for review
must be received by the director within 30 days after the date of the
letter notifying the grievant of the dismissal. The director may, upon a
timely request by the grievant for additional time, extend the time for
submission of additional information relating to the request for
review. The decision of the referee affirming the dismissal or
referring the matter to the director for further investigation is final,
and there shall be no review of the referee's decision.
Section 23. 22.09 (2) of the Supreme Court Rules is amended to read:
22.09 (2) The director shall submit the
agreement to a referee selected by the request the
appointment of a referee by providing in confidence to the clerk of the
supreme court the names of the grievant and respondent, the address of
the respondent's principal office, and the date of the consent
agreement. The clerk of the supreme court, shall
select a referee based on availability and geographic proximity to
the respondent's principal office, and appointed by the
. The chief justice or, in his or her absence, the senior
justice shall appoint the referee. The director shall submit the
agreement, accompanied by the respondent's public and private
disciplinary history, to the appointed referee for review and
approval and . The director shall send a copy of
the agreement to the grievant. The grievant may submit a written
response to the director within 30 days after being notified of the
agreement, and the director shall submit the response to the referee.
The respondent and the director may submit comments to the referee
regarding the grievant's response. The agreement, the grievant's
response, and the comments of the respondent and director shall be
considered by the referee in confidence.
Section 24. 22.09 (4) of the Supreme Court Rules is amended to read:
22.09 (4) If the referee does
determines that the agreement is not supported by sufficient facts or
that the sanction falls outside the range of sanctions appropriate in
similar cases, the referee shall not approve the agreement,
the . The referee shall, in those cases, inform
the director, the grievant, and the respondent in writing,
and the stating the basis and reasons for
disapproval. The director shall then proceed in the matter as
the director may consider appropriate.
Section 25. 22.13 (3) of the Supreme Court Rules is amended to read:
22.13 (3) Except as provided in SCR 22.12, upon receipt of proof of service of the complaint, the clerk of the supreme court shall select a referee from the panel provided in SCR 21.08, based on availability and geographic proximity to the respondent's principal office, and the chief justice or, in his or her absence, the senior justice shall appoint the referee to conduct a hearing on the complaint.
Section 26. 22.16 (4) of the Supreme Court Rules is renumbered 22.16 (4) (a) and amended to read:
22.16 (4) (a) If in the course of the proceeding the respondent claims to have a medical incapacity that makes the defense of the proceeding impossible, the referee shall conduct a hearing and make findings concerning whether a medical incapacity makes defense of the proceeding impossible. The referee may order the examination of the respondent by qualified medical or psychological experts.
(d) If the referee finds that a medical incapacity makes the
defense of the proceeding impossible, the referee shall file a
report promptly with the supreme court, and . If the
court disapproves the referee's finding, the court shall direct the
referee to proceed with the misconduct action. If the court
approves the referee's finding, the court shall abate the
misconduct proceeding and suspend the respondent's license to
practice law for medical incapacity until a determination
of the respondent's capacity to continue to practice law is made in a
medical incapacity proceeding the court orders reinstatement
of the attorney's license under SCR 22.36. Upon reinstatement, the court
shall direct the referee to proceed with the misconduct action.
Section 27. 22.16 (4) (b) of the Supreme Court Rules is created to read:
(b) All papers, files, transcripts, communications, and proceedings on the issue of medical incapacity shall be confidential and shall remain confidential until the supreme court has issued an order suspending the attorney's license to practice law, or has otherwise authorized disclosure.
Section 28. 22.16 (4) (c) of the Supreme Court Rules is created to read:
(c) If the referee finds no medical incapacity that would make the defense of the proceeding impossible, the referee shall proceed with the misconduct action.
Section 29. 22.19 (3) of the Supreme Court Rules is amended to read:
22.19 (3) If a complaint has not been filed, the
petition shall be filed in the supreme court and shall include the
director's summary of the misconduct allegations being investigated.
The Within 20 days after the date of filing of the
petition, the director shall file in the supreme court a
recommendation on the petition. Upon a showing of good cause, the
supreme court may extend the time for filing a recommendation.
Section 30. 22.19 (4) of the Supreme Court Rules is amended to read:
22.19 (4) If a complaint has been filed, the
petition shall be filed in the supreme court and served on the director
and on the referee to whom the proceeding has been assigned.
The Within 20 days after the filing of the petition,
the director shall file in the supreme court a response in support
of or in opposition to the petition and serve a copy on the referee.
Upon a showing of good cause, the supreme court shall extend the time
for filing a response. The referee shall file a report and
recommendation on the petition in the supreme court within 30 days after
receipt of the director's response.
