Highlights

Vol. 76, No. 6, June 2003

Coming Together:
The State Bar's First 125 Years

by Dianne Molvig

When the State Bar of Wisconsin celebrated its 80th anniversary in January 1958, several elements were about to click into place.

• That summer the Bar moved from its rented three-room office suite near the Capitol Square into a home of its own at 402 W. Wilson Street, Madison. Owning the newly constructed building "gave us a sense of solidarity and permanency," said Eau Claire attorney and 1963-64 State Bar president Francis Wilcox in a September 1998 Wisconsin Lawyer interview.
  
  
• At the end of that year, the Wisconsin Supreme Court made Bar integration permanent, after a two-year trial period, thereby solidifying the Bar's broadened membership base.
  
  
• The above developments meant that the Bar's staff, led by executive director Phil Habermann, by then a 10-year veteran on the job, had the physical space and financial resources to expand and improve services to Bar members.

Thus, the State Bar was poised to enter a new era, in which the energy and activity level would surpass anything seen in the organization's first eight decades. By the late 1950s, the Bar had hit its stride. And it's been on the move ever since.

This second installment of a two-part series summing up the Bar's first 125 years highlights a few of the key events and issues of the past half-century. Part one of this series appeared in April and discussed the events leading to the Bar's formation in 1878 and its early years.

New Focus on Public Service

A chance inquiry at a summer 1950 Rock County Bar dinner meeting spurred the creation of a new Bar entity. An elderly lawyer seated next to Habermann at the dinner table wondered whether there was a Bar program he could name as a beneficiary in his will. Nothing like that existed, Habermann responded, but he broached the topic with Wisconsin Supreme Court Chief Justice Marvin Rosenberry as the two men drove back to Madison that night. A foundation would be a solution, advised Rosenberry, who offered to help Habermann form one. And so, the following spring, the Wisconsin Bar Foundation (now the Wisconsin Law Foundation) came to be.

Money trickled into the Foundation, and a few lawyers signed on as members. But for years the Foundation sat inactive, as if waiting for someone to figure out exactly what to do with it. An answer arose a few years later, when the Bar drew up plans in the early 1950s to build a new headquarters. Due to its then voluntary status, the Bar couldn't own real estate or hold a mortgage, but the Foundation could. The Foundation thus struck on its first useful purpose. Once construction of the new headquarters was under way, however, the Foundation slipped into dormancy once again.

In the late 1960s, the Foundation finally found a niche that it has filled ever since. In 1969 it launched Project Inquiry, a program that sent hundreds of lawyers into classrooms across the state to discuss the law and stage mock trials. Volunteer attorneys also wrote the first edition of On Being 18, which won the American Bar Association's Silver Gavel Award. That booklet has undergone countless revisions over the years and is still in distribution today. "Phil was smart enough to see that the Foundation was a way to implement projects the Bar couldn't do," says Madison attorney and 1975-76 Bar president Jack DeWitt. "If you took dues money [to run certain programs], someone might squawk about it. But the Foundation could try out these projects because it was using donated money, not dues."

Project Inquiry was the forerunner to many current educational programs that are now operated under the Bar's auspices, including Lawyers in the Classroom, We the People, Court with Class, and the High School Mock Trial Tournament, to name a few. As Chief Justice Shirley Abrahamson points out, "Lawyers make wonderful teachers, and teaching, in turn, makes the practice of law more rewarding." The Foundation now serves as the fund-raising arm to keep these projects going. Besides law-related education, the other function the Foundation took on was public service. In 1978 it launched the Lawyer Hotline, through which volunteers answered consumers' simple legal questions over the phone or steered them to the Lawyer Referral Service if appropriate. "It was an attempt to make the system more accessible to people," says Reedsburg attorney Myron LaRowe, then chair of the Bar's Lawyer Referral Committee and later Bar president (1981-82). "We basically had one phone in the old headquarters. I'd be down there to work the phone for a few hours, and other attorneys volunteered. We staffed it that way for quite a while."

The hotline and referral services continue to exist today, both now under the umbrella of the Lawyer Referral and Information Service, a Bar program. The LRIS assistants field more than 50,000 calls each year, and volunteer attorneys still participate in various ways (see www.wisbar.org/bar/lris/sblrisatty.html ).

