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    Effective June 1, 2009, in Order 08-06, the supreme court has amended SCR chapter 31 regarding the manner of filing documents for CLE requirements, and in Order 08-14, has amended SCR 40.14(2) and (3)(h) regarding bar admissions. The Board of Bar Examiners has amended SCR Chapter 31 regarding lawyers’ continuing education and SCR Chapter 40 regarding admission to the bar by bar examination. 


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    Vol. 82, No. 4, April 2009

    CLE Document Filing

    In the matter of amendment of Supreme Court Rule 31.13(2) regarding the manner of filing documents relating to continuing legal education requirements.

    Order 08-06

    On April 1, 2008, the Board of Bar Examiners, by its director John E. Kosobucki, petitioned this court for amendment of Supreme Court Rule 31.13(2). Petitioner seeks to change the filing deadline for a CLE report. The court held a public hearing on Nov. 10, 2008, on the petition. Upon consideration of matters presented at the public hearing and submissions made in response to the proposed amendment, the court voted to adopt the petition.

    IT IS ORDERED that, effective June 1, 2009, Supreme Court Rules chapter 31 is amended as follows:

    Section 1. SCR 31.13(2) of the Supreme Court Rules is repealed and recreated to read:

    31.13(2) A report or other communication to the board under this chapter is timely filed if any of the following is applicable:

    (a) The report or other communication, together with the applicable fees, is received at the board’s office within the time specified for filing.

    (b) The report or other communication, together with the applicable fees, is sent to the board’s office through the United States Postal Service by 1st class mail, including express or priority mail, postage prepaid, and bears a postmark, other than a commercial postage meter label, showing that the communication was mailed on or before the last day for filing.

    (c) The report or other communication, together with the applicable fees, is delivered on or before the last day for filing to a 3rd-party commercial carrier for delivery to the board’s office within 3 calendar days.

    IT IS FURTHER ORDERED that notice of this amendment of Supreme Court Rule 31.13(2) 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 20th day of February, 2009.

    By the court:

    David R. Schanker, Clerk of Supreme Court

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    Applications for Bar Admission

    In the matter of amendment of Supreme Court Rule 40.14(2) regarding the filing of applications for admission and Supreme Court Rule 40.14(3)(h) regarding the fee for late application under the diploma privilege.

    Order 08-14

    On May 14, 2008, the Board of Bar Examiners, by its director John E. Kosobucki, petitioned this court for amendment of Supreme Court Rule 40.14(2) and 40.14(3)(h). Petitioner seeks to change the filing deadline for bar applications. The court held a public hearing on November 10, 2008, on the petition. Upon consideration of matters presented at the public hearing and submissions made in response to the proposed amendment, the court voted to adopt the amendment of SCR 40.14(2) and voted to adopt and modify the amendment of SCR 41.14(3)(h).

    IT IS ORDERED that, effective June 1, 2009, Supreme Court Rules chapter 40 is amended as follows:

    Section 1. SCR 40.14(2) of the Supreme Court Rules is repealed and recreated to read:

    40.14(2) An application is timely filed if any of the following is applicable:

    (a) The application, together with the applicable fees, is received at the board’s office within the time specified for filing.

    (b) The application, together with the applicable fees, is sent to the board’s office through the United States Postal Service by 1st class mail, including express or priority mail, postage prepaid, and bears a postmark, other than a commercial postage meter label, showing that the document was mailed on or before the last day for filing.

    (c) The application, together with the applicable fees, is delivered on or before the last day for filing to a 3rd-party commercial carrier for delivery to the board’s office within 3 calendar days.

    Section 2. SCR 40.14(3)(h) of the Supreme Court Rules is amended to read:

    40.14(3)(h) Late fee for a character and fitness investigation under SCR 40.06(3m) $100 $200.

    IT IS FURTHER ORDERED that notice of this amendment of Supreme Court Rule 40.14(2) and Supreme Court Rule 40.14(3)(h) 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 20th day of February, 2009.

    By the court:

    David R. Schanker, Clerk of Supreme Court

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    Board of Bar Examiners Changes to SCR Chapter 31: Continuing Education for Lawyers

    ORDER*

    Supreme Court Rule (SCR) 31.14 having provided for rule-making authority by the Board of Bar Examiners that is consistent with Chapter 31 of the said Supreme Court Rules, and the Board of Bar Examiners having conducted a public hearing on Aug. 1, 2008, after appropriate notice, the following regulations under Chapter 31 of the Supreme Court Rules are amended or created and republished as follows:

    APPENDIX TO CHAPTER 31

    DEFINITIONS

    CLE 1.01 The year of an attorney’s admission to the State Bar of Wisconsin shall be the year carried on the computer records of the State Bar unless the lawyer notifies the Board in writing prior to the end of his or her first reporting period that the State Bar data is incorrect and attaches supporting documentation.

