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  • Supreme Court’s Decision on Whether Attorney Fees Are Recoverable Will Impact Theft by Contractor Cases

    Mark Schmidt discusses the background and current status of a case now before the Wisconsin Supreme Court. “This case could have a big impact on claims for theft by contractor,” he writes.

    Mark E. Schmidt

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    A case that started in small claims and is now before the Wisconsin Supreme Court could have a big impact on claims for theft by contractor.

    In Estate of Miller v. Storey, 2016 WI App 68, 371 Wis. 2d 669, 885 N.W.2d 787, pet. for review granted, 2017 Wisc. LEXIS 11 (Jan. 9, 2017), the Court of Appeals held that the phrase “all costs of . . . litigation” recoverable for statutory theft claims under Wis. Stat. section 895.446(3)(b) does not include actual reasonable attorney fees.

    Mark E. Schmidt com mschmidt vonbriesen Mark E. Schmidt, George Mason 2004, is a shareholder with von Briesen & Roper, s.c. in Milwaukee, where he specializes in litigation of construction, real estate and commercial disputes.

    Although Estate of Miller involves a claim for theft under Wis. Stat. section 943.20 – rather than theft by contractor under Wis. Stat. section 779.02(5) – the damages available for both causes of action are set forth in Wis. Stat. section 895.446.1 Thus, the Court of Appeals’ holding that actual attorney fees are not recoverable applies to theft by contractor claims.

    Historically, most construction lawyers have taken the position that attorney fees are recoverable for theft by contractor. As a result, fee shifting often factors into decisions about litigation strategy, whether to file motions, and settlement. Thus, the Supreme Court’s decision in Estate of Miller will have important ramifications for clients involved in theft by contractor litigation.

    Facts of the Case

    Estate of Miller was a small claims action brought by the Estate of Stanley Miller (Miller). The defendant, Diane Storey (Storey), was Miller’s niece. When Miller was eighty‑six years old in 2010, Storey moved in with him to serve as his caretaker. Among other things, Storey helped Miller with his checkbook and paying bills.

    Miller passed away in 2011. His sister took on the role of personal representative of the Estate. Information then came to light that raised questions about Storey’s handling of Miller’s finances. This included large amounts withdrawn from Miller’s bank accounts during the year Storey stayed with Miller, suspicious checks payable to “cash” and to a collection agency, payment of Storey’s property taxes from Miller’s checking account, and Miller being signed up for online banking even though he did not have Internet access.

    Procedural History

    The Estate filed suit against Storey alleging misappropriation of funds. At trial, the Estate was able to correlate several of the checks written from Miller’s account with funds deposited into Storey’s own bank account.

    The jury returned a verdict finding Storey had wrongfully taken $10,000 from Miller prior to his death. On motions after the verdict, the circuit court held the Estate had successfully presented a case for civil liability theft with damages available under section 895.446.

    The circuit court awarded the Estate attorney fees in the amount of $20,000 under Wis. Stat. section 895.446(3)(b), which provides: “If the plaintiff prevails in a civil action under sub (1), he or she may recover all of the following: . . . (b) all costs of investigation and litigation that were reasonably incurred, including the value of the time spent by any employee or agent of the victim.”

    Storey appealed and argued, among other things, that the circuit court erred by awarding attorney fees under section 895.446(3)(b).

    Court of Appeals Decision

    The Court of Appeals framed the issue on appeal as whether “[a]ll costs of . . . litigation” includes actual attorney fees incurred by the Estate.

    In deciding the issue, the Court of Appeals noted that Wis. Stat. section 895.446(3m)(b) specifically provides that “the court may award a prevailing plaintiff the reasonable attorney fees incurred in litigating the action.” In contrast, section 895.446(3)(b) does not make any specific reference to recovery of attorney fees.

    Thus, the Court of Appeals reasoned, the legislature intended to make recovery of “attorney fees” available for the subset of theft claims under (3m)(b), but not for claims under (3)(b) – notably, the subsection that governs theft by contractor claims.

    The Court of Appeals noted that statutes should be construed so that no word or clause is rendered surplusage and every word, if possible, is given effect. In addition, where the legislature uses similar but different terms in a statute, particularly in the same section, the Court of Appeals presumes the legislature intended the terms to have different meanings.

    Applying these rules, the Court of Appeals found that claimants under subsection (3m)(b) already may receive the “costs of . . . litigation” pursuant to subsection (3)(b). Thus, it follows that parties asserting claims under subsection (3m)(b) may receive attorney fees in addition to litigation costs pursuant to subsection (3)(b) – not in place of them. According to the Court of Appeals, “[i]t would be superfluous to say that all claimants may receive attorney fees as part of the costs of litigation, and then specifically provide for their recovery in a few limited cases as well.”

    The Court of Appeals agreed with Storey that, if the legislature intended for attorney fees to be available to a prevailing plaintiff under section 895.446(3)(b), it would have used the same language included in subsection (3m)(b), just as it did under other statutes that provide for recovery of attorney fees (e.g., Wis. Stat. § 943.51 (retail theft), Wis. Stat. § 943.212 (fraud on certain service providers) and Wis. Stat. § 134.93 (payment of commissions to independent sales representatives).

    The Court of Appeals rejected the Estate’s argument that Stathus v. Horst, 2003 WI App 28, 260 Wis. 2d 166, 659 N.W.2d 165 is controlling. Stathus involved interpretation of former Wis. Stat. section 895.80, which provided that successful plaintiffs could recover “all costs of investigation and litigation that were reasonably incurred.”

    According to the court, Stathus did not address whether attorney fees would be awarded. Rather, the decision addressed how to calculate attorney fees. Moreover, the predecessor statute did not contain the different subsections as to damages that now exist in Wis. Stat. sections 895.446(3) and 895.446(3m), with the specific allowance for attorney fees for the group of subsection (3) claims that also fall under subsection (3m). The legislature also renumbered the statute and amended it substantially. As a result, Stathus was not applicable.

    In sum, the Court of Appeals concluded that the express statutory language and structure, standard rules of statutory interpretation, and the absence of controlling case law, supported its holding that “costs of . . . litigation” does not include actual reasonable attorney fees.

    Petition for Review

    The Wisconsin Supreme Court granted a petition for review. The case has been fully briefed and oral argument and a decision are forthcoming.

    Conclusion

    The Court of Appeals’ decision in Estate of Miller is at odds with the commonly-stated position that actual reasonable attorney fees are recoverable for theft by contractor. As such, construction lawyers should be aware of this case and its potential ramifications for their clients.

    Stay tuned – a follow-up post will discuss the Supreme Court’s decision.

      

    Endnote


    1 The theft by contractor statute (section 779.02(5)) cross-references the theft statute (section 943.20), which in turn provides remedies under Wis. Stat. section 895.446.




  • Lawyers Head to Capitol Hill for Annual American Bar Association’s Lobby Day

    Brittney Weiland

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    April 27, 2017 – Attorneys from across the country attended the American Bar Association’s (ABA) Lobby Day this week. The annual event gives lawyers an opportunity to lobby their members of Congress on important legal issues. The State Bar of Wisconsin’s representatives included President Fran Deisinger, President-elect Paul Swanson, Madison attorney and ABA Treasurer-elect Michelle Behnke and Public Affairs Director Lisa Roys.

    The group focused on advocating for the Legal Services Corporation (LSC) and its need for continued funding. Recently, President Trump introduced his budget proposal and it eliminated funding for the LSC.

    The American Bar Association (ABA) started a campaign to support legal aid programs, including support for LSC funding. Participants registered to become a “Legal Aid Defender” and entered a short message for their representatives in Congress. The ABA collected about 20,000 entries which were hand delivered to the appropriate members of Congress throughout the week.

    There are two Wisconsin organizations, Legal Action of Wisconsin and Wisconsin Judicare, that would be significantly impacted if the proposal to eliminate funding for the LSC is adopted. Together, the two organizations serve almost 10,000 low-income residents in Wisconsin each year.

