President-elect Jim Brennan asks board members to encourage constituents to volunteer for State Bar committees.
Young Lawyers Division (YLD) president-elect Sherry Coley (center), YLD representative Nick Vivian (right), and District 2 Gov. T.J. Molinari break for discussion on day two of the Board of Governors' meeting. Molinari and Vivian voiced support for the State Bar's continued investment in the development of young lawyers.
State Bar Secretary Michael Remington (left), member of the Keller Review Committee, answers questions about the committee's recommendation to oppose a petition to amend rules relating to the mandatory bar dues reduction issue. Roberta Howell (right), counsel to the State Bar, answers related questions.
Joseph Troy, a member of the State Bar's Litigation Section Board, discusses the the Litigation Section's request to repeal a State Bar policy position on medical record fees.
Govs. John Schomisch, Jr. (left), of Appleton, and Paul Swanson (right), of Oshkosh, discuss events before the board meeting begins. Swanson, who practices bankruptcy law, educated State Bar board members about his practice area
Gov. Kelli Thompson (right), recently confirmed as director of the Wisconsin State Public Defender Office, listens to legislative updates from State Bar Public Affairs Director Lisa Roys.
State Bar President Jim Boll (center) listens to board members discuss the recommendations of the Keller Review Committee.
April 12, 2011 – The State Bar’s Board of Governors (board) met April 8-9 in Green Bay to discuss a voluntary bar petition, a petition to amend supreme court rules relating to the State Bar mandatory dues reduction process, and the Litigation Section’s request to repeal the State Bar’s policy position on medical records fees, among other business.
In his president’s address, Jim Boll reported on his work pursuant to the Legal Stakeholders Summit, designed to bring key stakeholders in the criminal justice system together to find common ground and discuss what Boll describes “one of the most challenging budget cycles in Wisconsin history.” The stakeholders include individuals who represent all areas of the criminal justice system, including state public defenders, prosecutors, and private bar members.
Boll said the legal stakeholders are working on an educational program to present to Wisconsin legislators and county boards statewide. The program focuses on the necessity of adequate funding for a workable criminal justice system.
President-elect Jim Brennan announced that members interested in volunteering for a State Bar committee have until April 15 to complete a committee interest form. Appointments are effective July 1, 2011. The board also took a number of actions, discussed below:
Board will take no position on pending voluntary bar petition
By voice vote, the board decided it will not take a position relating to a pending petition that asks the Wisconsin Supreme Court to create a voluntary State Bar of Wisconsin. Current board members Steven Levine and James Thiel filed petition 11-01 in February.
The supreme court has not yet scheduled a hearing on the petition. Past president Doug Kammer noted the long history of the voluntary/mandatory bar issue, and encouraged the board not to take a position.
“I think it is more appropriate for this group to do nothing,” Kammer said. “That frees anyone to take the position they want to take.”
Board opposes petition to amend rule on mandatory bar dues reduction process
The board voted 38-4 to oppose and respond to pending petition 09-08, filed by current board members Steven Levine and James Thiel. The petition asks the Wisconsin Supreme Court to amend rules governing the State Bar membership dues reduction calculation in light of the recent 7th Circuit Court of Appeals decision in Kingstad, et al. v. State Bar of Wisconsin.
Supreme Court Rule 10.03(b)(5)1 states that the “State Bar may not use compulsory dues of any member who objects to that use for political or ideological activities” if those activities are not “reasonably intended for the purpose of regulating the legal profession or improving the quality of legal services.”
In Kingstad, a three-judge panel overruled a portion of its earlier decision in Thiel v. State Bar of Wisconsin, and held that the State Bar may use mandatory dues of objecting members to fund “only those activities that are reasonably related to the State Bar’s dual purposes of regulating the profession and improving the quality of legal services,” regardless of whether those activities are political or ideological.
Thiel, Levine, and Jon Kingstad were the plaintiff-objectors in Kingstad, challenging the State Bar’s use of their mandatory bar dues to fund a public-relations campaign designed to improve the image of lawyers and the legal profession.
While the court narrowed the test to be applied when a member objects to the use of mandatory dues, it nevertheless ruled for the State Bar with respect to the particular activities at issue, concluding the image campaign was reasonably related to the State Bar’s dual purposes.
