Vol. 76, No. 9, September
Supreme Court Orders
The Wisconsin Supreme Court has amended Wis.
Stat. section (Rule) 809.18 to clarify that a lower court decision may
not be reversed or vacated by the parties' stipulation as a condition of
dismissal of an appeal (Order 01-15); and will hold a public hearing on
Oct. 22 to consider amending the Supreme Court Rules to require written
communication on fees and that mandatory ethics CLE include discussions
of fees (Order 03-04).
Stipulated Reversal or Vacatur of a Lower Court
In the matter of the creation of a provision regarding
stipulated reversal or stipulated vacatur of a lower court
On Oct. 22, 2002, the court held a public hearing on a petition filed
by the Judicial Council seeking to amend Wis. Stat. § (Rule) 809.18
in order to clarify that a lower court decision may not be reversed or
vacated by the parties' stipulation as a condition of dismissal of an
appeal. The court has considered the presentations made at the public
IT IS ORDERED that the petition is granted in part and denied in part
Section 1. Section 809.18 of the statutes is
amended to read:
809.18 Voluntary dismissal. An
appellant may dismiss a filed appeal by filing a notice of dismissal in
the court or, if the appeal is not yet filed, in the
trial circuit court. The dismissal of an appeal
by the appellant or by agreement of the parties or their counsel
does not affect the status of a lower court decision, the status of
a cross-appeal, or the right of a respondent to file a
Section 2. IT IS ORDERED that further amendment of
Wis. Stat. § (Rule) 809.18 is denied.
IT IS ORDERED that these amendments shall be effective the date of
IT IS ORDERED that notice of this amendment of Wis. Stat. §
(Rule) 809.18 be given by a single publication of a copy of this order
in the official state newspaper and in an official publication of the
State Bar of Wisconsin.
Dated at Madison, Wis., this 2nd day of July, 2003.
By the court: Cornelia G. Clark,
Clerk of Supreme Court
Written Communication on Fees; CLE Ethics
In the matter of Amendment of Supreme Court Rule 20:1.5(b)
and Creation of Supreme Court Rule 20:1.5(e) regarding written
communication on fees and the Amendment of Supreme Court Rule 31.02
regarding continuing legal education credits for ethics.
On April 11, 2003, the Wisconsin Courts Fee Arbitration Study
Committee filed a petition seeking to amend Supreme Court Rule 20:1.5
regarding fees under the Rules of Professional Conduct for Attorneys and
Supreme Court Rule 31.02 regarding continuing legal education credits
for ethics. Pursuant to the proposed amendments for Rule 20:1.5 an
attorney must provide the client a written explanation of the services
anticipated, the basis for calculating the fee, and the estimated amount
of the fees where it is likely the legal representation would likely
result in a fee of $1,000 or more, and must provide a written
explanation and response to a client's challenge of a fee for legal
services. The Committee also seeks to amend Rule 31.02(2) to require
continuing legal education related to fees and the financial
relationship between lawyers and clients.
IT IS ORDERED that a public hearing on the petition shall be held in
the Supreme Court Room in the State Capitol, Madison, Wis., on
Wednesday, Oct. 22, 2003, at 9 a.m.
IT IS FURTHER ORDERED that the court's conference in the matter shall
be held promptly following the public hearing.
IT IS FURTHER ORDERED that notice of the hearing be given by a single
publication of a copy of this order and of the petition in the official
state newspaper and in an official publication of the State Bar of
Wisconsin not more than 60 days nor less than 30 days before the date of
Dated at Madison, Wis., this 30th day of June, 2003.
By the court:
Cornelia G. Clark, Clerk of Supreme Court
PREAMBLE: Even the most careful and professional attorney will, from
time to time, experience disagreements with clients regarding the
payment of fees and expenses. Resolution of such disputes can prove
costly, time consuming and, occasionally, embarrassing. Such disputes
may also create tensions or generate publicity that reflects unfavorably
on the profession.
Recognizing the above facts, and as a service for their members and
the public, both the Milwaukee Bar Association and the State Bar of
Wisconsin have maintained fee arbitration programs for decades.
The fee arbitration programs, though binding, require the voluntary
participation by both the client and attorney. In some instances,
clients have applied for arbitration only to have the attorneys decline
to participate. Various individuals have suggested that the occasional
unwillingness of attorneys to participate in arbitration reflects
negatively on the profession and inappropriately disadvantages the
public. Those same individuals have recommended that the Supreme Court
of Wisconsin mandate participation in fee arbitration for Wisconsin
Addressing the issues raised, the court created the Wisconsin Courts
Fee Arbitration Study Committee by Order No. 00-15 dated Nov. 9, 2001,
and charged the committee to:
- Identify advantages and disadvantages and strengths and weaknesses
of mandatory and voluntary fee arbitration programs.
- Review and analyze the operation of existing fee arbitration
programs, including those of the State Bar of Wisconsin, the Milwaukee
Bar Association, and the Office of Lawyer Regulation.
- Propose a fee arbitration system or systems for Wisconsin.
