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    Vol. 79, No. 6, June 2006

    Supreme Court Orders


    The Wisconsin Supreme Court has amended supreme court rules relating to cost assessments in the lawyer regulation system and to record retention, and amended statutes relating to appeal procedures in termination of parental right cases.

    Lawyer Regulation System Costs

    In the matter of the Petition for Amendment to Supreme Court Rules relating to Cost Assessments in the Lawyer Regulation System

    Order 05-01

    On Jan. 18, 2005, Keith Sellen, Director of the Office of Lawyer Regulation (OLR), filed a petition to amend Supreme Court Rule 22.001 (3) relating to cost assessments in the lawyer regulation system. The State Bar of Wisconsin's Board of Governors (Board) opposed the OLR's petition and offered an alternate approach, developed with the assistance of Director Sellen. The Board proposed an approach by which the referee reviewing the disciplinary proceeding would make recommendations to the court regarding the assessment of costs.

    A public hearing on the matter was conducted on Nov. 14, 2005. Several individuals participated. The court took the matter under advisement pending the receipt of further information, including the results of a Bench and Bar Survey conducted by the State Bar of Wisconsin, which included questions regarding the allocation of fees and costs in lawyer disciplinary proceedings.

    At its open administrative conference on March 7, 2006, the majority of the court voted to amend the rules relating to the assessment of costs in lawyer disciplinary proceedings as set forth herein. Therefore,

    IT IS ORDERED that the petition to amend SCR 22.001 (3) is denied;

    IT IS FURTHER ORDERED that a modified version of the proposal advanced by the Board is adopted effective July 1, 2006, whereby the supreme court will exercise discretion with respect to the assessment of costs using criteria proposed by the Board as set forth herein;

    Section 1. 22.24 (1m) is created to read:

    22.24 (1m) The court's general policy is that upon a finding of misconduct it is appropriate to impose all costs, including the expenses of counsel for the office of lawyer regulation, upon the respondent. In cases involving extraordinary circumstances the court may, in the exercise of its discretion, reduce the amount of costs imposed upon a respondent. In exercising its discretion regarding the assessment of costs, the court will consider the submissions of the parties and all of the following factors:

    (a) The number of counts charged, contested, and proven.

    (b) The nature of the misconduct.

    (c) The level of discipline sought by the parties and recommended by the referee.

    (d) The respondent's cooperation with the disciplinary process.

    (e) Prior discipline, if any.

    (f) Other relevant circumstances.

    Section 2. SCR 22.24 (2) is amended as follows:

    22.24 (2) In seeking the assessment of costs by the supreme court, the director shall file in the court a statement of costs within 20 days after the filing of the referee's report, or a SCR 22.12 or 22.34(10) stipulation, together with a recommendation to the court regarding the costs to be assessed against the respondent. provided that if If an appeal of the referee's report is filed or the supreme court orders briefs to be filed in response to the referee's report, the a supplemental statement of costs and recommendation regarding the assessment of costs shall be filed within 14 days after the appeal is assigned for submission to the court or the briefs ordered by the court are filed. The recommendation should explain why the particular amount of costs is being sought. Objection to the a statement of costs [which may include relevant supporting documentation] shall be filed by motion within 10 21 days after service of the statement of costs. The director has the burden of establishing costs to be assessed. A respondent who objects to a statement of costs must explain, with specificity, the reasons for the objection and must state what he or she considers to be a reasonable amount of costs. The office of lawyer regulation may reply within 11 days of receiving the objection.

    IT IS FURTHER ORDERED that this order shall apply prospectively to disciplinary proceedings, medical incapacity proceedings, or reinstatement proceedings filed on or after July 1, 2006;

    IT IS FURTHER ORDERED that unless this order is amended, these amendments to Supreme Court Rule 22.24 shall expire on Dec. 31, 2008;

    IT IS FURTHER ORDERED that notice of this amendment to the supreme court rules 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 1st day of May, 2006.

