By org akorbitz wisbar Adam Korbitz, Government Relations Coordinator, State Bar of Wisconsin
June 16, 2010 – The Wisconsin Supreme Court is concluding a busy year of rule-making proceedings, during which the court approved four petitions filed by the State Bar of Wisconsin, including the Bar’s 2007 petition regarding the unauthorized practice of law.
Over the last year the court has also approved seven additional petitions supported by the State Bar but filed by other organizations, as well as a number of other petitions. Several petitions that have already had public hearings are being held over until the court’s next term begins in September, and at least six petitions that have not yet had public hearings will also be held over.
When the Supreme Court’s session began earlier this fall, the court had 14 rule-making petitions pending before it. So far this year, the court has held public hearings or open administrative conferences on more than 20 pending petitions.
Court takes final action on UPL petition
On June 1, 2010, the Wisconsin Supreme Court voted unanimously to adopt a scaled-down version of the State Bar of Wisconsin’s 2007 petition regarding the unauthorized practice of law. The court’s adoption of the new rule will create, for the first time, a specific definition of what constitutes the practice of law in Wisconsin.
While adopting a definition of the practice of law, the court rejected several options the State Bar had presented to enforce the new rule. In the end, the court left enforcement of the new rule to individual consumers and their lawyers to use existing statutes to enforce the rule against those practicing law without a license. The court also adopted – over the State Bar’s objections – a number of exceptions to the rule.
The court’s action during the June 1 open administrative conference followed a unanimous vote in March 2010 to adopt in principle an earlier working draft of the UPL rule. As part of that March vote, the court chose to sunset the new rule after five years unless the court votes to continue it.
Other State Bar petitions favorably disposed
In addition to approving the State Bar’s UPL petition, over the last year the court has approved three other petitions filed by the Bar: one relating to classes of Bar membership, another permitting non-resident members to hold certain officer positions and a third relating to lawyer referral and monitoring. The court also adopted a number of technical amendments the State Bar suggested as part of a three-year review of 2007 trust account rules.
On Oct. 29, 2009, the court unanimously approved petition 08-27, which clarifies the class of judicial membership in the Bar. Under petition 08-27, the class of judicial members of the State Bar under SCR 10.03(3)(a) is modified to specify more precisely those judicial officials who are eligible for judicial membership. This restatement of eligible officials explicitly includes, for the first time, court of appeals staff attorneys and federal administrative law judges.
On Nov. 2, 2009, the court unanimously approved petition 09-06, which the State Bar filed to amend Supreme Court Rule 10.04(1) to permit non-resident members of the State Bar to hold office as treasurer, secretary and chairperson of the Board of Governors. The State Bar filed the petition at the request of the Bar’s Non-Resident Lawyers Division.
On April 28, 2010, the court approved 5-2 petition 08-28, which the State Bar filed relating to lawyer referral and monitoring. The petition changes confidentiality rules so that the Office of Lawyer Regulation (OLR) may refer lawyers to the Wisconsin Lawyer Assistance Program (WisLAP) for assessment, treatment, and monitoring to cope with substance addiction, mental illness, or other problems impacting the practice of law.
On May 10, 2010, the court met in an open administrative conference to review the rule amendments the court adopted in 2007 to the trust account rule, SCR 20.1.15, together with related amendments to SCR 20.1.0 that added definitions for advanced fees, flat fees, and retainers, SCR 21.16 (Discipline) and SCR 12.04 (Wisconsin Lawyers' Fund for Client Protection). The effective date of those changes was July 1, 2007 and they were made in response to petition 06-04, filed jointly by the State Bar of Wisconsin and the Office of Lawyer Regulation. As a result of the May 10 review, the court ordered a number of technical amendments.
Petitions supported by the State Bar that were favorably disposed
In addition to approving the petitions discussed above that were filed directly by the State Bar, over the past year the court approved at least seven petitions filed by other organizations but supported by the State Bar.
The court kicked off its year in September 2009 by approving a petition filed in 2008 by the Board of Bar Examiners to create authority in the Supreme Court rules for the electronic filing of CLE reports.
Adoption of the new rule avoided a replay of what happened in 2008, when many attorneys who were required to report their CLE by the end of the year found they had to both report electronically and mail a signed hard copy of their CLE report to the BBE. The State Bar supported the BBE petition.
In October 2009, the court unanimously approved petition 09-05, which amends SCR 71.01 (2) governing the reporting of court proceedings. The State Bar’s Board of Governors had voted to support that petition as well, which was filed by the Director of State Courts.
On April 27, 2010, the court approved two more rule-making petitions, one filed by the Judicial Council relating to the confidentiality of communications made in mediation and another filed by the BBE relating to bar admission procedures. The Board of Governors supported both petitions.
On April 28, 2010, the court approved another petition filed by the Judicial Council regarding new rules governing discovery of electronically stored information. The State Bar also supported that petition.
On May 11, 2010, the court approved two petitions related to the content of appendices to appellate brief and petitions for review. The petitions, which were filed by the chief judge of the Court of Appeals and the clerk of the Supreme Court, require that a party petitioning for appellate review include in the appendix a copy of any unpublished opinion cited by the party and append an additional certification confirming compliance. The State Bar supported both petitions.
Other petitions granted or denied
In January 2010, a divided Wisconsin Supreme Court adopted, for the second time, several amendments to the Code of Judicial Conduct permitting judges to sit on cases involving their campaign contributors or sponsors of independent expenditures and issue advocacy during their judicial campaigns.