    The State Bar contingent met with both Wisconsin senators and members of the congressional delegation. They reported positive meetings and are encouraged by the conversations they had with members of Congress.

    In addition to LSC funding, the group followed-up on last year’s discussions on criminal justice reform and other federal issues of importance.

     




  • State Bar Board Supports Petition for Increased SPD Private Bar Rate

    Joe Forward

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    John Birdsall presents a petition on the hourly rate for court-appointed attorneys.

    April 27, 2017 – The State Bar of Wisconsin’s Board of Governors held their April meeting last Friday and voted to support a forthcoming petition to increase to $100 the hourly rate paid to private bar attorneys who take appointments from the State Public Defender's Office.

    Dist. 2 Gov. John Birdsall said the State Public Defender (SPD) appoints nearly 40 percent of its cases to the private bar based on conflicts that preclude staff representation. Private attorneys who take SPD appointments receive $40 per hour, which is the lowest rate in the country.

    The Wisconsin Legislature sets the SPD private bar rate under Wis. Stat. section 977.08. The rate has remained largely unchanged since 1978 when the SPD was established. At that time, the Legislature set the SPD private bar rate at $35 per hour.

    Petitioners assert that Wisconsin is now facing a “constitutional crisis” because fewer and fewer experienced attorneys are willing to take SPD appointments at $40 per hour, a compensation rate that fails, in many cases, to cover overhead expenses.

    Thus, many criminal defendants in Wisconsin may not receive the effective legal representation that is required by the Sixth Amendment to the U.S. Constitution.

    The petitioners – including the Wisconsin Association of Criminal Defense Lawyers, former and current district attorneys, several former State Bar presidents, law professors from both law schools, a former Wisconsin attorney general, and other high-profile lawyers in Wisconsin – say the time has come for the Wisconsin Supreme Court to intervene on an issue that the Wisconsin Legislature has failed to address.

    “The court itself has stated that there is a direct connection to the effectiveness of appointed counsel and the rate paid,” said Birdsall, one of the attorneys who filed the petition on behalf of petitioners. “The legislative and executive branches have failed to act through both neglect and active indifference."

    “The co-equal branch of government, the Supreme Court of Wisconsin, has the exclusive responsibility to ensure compliance with the Gideon v. Wainwright mandate to supply poor people with effective lawyers,” Birdsall said.

    “It is incumbent on that branch to stop the free fall into the abyss of a constitutional crisis that we are currently headed toward. As more lawyers leave the area of indigent defense, we will soon be unable to meet that mandate. We need only look at Louisiana’s current crisis to see our immediate future.”

    Constitutional Crisis

    About six years ago, the Wisconsin Supreme Court rejected a similar petition that sought to raise the private bar rate to $80, noting that adopting it would “constitute a challenge to the compensation rate set by the legislature in Wis. Stat section 977.08.”

    The court, in its final order, recognized the area as one of shared authority for the court and the legislature, but said: “[W]e decline at this time to use our administrative regulatory process to effectively circumvent a legislative enactment.”

    But the court also noted: “If this funding crisis is not addressed we risk a constitutional crisis that could compromise the integrity of our justice system.” Petitioners now say that constitutional crisis is here and provide empirical evidence to support the claim.

    The petition, likely to be filed in early May, would increase the rate that attorneys receive for direct court appointments, under Wisconsin Supreme Court Rule (SCR) 81.02, from $40 to $100, starting in 2018 with annual increases tied to the Consumer Price Index.

    It would also ban contracts for the provision of court-appointed legal services at a lesser rate than $100, and declare that an hourly rate less than the rate set by SCR 81.02 for legal services rendered pursuant to appointment by the SPD is unreasonable.

    Since the legislature has failed to address the SPD private bar rate, despite repeated requests to do so in the last 10 years, the petitioners call on the Wisconsin Supreme Court to address the issue, noting its “shared authority” in this area and its inherent authority to ensure the effective administration of justice in Wisconsin.

    “The Court should not fear that adopting a court rule increasing pay will necessarily result in forcing the legislature to expend more money,” petitioners wrote. “The Wisconsin legislature can, for instance, find other ways to offset the increased costs required to fulfill the constitutional command of access to competent, conflict-free counsel.”

    President Deisinger urged governors to support the petition, saying that the issue is both vexing and complex. “The rate private attorneys are getting in this state is scandalous. Read our vision statement: ‘Our members are the respected guardians of the dignity and integrity of the rule of law within a fair and accessible justice system.’ This is a core issue. It’s who we are.”




  • Proposed Elimination of Judicial Council Creates Void and Unintended Consequences

    Cale Battles

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    April 26, 2017 – For the second straight budget, the Wisconsin Judicial Council is facing elimination. The proposal would have a wide ranging impact on the effectiveness and efficiencies of the justice system.

    History of the Judicial Council

    The state Legislature created the Judicial Council in 1951 to advise the state Supreme Court and the Legislature on issues affecting the administration of justice. The council recommends legislation to change the procedure, jurisdiction or organization of the courts. The council also studies the rules of pleading, practice and procedure and advises the Supreme Court on how to simplify procedures to promote the speedy resolution of litigation.

    The 21-member Judicial Council is defined in statute and is comprised of: a supreme court justice; a court of appeals judge; four circuit court judges; one district attorney; three members of the board of governors of the state bar; two citizen members; and all of the following individuals (or their designees): the Director of State Courts, the chairs of the Senate and Assembly standing committees with jurisdiction over judicial affairs, the Attorney General, the chief of the Legislative Reference Bureau, the deans of the law schools of the University of Wisconsin and Marquette University, the State Public Defender, and the president-elect of the State Bar. The council is currently chaired by Attorney Thomas Bertz, a State Bar of Wisconsin appointee.

    Several council members serve at the pleasure of their appointing authorities. The four circuit judges selected by the Judicial Conference serve four-year terms. The three members of the council from the State Bar are selected through an election of the membership and the two citizen members appointed by the governor serve three-year terms.

    During the 1995-97 biennial budget, two staff positions were eliminated from the council’s budget and all of the staff support duties were reassigned to the Judicial Commission. The council languished during this time as the Judicial Commission was already operating with a limited budget and wasn’t able to devote the time nor resources to the council’s ongoing or requested projects.

    Return of Funding – Leads to Successes

    The Legislature restored staff support to the Judicial Council in the 2007-09 biennial budget and the invigorated council found many successes over the last 10 years. Under the direction of Judicial Council Staff Attorney, April Southwick, the Council was able to pass a number of legislative proposals during the 2009-10 legislative session on various changes to the rules of appellate procedure.

    Cale BattlesCale Battles is a government relations coordinator with the State Bar of Wisconsin. He can be reached at org cbattles wisbar wisbar cbattles org, or by phone at (608) 250-6077.

    In 2009, the Supreme Court approved a Judicial Council petition, which permitted the citation of unpublished appellate decisions. More recently, the Judicial Council petitioned the Supreme Court to make changes to the Rules of Evidence and the repeal of the Deadman’s statute. In a memo to the Joint Finance Committee, the Council listed 23 accomplishments all of which have occurred during the last 10 years.

    Even with these achievements, funding for the staffing of the council has been in jeopardy over the last several state budgets. In the 2013-15 biennial budget, members of the Joint Finance Committee eliminated funding for the council. The funding was later restored, but the cost was split between General Purpose Revenue and revenue from the Director of State Courts. Governor Scott Walker again proposed the elimination of funding for the council in his 2015-17 biennial budget. Members of the Joint Finance Committee restored funding once again, but funded the position entirely out of the Director of State Courts budget.

    Judicial Council’s Future Relies on Restoration of Funding

    Once again, Governor Walker’s 2017-19 biennial budget proposal includes the elimination of funding for the Judicial Council for this upcoming fiscal year. The reason stated for the elimination of funding was contained in the Governor’s Executive Budget Summary, stated “The Governor recommends eliminating the council as a separate entity and transferring position authority to the Supreme Court. The Supreme Court has the authority to create and support such an advisory council if it so chooses.”