    By the court:
    Cornelia G. Clark, Clerk of Supreme Court

    ¶1 DAVID T. PROSSER, J. (dissenting). For many years Supreme Court rules have authorized the assessment of costs against attorneys in disciplinary proceedings. See In re Disciplinary Proceedings Against Konnor, 2005 WI 37, ¶45 n.5, 279 Wis. 2d 284, 694 N.W.2d 376 (Abrahamson, C.J., concurring). The court's authority is presently embodied in SCR 22.24(1), which provides that the court "may assess against the respondent [attorney] all or a portion of the costs of a disciplinary proceeding in which misconduct is found."

    ¶2 The court's practice in recent years has been to impose all costs against the respondent if any misconduct is found. As a general rule, the court has been unwilling to exercise its discretion to apportion costs, even when the respondent prevails in disputes about some charges, the level of discipline to be imposed, or some contested procedural matter. See Konnor, ¶¶93-114 (Prosser, J., concurring in part, dissenting in part).

    ¶3 The court's unwillingness to apportion costs in these circumstances has generated controversy. The creation of SCR 22.24(1m) and the amendment to SCR 22.24(2) are the court's half-hearted response to this controversy. These changes give the court specific factors to consider when it receives a request for apportionment of costs, but their application is limited to "extraordinary circumstances."

    ¶4 I dissent from the changes for two reasons. First, I believe that recommendations for apportionment should be made by our referees. In short, I support the plan proposed by the State Bar of Wisconsin. Second, the introduction of "extraordinary circumstances" into the rule amounts to nothing less than the rationing of fairness.

    ¶5 I hope I am wrong and the experience under the new rules will produce a transparent, fair attorney discipline system. Time will tell.

    ¶6 I am authorized to state that Justices PATIENCE DRAKE ROGGENSACK and LOUIS B. BUTLER join this dissent.

    ¶7 LOUIS B. BUTLER, JR., J. (dissenting). The court now formally adopts a general policy that upon a finding of misconduct, it is appropriate to impose all costs, including the expenses of counsel for the Office of Lawyer Regulation (OLR), upon the respondent. SCR 22.24(1m). This policy merely implements what has been the past practice of this court. See, e.g., In re Disciplinary Proceedings Against Pangman, 216 Wis. 2d 440, 460, 574 N.W.2d 232 (1998). See also, In re Disciplinary Proceedings Against Kalal, 2002 WI 45, ¶33, 252 Wis. 2d 261, 278, 643 N.W.2d 466; and In re Disciplinary Proceedings Against Johnson, 165 Wis. 2d 14, 20, 477 N.W.2d 54 (1991). While the court may, in its discretion, reduce the amount of costs imposed upon the respondent when "extraordinary circumstances" are present, and indeed has set forth criteria to be considered in that regard,1 I fear that this rule goes too far in memorializing a policy that unnecessarily limits our discretion to fairly and justly decide the matter before us. I therefore respectfully dissent from the implementation of this rule.

    ¶8 To me, it is perfectly reasonable, and indeed appropriate, to assess full costs against an attorney who has committed the misconduct that led to the imposition of those costs. When one does wrong, one should be held accountable.

    ¶9 On the other hand, it is fundamentally unfair to assess the costs of the proceedings against one who has done no wrong. We certainly would not hold a criminal defendant accountable for offenses he or she did not commit. Nor should we expect an attorney, who has every right to clear his or her name, to be responsible for a prosecution that yields no fruit. Our system of justice presumes innocence until guilt is proven. We should adhere to that principle when imposing attorney discipline.

    ¶10 As is often the case, the devil is in the details. Attorneys frequently face multiple violations in an OLR proceeding. Many times, all counts are established, so that no issue is presented as to how costs should be apportioned. At times, an attorney is cleared of all counts, leaving no issue regarding costs the court should impose. The problem arises where the OLR proves some, but not all, of the charges facing an attorney. The question becomes one of how costs should be apportioned.

