Vol. 80, No. 2, February 2007
Wisconsin Faces Growth of Consumer Arbitration
In the December issue, Briane F. Pagel Jr. wrote an article suggesting that Wisconsin Auto Title Loans v. Jones, 714 N.W.2d 155 (Wis. 2006), has "sounded the death knell" for consumer arbitration in Wisconsin. For the sake of consumers and consumer businesses, we should all hope his dire prediction is dead wrong.
Arbitration ought to be - and is now - available to everyone, including people involved in routine consumer transactions and relationships. The days of arbitration being available only to corporations and the rich are over, and Wisconsin, with its rich history of populism, is a great place for the growth - not the demise - of consumer arbitration. That will be the true legacy of Jones.
Of course consumer arbitration has to be fair. And that is what the Wisconsin Supreme Court held - in line with other state and federal courts. An arbitration clause in a form contract must be mutual. For instance, in Jones, the court invalidated the arbitration agreement mainly because it allowed the lender to seek judicial relief while requiring the borrower to arbitrate all of his claims. Arbitration agreements with a unilateral right to seek judicial relief spring from the misconception that arbitrators lack full authority to grant both legal and equitable relief, but arbitrators can be empowered with the same authority a judge has as arbitrator to grant all forms of relief available in a court of law (see, e.g., National Arbitration Forum (Forum) Code of Procedure Rule 20D).
Similarly, arbitration hearings must comport with due process and be conducted in a venue convenient for the parties. Well-drafted arbitration clauses that incorporate modern rules of arbitration do just that. Under Rule 32A of the Forum Code of Procedure, if a business files an arbitration claim against a consumer, any in-person hearings must be held in a "reasonably convenient location" within the federal judicial district where the consumer resides.
The Jones decision simply serves as a reminder that Wisconsin courts will invalidate an unfair arbitration agreement when the agreement is unenforceable on state contract law grounds. In this, Jones fits squarely within the legal framework of the Federal Arbitration Act and decisions of the U.S. Supreme Court. The Wisconsin Supreme Court could not do what Mr. Pagel suggests because controlling federal and state law developed over the past 20 years upholds and promotes the use of consumer arbitration.
So, contrary to any exaggerated rumors of arbitration's impending demise, the fairness and convenience of arbitration will ensure that it remains a vital and auspicious means for Wisconsin consumers to resolve their disputes. The reality is that arbitration offers affordable and effective civil justice to Wisconsin consumers, especially those unable to afford to litigate or retain a lawyer. The Jones case reaffirms this populist principle.
Roger Haydock, Director of Education, National Arbitration Forum,
Do Not Abandon Diploma Privilege
I strongly disagree with President Steve Levine's opinion in the November 2006 Wisconsin Lawyer that the diploma privilege should be abandoned.
As a trial attorney with over 25 years' experience, I agree with the general sentiment of his statement that "most lawyers who have passed the bar exam will tell you that the bar exam bears little if any relationship to a lawyer's ability to practice law."
Wisconsin has a long history of substantive approach to ensure access to the legal process. This is good for parties and attorneys. Our courts allow for pro hac representation and even nonlawyer representation in certain administrative proceedings. Other states' courts recognize Wisconsin attorneys. The bar exam may provide a measure of qualification to practice, but so does graduation from an accredited law school. (Especially, Wisconsin's two great law schools.) Our law schools are already reviewed for quality and standards. Law school and the bar exam are only the beginning of a career in the profession and mentoring is a better way than an exam to ensure quality.
Diploma privilege has nothing to do with discrimination. President Levine's allusion to race discrimination does not relate. Maybe the diploma privilege properly exists to influence highly educated graduates of U.W. and Marquette Law Schools to stay in Wisconsin. I think the imposition of a bar exam is merely an arbitrary impediment to persons who want to become lawyers.
Finally, this is not a pressing issue that the Bar needs to address. There are many more significant and pressing issues that our resources could better be used to address, like providing legal services to indigent parties and educating the public about law and legal process.
Kevin J. Killeen,
Does the Bar President's Agenda Matter?
What to make of Steve Levine's election as president of the State Bar of Wisconsin? Was his election a referendum on the voluntary bar? Did it really have anything to do with the diploma privilege? Should we allow nonresident lawyers, unlike all in-state attorneys, to avoid Wisconsin-approved CLE, yet practice in Wisconsin? In Mr. Levine's first presidential column in the August 2006 Wisconsin Lawyer, he called the election: "Astounding, historic, unprecedented, unthinkable." There are apparently a lot of people who at least agree with "unthinkable."
To evaluate whether any of the adjectives apply, one first must understand the State Bar's election process. Seeking geographical fairness and diversity, the Bar has operated under an unwritten rule requiring that the presidential nominees come from Milwaukee in one year, Madison the following year, and from out-state in the next. Rotation was done to attain some regional fairness and balance. It worked for years.
In the 2005 election, two outstanding, out-state candidates, Dean Dietrich from Wausau and Jeff George from La Crosse, both extremely active in the Bar, were the nominees. They discussed the significant needs of the practice and the dangers to the justice system - from relentless assaults on it to ignorance about it. They garnered the majority of votes in the election, running on virtually the same platform.
Steve Levine, a lifelong Madison government attorney, needed only 100 signatures to get on the ballot. In an election that featured two out-state candidates, he would be the only candidate from the two populous cities. He could clean up in government attorneys (the vast majority located in Milwaukee and Madison), and the Dane County attorneys were a sure thing since we've never met a renegade we couldn't embrace. Add freeing nonresident lawyers from Wisconsin-approved CLE and you had critical mass. I suppose Mr. Levine's decision to undercut the process everyone before him had respected could be considered both "astounding" and "historic."
I suppose we should ask: does the Bar president's agenda really matter? Do the lawyers care about the justice system, the unlicensed practice of law by "how-to" form houses, the gradual erosion of the Bill of Rights, the ethics rules and how they affect practitioners, the attacks on the jury system, maintaining an outstanding CLE system, the …. Oh, wait! Those aren't at issue here. What is at issue here is Mr. Levine's agenda - bar exams for everyone and a voluntary bar. Give me liberty from Bar dues of $20 a month! Free at last! "Astounding," Mr. Levine might say.
Why, it's so astounding he compared it in his November column to civil rights, the labor union struggles, and women's suffrage. The voluntary Bar is a struggle of historic proportions? We can't think of anything more important to the legal profession and the justice system than the few dollars it takes in dues to belong to this horrifying, mandatory organization that provides everything from help for impaired lawyers to pro bono assistance programs for the poor to law office management help and many other programs?
I would suppose I'm just overreacting. How can the lack of meaningful access to the legal system for half of the population, the fact that 62 percent cannot name all three branches of the federal government, that solo practitioners are dying on the vine, and that only one in four people can name more than one of the five freedoms in the first amendment, ever measure up to the issue of the mandatory versus voluntary bar? I need to think about this some more while I wait for this year to end.
Thomas E. Dixon Jr.,
Judge John L. Coffey Misidentified
The Hon. John L. Coffey, circuit judge for the U.S. Court of Appeals for the Seventh Circuit, was mistakenly referred to as Richard Coffey in the article "Electronic Discovery and the Amended Rules of Civil Procedure" published in the December issue. The authors regret the error.
Stephen D. Taylor,