Jan. 22, 2014 – The Wisconsin Supreme Court heard debate yesterday on a proposed dues structure change for new and emeritus lawyers, a petition submitted by the State Bar of Wisconsin, but postponed consideration.
In addition, the court delayed consideration of a State Bar petition (and opposing petition) relating to succession and removal of State Bar governors and officers. Petitions on both these matters received a public hearing yesterday.
But at its subsequent administrative conference, the supreme court considered another petition, submitted by Justice Patience Roggensack, relating to biennial budget processes. The next opportunity for consideration of the State Bar-related proposals is a rules conference scheduled for Feb. 24, 2014.
Dues Petition: New Lawyers
More than a year ago, the State Bar’s Board of Governors (board) voted to extend the “active new” category of State Bar membership from three years to five years.
The proposed change, which requires supreme court approval, would allow lawyers to pay half State Bar dues and half supreme court assessments in their first five years of membership. Currently, only lawyers in their first three years receive the dues break.
The proposal extends financial relief to new lawyers who increasingly experience financial hardships after law school graduation. By extending the dues break to five years, the State Bar would lose an estimated $122,520 for fiscal year 2015.
Current State Bar President Patrick J. Fiedler spoke in favor of the petition at yesterday's public hearing. He said the proposal should be adopted, noting ever-increasing tuitions, a tight job market, and the “continued economic strain on our newer members.”
However, past State Bar president and current State Bar board member Steven Levine opposed the measure, citing law school statistics on employment after graduation.
He said 65 percent of the U.W.’s 2012 class received law jobs within nine months of graduation, and another 25 percent had jobs that don’t require bar admission.
Levine did not cite statistics on what these new lawyers are making in annual compensation or how law school debt obligations impact monthly income. Instead of lowering dues, he said the State Bar should consult with the law schools on lowering tuition costs. He also said many new lawyers can afford to pay full dues, especially lawyers at large law firms.
“Much of the aid from these reduced [dues] is going to go to people who don’t need it,” said Levine, highlighting attorneys at big firms. Chief Justice Shirley Abrahamson asked how many new Wisconsin lawyers obtain employment with large firms.
State Bar Executive Director George Brown said large law firms in Wisconsin are hiring far fewer new lawyers in today’s economy. For instance, Foley & Lardner LLP hired just five new lawyers last year, much less than pre-recession years, Brown said.
“Clients are no longer willing to pay for the training of new lawyers,” said Brown, who noted that 90 percent of Wisconsin lawyers work in firms with less than five attorneys, and more than 70 percent of the membership is comprised of solo practitioners.
Dues Petition: Emeritus Lawyers
In conjunction with the dues proposal for new lawyers, the State Bar’s board also voted to change, with support from the Senior Lawyers Division, the emeritus dues structure.
The measure would require emeritus members to pay dues up to age 75. Currently, dues obligations end for lawyers at age 70, if they elect emeritus status. The proposal, which needs supreme court approval, creates two classes of emeritus membership.
Lawyers ages 70-74 who bill the equivalent of 800 hours or more would be designated “active emeritus” and pay full State Bar dues and supreme court assessments. Lawyers ages 70-74 who bill the equivalent of less than 800 hours would pay half dues and assessments.
If the change were instituted, the State Bar estimates an additional $26,880 in dues revenue for fiscal year 2015. Those who turn age 70 before any proposal is adopted are not subject to the change and would be “grandfathered” into the current system.
On behalf of the State Bar, Fiedler said the cost of State Bar services provided to attorneys should be shared by those who have chosen to continue their practices, as a matter of policy and fairness. Brown noted that more lawyers practice well into their 70s.
John Wilcox, president-elect of the Senior Lawyers Division, said nearly all members of the Senior Lawyers Division board voted to support the measure, except one who said practicing lawyers should pay dues and the proposal “does not go far enough.”
Keith Sellen, director of the Office of Lawyer Regulation (OLR), reported that the Board of Administrative Oversight opposes the change unless OLR assessments are increased to preserve funding for the lawyer regulation system. He estimated that, based on fiscal year 2014 numbers, the OLR assessment would increase by $4.25.
Levine also opposed the proposal relating to emeritus dues. He said the current structure is a “thank you” to older lawyers for their service and should not be changed.
Bylaw Changes: Succession and Removal of Officers and Governors
The supreme court heard public comments on a State Bar proposal that would implement succession and removal provisions relating to State Bar board members (governors) and officers, but took no action at its open administrative conference.
In June 2013, the State Bar’s board voted to adopt (38-2) bylaw amendments governing the process of filling vacant governor and officer seats. The bylaw amendments also include provisions that allow an officer or governor to be removed from their positions.
The State Bar then petitioned the supreme court to amend supreme court rules in line with these bylaw amendments. Specifically, the rule changes would allow governors and officers to be removed and vacancies filled “in accordance with the bylaws.”
Currently, there is no provision for State Bar governors or officers to be removed from office. The board seeks implementation of these removal provisions, noting instances of misconduct involving leaders of other state bar associations in recent years.
In 2010, for example, the sitting treasurer and president-to-be of the Minnesota State Bar was convicted for sexually assaulting a teenager.
At the time, the Minnesota State Bar had no mechanism to remove him from office, although he eventually resigned. Other state bars – including Indiana, West Virginia, South Carolina, Oregon, and Washington – have removal provisions in their bylaws.
The bylaw amendment here allows the removal of officers or governors who are unable or unwilling to fulfill their duties or if their conduct “is contrary to the best interest of the State Bar as determined by an affirmative vote of 75 percent” of the total 52-member board. The subject must be given notice and an opportunity to be heard.
Levine and 26 other State Bar members challenged this petition on several grounds, including the ground that the board could potentially choose to remove a sitting officer or governor who exercises free speech rights protected by the First Amendment.
At the public hearing, Levine said giving the board carte blanche authority to remove a member of the board in the exercise of First Amendment rights is “very dangerous.”
Levine noted that he offered an amendment to insulate governors and officers from removal for exercising free speech rights, but the board voted against it 34-3.
Fiedler said the removal provisions are not intended to stifle speech, but to create a framework of good governance that addresses misconduct viewed as detrimental to the bar and the legal profession. He noted the high hurdle for removal, a 75 percent vote.
Roberta Howell, counsel for the State Bar, argued that “free speech rights are not absolute” and there could be situations in which certain speech or conduct by officers or governors would serve as an appropriate basis for removal.
Raymond Dall’Osto, a member of the committee that drafted the bylaw amendments, said removal provisions would likely be used in extraordinary circumstances.
“If used once in the next 50 years or the next 150 years, that would be a lot,” said Dall’Osto, who noted that removal would be a last ditch effort to discharge a State Bar officer or governor who refuses to leave the post despite engaging in misconduct.