In October 2009, the justices had voted 4-3 to make these changes by accepting -without any amendment- the rule petitions authored by the Wisconsin Realtors Association and the Wisconsin Manufacturers & Commerce. The court later withdrew that vote in December 2009 when Justice David Prosser said the petitions contained language requiring “fine tuning.” The petition sponsors themselves sought a revision to resolve inconsistent terminology for campaign participants before a court, and Justice Prosser wanted to clarify the rule’s applicability to judges.
On Nov. 2, 2009, the court also gave tentative approval to two petitions filed by the Director of State Courts. Petition 09-02, filed on behalf of the court’s Records Management Retention Committee, makes various technical amendments to SCR 72.01 regarding record retention, in order to take into account statutory changes that have occurred since the last major revision to the rule in 1997. Petition 09-03, filed on behalf of the court’s Committee to Improve Interpreting and Translation in the Wisconsin Courts, was filed to create a rule governing the submission of evidence originating in a language other than English. (The court subsequently ordered that petition 09-03 be held in abeyance pending the filing of an amended petition, and that petition is still pending before the court.) The Board of Governors did not take a position on either petition.
Petitions to be held over until next session
When the court’s next term begins in September 2010, the court will have a number of petitions pending before it, including some that have already had public hearings. The Wisconsin Supreme Court will continue studying a proposal by the State Bar of Wisconsin, petition 09-07, to provide guidance to circuit court judges when ordering certain case files expunged, removed from an online database or otherwise sealed.
At an all-day public hearing on Feb. 24, 2010 almost two dozen individuals testified in favor of the petition. The vast majority of those who testified favored the proposal and described how their personal lives or professional careers had been adversely affected by the online posting of court cases. In most of the situations described at the hearing, the cases had either been dismissed, overturned on appeal or had ended in outright acquittal after a jury trial.
After the Feb. 24 hearing, a majority of the justices appeared willing to continue exploring ways to provide limited relief to individuals harmed by the online availability of cases that have either been dismissed or that ended in outright acquittal. The Legislature is also considering establishing a committee to study the issue over the next year.
The court is also holding several petitions over until its next session that have not yet had public hearings, including a petition several Wisconsin attorneys have filed to increase the rate for court-appointed attorneys to $80 per hour. The group filing the petition includes eight past presidents of the State Bar of Wisconsin. On May 4, 2010 the Board of Governors voted to support the petition.
If approved by the court, the petition would increase the Supreme Court rate under SCR 81.02 to $80 per hour and index the rate to the consumer price index. The current Supreme Court rate for court-appointed attorneys such as GALs is set by rule at $70 per hour. However, this rate does not apply to State Public Defender (SPD) private bar appointments, which are set by statute at $40 per hour.
While the petition would not directly set SPD private bar rates, it would provide that payment of an hourly rate less than the rate set forth in SCR 81.02(1) for legal services rendered pursuant to appointment by the SPD under Wis. Stat. section 977.08 is unreasonable.
The court will have at least three other petitions still pending before the court that it has not yet scheduled for public hearing. Those include petition 09-08, filed by several Wisconsin attorneys to change Supreme Court rules governing the use of State Bar dues. The court also has pending before it petition 09-09, filed by a group of Wisconsin attorneys to either extend the diploma privilege under SCR 40.03 to graduates of all ABA-approved law schools or to abolish it entirely.
The court will also have pending a controversial petition filed by the Office of Lawyer Regulation, petition 10-04, to establish standards and procedures for the permanent revocation of attorney licenses for misconduct in egregious cases. Currently, a revoked attorney may petition the court for reinstatement after five years. On Feb. 26, 2010, the Board of Governors voted to oppose that petition.
Under Wis. Stat. section 751.12 and Supreme Court Internal Operating Procedures II.B.5. and III, any person may file a petition to change Supreme Court rules, pleading, practice, procedural statutes and administrative matters. The State Bar’s activities regarding Supreme Court rule-making petitions are coordinated by the State Bar’s government relations team. If you have questions regarding the State Bar’s position on a rule-making petition pending before the Supreme Court, please contact org akorbitz wisbar Adam Korbitz, government relations coordinator.
Supreme Court unanimously approves UPL rule but without enforcement mechanism - June 2, 2010
Supreme Court approves Judicial Council, BBE rule-making petitions - April 30, 2010
Petition filed to increase Supreme Court rate for court-appointed attorneys - March 22, 2010
Supreme Court unanimously votes to proceed with draft UPL rule - March 9, 2010
Supreme Court to continue studying record retention and removal petition - February 26, 2010
Scope of proposed electronic discovery rules debated at public hearing– Feb. 3, 2010
Wisconsin Supreme Court adopts amended recusal rules - January 22, 2010
Supreme Court sets 2010 schedule of rule-making proceedings - November 23, 2009
State Bar faces busy year with Supreme Court rule-making – Sept. 21, 2009
Rotunda Report is the State Bar of Wisconsin’s Government Relations e-newsletter that highlights legislative, judicial, and administrative developments that impact the legal profession and the justice system. It is published twice a month and is distributed free to attorneys, public officials and others who help shape public policy in Wisconsin. We invite your org pubaffairs wisbar suggestions to make the Rotunda Report more informative and useful and we encourage you to visit our Web site for the most current information about justice-related issues.
© 2010, State Bar of Wisconsin