    ¶11 This court has adhered to the general practice that it rejects objections to full assessments of costs based on an apportionment of the number of misconduct allegations established. I do not entirely disagree with that practice. I have previously stated that when one has committed rules violations that are substantially related to unproven allegations, it is the attorney's misconduct that forces the need for further investigation. Thus, the attorney should be responsible for all costs associated with the investigation, whether proven or not. See In re Disciplinary Proceedings Against Polich, 2005 WI 36, 279 Wis. 2d 266, 694 N.W.2d 367 (Butler, J. concurring in part, dissenting in part), and In re Disciplinary Proceedings Against Backes, 2005 WI 59, 281 Wis. 2d 1, 697 N.W.2d 49 (Butler, J. concurring in part, dissenting in part).

    ¶12 I strongly disagree that an attorney should be held accountable and responsible for full costs when the attorney is absolved of any misconduct that is wholly unrelated to other misconduct that was found. For example, if an attorney is charged with 15 counts of misconduct relating to five clients, three counts per client, but OLR proves only one count relating to one client, it is now court policy under the new rule that the attorney pay full costs for all 15 counts. While I recognize and appreciate the fact that the rule now has established criteria for the exercise of our discretion regarding the assessment of costs, our exercise of discretion is limited to cases involving "extraordinary circumstances." SCR 22.24(1m). This policy is backwards, and presumes fault instead of innocence.

    ¶13 I fully understand why this court does not want to pass the costs of OLR proceedings on to the full bar. In most cases, I agree with that sentiment. Attorneys who have done no wrong should not have to pay for those who commit misconduct. Yet, some attorneys who appear before us in disciplinary proceedings have similarly done no wrong with respect to some of their clients, and that same sentiment should apply to them.2 A policy that would seem to make more sense, assuming a policy is needed at all, is one that would impose full costs for all charges established, with this court having the discretion to charge additional costs for charges that were not established but that were substantially related to misconduct that was proven. Requiring attorneys to pay for the costs of all of the proceedings, when their conduct does not violate any rule or relate to misconduct that has been established, is simply wrong.

    ¶14 For the foregoing reasons, I respectfully dissent. I am authorized to state that Justice DAVID T. PROSSER and Justice PATIENCE DRAKE ROGGENSACK join this opinion.

    1SCR 22.24(1m).

    2When this occurs, it makes more sense to spread the costs of the OLR prosecutions among the approximately 22,000 members of the state bar, resulting in a miniscule increase in the assessment for each attorney, than to impose literally thousands of dollars upon a single attorney.

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    Rules of Appellate Procedure

    In the matter of Proposed Amendments to Wis. Stat. ss. 809.107 and 809.14

    Order 05-07

    On June 22, 2005, the Judicial Council filed a petition proposing certain amendments to Wis. Stat. ss. 809.107 and 809.14 of the Rules of Appellate Procedure relating to appeal procedures in termination of parental right (TPR) cases. A public hearing on the matter was conducted on Nov. 14, 2005. The State Bar of Wisconsin supported the petition. At the hearing, the petitioner advised the court of pending legislation, 2005 A.B. 521, generally consistent with the petition, and withdrew certain language from the petition to ensure consistency with the pending legislation. See also Comments of Wisconsin District Attorneys Association filed Oct. 26, 2005.

    At the ensuing open administrative conference the court voted unanimously to adopt the petition with the changes proffered by the petitioner, but held the matter in abeyance pending resolution of the pending legislation. On April 10, 2006, the governor signed 2005 A.B. 521 into law, thereby enacting 2005 Wisconsin Act 293 (the Act), which generally became effective April 21, 2006, except as noted in s. 71 of the Act. Accordingly, effective July 1, 2006, Wis. Stat. ss. 809.107 and 809.14 of the Rules of Appellate Procedure are amended as follows:

    Section 1. 809.107 (1m) of the statutes is created to read:

    809.107 (1m) Definition. In this section, "appellant" means a person who files a notice of intent to pursue postdisposition or appellate relief.