Yet another area of public service evolving since the 1950s was the Bar's pro bono work. This got a major push in 1957 from the Bar's Legal Aid Committee chair Walter Graunke of Wausau, known in his day as Mr. Legal Aid, who rallied local bars to help people who couldn't afford legal services. The movement gained momentum in 1966, when the Bar won a federal grant to create Judicare. The Bar developed an innovative service model it felt would best serve people in a predominantly rural state, despite wrangling with the federal government over structure. Other state bars took note of Wisconsin's approach and sought funds to replicate it in their states.

Eventually, the Bar spun off Judicare as a separate nonprofit corporation, and it, like the other legal aid services established in the state in the 1970s, has continued to struggle with Washington to win sufficient funding to adequately serve low-income people. As La Crosse attorney and 1992-93 State Bar president Tom Sleik observes, "Some politicians love to talk about the rule of law, but what does the rule of law mean to somebody who's excluded from it?"

Sleik made pro bono services one of his top priorities during his tenure as president. For the first time, the Bar hired a full-time pro bono coordinator to coordinate efforts statewide. That way lawyers could devote whatever time they could give to actually providing pro bono services to clients, rather than to the administrative side of it. "That was the idea behind hiring a coordinator," Sleik points out. "How could we organize the delivery of legal services to those who weren't getting them? It's unrealistic to expect that lawyers who are already very busy are going to find the time to make this happen."

The Bar's Team Pro Bono program, which has had a full-time coordinator ever since 1993, makes it easier for interested lawyers to get involved (see Team Pro Bono). "It's one of the most positive things we've ever done," Sleik says, "to persuade the public that we really do care."

Professional Excellence

Advancing lawyer competency and integrity has been a Bar goal from the outset, as evidenced by founder Edward G. Ryan's speech advocating the expulsion of the "knaves and fools" from the lawyer community in order to preserve the profession's reputation and protect the public. Toward that end, professional education and ethics long have been priorities.

Education took major strides forward once Habermann came on board as a full-time executive in 1948. "Before Phil became executive secretary," DeWitt recalls, "they'd have a lawyer or two speak on various subjects at the annual Bar meeting. Typically it was a war story, and [the presenter] might distribute 50 to 75 mimeographed copies of handouts."

As membership numbers exploded upon Bar integration in 1957 and law practice grew ever more complex, demands for training grew. By the early 1960s, the Bar, the University of Wisconsin Law School, and Marquette University Law School all had training programs for practicing attorneys. In 1962 Bar officers and the two law schools' deans met to discuss the future of post-graduate legal education and how they might coordinate their efforts. From that discussion arose the Institute for Continuing Legal Education for Wisconsin, or CLEW, in 1963. This new entity, staffed and housed at the U.W. Extension Law Department, presented institutes and clinics on diverse topics. Meanwhile, the State Bar continued to hold a few clinics of its own, as well as the usual annual and midwinter meetings and the popular annual tax school.

James Ghiardi, now an emeritus professor at Marquette University Law School, was on the Bar's Executive Committee when the law schools and the Bar pooled CLE efforts. By 1969, when John Wickhem was Bar president and Ghiardi was president-elect, the three entities' interests "had started to drift apart," Ghiardi says. "We talked about it in the Executive Committee, and the question was, why don't we do this on our own?" The decision to do so gave birth to the Advanced Training Seminars, commonly known as ATS-CLE, the forerunner to today's CLE program. Dalton Menhall managed ATS-CLE, along with Habermann, and then in 1974 Menhall became the program's first full-time director.

Still, room remained for improvements. "When I worked for the Judicial Council," DeWitt recalls, "I spent a lot of time talking to judges and lawyers all around the state. I knew there were many lawyers who didn't realize the statutes had changed in the 40 years since they'd been to law school. The problems they created and the mistakes they made might not show up until 15 to 20 years later."

