Vol. 79, No. 12, December
Supreme Court Orders
The Wisconsin Supreme Court will
hold a public hearing Jan. 17 regarding amendments to trust account
rules, and has amended the Rules of
Appellate Procedure regarding briefs of parties designated as
Rules of Appellate
In the matter of the Petition to Amend Wis. Stat. § (Rule)
On March 8, 2006, the Department of Workforce Development filed a
petition asking this Court to amend Wis. Stat. §
(Rule) 809.19 (3) to clarify that when a respondent is not affected by
any of the issues raised in the appellant's brief, that respondent
need not file a brief, but may file a statement advising the court
that no brief will be filed. On May 17, 2006, the Wisconsin Court
of Appeals filed a letter proposing some alternate language intended
to accomplish the same objective. The court of appeals
indicates that the proposed amendment "improves the Rules of
Appellate Procedure" by formalizing a process which is not
currently contemplated by the Rules of Appellate Procedure. The
Appellate Practice Section of the State Bar of Wisconsin and the
State Bar Board of Governors support the petition, recommending a
minor modification to the language proposed by the court
A public hearing on the petition was conducted on Oct. 24, 2006. At
the ensuing open administrative conference, the
court voted unanimously to adopt the petition, using the language
proposed by the court of appeals, as modified by the
Appellate Practice Section of the State Bar of Wisconsin.
Accordingly, effective Jan. 1, 2007, Wis. Stat. ss. 809.19(3) of the
Rules of Appellate Procedure is to read:
Section 1. 809.19(3)(a)3. of the statutes is
created to read:
809.19(3)(a)3. Within the time limits for filing a
respondent's brief, a party who has been designated as a respondent may
a statement with the court that it will not be filing a brief because
its interests are not affected by the issues raised in the
appellant's brief or because its interests are adequately represented
in another respondent's brief.
IT IS ORDERED that notice of this creation of 809.19(3)(a)3. 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 25th day of October, 2006.
By the court:
Cornelia G. Clark,
Clerk of Supreme Court
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Trust Account Rules
In the matter of the Amendments of SCR 20:1.15 Safekeeping
Property; SCR 20:1.0 Definitions;
SCR 21.16 Discipline; and SCR 12.04 Wisconsin Lawyers' Fund for
On May 22, 2006, the Office of Lawyer Regulation and the State Bar of
Wisconsin filed a joint petition proposing
certain modifications to SCR 20:1.15, the "trust account"
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 Jan. 17, 2007, at 9:30 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 the hearing.
IT IS FURTHER ORDERED that the appendices filed with the petition,
namely Appendix A (proposed changes to
SCR 20:1.15), Appendix B (proposed changes to SCR 20:1.0), Appendix C
(proposed changes to SCR 21.16), Appendix D
(proposed changes to SCR 12.04), Appendix E (list of proposed changes
to above referenced rules), Appendix F (list of proposed
substantive changes to above referenced rules), and Appendix G (list
of proposed non-substantive changes to SCR 20:1.15) shall be
made available on the Web site of the Wisconsin Supreme Court,
Dated at Madison, Wis., this 31st day of October, 2006.
By the court:
Cornelia G. Clark, Clerk of Supreme Court
In October, 2004, Michelle A. Behnke, Past President of the State Bar
of Wisconsin, appointed a committee (the Trust
Account Rule Working Group) to study SCR 20:1.15 and propose
modifications to the trust account rule.
The members of the Trust Account Rule Working Group ("Working
Group") included: Attorney Michael Olds,
Chairperson; Attorney Barry Cohen; Cathleen Dettman, State Bar Public
Policy and Media Assistant; Attorney Diane Diel; Attorney
Dean Dietrich; Mary Hoeft Smith, OLR Trust Account Program
Administrator; Attorney Gerald Mowris; Attorney Timothy
Pierce, State Bar Ethics Counsel; Attorney Sheila Romell; Attorney
Keith Sellen, OLR Director; and Attorney Daniel Shneidman.
The Working Group also received input and guidance from the
following individuals and organizations: Attorney
Kristine Cleven, Director, Legal Department of Wisconsin Bankers
Association; Attorney Gerald Connolly; De Ette Tomlinson,
Executive Director of WisTAF; Attorney George Dionosopoulos; Attorney
Len Leverson; Attorney Jon Lhost; and Attorney Rose
Oswald Poels, Wisconsin Bankers Association.