    Section 2. 809.107 (2) (title) of the statutes is repealed and recreated to read:

    809.107 (2) Appeal or Postdisposition Motion.

    Section 3. 809.107 (2) (am) of the statutes is created to read:

    809.107 (2) (am) Appeal procedure; counsel to continue. A person seeking postdisposition or appellate relief shall comply with this section. If the person desires to pursue postdisposition or appellate relief, counsel representing the person during circuit court proceedings under s. 48.427 shall continue representation by filing a notice under par. (bm), unless sooner discharged by the person or by the circuit court.

    Judicial Council Note 2006 to Rule 809.107 (2) (am): The creation of s. 809.107 (2) (am) requires counsel representing a parent who wants to appeal the TPR disposition to file a notice of intent to pursue postdisposition or appellate relief. Trial counsel's representation continues until the notice of intent is filed.

    Section 4. 809.107 (2) of the statutes is renumbered 809.107 (2) (bm) and amended to read:

    809.107 (2) (bm) Initiating the Appeal. Notice of intent to pursue postdisposition or appellate relief. A person shall initiate an appeal under this section by filing, within the time 30 days after the date of entry of the judgment or order appealed from, as specified in s. 808.04 (7m), a notice of intent to appeal pursue postdisposition or appellate relief with the clerk of the trial circuit court in which the judgment or order appealed from was entered. Also within that time period, the person appellant shall serve a copy of the notice of intent on the person representing the interests of the public, opposing counsel, the guardian ad litem appointed under s. 48.235 (1) (c) for the child who is the subject of the proceeding, the child's parent and any guardian and any custodian appointed under s. 48.427 (3) or 48.428 (2). The notice of intent shall include all of the following:

    (a) 1. The circuit court case name, number, and court caption.

    (b) 2. An identification of the judgment or order from which the person filing the notice intends to appeal appellant intends to seek postdisposition or appellate relief and the date on which it the judgment or order was granted or entered.

    (c) 3. The name and address of the person filing the notice of intent to appeal and the person's appellant and the appellant's trial counsel.

    (d) 4. For a person an appellant other than the state, whether the trial counsel for the person filing the notice of intent to appeal appellant was appointed by the state public defender and, if so, whether the person's appellant's financial circumstances have materially improved since the date on which the person's appellant's indigency was determined.

    (e) 5. For a person an appellant other than the state, whether the person filing the notice of intent to appeal who does not request representation by the state public defender, whether the appellant will represent himself or herself or will be represented by retained counsel or requests the state public defender to appoint counsel for the appeal . If the person appellant has retained counsel to pursue postdisposition or appellate relief, the counsel's name and address shall be included.

    Section 5. 809.107 (2) (bm) 4m. of the statutes is created to read:

    809.107 (2) (bm) 4m. Whether the appellant requests representation by the state public defender for purposes of postdisposition or appellate relief.

    Judicial Council Note 2006 to Rule 809.107 (2) (bm): Subsection 809.107 (2) (bm) contains the substance of former sub. (2). The amendment adds the case number to the content requirements for the notice of intent. Subsection (2) (bm) 2. deletes a reference to the date on which the judgment or order was granted because the time limits in s. 808.04 (7m) commence on the date the judgment or order was entered.

    Section 6. 809.107 (2) (c) of the statutes is created to read:

    809.107 (2) (c) Early notice of intent to pursue postdisposition or appellate relief. If the record discloses that the judgment or order appealed from was entered after the notice of intent to pursue postdisposition or appellate relief was filed, the notice of intent shall be treated as filed after that entry and on the date of the entry.

    Judicial Council Note 2006 to Rule 809.107 (2) (c): The amendment to s. 809.107 (2) (c) addresses the practical concern that arises when a notice of intent is filed before the final judgment or order is entered. Similar to § 808.04(8), the amendment allows the filing date of the notice of intent to be deemed the date that the judgment or order was entered, and thereby preserves appellate jurisdiction.