Section 31. 22.21 (1) of the Supreme Court Rules is amended to read:
22.21 (1) The supreme court, on its own motion
or , upon the motion of the director, or upon
the motion of a special investigator acting under SCR 22.25, may
suspend temporarily an attorney's license to practice law where it
appears that the attorney's continued practice of law poses a threat to
the interests of the public and the administration of justice.
Section 32. 22.21 (2) of the Supreme Court Rules is amended to read:
22.21 (2) Before entering an order suspending an attorney's license under sub. (1), the supreme court shall order the attorney to show cause why the license to practice law should not be suspended temporarily. The attorney shall file with the supreme court a written response to the order and serve a copy of the response on the director within the time set forth in the order. The director, or special investigator acting under SCR 22.25, may file a memorandum in support of or in opposition to the temporary license suspension within 10 days after the attorney's response is filed. All papers, files, transcripts, communications, and proceedings shall be confidential and shall remain confidential until the supreme court has issued an order to show cause.
Section 33. 22.23 (1) of the Supreme Court Rules is renumbered 22.23 (1) (a) and amended to read:
22.23 (1) (a) With the exception of the supreme
court's disposition of a private reprimand or dismissal of a
proceeding, The the supreme court's
disposition of a proceeding under this chapter shall be published in an
official publication of the state bar of Wisconsin and in the official
publications specified in SCR 80.01. A party may file a request to
publish a dismissal of a proceeding.
Section 34. 22.24 (1) of the Supreme Court Rules is amended to read:
22.24 (1) The supreme court may assess against the
respondent all or a portion of the costs of a disciplinary proceeding
in which misconduct is found, a medical incapacity proceeding in which
it finds a medical incapacity, or a reinstatement proceeding
in which it imposes discipline and may enter a
judgment for costs. The director may assess all or a portion of the
costs of an investigation when discipline is imposed under SCR 22.09.
Costs are payable to the office of lawyer regulation.
Section 35. 22.25 (1) of the Supreme Court Rules is amended to read:
22.25 (1) Allegations of misconduct against the
director, a lawyer member of staff, retained counsel, a lawyer member of
a district committee, a lawyer member of the preliminary review
committee, a lawyer member of the board of administrative oversight, or
a referee shall be referred assigned by the
director for investigation to a special investigative
panel investigator composed of six lawyers
appointed by the . The supreme court shall
appoint lawyers who are not currently participating in the lawyer
regulation system and are not among the lawyers from whom retained
counsel is selected under SCR 21.05 to serve as special
investigators. A matter referred by the director shall be
assigned to a member of the special investigative panel in
rotation The director shall assign a special investigator in
rotation. A special investigator may discuss confidential matters with
other special investigators. All records of matters referred to a
special investigator or to the special preliminary review panel shall be
retained by the director as required under SCR 22.44 and 22.45.
Section 36. 22.25 (3) of the Supreme Court Rules is amended to read:
22.25 (3) If the special investigator determines
that there is not sufficient information to support an allegation of
possible misconduct, the special investigator may close the matter.
The special investigator shall notify the grievant in writing that the
grievant may obtain review by the special preliminary review panel of
the closure by submitting a written request to the special investigator.
The request for review must be received by the special investigator
within 30 days after the date of the letter notifying the grievant of
the closure. The special investigator shall report
send the matter request for review to the
special preliminary review panel consisting of four
4 lawyers and two 3 nonlawyers appointed
by the supreme court and having a quorum of five
4 members. Members of the special preliminary review panel
serve staggered 3-year terms. A member may serve not more than 2
consecutive 3-year terms. Upon a timely request by the grievant for
additional time, the special investigator shall report the request to
the chairperson of the special preliminary review panel, who may extend
the time for submission of additional information relating to the
request for review. If the panel affirms the investigator's
determination, the special investigator preliminary
review panel shall close inform the grievant.
The panel's decision affirming closure of the matter is
final. If the panel does not concur in the investigator's
determination, it shall direct the investigator to initiate an
investigation of the matter.