This Petition is filed jointly by Attorney Keith L. Sellen,
Director, Office of Lawyer Regulation, and Attorney D.
Michael Guerin, President, State Bar of Wisconsin.
GENERAL COMMENTS: The attached proposal, concerning amendments to SCR
20:1.15, SCR 20:1.0, SCR 21.16, and
SCR 12.04, presents the current rules in a red-line format that
highlights all proposed changes (i.e. amendments to current
rules, proposed new rules, and proposed deletions from current rules).
(Appendices A - D).
Also attached are three lists which provide synopses of the rules to
which changes are proposed. The first list contains all of
the changes to the above-referenced rules. (Appendix E). The second
list is limited to the substantive changes. (Appendix F).
The final list is limited to the non-substantive,
"housekeeping" changes to SCR 20:1.15. (Appendix G).
KEY PROPOSALS: The Petitioners recognize that certain proposals
involve significant changes that should be specially brought
to the court's attention. The following proposals fall in that
SCR 20:1.15 Safekeeping property; trust accounts and
SCR 20:1.15(b)(4m) Alternative protection for advanced
fees. This proposal is a new provision that will allow a lawyer
to deposit unearned, advanced fees into his/her business account,
rather than a trust account, subject to certain conditions.
Those conditions include providing clients with written notice of the
lawyer's obligation to refund any unearned fee and to submit
any disputed fee to binding arbitration. A lawyer is further required
to notify the client that the client may submit a claim to the
Fund for Client Protection in the event the lawyer fails to refund an
unearned fee. The proposal also specifies the steps that a
lawyer must take to protect the client at the termination of a
representation, the steps that must be taken if the client disputes
the lawyer's fee, and the steps that must be taken following a
determination that a refund is owed.
SCR 20:1.15(e)(4)h. Fee advances by credit card, debit card and
deposit. This proposal is a new provision
that will allow lawyers to accept credit and debit card payments as
well as other forms of electronic deposit in payment of fee
advances, provided that a separate trust account is established for
SCR 20:1.15(g) Withdrawal of non-contingent fees from trust
account. This proposal amends the existing rule to allow
fees paid pursuant to a court order to be withdrawn without the five
day waiting period prior to withdrawal. It also includes a
new provision that allows lawyers to withdraw funds on the date that
the invoice is mailed to the client, provided that the client
has previously been advised in writing that the fee will be withdrawn
at that time. Finally, the proposal repeals the existing
rule regarding what the lawyer is required to do when a client objects
to the fee and creates a new rule that more clearly defines when
a disputed fee must be returned to the trust account.
SCR 20:1.15(k)(4) Exceptions to SCR
20:1.15. This proposal adds an exception to the trust account
rule for lawyers
whose employer is not engaged in the practice of law, provided that
the employment is not ancillary to the lawyer's law practice.
SCR 21.16 Discipline.
SCR 21.16(5m) Restitution. This proposal is a final
component of the alternative protection for advanced fees. In order
to assure that the Fund for Client Protection is protected to the
extent authorized by law, this rule requires that, whenever the
court orders restitution to the Fund, the court shall issue a judgment
in favor of the Fund, which judgment has the same force and
effect as judgments docketed pursuant to Wis. Stat. Secs. 809.25 and
SCR 12.04 Wisconsin lawyers' fund for Client Protection:
creation and purpose; definitions.
SCR 12.04(2)(e) "Dishonest
Conduct." This proposal is a key component of the
alternative protection for advanced fees,
which is proposed in SCR 20:1.15(b)(4m). In order to assure that the
Fund for Client Protection will reimburse a client if the
client's lawyer fails to refund an unearned fee, the definition of
"dishonest conduct" must be expanded to include the failure to
an unearned fee.
SCR 12.04(2)(g)(iii)4. "Reimbursable
Loss." This proposal, like the prior one, is a key component
of the alternative
protection for advanced fees. In order to assure that the Fund for
Client Protection will reimburse a client if the client's lawyer fails
refund an unearned fee, the definition of "reimbursable
loss" must be expanded to include a lawyer's failure to refund an
CONCLUSION: Attached to this Petition are the Proposed Amendments to
Supreme Court Rules 20:1.15, 20:1.0, 21.16
Respectfully submitted by:
Keith L. Sellen, Director, Office of Lawyer Regulation
D. Michael Guerin, President, State Bar of Wisconsin
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