    The Judicial Council’s proposed agency budget request was $111,400 which generally isn’t considered out of line when you consider that the current budget proposal includes over $76 billion in all funds spending. Members of the Council have lamented in previous meetings that maybe the Judicial Council name is at the root of the budget issue. While the Judicial Council does work with judicial and court issues, the body’s primary purpose, studying issues that impact the justice system, is a task no other agency or body has the ability, time or expertise to take on. The Council’s work often takes years of study and engages other legal stakeholders to gather input.

    In her testimony before the Joint Finance Committee regarding the Courts’ proposed budget, Chief Justice Pat Roggensack encouraged members of the state’s budget writing committee to preserve the Judicial Council as an independent agency. The Chief Justice indicated in her remarks that any oversight of the Judicial Council by the courts would create conflicts of interest and that the proposed change would do little to save the state money. The State Bar of Wisconsin also strongly supports the continued independence and funding for the Judicial Council.

    The Joint Finance Committee will begin voting on provisions contained in the budget on May 1.

     




  • Don't Forget about Department of Labor's New Overtime Rules Just Yet

    The U.S. Department of Labor’s updated overtime regulations were set to go into effect Dec. 1, 2016, but were halted by an injunction. Erica Reib discusses the regulations’ current status and what may be next.

    Erica N. Reib

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    In November, a federal court in Texas issued a nationwide injunction blocking the U.S. Department of Labor (DOL) from implementing its updated overtime regulations, which would have required, among other things, that exempt employees be paid a minimum salary of $913 per week.

    Erica Reib com erica.reib wilaw Erica Reib, Marquette 2011, is an associate with O’Neil, Cannon, Hollman, DeJong & Laing in Milwaukee, where she specializes in management-side employment law.

    Because of the injunction, the new overtime regulations did not go into effect on December 1, 2016, as planned. However, they have also not completely gone away, and their fate is still uncertain.

    The Status of the Injunction

    The Obama administration immediately appealed the injunction to the Fifth Circuit Court of Appeals and asked for an expedited proceeding, which was granted. The DOL filed its initial brief on Dec. 15, 2016, and the 21 states, which had opposed the implementation of the new overtime regulations and were granted the injunction, filed their brief on Jan. 17, 2017. DOL’s final reply brief was originally due Jan. 31, 2017.

    However, since President Trump’s inauguration on Jan. 20, 2017, the Trump administration has asked for three extensions to file its reply brief, all of which have been granted. The first two extensions were requested so that the new administration could consider its position on the new regulations and whether it would continue to defend them.

    Most recently, on April 19, 2017, the Fifth Circuit granted the DOL another two months – until June 30, 2017 – to file its brief, due to the fact that Alexander Acosta, the nominee for Labor Secretary, has not yet been confirmed.

    Will There Be an Appeal?

    It is not yet clear what stance the Trump administration will take on the overtime regulations, as there has been no official position taken by the president, and nominee Acosta did not take a definitive position during his confirmation hearings.

    However, even if the administration decides not to pursue the appeal, others may. For example, the AFL-CIO’s Texas branch has petitioned to join the litigation as a defendant due to its concerns that the current administration will not adequately defend the prior administration’s regulations, and the national AFL-CIO has threatened to sue the DOL if it tries to scale back the regulations in any way.

    Additionally, the lower court, which issued the initial temporary injunction, could still issue a permanent injunction or rule on a pending motion for summary judgment, as it declined to halt proceedings while the Fifth Circuit reviewed the injunction.

    Therefore, these overtime regulations should still be on employers’ radar, and we will keep you updated on further developments.




  • Refusal to Take Breathalyzer Admissible Evidence, No Defense Error

    Joe Forward

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    Supreme Court chamber in Wisconsin State Capitol  

    April 25, 2017 – A man charged with drunk driving argued that his attorney was deficient for failing to object when the prosecutor told the jury that the defendant refused a breathalyzer test. The state supreme court recently rejected the argument.

    In State v. Lemberger, 2017 WI 39 (April 20, 2017), the court unanimously affirmed the conviction against Gary Lemberger for fourth offense operating while intoxicated (OWI), with two concurring opinions, despite Lemberger’s ineffective assistance of counsel claim.

    “The law was settled at the time of Lemberger’s trial that, upon his lawful arrest for drunk driving, Lemberger had no constitutional or statutory right to refuse to take the breathalyzer test and that the State could comment at trial on Lemberger’s improper refusal to take the test,” wrote Justice Annette Ziegler in a majority opinion.

    Thus, the majority ruled that Lemberger’s defense counsel “did not render ineffective assistance of counsel in failing to argue contrary to controlling precedent.”

    Justice Shirley Abrahamson wrote a concurring opinion, joined by Justices Ann Walsh Bradley and Daniel Kelly. They upheld the conviction but would not say, as the majority did, that defendants have no constitutional or statutory right to refuse a breath test.

    “A more correct statement of the law, in my opinion, is that a driver who refuses to take a breath test that is lawfully administered to the driver for a drunk driving offense may suffer consequences for refusal,” Justice Abrahamson wrote.

    Lemberger Refuses the Breath Test

    Lemberger refused a breathalyzer test after Madison police stopped his vehicle and arrested him on suspected drunk driving, his fourth offense. Under Wisconsin’s implied consent law, drivers impliedly consent to breath tests when driving in Wisconsin.

    A refusal hearing followed. The judge ruled that police had probable cause to arrest Lemberger for drunk driving and to request that he submit to a breath test. In refusing, Lemberger subjected himself to the consequences under the implied consent law.

    The fact of his refusal was one of the consequences for refusing the breath test. Thus, the trial court allowed the prosecutor to tell the jury that Lemberger refused the test as evidence of his “guilty conscience.” Lemberger’s defense counsel did not object.

    After the jury found Lemberger guilty, he filed a motion for postconviction relief, arguing that he had a constitutional right to refuse the breath test and his defense counsel at trial was constitutionally deficient for failing to object to the prosecutor’s comments.

    The circuit court denied Lemberger’s motion, concluding Wisconsin law did not support the claim that Wisconsin drivers have a constitutional right to refuse a breath test. An appeals court affirmed since Lemberger failed to preserve certain arguments.

    Majority Opinion

    The majority concluded that Lemberger did not receive ineffective assistance of counsel despite his argument that his defense counsel should have objected when the prosecutor repeatedly told the jury that Lemberger refused the breath test.

    Objecting would have had no basis in law, the majority ruled, because “Lemberger had no constitutional or statutory right to refuse to take the breathalyzer test.” Thus, the prosecutor was free to use evidence of his refusal against him in the OWI trial.

    The majority noted that Wisconsin jury instructions allow the jury to consider the fact that a defendant refused a breath test in evaluating his guilt or innocence.

    Lemberger argued that recent Wisconsin appeals court decisions undermine the conclusion that defendants don’t have a right to refuse a breath test.

    The majority noted that appeals court decisions cannot overrule supreme court decisions, and the law was well settled when the state tried the case. Even if the law was unsettled, as Lemberger argued, his ineffective assistance argument fell short.

    “At the absolute best, then, Lemberger was faced with an unsettled legal question at trial. ‘We think ineffective assistance of counsel cases should be limited to situations where the law or duty is clear such that reasonable counsel should know enough to raise the issue,’” wrote Justice Ziegler, citing a 1994 decision.

    In this case, the majority ruled that defense counsel would only be ineffective for failing to object if Lemberger clearly had a constitutional right to refuse the breath test.

    “Lemberger’s attorney did not render ineffective assistance of counsel in failing to argue contrary to controlling precedent,” Ziegler wrote.

    Concurring Opinion

    Justice Abrahamson’s concurrence, joined by Justices A.W. Bradley and Kelly, agreed that Lemberger’s constitutional rights were not violated by the prosecutor’s comments.

    But the three concurring justices also agreed that the majority opinion “states the law too broadly and veers toward being misleading” in concluding repeatedly that Lemberger had no constitutional or statutory right to refuse the breath test.