Section 37. 22.25 (4) of the Supreme Court Rules is renumbered 22.25 (4) (intro.) and amended to read:
22.25 (4) (intro.) If the special investigator
determines that the information provided is sufficient to support an
allegation of possible misconduct, the special investigator shall
conduct an investigation of the matter. Upon completion of the
investigation, the special investigator may dismiss the matter
or shall do one of the following:
(a) The special investigator may dismiss the matter and notify the grievant in writing that the grievant may obtain review of the dismissal by submitting to the special investigator a written request. The request for review must be received within 30 days after the date of the letter notifying the grievant of the dismissal. The special investigator shall send the request for review to the special preliminary review panel. Upon a timely request by the grievant for additional time, the special investigator shall report the request to the chairperson of the special preliminary review panel, who may extend the time for submission of additional information relating to the request for review. If the panel affirms the investigator's determination, the special preliminary review panel shall inform the grievant. The panel's decision affirming dismissal of the matter is final. If the panel does not concur in the investigator's determination, the panel shall direct the investigator to investigate the matter further.
(b) The special investigator may prepare an investigative report and send a copy of it to the respondent and to the grievant. The respondent and grievant each may submit to the special investigator a written response to the report within 10 days after the copy of the report is sent.
Section 38. 22.25 (6) (a) of the Supreme Court Rules is amended to read:
22.25 (6) (a) If the special preliminary review panel determines that cause to proceed in the matter has not been established, the special investigator may dismiss the matter, which is a final decision, or the special investigator may continue the investigation and resubmit the matter to the special preliminary review panel within a reasonable time after the panel's determination.
Section 39. 22.25 (6) (c) of the Supreme Court Rules is amended to read:
22.25 (6) (c) The special preliminary review panel
shall notify the grievant in writing that the grievant may obtain review
of the panel's dismissal of a matter by a referee of
the panel's dismissal by submitting a written request to the director.
The referee shall be selected by the clerk of the supreme court,
based on availability and geographic proximity to the respondent's
principal office, and appointed by the chief justice or, in his or
her absence, by the senior justice by filing a written
request with the director within 90 days after being notified of the
dismissal . The request for review must be received within
30 days after the date of the letter notifying the grievant of the
dismissal. The director may, upon a timely request by the grievant for
additional time, extend the time for submission of additional
information relating to the request for review. The decision of the
referee affirming the dismissal or referring the matter to the special
investigator for further investigation is final, and there shall be no
review of the referee's decision.
Section 40. 22.25 (7) of the Supreme Court Rules is amended to read:
22.25 (7) If the special preliminary review panel determines that there is cause to proceed in the matter, the special investigator may take any of the actions set forth in SCR 22.08 (2). The special investigator need not obtain approval of a diversion agreement from the special preliminary review panel. In cases where the special investigator files a complaint with the supreme court, the special investigator may prosecute the complaint personally or may assign responsibility for filing, serving, and prosecuting the complaint to counsel retained by the director for such purposes.
Section 41. 22.28 (1) of the Supreme Court Rules is renumbered 22.28 (1) (intro.) and amended to read:
22.28 (1) An attorney suspended from the practice of
law for nonpayment of state bar membership dues or failure to
comply with continuing legal education requirements or
the trust account certification requirement under SCR
20:1.15(g) or continuing legal education requirements
shall be reinstated pursuant to may
seek reinstatement under the rules governing
suspension. following rules, as applicable:
Section 42. 22.28 (1) (a), (b), (c), (d), and (e) of the Supreme Court Rules are created to read:
22.28 (1) (a) An attorney whose suspension for nonpayment of state bar membership dues has been for a period of less than 3 consecutive years may seek reinstatement under SCR 10.03 (6m) (a).
(b) An attorney whose suspension for failure to comply with the continuing legal education requirements has been for a period of less than 3 consecutive years may seek reinstatement under SCR 31.11 (1).
(c) An attorney whose suspension for nonpayment of state bar membership dues has been for a period of 3 or more consecutive years may seek reinstatement under SCR 10.03 (6m) (b).
(d) An attorney whose suspension for failure to comply with the continuing legal education requirements has been for a period of 3 or more consecutive years may seek reinstatement under SCR 31.11 (2).
(e) An attorney who has been suspended for failure to comply with the trust account certification requirement under SCR 20:1.15 (g) may seek reinstatement under SCR 10.03 (6m) (c).
Section 43. 22.29 (3) of the Supreme Court Rules is amended to read:
22.29 (3) A petition for reinstatement shall be
filed in the supreme court and a . A copy
of the petition shall be served on the director and on the
board of bar examiners.
Section 44. 22.29 (3m) of the Supreme Court Rules is created to read:
22.29 (3m) The petitioner shall file 9 copies of a petition for reinstatement.
Section 45. 22.30 (1) of the Supreme Court Rules is amended to read:
22.30 (1) The clerk of the supreme court shall select a referee from the panel provided in SCR 21.08, based on availability and geographic proximity to the petitioner's place of residence, and the chief justice or, in his or her absence, the senior justice shall appoint the referee to conduct a hearing on the petition for reinstatement. In the case of a license suspension, the hearing shall not be held prior to the expiration of the period of suspension. Following the appointment of a referee, the parties shall file all papers and pleadings with the supreme court and serve a copy on the referee.