Talk began to circulate nationwide, and in Wisconsin, about the wisdom of mandatory CLE for lawyers. A Bar committee submitted a plan to the supreme court in 1975, which in turn ordered the Bar to put the issue before its membership in a referendum. DeWitt, at that time Bar president, was among those who lobbied hard for passage. "We knew it was controversial," he says. "We tried to get lawyers to see the value of it. I told them they had to think about the kind of service the public was getting." The referendum passed, with nearly 72 percent of voting members voting in favor of mandatory CLE, which became effective Jan. 1, 1977.

The CLE program headed in another new direction in the early 1980s with the expansion of CLE books. By this time, the days of the mimeographed handouts were long gone, and seminar handouts had become more substantial. These eventually evolved into books, whether as seminar companions or stand-alone resources. "They were excellent products," notes Madison attorney Carolyn Lazar Butler, who ran the CLE book department from 1984 to 1999. "But they were not kept up-to-date or supplemented on a regular basis. And they were not cite checked and had no indexes."

Butler's task was to remedy these shortcomings and to create quality publications that would prove useful for everyone from newly graduated lawyers to seasoned practitioners. The endeavor also was required to pay its own way, requiring no Bar dues to function. It was a program the likes of which existed at the time in only a few states with larger bars. "Gary Wilbert [then CLE director] was the force behind this," Butler points out. "He said, 'We're not a big state, but I bet we could do a really good job for lawyers.'"

Coupled with the expansion of CLE since the 1950s has been a growing emphasis on professional ethics and discipline. The Bar adopted its first ethics code in 1901, but no genuine enforcement clout existed until the supreme court issued its order integrating the Bar in 1956. Court rules created new district grievance committees to investigate complaints against attorneys and recommend action to the State Board of Bar Commissioners. The latter operated under the State Bar's auspices until 1977. Then, mirroring a national trend, the supreme court transferred responsibility for grievance investigations to a new, separate agency, the Board of Attorneys Professional Responsibility, now the Office of Lawyer Regulation.

Meanwhile, in the last century, the ethics code has undergone numerous transformations as society and law practice have changed. Now the current Wisconsin Rules of Professional Conduct for Attorneys, in effect since 1988, are being revisited in light of recent changes in the ABA's Model Rules. "There is a continuing need to center on and update our rules in order to properly self-regulate our profession," says Wausau attorney Dean Dietrich, a member of the Wisconsin Ethics 2000 Committee, which is studying possible rule changes and will report to the supreme court by October 2004.

"In the founders' time," Dietrich adds, "certainly lawyers were important to society. The continued emphasis on ethics and professional responsibility is designed to make sure we continue to focus on the public trust and confidence vested in us."

Integration, Agitation, Legislation

After Bar president Claire Bird of Wausau first proposed Bar integration in 1914 as a way to improve professional standards and discipline, rounds of debate over the issue ensued for decades. The supreme court finally settled the issue, or so it thought, in 1956, when it adopted the Rules of Integration, effective Jan. 1, 1957, for a trial period of two years. By mid-1957, after a six-month enrollment flurry, membership had grown by 24 percent, from 4,968 to 6,174.

Fifteen State Bar presidents gathered at the 2003 Annual Convention in Milwaukee to celebrate the Bar's 125th anniversary. Front row, from left: Gerald Mowris (2001-02), James D. Ghiardi (1970-71), Susan R. Steingass (1998-99), Truman Q. McNulty (1978-79), Patricia K. Ballman (2002-03), Thomas J. Curran (1972-73), Pamela E. Barker (1993-94). Back row, from left: Jack R. DeWitt (1975-76), George Burnett (2003-04), Gerald M. O'Brien (1987-88), John R. Decker (1990-91), Steven R. Sorenson (1997-98), Franklyn M. Gimbel (1986-87), Patrick T. Sheedy (1974-75), Donald L. Heaney (1985-86).

Not pictured: Gary L. Bakke (2000-01), John S. Skilton (1995-96), Gary E. Sherman (1994-95), Thomas S. Sleik (1992-93), Daniel W. Hildebrand (1991-92), G. Lane Ware (1989-90), John Walsh (1988-89), Gregory B. Conway (1984-85), Adrian P. Schoone (1983-84), Myron E. LaRowe (1981-82), Lawrence J. Bugge (1980-81), Richard E. Sommer (1979-80), George K. Steil (1977-78), Rodney O. Kittelsen (1976-77).