    CLE 1.02 Except for repeated on-demand programs, the minimum number of persons attending a course shall be two attendees and one moderator. Fewer than that number, and the course shall be deemed to be self-study and shall not be approved for continuing legal education credit.

    REPORTING REQUIREMENTS

    CLE 3.01 The classification of State Bar of Wisconsin membership on the February 1 immediately following the end of the lawyer’s reporting period will govern whether a report will be required. The Board will grant lawyers who change to inactive status after February 1 according to State Bar records a deferment of the 30 hours then due on receipt of a written request that is accompanied by the late fee then due and the written statement of the State Bar that the lawyer has in fact already converted his or her membership to inactive status. A request will be considered timely if received at the Board office by the close of business on the date that the lawyer’s suspension is to go into effect pursuant to SCR 31.10(1); that is, the filing date established by that rule.

    CLE 3.015 (1) Lawyers who have been in inactive status for less than 2 years, or have been voluntarily resigned from the State Bar for less than 2 years, must complete 30 hours of CLE (including 3 ethics hours) prior to resuming active status.

    (2) Lawyers who have been in inactive status for more than 2 years, or have been voluntarily resigned from the State Bar for more than 2 years, must complete 60 hours of CLE (including 3 ethics hours) prior to resuming active status.

    (3) Lawyers may satisfy the requirements of the above subsections if they demonstrate to the board that, during the entire time they were in inactive status, (i) they were admitted to the practice of law in another jurisdiction that had mandatory continuing legal education requirements, and (ii) they were current in meeting those requirements.

    (4) Lawyers who resume active status must also satisfy the requirements of SCR 31.02 for the reporting period in which they are reactivated.

    (5) CLE requirements under this section shall not be greater than they would have been if the lawyer had not been in inactive status.

    CLE 3.02 (1) No late fee will be assessed against lawyers who complete their reporting and attendance requirements by the February 1 following the end of their reporting period.

    (2) Lawyers who have been served with the notice of noncompliance set out in SCR 31.10(1) may avoid the automatic suspension therein described if, within 60 days after service, they (a) complete their reporting and attendance requirements and (b) pay the late fee.

    [CLE 3.03 is unchanged.]

    EXEMPTIONS

    [CLE 4.01 is unchanged.]

    APPROVED HOURS

    CLE 5.01 Sponsors must provide a method for lawyers who have taken on-line on-demand programs to submit questions, and must provide answers supplied by instructors who are qualified by practical or academic experience within fifteen business days, at no additional cost.

    CLE 5.02 (1) Applications for approval of on-line on-demand programs must be accompanied by

    (a) A copy of the on-line on-demand program on DVD;

    (b) A statement of the manner in which the sponsor intends to comply with CLE 5.01.

    (2) Sponsors with general program approval under SCR 31.08(3) need not comply with the requirements of sub. (1).

    ATTENDANCE AND REPORTING REQUIREMENT FOR PERSONS UPON REACTIVATION OR REINSTATEMENT

    [CLE 6.01 is unchanged.]

    STANDARDS FOR APPROVAL OF CONTINUING LEGAL EDUCATION ACTIVITIES

    CLE 7.005 Except for repeated on-demand programs as defined in SCR 31.01(6m), self-study courses as defined in CLE 1.02, and courses explicitly disapproved in Wisconsin, courses approved for CLE credit by, and attended in, any other state or territory or the District of Columbia are deemed approved for the same number of hours and for the same purposes in Wisconsin. To take advantage of this section, lawyers must document the out-of-state approval in connection with filing their CLE Form 1.

    CLE 7.01 The following portions of the program may not be counted for credit: breaks, business meetings, and similar non-academic activities

    CLE 7.02 Credit hours shall be rounded down to the nearest whole or half hour. Hours of credit shall be determined by the following formula: Total minutes minus nonacademic portions (breaks, business meetings) divided by 50 minutes equal the hours of CLE credit.

    [CLE 7.03 is unchanged.]

    [CLE 7.04 is unchanged.] 

    CLE 7.05 (Repealed)

    [CLE 7.06(1) is unchanged.]

    [CLE 7.06(2) is unchanged.]