Section 46. 22.30 (2) of the Supreme Court Rules is amended to read:
22.30 (2) The director shall investigate the eligibility of the petitioner for reinstatement and file a response with the referee in support of or in opposition to the petition within the time period ordered by the referee.
Section 47. 22.30 (2m) of the Supreme Court Rules is created to read:
22.30 (2m) The board of bar examiners shall determine the attendance and reporting requirements of the petitioner as required by SCR 31.06 and file a report with the referee within the time period ordered by the referee.
Section 48. 22.31 (1) of the Supreme Court Rules is renumbered 22.31 (1) (intro.) and amended to read:
22.31 (1) (intro.) The petitioner has the burden of demonstrating, by clear, satisfactory, and convincing evidence, all of the following:
(a) that the petitioner That he or she
has the moral character to practice law in Wisconsin,
.
(b) that the petitioner's That his or
her resumption of the practice of law will not be detrimental to the
administration of justice or subversive of the public interest,
and that the petitioner .
(d) That he or she has complied fully with the terms of the order of suspension or revocation and with the requirements of SCR 22.26.
Section 49. 22.31 (1) (c) of the Supreme Court Rules is created to read:
22.31 (1) (c) That his or her representations in the petition, including the representations required by SCR 22.29(4)(a) to (m) and 22.29(5), are substantiated.
Section 50. 22.34 (8) of the Supreme Court Rules is amended to read:
22.34 (8) If the preliminary review panel determines that the director has established cause to proceed, the director shall file a petition with the supreme court for the suspension of the respondent's license to practice law or the imposition of conditions on the respondent's practice of law. A determination of cause to proceed shall be by the affirmative vote of 4 or more members of the panel and does not constitute a finding that there is clear, satisfactory, and convincing evidence of an attorney's medical incapacity.
Section 51. 22.34 (10) of the Supreme Court Rules is amended to read:
22.34 (10) The petition may be accompanied by a stipulation of the director and the respondent to a suspension or to the imposition of conditions on the respondent's practice of law. The supreme court may consider the petition and stipulation without the appointment of a referee. If the supreme court approves the stipulation, it shall issue an order consistent with the stipulation. If the supreme court rejects the stipulation, the clerk of the supreme court shall select a referee from the panel provided in SCR 21.08, based on availability and geographic proximity to the respondent's place of residence, the chief justice or, in his or her absence, the senior justice shall appoint the referee, and the matter shall proceed as a petition filed without a stipulation. A stipulation rejected by the supreme court has no evidentiary value and is without prejudice to the respondent's defense of the proceeding or the prosecution of the petition.
Section 52. 22.34 (11) of the Supreme Court Rules is renumbered 22.34 (11) (a) (intro.) and amended to read:
22.34 (11) (a) An attorney who is the subject
of an investigation or petition for possible medical incapacity may
request the revocation of or indefinite suspension of
the attorney's license to practice law. The request shall state that it
is filed because the petitioner cannot successfully defend against the
allegations of medical incapacity. A request for suspension shall be
filed with whichever of the following is applicable:
1. Prior to the filing of a petition by the director, a
request for revocation or suspension shall be filed in
the supreme court and include the director's summary of the medical
incapacity allegations being investigated. The
Within 20 days after the filing of the request, the director
shall file with the supreme court a response in support of or in
opposition to the request.
2. After the director has filed a petition, the request for
revocation or suspension shall be filed in the supreme
court and served on the director and on the referee to
whom the matter is assigned. The Within 20 days
after the filing of the request, the director shall file a response
in support of or in opposition to the request. The referee shall file a
report and recommendation with the supreme court within 30 days after
the filing of the director's response.
(b) The supreme court shall grant the request and suspend indefinitely the attorney's license to practice law or deny the request and remand the matter to the director or to the referee for further proceedings.
Section 53. 22.34 (14) of the Supreme Court Rules is renumbered 22.341 (1) and amended to read:
22.341 (1) The director, or the respondent, may file an appeal of the referee's report with the supreme court within 20 days after the report is filed.
(3) An appeal from the report of a referee is conducted under the rules governing civil appeals to the supreme court. The supreme court shall place the appeal on its first assignment of cases after the briefs are filed.
Section 54. 22.34 (15) of the Supreme Court Rules is renumbered 22.341 (2).