    Abrahamson noted that the state’s implied consent law requires an officer, through an “Informing the Accused Form,” to advise a driver that he or she “may refuse to give a breath sample” but refusing to do so could result in adverse consequences.

    “A more correct statement of the law, in my opinion, is that a driver who refuses to take a breath test that is lawfully administered to the driver for a drunk driving offense may suffer consequences for refusal,” Justice Abrahamson wrote.

    Justice Kelly, in a separate concurrence, simply explained the he “joined the mandate of the court and the majority opinion to the extent it is not inconsistent with Justice Abrahamson’s concurrence,” and he “also join[ed] Justice Abrahamson’s concurrence.”




  • Tip of the Month:
    What To Do When You Have ‘One Of Those Days’

    Feeling stressed after a court hearing didn't go your way or after a difficult client meeting? Worried about an upcoming trial on the calendar? Karen Bauer offers some helpful ideas for relieving work-related stress in this April 2017 Tip of the Month.

    Karen M. Bauer

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    Did a court hearing not go your way? Did you meet with a client whose story was particularly sad? Are you worried about an upcoming trial on the calendar? Did you have to do a deposition on a subject that was upsetting or violent?

    Karen Bauer com kbauer lasmilwaukee Karen Bauer, U.W. 2009, is a staff attorney for the Legal Aid Society of Milwaukee.

    To Avoid Compassion Fatigue: Debrief

    For compassion fatigue issues – where the daily toll of being exposed to the “big uglies” of life starts causing problems outside of work – talk it out. Spend some time with others in your organization, and vent about the type of cases that keep you up at night.

    Debriefing, along with being aware that compassion fatigue exists, are two proven methods of dealing with this issue. For more information, visit the Compassion Fatigue Awareness Project.

    To Mitigate Effects of Stress or Heavy Workloads: Self-Care

    Here are some ways to help you de-stress when you need it:


    • Get outside. Being out in nature is shown to lower levels of cortisol, the stress hormone.

    • Try coloring. Adult coloring books are a fad for a reason – it’s fun, and forces us to take some time doing something other than ruminating.

    • Meditate. Taking a deep breath for a count of 5, holding it for 2, and releasing for 5 is a fast and easy way to force yourself to be in the moment. Meditation/mindfulness training has been shown to lower anxiety and promote greater well-being.

      There are also some great apps for this purpose. My app favorite is Calm, which offers quite a few great meditations in the free version.

    • Exercise. This is the anti-stress tip I avoided for years. Exercise not only helps your body, but many activities are also a form of mindfulness meditation as you concentrate on lifting a weight or running a mile, rather than on the stressors of the day.

    When It All Really Becomes Too Much: Call WisLAP

    Call the Wisconsin Lawyers Assistance Program! All calls are confidential, and calling is free for Wisconsin lawyers and their families.

    Life is hard. Being a lawyer sometimes makes it feel even harder. If you are feeling overwhelmed, calling the program can put you in touch with a variety of services, including a confidential peer assistant to talk to about the unique concerns of lawyers dealing with career, emotional, mental health, or substance abuse issues. Call (800) 543-2625 for help.




  • Right to Work in Wisconsin: Two Years Later Is It Old News?

    With many collective bargaining agreements typically three years long, many employers and unions will head to the bargaining table this year for the first time under Right to Work. Krista Ebbens answers questions about the issues employers face under Right to Work.

    Krista J. Ebbens

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    Is Right to Work in Wisconsin old news? After all, it was on March 9, 2015, that Gov. Scott Walker signed Right to Work legislation, adding Wisconsin to a growing list of Right to Work states. While the law took effect immediately, employers and unions with collective bargaining agreements (CBA) in effect prior to the Governor’s signing were unaffected until those agreements with provisions inconsistent with Right to Work were modified, amended, or expired.

    With many CBAs typically three years long, a number of employers and unions will head to the bargaining table this summer for the first time under Right to Work, now two years old. These employers and the unions should be award of the new issues and unique challenges in the Right to Work environment.

    For employers and unions operating under Right to Work, the law as drafted in Wisconsin presents unique challenges that employers should be aware of as they onboard and pay new employees:

    Union Security Clauses in Collective Bargaining Agreements

    Union security clauses are legal and enforceable for the term of a CBA in effect as of March 9, 2015. Union security clauses are void in agreements that are entered into, modified, renewed, or extended after this date.

    Krista Ebbens com KEbbens jfahern Krista Ebbens, Iowa 2003, is general counsel and corporate secretary with J. F. Ahern Co. in Fond du Lac, where she concentrates her practice on mechanical contracting issues and general corporate issues including, construction, contracting, and regulatory compliance.

    Do all CBAs no longer have a union security clause?
    Likely not. While time will tell, it is likely that unions may desire to preserve this clause in the event of a repeal of Right to Work.

    What effect does it have on the agreement if the clause remains in but is void?
    Probably none, but unions and employers will have to decide how this clause will be bargained when they meet at the negotiating table.

    The Consent to Pay Dues Form and Union Employees

    Prior to the enactment of Right to Work, many employers presented the Consent to Pay Dues Form to union employees for signature as part of general new hire paperwork. With Right to Work, Wis. Stat. section 111.06(1)(c) prohibits an employer from encouraging or discouraging membership in any labor organization in regards to hiring, tenure, or other terms of conditions of employment.

    Does an employer presenting the Consent to Pay Dues Form to the union employee violate the statute?
    It does if the employer’s representative during that process attempts to influence the union employee to sign or not sign the form. Given that the employer may have limited control over the environment in which the form is presented, a best practice would be for the employer to require the union to provide the form to the employer. Requiring the union to obtain the form and present it to the employer removes doubts about whether or not the employer may have attempted to persuade the potential union member to either pay or not pay dues. Under Right to Work statutes, the union has the ability to influence members’ decisions and educate them on the benefits of paying dues.

    When Should Employers Start Withholding Employee Dues?

    In order to comply with Right to Work statutes, an employer should not withhold dues until it has received the Consent to Pay Dues Form from the union. While construction is a fast-paced business, and construction workers frequently move between employers on short notice, an employer should not pay any administrative dues deduction until it receives a signed Consent to Pay Dues Form from the union. Back dues can be deducted once this is received, but dues should not be held on the presumption that a Consent to Pay Dues Form will be received.

    Employers should also check their records to ensure that they have on file a Consent to Pay Dues Form for all union employees, not just those hired since their CBA became subject to Right to Work.

    Conclusion

    Two years later, Right to Work is not old news. Employers subject to a CBA are well-advised when they are aware of the practical implications of Right to Work, and work closely with their unions to ensure that their internal hiring and employee onboarding practices align with the requirements of the law.




  • State Bar Board Supports Petition for Increased SPD Private Bar Rate

    The board also approved a voluntary paralegal certification program and approved the budget for 2018, which includes a $4 dues increase.

    Joe Forward

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    John Birdsall

    John Birdsall presents a petition on the hourly rate for court-appointed attorneys.

    Visit the State Bar’s Facebook page for more photos of this event, or click here.

    April 21, 2017 – State Bar of Wisconsin President Fran Deisinger opened today's Board of Governors' meeting with a moment of silence in memory of attorney Sara Quirt Sann, one of four people killed in the Wausau area March 22 by the estranged husband of her client.

    During the meeting at the State Bar Center in Madison, the board voted to support a forthcoming petition to increase to $100 the hourly rate paid to private bar attorneys who take appointments from the State Public Defender's Office.

    Dist. 2 Gov. John Birdsall said the State Public Defender (SPD) appoints nearly 40 percent of its cases to the private bar based on conflicts that preclude staff representation. Private attorneys who take SPD appointments receive $40 per hour, which is the lowest rate in the country.

    The Wisconsin Legislature sets the SPD private bar rate under Wis. Stat. section 977.08. The rate has remained largely unchanged since 1978 when the SPD was established. At that time, the Legislature set the SPD private bar rate at $35 per hour.