    Section 7. 809.107 (3) of the statutes is amended to read:

    809.107 (3) Duties of Clerk of Trial Court. Clerk to Send Materials. Within 5 days after a notice under sub. (2) (bm) is filed, the clerk of the circuit court shall do all of the following:

    (a) If the person filing the notice of intent to appeal under sub. (2) appellant requests representation by the state public defender for purposes of the appeal, postdisposition or appellate relief, the clerk shall send to the state public defender's appellate intake office a copy of the notice of intent that shows the date on which the notice was filed, a copy of the judgment or order specified in the notice and that shows the date on which the judgment or order was entered, a list of the court reporters for each proceeding in the action in which the judgment or order was entered, and a list of those proceedings for which a transcript already has been filed with the clerk of circuit court.

    (b) If the person filing the notice of intent to appeal appellant does not request representation by the state public defender, for purposes of the appeal, the clerk shall send or furnish to the person appellant, if the person appellant is appearing without counsel, or to the person's appellant's attorney, if one has been retained, a copy of the judgment or order specified in the notice and that shows the date on which the judgment or order was entered, a list of the court reporters for each proceeding in the action in which the judgment or order was entered, and a list of those proceedings in which a transcript already has been filed with the clerk of circuit court.

    Judicial Council Note 2006 to Rule 809.107(3): To facilitate compliance with the time limits in this section, the amendment requires the clerk to send a copy of the judgment or order that shows the date on which it was entered and a list of transcripts already on file to the state public defender's intake office, or to the person if appearing without counsel, or to retained counsel.

    Section 8. 809.107(4) (title) of the statutes is amended to read:

    809.107 (4) Transcript Request for Transcript and Circuit Court Case Record.

    Section 9. 809.107 (4) is renumbered 809.107 (4) (b) and amended to read:

    809.107 (4) (b) Person not represented by public defender. A person filing a notice of intent to appeal under sub. (2) An appellant who does not request representation by the state public defender for purposes of postdisposition or appellate relief shall request a transcript of the reporter's notes, and may request a copy of the circuit court case record within 15 days after filing the notice of intent under sub. (2) (bm). An appellant who is denied representation by the state public defender for purposes of postdisposition or appellate relief shall request a transcript of the reporter's notes, and may request a copy of the circuit court case record, within 30 days after filing a notice of intent under sub. (2) (bm).

    (4m) Filing and Service of Transcript and Circuit Court Case Record. The court reporter shall file the transcript with the circuit court and serve a copy of the transcript on the person filing the notice of intent to appeal appellant within 30 days after the transcript is requested. The clerk of circuit court shall serve a copy of the circuit court case record on the person filing the notice of intent to appeal appellant within 30 days after the court case record is requested, and shall indicate in the case record the date and manner of service.

    Section 10. Section 809.107 (4) (a) of the statutes is created to read:

    809.107 (4) (a) State public defender appointment of counsel. Within 15 days after the state public defender appellate intake office receives the materials from the clerk of circuit court under sub. (3) (a), the state public defender shall appoint counsel for the appellant and request a transcript of the reporter's notes and a copy of the circuit court case record.

    Judicial Council Note 2006 to Rule 809.107(4) and (4m): New s. 809.107 (4) (a) codifies existing practice and establishes a time limit for the state public defender to appoint counsel and request transcripts and circuit court case records. The public defender's time limit commences on the date that the public defender's office receives the materials from the circuit court clerk, rather than on the date the notice of intent is filed, so as to reduce the number of extension motions that must be filed when the clerk does not timely send the materials under sub. (3) (a).

    The amendment to s. 809.107 (4) (b) clarifies the procedure applicable to persons who are not represented by the state public defender and creates time limits applicable to a person who has applied for and has been denied public defender representation. In the latter case, the rule provides an additional 15 days for the person to obtain private counsel and request a copy of the transcript and case record. The time limit is set at 30 days because 15 days will have expired while the public defender's office determines whether the person is eligible for appointed counsel. This time limit commences on the date the notice of intent was filed, rather than the date of the public defender's determination because that determination does not appear in the case record.