Section 55. 22.34 (15m) of the Supreme Court Rules is created to read:
22.34 (15m) Following appointment of a referee, the parties shall file all papers and pleadings with the supreme court and serve a copy of those documents on the referee.
Section 56. 22.36 (5) of the Supreme Court Rules is amended to read:
22.36 (5) Following the investigation, the petition shall be submitted to a referee selected by the clerk of the supreme court, based on geographic proximity to the respondent's place of residence, and appointed by the chief justice or, in his or her absence, the senior justice.
Section 57. 22.39 of the Supreme Court Rules is amended to read:
22.39 Burden of proof. The director, or a special investigator acting under SCR 22.25, has the burden of proof in proceedings seeking discipline for misconduct or license suspension or the imposition of conditions for medical incapacity. In proceedings seeking license reinstatement, readmission to the practice of law, removal of a medical incapacity, removal of conditions imposed on the practice of law, the discipline different from that imposed in another jurisdiction, the proponent has the burden of proof.
Section 58. 22.40 (1) of the Supreme Court Rules is amended to read:
22.40 (1) Prior to the filing of a misconduct complaint, medical incapacity petition, or petition for temporary license suspension, all papers, files, transcripts, and communications in any matter involving the office of lawyer regulation are to be held in confidence by the director and staff of the office of lawyer regulation, the members of the district committees, special investigators, the members of the special preliminary review panel, and the members of the preliminary review committee. Following the filing of a complaint or petition, the proceeding and all papers filed in it are public, except where expressly provided otherwise in this chapter or by law.
Section 59. 22.42 (1) of the Supreme Court Rules is amended to read:
22.42 (1) In any matter under investigation, the
director or , district committee, or a
special investigator acting under SCR 22.25, may require the
attendance of lawyers, and witnesses and the
production of documentary evidence. A subpoena issued in connection with
a confidential investigation must so indicate on its face. It is not a
breach of confidentiality for a person subpoenaed to consult with an
attorney.
Section 60. 22.42 (2) of the Supreme Court Rules is amended to read:
22.42 (2) In any disciplinary proceeding before a
referee, the director or , the director's
counsel, a special investigator acting under SCR 22.25 and the
respondent or counsel for the respondent may require the attendance of
witnesses and the production of documentary evidence. The use of
subpoenas for discovery in a matter pending before a referee shall be
pursuant to an order of the referee. The issuance of subpoenas under
this rule shall be governed by Wis. Stat. chapter 885
(1997-98) ch. 885, 1997 stats., except as otherwise
provided in this chapter.
Section 61. 31.11 (1) of the Supreme Court Rules is amended to read:
31.11 (1) Suspension of less than 3 consecutive
years. (a) A lawyer suspended whose
suspension for noncompliance under SCR 31.10(1) has been for a
period of less than 3 consecutive years may file a petition
with the board for reinstatement to membership in the state bar.
The petition for reinstatement shall be served on the board and
shall state in detail the manner in which the lawyer has complied with
all requirements under this chapter. Only verified attendance at
sufficient hours of approved continuing legal education activities for
the period of suspension shall be deemed to be full compliance with the
attendance requirements of this chapter. Payment in the amount
of $100 and any applicable late fee shall accompany the petition.
Section 62. 31.11 (1) (c) of the Supreme Court Rules is amended to read:
31.11 (1) (c) If the board denies a petition for reinstatement
is denied , the board shall serve a notice of
denial shall be served on the lawyer. After denial, a
hearing shall be held by the board only upon written petition of the
lawyer made within 30 days of service of the notice of denial, which
petition for hearing shall be served on the board. The board shall
conduct the hearing within 60 days after service of the petition for
hearing and shall make and serve its findings and recommendations on the
lawyer within 60 days after the close of the hearing, and, if adverse to
the lawyer, shall notify the supreme court of its action. If
reinstatement is denied, the findings and recommendations of the board
shall be reviewed by the supreme court only upon written petition by the
lawyer filed within 30 days of the date of the action of the board.
Section 63. 31.11 (2) of the Supreme Court Rules is renumbered 31.11 (4) and amended to read:
31.11 (4) Disciplinary suspension. A lawyer suspended as a result of disciplinary action following referral under SCR 31.10(2) may petition for reinstatement under SCR 22.28.
Section 64. 31.11 (1m) of the Supreme Court Rules is created to read:
31.11 (1m) Suspension of 3 or more consecutive years. (a) A lawyer whose suspension has been for a period of 3 or more consecutive years may file a petition for reinstatement with the supreme court and serve a copy on the board and the office of lawyer regulation. Separate payments in the amount of $200 each shall be made to the board of bar examiners and the office of lawyer regulation shall accompany the petition.