The committee met repeatedly, studied the issues and formulated
recommendations, which it submitted in a written report to the Wisconsin
Supreme Court on Nov. 5, 2002. Representatives of the committee
presented an oral report to the court on Dec. 18, 2002. At the
conclusion of the oral report, the court suggested that the committee
reduce its recommendations to a formal petition. Pursuant to the court's
suggestion, the committee submits the petition stated below.
The Wisconsin Courts Fee Arbitration Study Committee petitions the
Supreme Court of Wisconsin to adopt the following amendments to Supreme
Court Rule 20:1.5, Fees, under the Rules of Professional Conduct for
20:1.5 (b) of the Supreme Court Rules is amended to read:
20:1.5 (b) When the lawyer has not regularly
represented the client
, and it is reasonably
foreseeable that the anticipated representation will result in a fee of
$1,000 or more, the lawyer shall, within a reasonable time after
commencing the representation, communicate to the client in writing: (1)
the anticipated scope of the lawyer's work; (2) the basis or rate of
the fee, including whether the fee will be charged on an hourly,
contingency, or other basis; (3) an estimate of fees payable to the
lawyer as a result of the representation; (4) the availability of fee
arbitration programs; and (5) if an agreement requires one or more
payments to the lawyer prior to, or substantially contemporaneous with,
the commencement of the representation or periodically during the course
of the representation, the purpose and effect of each payment and its
impact on the fees and expense reimbursement ultimately payable by the
During the course of the representation, the lawyer shall provide
the client regular, periodic accountings of the fees, except for
contingent fee matters, and reimbursable expenses accrued to date and,
if the fee estimate required above becomes substantially inaccurate, the
lawyer shall timely provide a revised estimate to the client.
Commentary: In its report, the committee proposes no
fundamental change in the fee arbitration systems now functioning in
Wisconsin but does propose the changes recommended in this petition. The
committee believes the court would best meet the community's needs by
addressing the causes of fee disputes rather than adjusting remedies.
The committee believes that the court could address the causes by
requiring (a) better communication with clients regarding fees upon
beginning (and during) the representation, (b) more complete
communication to clients at early stages in fee disputes and (c) better
education of attorneys regarding their responsibilities in relation to
fees and billing. The committee has identified Rule changes addressing
each of the three areas as explained in the following paragraphs.
Information provided the committee indicates that many fee disputes
arise from different understandings between clients and lawyers
regarding the calculation of fees and their ultimate amount. As a
result, the committee believes that the number of fee disputes would
diminish with better communication at the initiation of representation.
Except in contingency fee cases, SCR 20:1.5 currently encourages, but
does not require, written communication regarding fees. The committee
recommends amending SCR 20:1.5 so that, when the anticipated
representation will likely result in a fee of $1,000 or more, early in
the representation the lawyer must provide the client a written
explanation of the services anticipated, the basis for calculating the
fee and the estimated amount of the fees. It also recommends requiring
the lawyer to explain the effect of any retainer paid, regularly to
advise the client regarding the accumulation of fees and expenses during
the course of the representation and, if necessary, to update the fee
estimate originally given.
20:1.5 (e) of the Supreme Court Rules is created to read:
20:1.5 (e) If a client, or former client, questions
or challenges in writing the fee due for a lawyer's services -
including, but not limited to, by applying for fee arbitration - the
lawyer shall, in a timely manner, respond in writing to the client, or
former client, stating the lawyer's position and explaining the basis
for the fee charged.
Commentary: Clients have expressed indignation and
frustration at some attorneys ignoring complaints or inquiries regarding
fees. That reaction strains the lawyer-client relationship and stains
the profession. As a result, the committee recommends an addition to SCR
20:1.5 requiring an attorney's written explanation of the fee charged
when a client or former client questions or disputes a bill in writing.
The lawyer's response dignifies the client's objection and may lead to
the resolution of the fee dispute. Though an oral response may suffice
in many instances, a written response memorializes the lawyer's
compliance with the revised Rule and provides a basis for future dispute
31.02 (2) of the Supreme Court Rules is amended to read:
31.02 (2) A lawyer shall attend a minimum of 3 of
the 30 hours required under sub. (1) on the subject of legal ethics and
professional responsibility in every reporting period; except for
lawyers who practice only as employees of governmental bodies, in every
two consecutive reporting periods, a minimum of 1 hour required by the
first clause of this sub. (2) shall relate to fees and the financial
relationship between lawyers and clients.
Commentary: Current continuing legal education regarding
ethics does not emphasize and, in many respects, ignores the lawyer's
rights and responsibilities regarding fees. Lawyers may satisfy the
biannual requirement of ethics training without ever discussing fees.
The lack of understanding in this area and outright ignorance increases
the incidence of fee disputes. As a result, the committee recommends
that mandatory continuing legal education regarding ethics include
discussions of fees and financial relationships between lawyers and
Respectfully submitted this 9th day of April, 2003.
By the Wisconsin Courts Fee Arbitration Study Committee: Donald J.