    [CLE 7.07 is unchanged.]

    [CLE 7.08 is unchanged.]

    [CLE 7.09 is unchanged.]

    [CLE 7.10 is unchanged.]

    PROCEDURE FOR APPROVAL OF CONTINUING LEGAL EDUCATION ACTIVITIES

    [CLE 8.01 is unchanged.]

    [CLE 8.02 is unchanged.]

    CLE 8.03 Any sponsor holding general program approval that fails to cooperate with the administrative requirements developed by the Board may have its general program approval revoked by the Board.

    CLE 8.04 CLE Form 2 shall be submitted to the Board to initiate a request for course approval. The Board will accept a uniform national course approval request form at the discretion of its Board.

    CLE 8.05 CLE Form 5, or CLE Form 2, shall be submitted to initiate a request for legal ethics and professional responsibility approval. The Board will accept a uniform national course approval request form at the discretion of its Board.

    REINSTATEMENT AFTER SUSPENSION PURSUANT TO SCR 31.11

    [CLE 11.02 is unchanged.]

    CLE 11.03 The number of hours required of a lawyer seeking reinstatement is 30 per previous reporting period up to a maximum of 60; in addition, the lawyer will be required to meet the requirement for the reporting period in which his or her reinstatement falls.

    [CLE 11.04 is unchanged.]

    EXTENSIONS AND WAIVERS

    CLE 12.01 The Board will consider extensions for completion of attendance and reporting requirements only upon written request.

    SERVICE; FILING

    [CLE 13.01 is unchanged.]

    BOARD MEETINGS

    CLE 14.01 As an agency of the Supreme Court, the Board is not subject to Subchapter V of Chapter 19 of the Wisconsin Statutes, relating to open meetings of governmental bodies. However, the Board posts the dates, locations and agendas of its meetings on its Internet web site and invites the public to attend its meetings. Members of the public are not allowed to attend meetings or parts of meetings that involve confidential matters. Examples of confidential matters include (i) individuals’ applications for admission to the Wisconsin bar, (ii) hearings on admission applications and (iii) bar examination questions.

    These Rules shall become effective May 1, 2009. Dated at Marinette, Wis., Feb. 27, 2009.

    By the Board of Bar Examiners:

    James A. Morrison, Chair

    Board of Bar Examiners

    *This order corrects the effective date to May 1, 2009.

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    Board of Bar Examiners Changes to SCR Chapter 40: Admission to the Bar 

    ORDER*

    Supreme Court Rule (SCR) 40.11 having provided for rule-making authority by the Board of Bar Examiners that is consistent with Chapter 40 of the said Supreme Court Rules, and the Board of Bar Examiners having conducted a public hearing on Aug. 1, 2008, after appropriate notice, the following regulations under Chapter 40 of the Supreme Court Rules are amended or created and republished as follows:

    APPENDIX TO CHAPTER 40

    LEGAL COMPETENCE REQUIREMENT: BAR EXAMINATION 

    BA 4.01 (Repealed.)

    BA 4.02 Accommodations. Testing accommodation requests must be received in writing no later than December 1 for the February examination and May 1 for the July examination. The Board may deny requests that are not in writing or that are filed after the deadline.

      [BA 4.03(a) is unchanged.]

    BA 4.03(b) Staff closure of a file is appealable to the Board.

    LEGAL COMPETENCE REQUIREMENT: PROOF OF PRACTICE

    [BA 5.01(a) is unchanged.]

    BA 5.01(b) Staff closure of a file is appealable to the Board.

    REQUIREMENT AS TO CHARACTER AND FITNESS TO PRACTICE LAW

    [The PREAMBLE is unchanged.]

    [BA 6.01 is unchanged.]

      BA 6.02 Relevant Conduct or Condition. The revelation or discovery of any of the following should be treated as cause for further inquiry before the Board decides whether the applicant possesses the character and fitness to practice law:

    [Subsections BA 6.02(a) through (h) are unchanged.]

    (i) evidence of mental or emotional impairments substantial enough to affect the applicant’s ability to practice law;

    [Subsections BA 6.02(j) through (l) are unchanged.]

    [BA 6.03 is unchanged.]

    BA 6.04 Notice of an at-risk application. If the Board determines that an application is at risk of being denied, the Board shall notify the applicant of its determination in writing. The notice shall state the reasons for the possible denial, describe the applicant’s right to seek a hearing, advise the applicant of the deadline for requesting a hearing and include a copy of the Board’s hearing procedures.