Through petition 09-08, petitioners Thiel and Levine are asking for an amendment prohibiting the State Bar from using mandatory dues to fund any activity unless it is “directly, primarily or substantially” intended for the purpose of regulating the legal profession or improving the quality of legal services.
They also ask the supreme court to impose a burden of proof on the State Bar to show by clear and convincing evidence that any challenged activity funded by mandatory dues is directly, primarily, or substantially intended for the State Bar’s dual purposes.
At the board meeting, Levine noted his belief that the Kingstad court applied the wrong standard of review when it determined the State Bar can use mandatory dues to fund activities that are “rationally related” to the dual purposes of regulating the profession and improving the quality of legal services. Instead, Levine believes strict scrutiny applies to the analysis.
But the “Keller Review Committee,” established by State Bar President Jim Boll in February to study the issue and make recommendations to the board, said the petition departs from the Kingstad decision.
The review committee, made up of five appointed board members, recommended the board oppose the petition and support amendments that bring the rules in compliance with Kingstad.
The board accepted the committees’ recommendation. In addition, the review committee will review the process the State Bar currently uses to calculate the annual Keller dues rebate and will report its recommendations for changes at the board’s June 8 meeting in Wisconsin Dells.
The Wisconsin Supreme Court held a public hearing on petition 09-08 April 11, at which the State Bar reported its position and recommendations. At its subsequent open administrative conference, the supreme court agreed in principle to make several changes to how the annual "Keller" dues reduction is calculated.
It also a reached tentative agreement on language specifying that compulsory dues be used only for activities “necessarily or reasonably incurred for the purpose of regulating the legal profession or improving the quality of legal services.” The petitioners had urged the justices to require that activities funded with the mandatory dues of objecting members be “directly, primarily, and substantially intended” for the dual purposes identified in Kingstad.
However, the court deferred further action pending a review of relevant State Bar bylaws on the issue of whether the rule should also define the State Bar's burden of proof when an objection is made challenging the Keller determination.
Board accepts Litigation Section request to repeal a public policy position
At the request of the Litigation Section, the board repealed a public policy position adopted in January 2004 relating to medical record fees. This allows the section to rethink policy considerations in light of Gov. Walker’s proposed state budget for the 2011-13 biennium.
Appleton attorney Joseph Troy, a member of the Litigation Section Board, presented the section’s position at the board meeting.
“We want to ensure accessible patient records to all who need them,” said Troy, who noted the issue is one that unites both the defense and plaintiff litigation bar.
In 2004, the Litigation Section requested and the board adopted a policy to support “uniform fees for duplication of medical records regardless of whether there is a commenced action, to be set by administrative rule by the Dept. of Health and Family Services.”
At that time, medical record copying companies and the industry were continually raising rates, and rate limits only existed for requests pursuant to a lawsuit.
The board’s 2004 action supported an HFS administrative rule designed to create a reasonable and uniform rate that for-profit copying services could charge for medical records, even for matters not in suit. The HFS rule went into effect in 2007.
At that time, however, HFS indicated that it would open the rule-making process to raise rates at the request of medical records companies, according to Litigation Section Chair Ron Pezze.
Subsequently, the legislature enacted a statute as part of the 2009-11 state budget that set fees for medical records at relatively favorable rates. Gov. Walker’s current proposed state budget would repeal the fee-setting statute and return the process to HFS, resulting in higher rates.
Troy noted the possibility that medical records fees could go unregulated if HFS does not have a rule in place when and if the fee-setting statute is repealed by Gov. Walker’s proposed budget.
The board approved the Litigation Section’s request to repeal its policy position on the issue so the section is free to take an appropriate policy position and lobby on its own behalf.
Board accepts amendment to State Bar policy on paralegal supervision
The board approved a motion to amend the State Bar’s policy language on the supervision of paralegals. The supreme court does not currently license or regulate paralegals.
The State Bar’s current policy on paralegal supervision states: “The State Bar of Wisconsin supports attorney supervision of paralegals licensed under the authority of the Supreme Court.”
Gov. William Curran asked the board to strike the words “under the authority of the supreme court” and add “pursuant to law” instead so the State Bar could promote its policy regardless of the licensing body. The new policy language will read: “The State Bar of Wisconsin supports attorney supervision of paralegals licensed pursuant to law.”
Board approves requests to amend section bylaws
By consent agenda, the board approved amendments to the Health Law, the International Practice, and the Taxation Practice section bylaws.