(b) Within 90 days after service of the petition, the board shall make a determination regarding compliance and file its finding with the supreme court.
(c) Within 90 days after service of the petition, the director of the office of lawyer regulation shall investigate the eligibility of the petitioner for reinstatement and file a response with the supreme court in support of or opposition to the petition.
Section 65. 31.11 (3) of the Supreme Court Rules is created to read:
31.11 (3) Petition for reinstatement. The petition for reinstatement shall state in detail the manner in which the lawyer has complied with all requirements under this chapter. Only verified attendance at sufficient hours of approved continuing legal education activities for the period of suspension shall be considered full compliance with the attendance requirements of this chapter.
Section 66. 60.05 (8) (b) of the Supreme Court Rules is amended* to read:
60.05 (8) (b) Financial reports. Except as provided in SCR 60.07, a
judge shall file with the ethics board a timely financial report as
required by section 19.43 of the statutes. The report shall also be
filed by commissioners of the supreme court, staff attorneys of the
court of appeals, and the director of state courts,
members of the board of administrative oversight and preliminary review
committees, and members of the board of bar examiners .
* Chief Justice Abrahamson, Justice Bradley, and Justice Crooks dissent to the amendment of SCR 60.05 (8) (b).
Section 67. 62.01 of the Supreme Court Rules is amended to read:
62.01 Scope. The uniform standards of courtroom
courtesy and decorum in SCR 62.02, adopted to enhance the administration
of justice by promoting good manners and civility among all who
participate in the administration of justice in
Wisconsin this state, are applicable to judges,
court commissioners, lawyers, court personnel, and the public in
all Wisconsin courts. Notwithstanding SCR 20:8.4 (f), the standards
under SCR 62.02 are not enforceable by the office of lawyer regulation.
Conduct by a lawyer that violates chapter SCR
ch. 20 of the supreme court rules or SCR 40.15 is
subject to the authority of the office of lawyer regulation.
IT IS ORDERED that the amendment of these Supreme Court Rules shall be effective April 1, 2002, with the exception of the creation of SCR 21.15 (5), which shall be effective July 1, 2002. The amendment of SCR 60.05 (8) (b) shall be effective April 1, 2002 and apply to the 2001 calendar year.
IT IS FURTHER ORDERED that notice of the amendment of these Supreme Court Rules be given by a single publication of a copy of this order in the official state newspaper and in an official publication of the State Bar of Wisconsin.
Dated at Madison, Wis., this 23rd day of January, 2002.
By the court:
Cornelia G. Clark, Clerk of Supreme Court
In the matter of the amendment of Supreme Court Rule 12.07(2), Clients' Security Fund, Annual Assessments
Order 01-16
On Nov. 30, 2001, the Board of Governors of the State Bar of Wisconsin filed a petition seeking to amend Supreme Court Rule 12.07(2). The Board of Governors requests the court increase the maximum annual assessment from $15 to $25.
IT IS ORDERED that a public hearing on the petition shall be held in the Supreme Court Room in the State Capitol, Madison, Wis., on Thursday, April 18, 2002, at 2 p.m.
IT IS FURTHER ORDERED that the court's conference in the matter shall be held promptly following the public hearings on this matter and rule petition 01-18.
IT IS FURTHER ORDERED that notice of the hearing be given by a single publication of a copy of this order and of the petition in the official state newspaper and in an official publication of the State Bar of Wisconsin not more than 60 days nor less than 30 days before the date of the hearing.
Dated at Madison, Wis., this 4th day of January, 2002.
By the court:
Cornelia G. Clark, Clerk of Supreme Court
Petition
To the Justices of the Wisconsin Supreme Court:
The Board of Governors of the State Bar of Wisconsin hereby petitions the Wisconsin Supreme Court to amend SCR 12.07(2) as follows:
(2) Annual Assessments. Commencing with the state bar's July 1, 1982,
fiscal year, every attorney shall pay to the fund such annual
assessments as are necessary to maintain a balance in the fund of
$250,000, but in no event shall any annual assessment exceed
$15 $25. An attorney whose annual state bar
membership dues are waived for hardship shall be excused from the
payment of the annual assessment for that year. An attorney shall be
excused from the payment of the annual assessment for the fiscal year
during which he or she is admitted to practice law in Wisconsin.