    Petitioners assert that Wisconsin is now facing a “constitutional crisis” because fewer and fewer experienced attorneys are willing to take SPD appointments at $40 per hour, a compensation rate that fails, in many cases, to cover overhead expenses.

    Thus, many criminal defendants in Wisconsin may not receive the effective legal representation that is required by the Sixth Amendment to the U.S. Constitution.

    The petitioners – including the Wisconsin Association of Criminal Defense Lawyers, former and current district attorneys, several former State Bar presidents, law professors from both law schools, a former Wisconsin attorney general, and other high-profile lawyers in Wisconsin – say the time has come for the Wisconsin Supreme Court to intervene on an issue that the Wisconsin Legislature has failed to address.

    “The court itself has stated that there is a direct connection to the effectiveness of appointed counsel and the rate paid,” said Birdsall, one of the attorneys who filed the petition on behalf of petitioners. “The legislative and executive branches have failed to act through both neglect and active indifference."

    “The co-equal branch of government, the Supreme Court of Wisconsin, has the exclusive responsibility to ensure compliance with the Gideon v. Wainwright mandate to supply poor people with effective lawyers,” Birdsall said.

    “It is incumbent on that branch to stop the free fall into the abyss of a constitutional crisis that we are currently headed toward. As more lawyers leave the area of indigent defense, we will soon be unable to meet that mandate. We need only look at Louisiana’s current crisis to see our immediate future.”

    Viet-Hanh Song-Thi Nguyen Winchell

    NRLD representative Viet-Hanh Song-Thi Nguyen Winchell comments on the budget proposal.

    Constitutional Crisis

    About six years ago, the Wisconsin Supreme Court rejected a similar petition that sought to raise the private bar rate to $80, noting that adopting it would “constitute a challenge to the compensation rate set by the legislature in Wis. Stat section 977.08.”

    The court, in its final order, recognized the area as one of shared authority for the court and the legislature, but said: “[W]e decline at this time to use our administrative regulatory process to effectively circumvent a legislative enactment.”

    But the court also noted: “If this funding crisis is not addressed we risk a constitutional crisis that could compromise the integrity of our justice system.” Petitioners now say that constitutional crisis is here and provide empirical evidence to support the claim.

    The petition, likely to be filed in early May, would increase the rate that attorneys receive for direct court appointments, under Wisconsin Supreme Court Rule (SCR) 81.02, from $40 to $100, starting in 2018 with annual increases tied to the Consumer Price Index.

    It would also ban contracts for the provision of court-appointed legal services at a lesser rate than $100, and declare that an hourly rate less than the rate set by SCR 81.02 for legal services rendered pursuant to appointment by the SPD is unreasonable.

    Since the legislature has failed to address the SPD private bar rate, despite repeated requests to do so in the last 10 years, the petitioners call on the Wisconsin Supreme Court to address the issue, noting its “shared authority” in this area and its inherent authority to ensure the effective administration of justice in Wisconsin.

    “The Court should not fear that adopting a court rule increasing pay will necessarily result in forcing the legislature to expend more money,” petitioners wrote. “The Wisconsin legislature can, for instance, find other ways to offset the increased costs required to fulfill the constitutional command of access to competent, conflict-free counsel.”

    President Deisinger urged governors to support the petition, saying that the issue is both vexing and complex. “The rate private attorneys are getting in this state is scandalous. Read our vision statement: ‘Our members are the respected guardians of the dignity and integrity of the rule of law within a fair and accessible justice system.’ This is a core issue. It’s who we are.”

    Adam Gerol

    Adam Gerol comments on the petition to amend SCR Chapter 81 on the hourly rate for court-appointed attorneys.

    Board Approves Voluntary Paralegal Certification Program

    The board unanimously approved the creation of a voluntary certification program for Wisconsin paralegals that will be administered by the State Bar’s Continuing Legal Education Committee, with assistance from the Professional Development Department.

    The program will require paralegals seeking State Bar certification to successfully complete an approved paralegal studies program with Wisconsin-specific substantive content and skills training, complete 10 hours of continuing paralegal education every two years, and demonstrate good character. State Bar-certified paralegals, required to work under attorney supervision, would be subject to ethical rules and obligations.

    Kathryn Bullon, past chair of the CLE Committee that originally proposed the certification program in 2015, previously noted that a certification program would help attorneys add value to their practices with highly trained paralegals and would help protect the public from the incompetent or unauthorized practice of law.

    Other state bars certify paralegals, including Florida, North Carolina, Ohio, and Texas, which allows them to actively shape how paralegals are regulated, Bullon noted.

    The State Bar of Wisconsin filed a petition to the Wisconsin Supreme Court in 2004 that would have created a court-administered regulatory structure for paralegals. The court declined to create one, but invited the State Bar to consider a voluntary program.

    In 2016, the board approved the concept of a voluntary paralegal certification program but charged a working group to explore program details, including administrative and fiscal impacts. The program is projected to generate a modest profit through year five.

    The Paralegal Association of Wisconsin supports a voluntary State Bar certification program for paralegals, which would promote professionalism, training, and education.

    State Bar presidential candidates, Jon Axelrod and Chris Rogers

    State Bar presidential candidates, Jon Axelrod and Chris Rogers.

    Board Approves FY 2018 Budget

    The board approved an $11.7 million budget for fiscal year 2018 (July 1, 2017 to June 30, 2018), which includes a modest dues increase of $4. Membership dues, which will increase to $258 for full dues-paying active members, fund approximately 45 percent of the State Bar’s budget.

    The State Bar slightly reduced staffing and took other cost containment measures through an annual budgeting process that reviews each program to determine if it is meeting members’ needs and expectations. The process also reviews if the Bar is reasonably and effectively funding the delivery of those programs.

    For the first time in history, the State Bar expects a decline of 244 full dues-paying members for 2018, noted State Bar Treasurer John Danner, a member of the board’s Finance Committee. Fewer law school graduates and a greater number of those eligible for and claiming emeritus status are driving the decrease in membership.

    Attrition, demographic changes, and changing consumer preferences for educational products also contributed to a flat revenue trend for CLE offerings. With minimal revenue growth, inflation added additional challenges, State Bar Finance Director Paul Marshall noted.

    The State Bar’s Finance Committee determined that a $4 dues increase was both warranted and necessary only after expense cuts of $574,000, and the strategic use of reserve funds and other revenue sources. Wisconsin’s dues rate is still the second lowest compared with other Midwestern states: Michigan ($180), Minnesota ($260), Iowa ($260), Indiana ($298), Illinois ($360), and Ohio ($305).

    Membership dues are separate from mandatory Wisconsin Supreme Court assessments, which the State Bar collects through yearly dues statements. The State Bar last increased dues in 2015, after a decade in which dues remained unchanged.

    Governor Nick Zales moved to reinstate 100 percent reimbursement for volunteer travel, as the Finance Committee had proposed reimbursement at 75 percent as a budget-cutting measure. The additional $25,182 for this reinstatement will come from the Dues Stabilization Reserve. This motion passed and will be reflected in the final budget for FY 2018.

    Public member James Wenzler moved to amend the proposed budget to remove the dues increase; the motion was defeated 30-12 by roll call vote. During discussion, Danner pointed out that, in 13 years, dues increased a total of $34 – a rate less than inflation.

    Deisinger, during the discussion, said he supports the $4 increase. “I hate the idea of having a dues increase, but I feel obligated to be fiscally responsible,” he said.

    In the end, the board moved to approve the proposed FY 2018 budget, with a $4 dues increase and amended to include 100 percent reimbursement for volunteer mileage.

    John Danner

    State Bar Treasurer John Danner at the podium during the budget discussion.

    Board Approves Bylaws Changes, Supports Supreme Court Rule Changes

    The board unanimously adopted changes to the State Bar’s bylaws, which have not been updated in more than 10 years. The board also supported amendments to provisions in Chapter 10 of the Wisconsin Supreme Court Rules, which governs the regulation of the State Bar.

    The board’s Governance Committee recommended the changes, which require approval from the Wisconsin Supreme Court. The overall goal is to give the State Bar increased flexibility in determining its optimal governance.