    BA 6.045(a) At the time of mailing the notice of an at-risk application, the Board shall provide the applicant with copies of all materials that were reviewed by the Board in making its decision. Thereafter, while the application is under review, the applicant may review all materials in the applicant’s file during the Board’s business hours, and may obtain copies thereof at a cost of no more than twenty-five cents per page.

    (b) Materials solicited by the Board before October 1, 2008 under an unconditional promise of confidentiality are not subject to review by the applicant under sub. (a) and will not be considered by the Board.

    [BA 6.05 is unchanged.]

    [Subsection 6.06(a) is unchanged.]

    BA 6.06(b) Staff closure of a file is appealable to the Board.

    WAIVER OF REQUIREMENTS

    BA 10.01 The board may waive any of the requirements of this Appendix in exceptional cases and for good cause. An application and the filing fee appropriate to the rule must accompany the request for waiver. One-half of the filing fee will be refunded if the waiver is denied.

    APPLICATION; FEES

    [BA 14.01 is unchanged.]

    BA 14.02 An application for bar admission, or for a character and fitness certification pursuant to SCR 40.06(3m), will not be filed unless:

    (a) It is accompanied by a signed and notarized authorization and release form; and

    (b) It is accompanied by the applicable filing fees.

    BA 14.025 Handwritten applications will not be accepted.

    BA 14.03 Continuing application. Applications are continuing applications during their pendency. Applicants are required to notify the Board in writing of any changes with respect to the information elicited by the application, and each application must be amended to reflect the facts throughout the entire time that the application is pending, including the date on which the applicant is admitted to practice in Wisconsin.

      BA 14.04 Application deadline. (a) Applicants for bar admission on the diploma privilege shall file an application for a character and fitness certification with the Board between the time the student has completed a minimum of 50 credit hours and a predetermined date after the J.D. is conferred (February 1 for December graduates; July 1 for May graduates; October 1 for August graduates).

    (b) Notwithstanding subsection (a), applicants otherwise eligible for admission on the diploma privilege may apply by December 31 of the year following their graduation from law school if by that date they document that they have passed a bar examination, and have been admitted to practice, in another US state, territory, or the District of Columbia.

    (c) Applicants who miss the filing deadline in subsection (a) may forfeit their chance to be admitted under the diploma privilege.

    BA 14.05 Late fees: diploma privilege. A late fee will be assessed to the following applicants for bar admission on the diploma privilege: May graduates who have not filed an application by the preceding December 15; August graduates who have not filed an application by the preceding March 15; and December graduates who have not filed an application by the preceding July 15.

    BOARD MEETINGS

    BA 15.01 As an agency of the Supreme Court, the Board is not subject to Subchapter V of Chapter 19 of the Wisconsin Statutes, relating to open meetings of governmental bodies. However, the Board posts the dates, locations and agendas of its meetings on its Internet web site and invites the public to attend its meetings. Members of the public are not allowed to attend meetings or parts of meetings that involve confidential matters. Examples of confidential matters include (i) individuals’ applications for admission to the Wisconsin bar, (ii) hearings on admission applications and (iii) bar examination questions.

    PROCEDURES FOR HEARINGS BEFORE THE BOARD

    BA 16.01 (1) Application. These rules govern all hearings before the Board of Bar Examiners.

    BA 16.02 Notice of an at-risk application. Before declining to certify an applicant’s satisfaction of requirements under this chapter, the board shall notify the applicant in writing of the basis for its determination that the application is at risk of being denied and, except as to failure of the bar examination under SCR 40.04, the applicant shall have the opportunity to respond in writing within thirty days of the mailing of notification of the board’s decision to the applicant at the last address furnished by the applicant in writing to the board.

    BA 16.03 Hearings. The Board may grant a hearing to any applicant who has received a notice under SCR 40.08(1).

    BA 16.04 Request for Hearing. Applicants must make their requests for a hearing in writing within 30 days after the mailing of the notice under SCR 40.08(1).

    BA 16.05 Review of Records. Applicants who have received a notice under SCR 40.08(1) may, while the application is pending, review, personally or by counsel, all materials in the applicant’s files, including any staff recommendations. Upon written request, the Board will transmit copies of these materials to the applicant or the applicant’s counsel at a cost not to exceed twenty-five cents per page. Materials solicited by the Board before October 1, 2008 under an unconditional promise of confidentiality are not subject to review by the applicant.