Discussion: The Clients' Security Fund ("fund") was established in 1981 to financially compensate clients who have lost money or other property because of the dishonest conduct of their attorneys. The fund is administered by the Clients' Security Fund committee ("committee"). Since 1982, the fund has made more than $2.2 million in reimbursements to over 350 clients.
The fund is financed by mandatory annual assessments on all licensed Wisconsin attorneys. Each year, the committee determines the amount of the assessment based upon past and anticipated future claims experience and the current fund balance. Under the current rule, the committee cannot set an annual assessment in excess of $15. This maximum has not been changed since the fund's creation.
Section 12.07(2) also requires that the fund committee set the annual assessment at amounts sufficient to maintain a balance in the fund of $250,000. The $250,000 amount was ordered by this court in 1997 pursuant to a petition filed by the Board of Governors to raise the then previous specified balance of $150,000. This increase in the fund balance was requested to accommodate an increase in the maximum claim reimbursement amount from $45,000 to $75,000 by the Board of Governors in 1996.
Beginning with the fiscal year 2000, however, the committee has been unable to maintain a $250,000 reserve, and in fact has begun each fiscal year with a negative balance. The balance existing at the end of the last two fiscal years has not been sufficient to pay all claims approved by the committee. As a result, payment of approved claims for both 2000 and 2001 were deferred to the following fiscal year. The amount of deferred claims in the year 2000 exceeded $80,000. The amount deferred at the end of fiscal 2001 was $75,000.
The Clients' Security Fund committee has advised the Board of Governors that an increase in the maximum annual assessment from $15 to $25 will help it pay claims in the year approved and maintain the $250,000 reserve required by SCR 12.07(2).
The undersigned respectfully submits this petition on behalf of the Board of Governors and prays for an order accordingly.
This 29th day of November, 2001.
Gerald W. Mowris, President
Rules to Guide Court Staff in Assisting Individual Court Users
In the matter of the creation of rules providing guidance on assistance to individual court users.
Order 01-18
On Dec. 21, 2001, the Wisconsin Clerks of Circuit Court Association, Wisconsin Association of Municipal Court Clerks, and Registers in Probate Association filed a petition seeking to create supreme court rules providing guidance for court staff on assistance to individual court users. The petitioners request the new rule be incorporated under Supreme Court Rule chapter 70, Judicial Administration.
IT IS ORDERED that a public hearing on the petition shall be held in the Supreme Court Room in the State Capitol, Madison, Wis., on Thursday, April 18, 2002, at 2 p.m.
IT IS FURTHER ORDERED that the court's conference in the matter shall be held promptly following the public hearing on this matter and on rule petition 01-16 regarding attorney assessments.
IT IS FURTHER ORDERED that notice of the hearing be given by a single publication of a copy of this order and of the petition in the official state newspaper and in an official publication of the State Bar of Wisconsin not more than 60 days nor less than 30 days before the date of the hearing.
Dated at Madison, Wis., this 4th day of January, 2002.
By the court:
Cornelia G. Clark, Clerk of Supreme Court
Petition
The Wisconsin Clerks of Circuit Court Association, Wisconsin Association of Municipal Court Clerks, and Registers in Probate Association, hereby petition the court to create a supreme court rule providing guidance for court staff on assistance to individual court users, pursuant to the court's superintending and administrative authority over all the courts conferred by Article VII, §3 of the Wisconsin Constitution. The proposed rule has been developed at the recommendation of the Wisconsin Pro Se Working Group in its report, "Meeting the Challenge of Self-Represented Litigants in Wisconsin," pages 17-21 (December 2000). The report found that court staff need and want guidance on how much information they can properly give to the public, particularly self-represented litigants, without giving legal advice. This finding is consistent with the experience of the Wisconsin Clerks of Circuit Court Association members.
The proposed rule was developed by a committee representing the judiciary, the State Bar of Wisconsin, clerks of circuit court, and the district court administrators. It describes what information may and may not be provided by court staff. It is modeled after similar guidelines adopted by the supreme courts of Iowa and New Mexico. It is written in plain English so it can be posted in courthouses for guidance of the public as well as court staff.
A new section should be added to SCR Chapter 70 as follows:
SCR 70. ___: Assistance to individual court users: Guidelines for court staff.
(1) Definitions. In this rule:
(a) "Court" means appellate, circuit, or municipal court.
(b) "Court staff" means individuals under the supervision of the clerk of the supreme court and court of appeals, clerk of the circuit court, circuit court commissioner, register in probate, district court administrator, circuit court judge, or municipal court judge.
(c) "Forms" means (A) Records Management Committee approved forms or (B) forms that have been approved by a circuit court or municipal judge for use in that jurisdiction.