    For instance, the proposed changes would remove from SCR Chapter 10 references to individual officers and the Board of Governors that set forth responsibilities currently delegated to the State Bar and its staff.

    The proposal places day-to-day operational duties and obligations of State Bar officers, committees, sections, and divisions in the State Bar bylaws, rather than SCR Chapter 10; and makes changes to the State Bar bylaws referendum and amendment procedures.

    Other Business

    • The board unanimously voted to update the State Bar’s “White Book,” a compilation of State Bar policy positions, to reflect a statement on diversity that the board adopted in 2012.

    • The board approved the Intellectual Property & Technology Law Section’s request to amend its bylaws, and approved various section requests to carry forward more than $10,000 in operating budgets to 2018.

    • The board approved the appointment of former State Bar President Diane Diel to a three-year term on the Access to Justice Commission.

    Upon request, interested members may obtain a copy of the minutes of each meeting of the Board of Governors. For more information, contact State Bar Executive Coordinator Jan Marks by org jmarks wisbar email or by phone at (608) 250-6106.




  • Supreme Court Dismisses Retired Judges’ Petition on Recusal, Campaign Contributions

    Joe Forward

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    Supreme Court chamber in Wisconsin State Capitol  

    April 20, 2017 – The Wisconsin Supreme Court today dismissed (5-2) a petition filed by 54 retired judges that would have established a rule requiring recusal or disqualification of a judge who received a significant campaign contribution from a party to the case. A 5-2 majority also voted down a motion to hold a public hearing.

    The petition (17-01), dismissed at the court's open administrative conference today, would have required recusal if the sitting judge’s election campaign committee received aggregate contributions from a party to a proceeding (or that party’s lawyer) exceeding a threshold level: $10,000 or more for supreme court justices; $2,500 or more for appeals court judges; $1,000 or more for circuit court judges; and $500 for municipal judges. Recusal would not be required if the contributions were returned prior to the general election.

    The petition requested a state constitutional amendment that would have, if adopted, allowed a judge or judges on the Wisconsin Court of Appeals “to temporarily serve as a Supreme Court justice when necessary to reach a quorum.”

    Under the petition, a party and the party’s lawyer would have been required to disclose any campaign contribution exceeding $250.

    Janine Geske, a former Wisconsin Supreme Court justice, and Richard Brown, former chief judge of the Wisconsin Appeals Court, were among the 54 signatories. Other lawyers, organizations, and citizens weighed in through nearly 80 submitted comments.

    Majority Dismisses, No Public Hearing

    Justice Shirley Abrahamson recommended, by motion, that the court schedule a public hearing on the petition, but the motion failed by a 5-2 majority. Justice Ann Walsh Bradley then moved to adopt the petition without a public hearing. It also failed 5-2. Justice Abrahamson and Justice A.W. Bradley cast the minority votes on both motions.

    Justice A.W. Bradley said that the last time the court looked at recusal rules, in 2010, its decision “did not reflect consideration of the importance of making sure that this court not only be fair, neutral, and impartial, but also appear fair, neutral, and impartial.”

    “To shut it down without a hearing and without comment just undermines the public trust and confidence that is so important for the integrity of this court,” Justice A.W. Bradley said. “We at least need to give people an opportunity to be heard. What is so threatening about hearing what people in this state want to tell us?”

    Justice Annette Ziegler then moved to dismiss the petition, stating: “I believe, as a matter of law, it cannot withstand constitutional or structural scrutiny,” said Ziegler, noting that there is no constitutional precedent to support the petition.

    Justice Rebecca Bradley seconded. She said the petition would force the justices to violate their oath by infringing on the First Amendment rights of Wisconsin citizens who choose to participate in elections through campaign contributions to judges.

    “The people of Wisconsin,” R. Bradley said, “have a First Amendment right to speak out in favor of the judges they support, and in opposition to the judges they oppose without being penalized for exercising their free speech rights.”

    Joe ForwardJoe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.

    Justice R. Bradley said petitioners, the 54 retired judges, acknowledged that the Wisconsin Constitution would have to be amended in order for the proposal to work.

    “To further consider the petition would essentially require us to disregard or even violate the Wisconsin Constitution,” R. Bradley said.

    The petition rests on a false presumption, Justice R. Bradley noted, “that 272 judges and justices who serve the people are incapable of administering their oaths without respect to persons, and to faithfully and impartially discharge the duties of their office.”

    “I reject this premise. It is a falsehood,” she said.” Every judge and justice in the state of Wisconsin should be highly offended by this petition because it attacks their integrity and their character. I defend every judge and justice in the state by rejecting this petition.”

    Petitioners were Concerned with Appearance of Bias

    The petition noted that the supreme court, in 2010, adopted amendments to the Judicial Code that do not require recusal in all cases in which the judge received campaign contributions from a party to the case. At that time, however, there was a $1,000 cap on individual (and corporate) contributions to supreme court candidates.

    In 2015, the Wisconsin Legislature increased the limits on individual contributions to judicial campaigns. For instance, the new law increased the limit to $20,000 for supreme court justices.

    “As money in elections becomes more predominant, citizens rightfully ask whether justice is for sale,” the petition stated. “The appearance of partiality that large campaign donations cause strikes at the heart of the judicial function, which depends on the public’s respect for its judgments. In this age of Super PACs and other independent campaign organizations, perhaps the influx of money to purchase access to legislators has numbed us to ethics. But we are not the legislature, we are the judiciary.”

    The group of petitioners spelled out other reasons for its recusal rule request. It noted a 2015 Wisconsin Supreme Court decision that placed no limit on what individuals or organizations may spend on “issue advocacy” and allows coordination with campaigns.

    The petitioners also noted the supreme court’s concern, in 2010, that recused justices are not replaced, thereby altering the composition of the court and affecting the interests of litigants and non-litigants who could be impacted by the court’s ultimate decision.

    The court “pointed to the state constitutional ban on replacing a Supreme Court Justice who withdraws from a case as a reason to adopt a rule so that recusal is virtually never required,” the petitioners noted. But petitioners said the Wisconsin Constitution should not be a barrier to allowing disqualified supreme court justices to be replaced.

    “Recently a constitutional amendment to change the manner of designating the Chief Justice was procured,” the petitioners note. “One assumed that a constitutional amendment to allow a Court of Appeals Judge or a retired Supreme Court Justice to be selected to fill in on a case to assure a quorum should multiple justices be required to recuse themselves would likely be easily procured.”

    The petitioners noted the “centerpiece of recusal jurisprudence: the appearance of bias,” and explained that recusal is mandatory when a judge “knows or reasonably should know” that the judge’s impartiality could be reasonably questioned.

    The petitioners highlighted a recent U.S. Supreme Court decision in which a state justice refused to recuse himself in a postconviction case involving a party that he prosecuted as a district attorney. The justice, as DA, had asked for the death penalty.

    The U.S. Supreme Court noted the “appearance of bias” in determining that the defendant’s due process rights were violated because the justice did not recuse.

    Finally, the petitioners noted that Wisconsin ranked very low in a 2014 study of recusal rules by the Center for American Progress. “Only three states had lower grades for their systems to address the real and perceived conflicts created by campaign contributions to the judge by parties and/or their attorneys,” the petition states.

    The 54 petitioners, all retired Wisconsin judges, noted a cumulative service on the bench of more than 1,100 years.

    “We know that Wisconsin judges with rare exception strive every day to fulfill their oath to be neutral and impartial," the petition states. “We also know that Wisconsin citizens reasonably question the success of that endeavor in the face of sizeable campaign assistance. The fundamental purpose of this proposed rule is to ensure the public’s confidence in the ultimate fairness and integrity of the entire Wisconsin judicial system.”




  • Incentive Trusts – Insuring the Next Generation Does Not Become Trust-Fund Slackers

    Incentive trusts are not easy to draft, says Terry Campbell. But done correctly, an incentive trust establishs safeguards so that wealth will enhance and not hinder the life of the beneficiary.