But the debate over integration was far from over. In 1959 Madison attorney Trayton Lathrop sued the Bar, claiming that compulsory dues were unconstitutional. Lathrop v. Donohue (Joseph Donohue of Fond du Lac was Bar treasurer at the time) went all the way to the U.S. Supreme Court, which upheld integration in 1961.

A second challenge surfaced in 1976, when the state supreme court appointed a committee, headed by judge Andrew Parnell, to study integration's pros and cons. The Parnell Committee recommended and the court approved continued integration the next year.

Then in 1979, integration opponents conducted a poll, finding that 60 percent of Bar members opposed integration. With that ammunition in hand, opponents petitioned the court to end integration. The court refused, but did promise close scrutiny of Bar activities, especially its legislative activities. In 1982, the court left integration intact, but it demanded that LAWPAC, a political action committee, be completely separate from the Bar, with no Bar participation whatsoever. That marked the end of LAWPAC.

On to the next round. Challengers, led by Madison attorney Steve Levine, rallied again in 1986, this time resulting in the 1988 decision Levine v. Supreme Court of Wisconsin, in which federal judge Barbara Crabb ruled that integration violated the First Amendment. The Bar appealed, with a team of attorneys from the Madison office of Foley & Lardner representing the Bar pro bono in the Seventh Circuit Court of Appeals. "The Bar felt, in the end," notes John Skilton, who led the Bar's legal team, "that despite the costs and the angst of being challenged, that nevertheless the benefits of having a unified bar outweighed both the detriments of litigation and of not having an integrated bar." The Seventh Circuit Court of Appeals reversed Crabb's decision.

That case, too, seemed destined for the U.S. Supreme Court. But the Court denied Levine's petition, opting instead to hear Keller v. State Bar of California, which involved similar issues. In that case, the Court ruled that an integrated bar could use mandatory dues to fund activities that were germane to the goals of regulating the legal profession and providing legal services, but not activities of an "ideologic nature which fall outside these areas of activity."

The Wisconsin Supreme Court had suspended the enforcement of its mandatory membership rule in 1988 after the Crabb ruling, effectively returning the Bar to a voluntary basis, which ultimately lasted for four years. During that time, the Bar tried to sustain member programs, plus, notes Wausau attorney Lane Ware, 1989-90 Bar president, "We had to spend time convincing attorneys why it was important to be members of the organized Bar. We had a whole new realm of communication that we didn't have before."

After the Keller decision, it was back to the drawing board on the integration decision. In 1990, the Bar set up two study committees to make their case for a voluntary or integrated Bar to the Board of Governors and the membership. Following months of study, the meeting at which the Board was to decide the issue went on for hours, recalls Tom Sleik. "I can still remember the debate," he says. "It was probably one of the most thoughtful, serious debates I've ever heard the Board engage in. ... There was much respect given to both sides."

Fortunately, perhaps, for the sanity of everyone sitting through the marathon meeting, there was also a "moment of levity in the discussion that I'll always remember," Sleik recalls, even though it was at his and Dean Dietrich's expense. Dietrich commented that he had a strong gut feeling about what was the right thing to do. Sleik stood up to say he had that same gut feeling and that coming from the two of them, it ought to be extra persuasive. "You're talking about a couple of boys who at that time weighed in at a good 250 pounds apiece," Sleik says. "The joke was that, gee, if Dean and Tom have this gut feeling, it's not to be ignored."

In the end, the Board voted to recommend Bar integration to the state supreme court, which in turn approved it in 1992. The integrated Bar was back and has remained uncontested since. Certainly, all the legal challenges over the decades consumed Bar time and resources. But perhaps they were necessary, Skilton observes. "My view is that the Bar had to confront and properly deal with the constitutional issues inherent in a decision to mandate membership," he says. "So whether it was good in the sense of policy, it was good for the Bar. It was like taking medicine."

