Vol. 79, No. 7, July
Legal News & Trends
Wisconsin Supreme Court clarifies arbitration
On June 13, the Wisconsin Supreme Court issued its decision in
Borst v. Allstate Insurance Co., Appeal No. 2004AP2004, Cir.
Ct. No. 2002 CV1601 (2006), a case involving core issues related to
arbitration likely to influence, if not directly affect, many future
arbitrations in Wisconsin. The issues in Borst include, under
Wis. Stat. sections 788.10(1)(b) (2003-04) and 788.07, the test for
determining an arbitrator's disqualifying "evident partiality," and the
source and scope of discovery that arbitrators have the authority to
permit or to prohibit.
Following the recommendations of the State Bar's Alternative Dispute
Resolution (ADR) Section in its amicus brief, the court adopted
a presumption of impartiality among all arbitrators - including
arbitrators unilaterally named by the various parties - to participate
on a panel; and held that "evident partiality" cannot be avoided simply
by a full disclosure of the circumstances of his or her relationship to
the particular party together with a declaration of impartiality. The
court also ruled that the parties in arbitration are limited to
deposition discovery (under Wis. Stat. § 788.07) and nothing more,
absent an express agreement to the contrary, reasoning that arbitrators
have no inherent authority to authorize broader discovery.
Earlier the court of appeals, after considering all the parties'
briefs, requested that the supreme court accept certification of the
appeal, which it did on January 20 of this year.
With regard to the "evident partiality" issue, the Borst
arbitrator was a named member of a law firm that had been - prior to the
arbitration - regularly retained by Allstate. Allstate however argued
against disqualification, stating that the arbitrator's full disclosure
of these circumstances at the outset of the proceeding, and declaration
of impartiality, were a sufficient inoculation against the statute's
As to discovery, Wis. Stat. section 788.07 provides that arbitrators
may approve a party's petition to a court of record for permission to
conduct a deposition, but the parties in Borst disagreed
whether arbitrators have the authority, or don't, to authorize and
regulate all forms of discovery.
The ADR Section's amicus brief, inter alia,
disclaimed alignment with any of the parties to the appeal and took no
position concerning needed factual determinations or the appropriate
outcome of their underlying dispute; recognized the wide array of
arbitration panel selection criteria and practices including the use of
industry experts, party-aligned or "advocacy" arbitrators, and neutrals;
and urged the court to articulate a presumption of impartiality required
of all arbitrators, absent an explicit agreement of all parties to the
contrary. The ADR Section further urged that limitations on discovery be
governed by the parties' contract for arbitration; and that the court
also recognize arbitrators' inherent authority to authorize and regulate
all forms of discovery even absent contractual authority to do so.
The significance of these types of issues was underscored while the
Borst appeal was pending, when the lead story in the Feb. 23,
2006 New York Times Business Section reported the details of a
$900 million Citigroup arbitration, involving a related, although
factually different issue, viz., arbitrator's failure to
disclose allegedly disqualifying relationships ("Arbitrator in Citigroup
Case Accused of Conflicts of Interest").
In June 2005, Presiding Judge Daniel P. Anderson, Wisconsin Court of
Appeals, District II, asked the ADR Section to participate by submitting
an amicus brief in the case. Following approval of this request
by the ADR Section's Board of Directors and the State Bar's Board of
Governors, Madison attorney Mark Frankel and his associates at La
Follette Godfrey & Kahn researched, prepared, and drafted all the
court of appeals and supreme court briefs. Working with attorney Frankel
and his firm, as the ADR Section's Amicus Committee, were Howard
Bellman, Madison; Natalie Fleury, Wauwatosa; and Barbara Burbach, Gary
Gerlach, David Jarvis, Kevin Lyons, and Alan Brostoff, all of
Contributing writer Alan Brostoff served as the chair of the ADR
Section's Amicus Drafting Committee and was chair of the ADR Section in
Wisconsin Supreme Court needs
Lawyers and public members statewide sought for committee service
The Wisconsin Supreme Court annually fills more than 300 seats on
committees and boards with lawyers and nonlawyers statewide. Volunteers
are needed for the Office of Lawyer Regulation (OLR), the Board of Bar
Examiners (BBE), and the Judicial Commission. Terms are two- or
three-year appointments. Nominations are made in August and March
"The Court relies on volunteers, both lawyers and nonlawyers, because
of their diverse expertise and community presence, to serve on our
numerous committees and boards," says Chief Justice Shirley S.
Abrahamson. "It's a steep hill to find 300-plus volunteers annually, and
currently several committees and boards are operating without full
representation. I urge lawyers to volunteer and to speak with their
community leaders about serving - even if only for a single term."
The court has charged the OLR to investigate lawyers who may have
violated the Rules of Professional Conduct. The following OLR committees
- Board of Administrative Oversight - monitors the fairness,
effectiveness, and efficiency of the attorney regulation system;
committee of eight lawyers and four nonlawyers meets four to six times a
- District Committees - assist in investigating certain disciplinary
cases against lawyers; 16 committees statewide comprise lawyers and
- Preliminary Review Committee - reviews investigations and determines
if cause exists for the OLR to file a complaint against a lawyer;
committee of nine lawyers and five nonlawyers meets four to six times a
- Special Preliminary Review Panel - reviews investigations of
grievances against participants in the lawyer regulation system; panel
includes four lawyers and three nonlawyers.
- Special Investigators - investigate grievances against participants
in the lawyer regulation system.
The BBE administers Wisconsin's continuing legal education
requirement for lawyers and writes and grades the bar exam. The BBE
seeks volunteers for its board of five lawyers, three judges, a law
school faculty, and three nonlawyers (nonlawyers do not grade the
The Judicial Commission needs volunteers to review complaints against
judges. The commission comprises a court-appointed trial judge, a court
of appeals judge, and two lawyers. The governor, with senate approval,
appoints five nonlawyers.
Individuals who are interested in serving are invited to send a
letter with a resume to Cornelia Clark, Clerk of the Supreme Court, P.O.
Box 1688, Madison, WI 53701-1688. For more information about these
boards and committees, contact Clark at (608) 266-1880 or visit www.wicourts.gov/about/committees/index.htm
Family welcomes third generation to the legal profession. Top, from
left: the Hon. Leah M. Lampone, former Milwaukee Circuit Court judge,
mother; Attorney James J. O'Donnell, grandfather; Attorney Kevin M.
O'Donnell, father; and new Bar member, Attorney Daniel J. O'Donnell.
Bottom: New lawyers applaud family members for their support and
encouragement immediately following swearing-in ceremony.
State Bar welcomes 115 new
U.W. Law School class sworn in at Capitol
On June 20, 115 U.W. Law School graduates were admitted to practice.
The new lawyers were welcomed to the profession by the Wisconsin Supreme
Court justices, U.W. Law School Dean Kenneth B. Davis, then State Bar
President D. Michael Guerin, and Wisconsin Board of Bar Examiners
Director John E. Kosobucki.
Following each swearing-in ceremony, Justice Louis B. Butler Jr.
spoke to the new lawyers. "We must at all times educate ourselves and
conduct ourselves in a manner so that we can continue to point to our
chosen vocation as a profession worthy of distinctive recognition. Law
is the intangible force that makes justice, freedom, and progress
possible. It is the law that brings order into the affairs of people and
enables all of us to lift our sights, to develop the arts, to pursue
knowledge, to enjoy life among our fellow citizens. Law gives us the
individual security that we can obtain in no other way. It is the cement
that holds our free society together."
This brings State Bar membership to 22,212.