    Terry L. Campbell

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    An incentive trust is a viable option for any client who is concerned that wealth for the next generation, rather than enhancing a life or providing opportunities, will lead to lack of motivation, lack of self-sufficiency, or addictive or self-destructive behavior.

    Andrew Carnegie wrote that “the parent who leaves his son enormous wealth generally deadens the talents and energies of the son, and tempts him to lead a less useful and less worthy life than he otherwise would.” Our clients demonstrate to us on a regular basis that wealth is not always a constructive tool. Any parent would like to think leaving wealth to a child will enhance that child’s life and, perhaps, provide opportunities that the child may not have had otherwise.

    Terry L. Campbell com tcampbell lawmwc Terry L. Campbell, Marquette 1979, is the managing shareholder at Moertl, Wilkins & Campbell, S.C., where he concentrates his practice on estate planning, elder law, and taxation.

    Unfortunately, wealth can lead to a loss of motivation. If a child or grandchild realizes he will never need to work to maintain an accustomed manner of living, why bother going to college? If an individual has access to personal financial wealth, is there still an incentive to get up at 6 a.m. to go to work? Does the passing of wealth enhance a life, or does it “deaden” talents and energies?

    An Incentive for Education

    An incentive trust is a tool we use for clients concerned with these issues. These trusts can be structured in many ways with different points of emphasis, such as encouraging education. For example, an incentive trust could:

    • Require a beneficiary graduate from college in order to receive money.
    • Reward a beneficiary for doing charitable work.
    • Enhance the income of a beneficiary who chooses a low paid but meaningful career.

    Education is not generally intended to provide a beneficiary a means of being a professional student. An incentive trust may require that the Trustee shall pay for only a set number of years for undergraduate education:

    • No distributions for tuition or room and board shall be made for a child after he/she has attended an undergraduate college or university for five years.
    • A distribution cannot exceed the amount which would be spent on room and board and tuition, had my child attended the University of Wisconsin-Madison.

    Additional Incentives

    There are occasions where a beneficiary already suffers from addictive or self-destructive behavior. A provision of an incentive trust may require a beneficiary to submit to random drug testing and should a beneficiary pass, e.g. three successive random drug tests, the beneficiary is entitled to a monetary distribution.

    Family dynamics may be another important factor. This could mean attending family functions or maintaining certain communication with family members. For example, an incentive trust can state your intent:

    “It is my intent for my children to spend time with my brother, and it is my hope that they will vacation together each year. My Trust shall pay for any expenses related to such a vacation, and each child shall receive a $5,000 bonus distribution at the end of any calendar year in which he or she has taken such a vacation.”

    Leona Helmsley required her grandchildren to visit their grandfather’s grave once a year and sign in as evidence of their visit in order to receive their distribution.

    Charitable or philanthropic work may be extremely important to a client, and a common goal may be to encourage that same conduct in children and grandchildren. Monetary incentives can be included for doing volunteer work or participating in charitable endeavors. There may be trust provisions to encourage a beneficiary to stay home and raise a family. For example, the beneficiary may be compensated along the same lines as he or she would have if they had continued with a career.

    A Need for Flexibility: Unexpected Circumstances

    A common danger with an incentive trust is the failure to plan for unexpected circumstances. As circumstances change, the incentives outlined in a trust may no longer be able to be achieved. For example, an individual may become disabled and no longer able to work. If an incentive trust is based on employment and producing a W-2 in order to receive distributions, what happens at retirement or if there is a disability? Will the trust match social security? Will the trust provide an annual income based upon a percentage of the wages earned over a period of time?

    Therefore, an incentive trust is not easy to draft. Our client needs to define the objectives and we need to identify the concerns. However, it can provide an opportunity to be creative and to establish safeguards so that wealth will enhance and not hinder the life of the beneficiary.




  • Introducing the Real Property, Probate, and Trust Law Blog

    The Real Property, Probate and Trust Law Section is establishing a new blog to provide members with valuable and timely information on issues important to members of this section.
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    Welcome colleagues and all other interested persons!

    The Real Property, Probate and Trust Law Section is establishing a new blog to provide members with valuable and timely information on issues important to members of this section. 

    The blog will have submissions on important topics pertaining to the law of real property, trusts and probate.

    You will find the blogs by navigating to wisbar.org/blog. We will aim to publish new content monthly. Section members will be notified of new posts via email.

    Blog submissions will be relevant, high quality, and informative. They will be brief – between 500 to 1500 words.

    While members of the Real Property, Probate and Trust Section Board will aid in supplying content for the blog, we welcome submissions from other members of our section. More information concerning standards and protocols for content submissions can be obtained from com jgovan gklaw Gardner Govan, chair of the Real Property, Probate and Trust Law Section.

    We look forward to the Real Property, Probate and Trust Law Section Blog being a valuable resource for our members.

    Thank you,

    The Real Property, Probate and Trust Section Board




  • Bar Exam Admissions: Many Paths to Becoming a Wisconsin Lawyer

    Thirty-nine attorneys took the oath to become Wisconsin lawyers, passing the bar exam in February. Here are a few of their stories.
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    Attorneys take the oath

    Lawyers take the Attorney's Oath in a ceremony in the Supreme Court Hearing Room.

    April 20, 2017 – Many of them have walked a long path to become a Wisconsin lawyer, obtaining multiple degrees, or now reaching a goal set in childhood.

    They are the 39 new Wisconsin lawyers who took the oath April 18 in Madison after passing the Wisconsin Bar Exam in February. They became Wisconsin lawyers after taking the Attorney’s Oath and signing the Wisconsin Supreme Court Roll book at a reception hosted by the State Bar of Wisconsin.

    And for each of them, their path to Bar membership is years in the making.

    The Road to Wisconsin

    Kristen Chang grew up in the Silicon Valley area of California, where her parents still live. She is now a first-year associate with Hall, Render, Killian, Health & Lyman in Milwaukee, where her focus is health care law. She earned a graduate degree in public administration and health policy after majoring in biology and political science; she received her law degree from the University of Illinois in 2016.

    “I knew I wanted to go further after graduate school,” Chang said. A law degree was a good way to do that.

    Kristen Chang, center, with her parents Stephen and Vivienne Chang.

    Kristen Chang of Milwaukee, center, poses with her parents, Stephen and Vivienne Chang from the Silicon Valley area of California.

    Jenelle Dame, working now at Legal Action of Wisconsin in Milwaukee, spent 10 years in social work after obtaining her master’s degree in social work before getting her J.D. last year at Kent in Chicago.

    “Social work is one way to advocate for people,” Dame said. “The legal world is another way – a way to balance out the power needed to help low-income people.” It means a lot to Dame to be able to advocate for those who struggle to access the justice system – something she can do more of now, as a Wisconsin lawyer.

    Larry Lloyd’s path to becoming a lawyer began as a child when he witnessed the struggles his grandmother had in gaining access to a lawyer when she needed one. He realized many people need help accessing the justice system. “I’ve always wanted to be in a position to help,” and now, as a lawyer working in probate, he will be able to do just that.

    Evan Berube of West Bend graduated from John Marshall Law School in Chicago in January with his J.D. and L.L.M. degrees. His focus is in intellectual property law, stemming from his interest in both medicine and law from the time he was a child. While he was in the pre-med program for his undergraduate degree, the lawyer who ran a legal studies program inspired him to take a closer look at law. His focus on intellectual property law will meld his two interests. He hopes to practice in West Bend. “I always knew I wanted to come back to Wisconsin,” he said.

    Evan Berube

    Evan Berube takes a selfie with his name on the list of new Wisconsin lawyers during the reception hosted by the State Bar at the Madison Club.

    And there’s Aaron Smith of Rockford, Illinois, focusing on medical law after working as a nurse; Sgt. Jacob Menn of the Army Reserve, who worked as a paralegal in the JAG Corps and will continue now as a lawyer; and Elysia Rodriguez, working in child support for the Ho-Chunk Nation.