(d) "Individual" means any person who seeks court-related information, including information needed to file, pursue, or respond to a case.
(e) "Should" is directory only, not mandatory, and connotes a duty or obligation to pursue a goal or objective.
(2) The purpose of this rule is to assist the court in communicating with individual court users without practicing law. The rule is intended to enable court staff to provide the best service possible to individuals within the limits of the staffs' responsibility. The rule is not intended to restrict powers of court staff otherwise provided by statute or rule nor is it intended to eliminate the collection of applicable fees or costs. The rule recognizes that the best service the court staff may provide in many proceedings is advising an individual to seek the assistance of an attorney.
(3) Court staff shall treat all individuals fairly and equally. Court staff shall remain impartial and may not provide or withhold assistance for the purpose of giving one party an advantage over another.
(4) Authorized information and assistance. Staff shall:
(a) Provide public information contained in:
1. dockets or calendars,
2. case files,
3. indices, and 4. existing reports.
(b) Provide a copy of or recite common, routinely employed:
1. state and local court rules,
2. court procedures, and
3. applicable fees and costs.
Comment: Providing a copy of a common rule is permissible, but court staff should not attempt to apply the rule to the facts in the individual's case. Sometimes, after court staff provides a rule, an individual will ask whether or how the rule would apply, or if the rule might be applied differently, given the facts in his or her case. This calls for an interpretationof the law or rule of procedure. Court staff shall avoid offering interpretations of laws or rules.
(c) Advise an individual where to find statutes and rules, without advising whether or not a particular statute or rule is applicable.
(d) Identify and provide applicable forms and written instructions without providing advice or recommendations as to any specific course of action.
(e) Answer questions about how to complete forms (e.g., where to write in particular types of information), but not questions about how the individual should phrase his or her responses on the forms.
(f) Define terms commonly used in court processes.
(g) Provide phone numbers for lawyer referral services, local attorney rosters, or other assistance services, such as Internet resources, known to the court staff.
(h) Provide appropriate aids and services for individuals with disabilities to the extent required by the Americans with Disabilities Act.
(5) Unauthorized information and assistance. Staff may not provide legal advice or recommend a specific course of action for an individual. Staff may not:
(a) Apply the law to the facts of a given case, or give directions regarding how an individual should respond or behave in any aspect of the legal process.
(b) Recommend whether to file a petition or other pleading.
(c) Recommend phrasing for or specific content of pleadings. Comment: Court staff may inform individuals that some general content may be required in a pleading (e.g., identification of the other parties involved in the accident; a description of the facts surrounding the accident). But court staff may not tell an individual whom to identify or which particular facts might be relevant in the pleading.
(d) Fill in a form, unless required by 4(h).
(e) Recommend specific people against whom to file petitions or other pleadings.
(f) Recommend specific types of claims or arguments to assert in pleadings or at trial.
(g) Recommend what types or amount of damages to seek or the specific individuals from whom to seek damages.
(h) Recommend specific questions to ask witnesses or litigants.
(i) Recommend specific techniques for presenting evidence in pleadings or at trial.
Comment: Court staff should, if possible, provide or direct individuals to pamphlets or other documents that address this issue and that have been prepared for general distribution to the public.
(j) Recommend which objections to raise regarding an opponent's pleadings or motions at trial or when and how to raise them.
(k) Recommend when or whether an individual should request (or oppose) an adjournment.
(l) Recommend when or whether an individual should settle a dispute.
(m) Recommend whether an individual should appeal a judge's decision.
(n) Interpret the meaning or implications of statutes or appellate court decisions as they might apply to an individual case.
Comment: Court staff may not compute deadlines specified by statute.
(o) Perform legal research.
Comment: Court staff may refer individuals to sections of the Wisconsin Supreme Court Rules, local court rules, or Wisconsin statutes that govern matters of routine administration, practice, or procedure; and they may give definitions of common, well-defined legal terms used in those sections. However, clerks shall not interpret the meaning of statutes or rules.
(p) Predict the outcome of a particular case, strategy, or action.
Comment: This list is consistent with the statutory directives in secs. 757.22 and 757.30(2) of the statutes regarding the practice of law by judicial officers and the unauthorized practice of law. This list provides examples of prohibited types of assistance. It is not comprehensive.
(6) When court staff are uncertain whether the advice or information requested is authorized, they should seek the assistance of a supervisor. If a supervisor is not available, the individual should be advised to seek assistance from an attorney.
Respectfully submitted this 21st day of December, 2001.
Judith A. Coleman, President, Wisconsin Clerks of Circuit Court Association
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