Still, even with the Keller decision, or perhaps because of it, the Bar's role in legislative activity remains a controversial activity, notes George Brown, a former Bar lobbyist and now its executive director. Lawyers hold varying opinions on what constitutes "germane" legislative activity. "When you get 21,000 intelligent, generally strong-willed individuals involved," Brown points out, "you're going to have dissension out there. That's why we have the rebate option."

The latter, commonly known as the "Keller rebate," allows members to deduct the portion of their dues that pays for the Bar's legislative activity. A Bar committee devised rules and procedures for setting rebate amounts and arbitrating disputes, which the supreme court approved. Port Wing attorney and 1994-95 Bar president Gary Sherman, a member of that committee, notes that bars across the country reacted differently to Keller. "Some bars felt they had to get out of the business of political activity altogether," he says. "Some went to the other extreme and almost ignored Keller in how they did dues rebates. We thought we were right on the money in both the letter and spirit of the Keller decision." That position, and the rebate process, have been borne out, he adds, by the dearth of complaints about rebate amounts ever since.

Over the decades, the Bar and its sections have been major forces in helping to shape laws in marital property, family law, corporate law, product liability, and many other areas of public interest. "The benefit to the Legislature," Brown says, "is lawyers' knowledge and experience. The Bar can go to the Legislature and say, 'If you want to make this work, here's a better way.' We do that sometimes. Other times we actually take a position on policy."

One legislative matter struck close to the Bar's heart in 1977. A group of legislators attempted to shift control of lawyers from the courts to the Legislature - precisely the situation founder Ryan had adamantly opposed 99 years earlier. Lawyers would then be vulnerable to politics, Ryan had argued, rather than subject to the rule of law. "I'm sure he would have cringed that this was even suggested," observes Janesville attorney George Steil, 1977-78 Bar president.

But on Friday, Sept. 23, 1977, Bar lobbyist Edgar Lien reported at a Board of Governors meeting that the bill's supporters had the numbers. And the vote was only three days away. Steil recalls a rapid mobilization. "Everyone was assigned to contact legislators over the weekend," he says. "The Bar got into action. And that was the end of it." The Legislature defeated the measure, which to date hasn't resurfaced.

A Rising National Reputation

The State Bar of Wisconsin has made a name for itself nationwide through its track record of devising creative ways of meeting lawyers' changing needs. A case in point is the founding of the Wisconsin Lawyers Mutual Insurance Company (WILMIC) in 1986.

The advent of the 1980s brought a growing malpractice insurance crisis. "Premiums were going out of sight," LaRowe recalls. "The coverage was shrinking. The number of insurance carriers providing coverage was shrinking. You could see the handwriting on the wall." The situation worsened by 1986, and the Bar's Insurance for Members Committee struck on the idea of forming the Bar's own insurance company. The committee put the legal paperwork in motion. A massive campaign swung into gear to raise the necessary $3 million to capitalize WILMIC to the level required by the state's Insurance Department. Law firms and individual lawyers across the state bought bonds at $1,000 apiece. And WILMIC materialized.

Since its founding, WILMIC has had to endure softer market cycles when other insurance carriers resurfaced, eager to offer Wisconsin lawyers malpractice coverage and slashing rates to compete. "WILMIC hung in there through that," says Steve Smay, Bar executive director from 1978 to 1999. "The idea was that the next time there would be a hard insurance market, WILMIC would be there."

Bar members ran WILMIC themselves for the first several years. By the time Lane Ware became Bar president in 1989, the need for professional insurance management was clear. WILMIC converted from a volunteer lawyer-run association to an organization operated by insurance professionals. Ware views WILMIC's evolution as just one example of the Bar's growing maturity in recent decades. "There was a crisis," he says. "The Bar saw it, formed a task force, created the company, funded it through contributions. And then, when the time was right, we stepped away."

Fast forward a decade to another challenge: the impact of technology on legal research. Lawyers were shifting from case law research in printed digests toward electronic sources, at that time in CD-ROM format. But the old case citation system tied to books and page numbers didn't fit well with electronic sources. After several years of study in the early 1990s, the Bar's Technology Resource Committee devised a new system of case citation that would be medium-neutral, involving numbering paragraphs, rather than pages. "When we went before the [state] supreme court to argue for the new citation system," Sherman recalls, "we were leading the entire United States in dealing with this issue." The Bar also faced legal challenges from West Publishing, but in the end the Bar prevailed. And the new case citation system caught on nationally.