    The Beginning of a New Path

    “This is a wonderful day for you,” said Justice Michael Gableman to the admittees. It is also a good day to remember those who helped you along. “We all have such people in our lives,” he said. “It is important to keep them as inspiration when times are challenging.”

    You will make mistakes – everyone does, he told them. “The secret is to learn from them and come back even stronger.”

    Chief Justice Pat Roggensack encouraged the new Wisconsin lawyers to get involved in the State Bar – and to consider serving in a position in government, where fewer and fewer lawyers are now involved. “Lawyers are problem-solvers. You can make a tremendous difference,” she said.

    Welcome to These New Wisconsin Lawyers:

    • Crystal N. Abbey, Edelstein, Illinois
    • Tmara Abidalrahim, Milwaukee
    • Evan D. Berube, West Bend
    • Kristen H. Chang, Milwaukee
    • Gene A. Cisewski, Tomah
    • Kieran M. Coe, Milwaukee
    • Jenelle M. Dame, Milwaukee
    • Evan Feinauer, Madison
    • Amy Marie Fleitas, Waterloo, Iowa
    • Alexandra Nicole Francois, Minocqua
    • Sarah Gallas, West Allis
    • Graham C. Garland, Mequon
    • Kayla Marie Gassner, Wausau
    • Gretchen Gerrard, La Crosse
    • Brad Goldstein, Madison
    • Amy K. Greske, Hudson
    • Jason A. Gullett, Madison
    • Katherine Hinkle, Madison
    • Melinda Lorraine Johns, Madison
    • Roy B. Johnson, Madison
    • Amanda Klobucar, Janesville
    • Larry J. Lloyd, Chicago
    • Gregory Luke Lohmeyer, Milwaukee
    • Jonathan Thomas Luljak, Milwaukee
    • Jacob J. Menn, Norwalk
    • Nick Meredith, Waukesha
    • Alison Miller, Minneapolis
    • Osman A. Mirza, Orland Park, Illinois
    • Elysia Beth Nguyen, Burnsville, Minnesota
    • James Payne, Pleasant Prairie
    • Hector Moctezuma Perez-Cassillas, Arlington, Virginia
    • Elysia Rodriguez, Black River Falls
    • Ali E. Seidlitz, Eau Claire
    • Aaron Michael Smith, Rockford
    • William Philip Sweet
    • Angela Jayne (AJ) Swenson, Eau Claire
    • Roy Bennett Underhill, Milwaukee
    • Benjamin Wallner, Champaign, Illinois
    • Debra Marcus Watton, Milwaukee



  • Earth Day Reflections on Wisconsin’s Conservation History

    In light of recent calls for changes in environmental law and in honor of Earth Day 2017, Tressie Kamp reflects on unique components of Wisconsin’s conservation history and its impact on the practice of environmental law.

    Tressie Kelleher Kamp

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    Now that we are more than four months into 2017, environmental law and policy practitioners have undoubtedly seen coverage predicting that the field of environmental law will experience rapid change, scrutiny, and an uptick in litigation.

    Regardless of whether or how these changes play out, looking back on our state’s distinctive conservation history seems particularly timely in light of Earth Day 2017 – Saturday, April 22 – an annual celebration that began in 1970 thanks in large part to U.S. Senator and Wisconsin Governor Gaylord Nelson.

    Historically a Leader

    Wisconsin stands as a historical leader in implementing keystone environmental laws and in advancing a conservation ethic that ubiquitously continues to impact decision-makers, scientists, and advocates. Regardless of where we live in Wisconsin, our communities are shaped by past leaders like Aldo Leopold, rightly a “father” of ecology and conservation. Today, it’s hard to imagine a field of law that’s more necessarily connected to science and data than environmental law and policy.

    Tressie Kamp com tressie.kamp uwalumni Tressie Kamp, Benjamin N. Cardozo School of Law 2010, is a staff attorney with Midwest Environmental Advocates, Inc., Madison, where she focuses her practice on agricultural law and policy, and enforcement of the Clean Water Act.

    Following Aldo Leopold, Republican administrations in Wisconsin created two truly innovative governmental bodies: the Office of the Public Intervenor and the Natural Resources Board (NRB).

    The Office of the Public Intervenor, 1967-1995

    The Public Intervenor was created in 1967 as a political compromise in response to the merging of the Wisconsin Department of Resource Development and the Wisconsin Conservation Department. The original constituency of the Public Intervenor’s office was the conservation community, which expressed concern about the loss of a separate conservation department with independent oversight of wildlife and fisheries resources.

    The Department of Justice (DOJ) housed the Intervenor’s Office through the mid-1990s, and this independent DOJ litigation ‘arm’ was almost completely unique to Wisconsin.

    The Natural Resources Board

    The Office of the Public Intervenor was shut down in 1995, but Wisconsin still sees local or citizen-driven conservation decisions through the NRB. Wisconsin Stat. section 15.34(1)-(2) created both the NRB and the Department of Natural Resources (DNR), and the statute states that the DNR exists “under the direction and supervision” of the NRB.

    Seven governor-appointed board members are “appointed for staggered six-year terms.” Readers can learn more about the NRB and its current members on the NRB website.

    The Conservation Congress

    Wisconsin’s Conservation Congress is another statutorily-created body that many Wisconsinites may not know of or fully understand. Wisconsin Stat. section 15.348 states that “[t]he conservation congress shall be an independent organization of citizens of the state and shall serve in an advisory capacity to the natural resources board on all matters under the jurisdiction of the board.”

    In part, the Conservation Congress and NRB were formed as part of a Republican administration’s agenda to avoid centralized power at the DNR, and to keep conservation decision-making in the hands a broader conservation community throughout the state.

    The Spring Hearings

    The Conservation Congress annually holds the Spring Fish and Wildlife Rules Hearings to vote on a broad array of issues, ranging from hunting and fishing, to water quality and quantity. All Wisconsin residents have access to the Congress by participating in the spring hearing or through their local Conservation Congress delegates, and many issues up for vote stem from resolutions submitted by citizens.

    The hearings are public, and held simultaneously in each of Wisconsin’s 72 counties, from the most rural to the most urban, to allow comment and input on proposed rule changes and NRB and Conservation Congress advisory questions. At this year’s hearings, held April 10, more than 5,000 people participated.

    Looking Back Together

    Whether you look forward to the future of environmental law with optimism, concern, or a mix thereof, we can all hopefully look back together with respect and appreciation for the history of conservation and environmental law in Wisconsin.

    Author's Note: Thanks to Tom Dawson for an interview providing information used in this post. Dawson served as a public intervenor 1976-1995, as an assistant attorney general with the Wisconsin Department of Justice, and as director of the department’s Environmental Protection Unit. He retired in 2016.




  • Welcome to the Environmental Law Section Blog

    The Environmental Law Section welcomes you to its new blog, featuring monthly posts designed to deliver the latest news, practical advice, and valuable resources for environmental practitioners.
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    The Environmental Law Section Board and the Enivronmental Law Section Blog Committee are excited to announce the launch of a new blog.

    Why a Blog?

    We chose to create a blog because it combines the benefits of a newsletter with the timeliness of online communication. Blogs provide many advantages:

    • Easy to read
    • Can be updated frequently with the latest news and developments
    • Provide links to additional information and related blogs, including those written by our members
    • Posts can be shared on social media

    Writers Needed

    Have an idea for a blog post? Want to share information that would be helpful to your fellow section members? Send us a post, and share your expertise with your colleagues! You will also be able to link your post to your State Bar web profile, as well as your personal or firm blog.

    Contact our section liaison, org nwilliamsbuttery wisbar Nicole Williams Buttery, for our blog post template and guidelines, as well as tips for creating an attention-grabbing post.

    We Want to Hear Your Ideas

    We hope that you will enjoy the new Environmental Law Section Blog, and that you will visit regularly to read the latest posts. If you have suggestions about how we can make the blog even better, we want to hear your ideas. Just contact any section board member with your thoughts.

    Happy Blogging!

    Environmental Law Section Board
    Environmental Law Section Blog Committee