    BA 16.06 Pre-hearing conference. Within 30 days after receiving an applicant’s Request for Hearing, the Board Chair or the Chair’s designee shall confer in person or by telephone with the applicant or the applicant’s counsel to set a hearing date, clarify the issues, determine whether the applicant will stipulate to any material facts, consider any limitations on the number of witnesses, the length of the hearing and such other matters as may aid the Board in its determination. Promptly after this pre-hearing conference, the Chair or the Chair’s designee shall prepare a memorandum for the record which summarizes all actions taken at the conference. The memorandum shall control the subsequent course of the action, unless modified at the hearing to prevent manifest injustice.  

    BA 16.07 Hearing record. The hearing record shall include evidence received or considered, stipulations and admissions, a statement of matters officially noticed, questions and offers of proof, objections and rulings thereon, any proposed findings or decisions and exceptions, and any decision, opinion or report by the Board.

    BA 16.08 Counsel. An applicant shall be entitled to be represented by counsel at hearing at the applicant’s expense, provided a notice of appearance is filed at or before the hearing.

    BA 16.09 Record of proceedings. A stenographic, electronic or other record of oral proceedings shall be made. If the board obtains a transcript of proceedings, it shall, upon request, provide the applicant with a copy at a cost not to exceed twenty-five cents per page.

    BA 16.10 Presiding officer. The Board Chair or the Chair’s designee shall preside at hearing, and shall rule on motions, objections and any other matters that arise.

    BA 16.11 Rules of evidence. The Board is not bound by common law or statutory rules of evidence.

    BA 16.12 Hearing record. The applicant and any member of the Board may move that portions of the applicant’s file be received in evidence. All evidence received at the hearing shall be made a part of the hearing record. The applicant shall be afforded adequate opportunity to rebut or offer countervailing evidence.

    BA 16.13 Official notice. The Board may take official notice of any generally recognized fact or any established technical or scientific fact, but the applicant shall be notified either before or during the hearing of the facts so noticed, and shall be afforded an opportunity to contest the validity of the official notice.

    BA 16.14 Documents. Documentary evidence may be received in the form of copies or excerpts if the original is not readily available.

    BA 16.15 Testimony. Witnesses may be heard in person, or their testimony may be received in the form of affidavits or deposition transcripts. As a general practice, examinations and cross-examinations of witnesses shall be made by the members of the Board. Applicants or their counsel may cross-examine adverse witnesses.

    BA 16.16 Record may remain open. The Chair or the Chair’s designee may allow the record of the hearing to remain open for a limited period of time, which shall be specified, to give the applicant an opportunity to submit additional written materials.

    BA 16.17 Determination. The Board shall make its determination by majority vote of the members present and voting, in person or by telephone. The Board may make its determination immediately following the hearing. Otherwise, the Board shall make its determination no later than at the regularly scheduled meeting next following the date set under Rule 16, unless it decides by majority vote to hold the record open for additional written or oral evidence.

    BA 16.18 Adverse decision. If the determination is adverse to the applicant, the Board Chair or the Chair’s designee shall within thirty days, incorporate the Board’s determination in a written decision, which shall include findings of fact and conclusions of law, and shall promptly circulate the decision among all members of the Board. After the decision is circulated, dissenting board members shall have twenty-one days in which to transmit written dissents to the director.

    BA 16.19 Transmission of decision. The director shall transmit the Board’s decision, together with any written dissents, to the applicant or the applicant’s counsel within ten days after completion of the steps set out in Rule 18.

    BA 16.20 Reconsideration. Within thirty days after transmission of the Board’s decision, the applicant may file a petition for reconsideration, which shall be granted only on the basis of some material error of law, some material error of fact, or the discovery of new evidence sufficiently strong to reverse the adverse determination. The Board shall rule on the petition by majority vote no later than at its next regularly scheduled meeting following the filing of the petition, either by denying the petition or by granting the petition on a schedule which it shall then specify.

    [Note: the foregoing Rule 20 will not take effect unless SCR 40.08(5) is amended so the time for appeal does not run while a petition for reconsideration is pending.]

    BA 16.21 Confidentiality. The hearing shall be closed and written materials, including the board’s preliminary and final determinations, shall be confidential and shall be disclosed only to the applicant and the applicant’s counsel.

    These Rules shall become effective May 1, 2009. Dated at Marinette, Wis., Feb. 27, 2009.

    By the Board of Bar Examiners:

    James A. Morrison, Chair

    Board of Bar Examiners

    * This order corrects the effective date of the order and revises the numbering of BA Section 16, paragraphs BA 16.01 through BA 16.21.

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