Another project aimed to help lawyers conduct their legal research more efficiently. The Bar envisioned a CD-ROM source that would include Bar publications and links within those publications to primary sources. The Bar sought proposals from four vendors, one of which was a start-up company called Law Office Information Systems (LOIS). "We had demands," Sherman says, "and nobody was willing to meet all of them as well as LOIS was. They were new, and they were taking a risk."

Through the joint venture, the first of its kind in the country, the Bar got the research tool it wanted for members. And, compared to competitors' products, it also came with a much smaller price tag. That ultimately drove competitors' prices down, making electronic legal research generally more affordable.

Looking back on those years in the mid-1990s, Sherman describes them as "a time when a lot of things came together. A lot of extremely creative people put a tremendous amount of energy into [these projects]. I think you can't give enough credit to the leadership of [Bar executive director] Steve Smay."

Smay now works for LOIS and travels to bar associations across the country. He knows firsthand the solid reputation the Bar enjoys outside its home state. "The number of people I meet," he says, "who know what the Wisconsin Bar has done - and is still doing - is just amazing."

Changing Faces

The Bar, of course, is more than programs; it's also the thousands of individuals who comprise it. These days that group is much more varied than it was 125 years ago, or 50 years ago, or even in more recent times. "What strikes me is the increased role of women in the Bar," says Joseph Ranney, a Madison attorney and legal historian and author. "The presence of women in the Bar was minuscule until about 1970, and then it exploded. It's interesting to see how the role of women in the Bar goes hand-in-hand with the historical phases of the women's movement."

The women's movement of the 1970s followed on the heels of the civil rights movement of the 1960s, just as the first push for women's rights sprang up after the abolition of slavery a century earlier. Lavinia Goodell, a Janesville attorney, was the first woman to attempt to gain admittance to practice before the state supreme court in 1875. The court denied her application, with Chief Justice Ryan stating, "There are many employments in life not unfit for female character. The practice of law is surely not one of these. ... Womanhood is moulded for gentler and better things." Goodell finally won admittance to practice before the supreme court in 1879, over Ryan's objection.

Today, women make up 28 percent of the State Bar and 50 percent of Wisconsin law schools' classes. The Bar has had three women presidents - Milwaukee attorney Pam Barker, 1993-94, Madison attorney Susan Steingass, 1998-99, and Milwaukee attorney Pat Ballman, 2002-03, and a fourth - Madison attorney Michelle Behnke - will take office in 2004. Plus, the state has many female judges, and soon four of the seven seats on the state supreme court will be held by women. Certainly, Ryan would be aghast at such developments, but, as Chief Justice Abrahamson recently noted, "Lavinia Goodell, I am sure, is beaming."

The racial and ethnic composition of the Bar also has diversified dramatically in recent decades. Here "firsts" are more difficult to document because the Bar has not kept racial or ethnic data on its members. One first, however, is extremely recent history. In April, Michelle Behnke became the Bar's first African-American president-elect; she will take office as president on July 1, 2004.

Expanding diversity in the Bar now stands as a key objective, as exemplified by one of the Bar's stated values: We will be inclusive. "Diversity is not about just race and gender," notes Pat Ballman, Bar president. "It goes beyond that to cover all kinds of differences - age, geography, cultural backgrounds."

Diversity also is more than a question of political correctness. In the broader picture, Ballman says, justice will be better served if there are more lawyers and judges who look like and understand the cultural backgrounds of the people going through the justice system.

As for the Bar association itself, diversity has practical advantages, Ballman points out. "People with varied backgrounds bring different creativities to the table and different solutions to problems. We need to look at that as an asset to the Bar."

Thus, 125 years after its founding, the Bar continues to serve one of its original purposes: to advance the profession and legal services by speaking "with one voice," as Ryan put it. But today, that voice is - or is at least striving to be - a richer blend than ever before in the Bar's history.

Wisconsin Lawyer