    Subsection (4m) includes the last two sentences of former sub. (4). Subsection (4m) also creates a new requirement for the circuit court clerk to indicate the date and manner of service in the case record. The new requirement is necessary because the notice of appeal time limit is measured from the date of service of the case record or transcript, whichever is later.

    Section 11. 809.107 (5) (title), (a), (b) (title), (c) (title), and (e) (title) of the statutes are amended to read:

    809.107 (5) Notice of Appeal; Transmittal of Record . (a) Filing; copy and service of notice of appeal. Within 30 days after the later of the service of the transcript or the circuit court case record, unless extended under s. 809.82, the person filing a notice of intent to appeal under sub. (2) appellant shall file a notice of appeal as provided in s. 809.10(1) and serve a copy of the notice on the persons required to be served under sub. (2) (bm).

    (b) Transmittal of record by clerk.

    (c) Requesting transcripts for other parties.

    (e) Service of transcripton other parties.

    Judicial Council Note 2006 to Rule 809.107 (5): The amendment to s. 809.107 (5) (a) clarifies that the time limit for filing a notice of appeal commences 30 days from the later of the service of the transcript or case record. Persons contemplating filing a notice of appeal are better able to assess grounds for relief after reviewing both the transcripts and the circuit court case record.

    Section 12. 809.14 (1) of the statutes is amended to read:

    809.14 (1) A party seeking an order or other relief in a case shall file a motion for the order or other relief. The motion must state the order or relief sought and the grounds on which the motion is based and may include a statement of the position of other parties as to the granting of the motion. A motion may be supported by a memorandum. Any Except as provided in sub. (1m), any other party may file a response to the motion within 11 days after service of the motion.

    Section 13. 809.14 (1m) of the statutes is created to read:

    809.14 (1m) If a motion is filed in an appeal under s. 809.107, any other party may file a response to the motion within 5 days after service of the motion.

    Judicial Council Note 2006 to Rule 809.14(1) and (1m): The amendment to s. 809.14 (1) and the creation of s. 809.14 (1m) to establish a shorter response time to appellate motions should advance the ultimate resolution of TPR appeals.

    IT IS ORDERED that the Judicial Council Notes to these rules are not adopted but shall be printed for information purposes.

    IT IS FURTHER ORDERED that notice of this amendment of 809.107 and creation of 809.14 (1m) 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 1st day of May, 2006.

    By the court:
    Cornelia G. Clark, Clerk of Supreme Court

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    Record Retention

    In re amendment of SCR 72.01 Regarding Record Retention

    Order 06-01

    On Jan. 30, 2006, the Director of State Courts filed a petition seeking to amend Supreme Court Rule 72.01, regarding record retention. A public hearing on the petition was held on April 25, 2006. The Honorable James R. Kieffer presented the petition on behalf of the Records Management Committee and offered testimony in support of the petition.

    At the ensuing open administrative conference, the court voted unanimously to adopt the petition. Accordingly, effective July 1, 2006, SCR 72.01 (8) is amended as follows:

    Section 1. 72.01 (8) of the Supreme Court Rules is amended to read:

    72.01 (8) Small claims case files. All papers deposited with the clerk of courts in every proceeding commenced under chapter 799 of the statutes: 20 years after entry of final order or judgment for all cases, including contested cases, stipulated dismissals and default judgments; 1 year except 2 years from date of filing entry of judgment for dismissed cases dismissed because issue was not joined and the case was not disposed of by judgment or stipulation within 6 months from the original return date.

    IT IS ORDERED that this amendment shall apply to dismissed small claims actions in which the judgment of dismissal is entered on or after July 1, 2006.

    IT IS FURTHER ORDERED that notice of this amendment of SCR 72.01 (8) 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 1st day of May, 2006.

    By the court:

    Cornelia G. Clark
    Clerk of Supreme Court

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