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    Supreme Court Orders

    Supreme Court Orders 08-11, 08-13, 09-01A, 09-09, 10-05, and 10-06.
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    Wisconsin LawyerWisconsin Lawyer
    Vol. 83, No. 12, December 2010

    • Order 08-11 – Adverse Determination of Bar Applicant’s Character and Fitness, public hearing Jan. 12, 2011
    • Order 08-13 – Conditional Admission to the Bar, public hearing Jan. 12, 2011
    • Order 09-01A – Discovery of Electronically Stored Information, amended rules effective Jan. 1, 2011
    • Order 09-09 – Diploma Privilege, petition to amend rules denied
    • Order 10-05 – Trust Account Insurance and Safety Requirements, amended rules effective Jan. 1, 2011
    • Order 10-06 – Required Court Reporting and Videotape Procedure, amended rules effective Jan. 1, 2011

    Bar Applicant’s Character and Fitness

    In the matter of the amendment of Supreme Court rule 40.08 relating to adverse determination of a bar applicant’s character and fitness.

    Order 08-11

    On April 1, 2008, the Board of Bar Examiners (BBE) by its former director, John E. Kosobucki, petitioned this court for an order amending Supreme Court Rule (SCR) 40.08 relating to adverse determination of a bar applicant’s character and fitness. An amended petition was filed on July 24, 2008. A public hearing on the petition was held on Friday, Feb. 26, 2010. A second amended petition was filed on Oct. 22, 2010, by BBE Director Jacquelynn Rothstein.

    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 Wednesday, Jan. 12, 2011, 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 the petition and memorandum in support of the petition shall be made available on the Web site of the Wisconsin Supreme Court under Rules.

    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.1

    Dated at Madison, Wis., this 1st day of November, 2010.

    By the court:

    A. John Voelker,
    Acting Clerk of Supreme Court

    1Notice of the hearing will appear in the December 2010 Wisconsin Lawyer, the official publication of the State Bar of Wisconsin, approximately 28 days prior to the hearing rather than the required minimum of 30 days. Pursuant to its rule-making authority under Wis. Stat. § 751.12 and its Internal Operating Procedures, the court exercises its discretion to allow this unavoidable deviation from the requirements.

    Second Amended Petition to Repeal and Recreate SCR 40.08

    The Board of Bar Examiners, by its director Jacquelynn B. Rothstein, hereby petitions the Supreme Court of Wisconsin for an order repealing and recreating SCR 40.08 as follows:

    TEXT OF RULE

    SECTION 1. SCR 40.08 is repealed and recreated to read:

    SCR 40.08 Adverse determination.

    (1) Notice of At Risk Determination. 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. The board’s notice shall provide that, except as to failure of the bar examination under SCR 40.04, the applicant may challenge the determination upon filing a written request for a hearing and statement responding to the board’s notice. The board’s notice shall contain a statement identifying the date of mailing. The board shall serve the notice on the applicant by mail to the last address furnished by the applicant in writing to the board.

    (2) Applicant’s Request for Hearing and Response. Within 30 days of the mailing of an at risk determination notice, the applicant may challenge the determination by filing (a) a written request for a hearing and a statement setting forth the grounds on which the board’s determination should be reversed, or (b) a written supplement to the record. If the applicant does not request a hearing or file a supplement to the record within 30 days, the board’s adverse determination becomes final and non-appealable.

    (3) Scheduling of Hearing. The board shall grant a hearing upon the applicant’s timely and written request.

    (4) Notice of Hearing. The board shall provide written notice of the hearing at least 30 days prior to the hearing date. The notice shall state the time and place of the hearing and the issues to be considered. The notice shall advise the applicant that he or she may be represented by counsel and present evidence.

    (5) Decision by board. The board shall notify the applicant of its determination by mailing a copy to the applicant at the last address furnished by the applicant in writing to the board. The board’s decision shall contain a statement identifying the date of mailing. An adverse determination by the board shall include findings of fact and conclusions of law and shall be final, unless the applicant timely files a review under sub. (6) or (7). A determination to certify that the applicant has satisfied the requirements of this chapter by the board does not require findings of fact and conclusions of law.

    (6) Review by board. An applicant may seek review of an adverse determination by filing a written request with the board within 30 days of the mailing of the adverse determination. A request for review shall be granted only on the basis of a material error of law or fact, or the discovery of new evidence sufficiently strong to reverse the adverse determination. The board shall notify the applicant of its determination by mailing a copy to the applicant at the last address furnished by the applicant in writing to the board. The board’s decision shall contain a statement identifying the date of mailing.

    (7) Review by supreme court. An applicant may seek review of an adverse determination by filing a petition for review with the supreme court and serving a copy on the board within 30 days of the mailing of the board’s decision. However, if the applicant has filed a timely request for review under sub. (6), the deadline for seeking review by the supreme court shall be within 30 days of the mailing of the board’s disposition of the applicant’s request to review.

    Dated this 22nd day of October, 2010.

    Respectfully submitted,

    Jacquelynn B. Rothstein, Director

    Board of Bar Examiners

    Conditional Admission to the Bar

    In the matter of creation of Supreme Court Rule 40.075 Relating to Conditional Admission to the Bar.

    Order 08-13

    On May 1, 2008, the Board of Bar Examiners filed a petition requesting this court create a supreme court rule pertaining to conditional admission to the bar. The proposed rule would allow applicants with issues such as substance abuse problems, mental health conditions, financial management difficulties, or criminal history, to be admitted conditionally to the State Bar of Wisconsin under terms and conditions established by the Board of Bar Examiners.

    A public hearing was conducted on March 9, 2009. The court held this matter pending consideration of the monitoring program petition (No. 08-28, In the Matter of the Petition for Lawyer Support and Monitoring and Procedures for Referrals from the Office of Lawyer Regulation). By order dated May 8, 2010, this court adopted Rule No. 08-28 and created procedures for lawyer support and monitoring within the State Bar and for OLR to refer lawyers for assessment, treatment, and monitoring. Therefore,

    IT IS ORDERED that a public hearing on the petition 08-13 shall be held in the Supreme Court Room in the State Capitol, Madison, Wis., on Wednesday, Jan. 12, 2011, 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.1

    Dated at Madison, Wis., this 1st day of November, 2010.

    By the court:

    A. John Voelker,
    Acting Clerk of Supreme Court

    1Notice of the hearing will appear in the December 2010 Wisconsin Lawyer, the official publication of the State Bar of Wisconsin, approximately 28 days prior to the hearing rather than the required minimum of 30 days. Pursuant to its rule-making authority under Wis. Stat. § 751.12 and its internal Operating Procedures, the court exercises its discretion to allow this unavoidable deviation from the requirements.

    Petition

    At its June meeting, the Board of Bar Examiners (BBE) reviewed the matter of conditional admission. More specifically, the BBE reviewed changes to Rule Petition 08-13 (conditional admission) that Commissioner Julie Anne Rich drafted following the public hearing in the matter and after the court’s open administrative conference held on March 9, 2009. By Order dated Aug. 3, 2009, the court held the revised draft petition regarding conditional admission in abeyance pending the completion of the State Bar/OLR monitoring petition (08-28). The monitoring petition has since been successfully resolved and the BBE therefore revisited the revised conditional admission draft.

    After reviewing the revised petition, the BBE agreed to accept and forward it to the court for further action. The Board strongly believes that the time is ripe to adopt a rule for conditionally admitting individuals into the Wisconsin bar. With frequency, the BBE reviews applicants whose histories would warrant conditional admission. Regrettably, however, they are only able to admit or deny applicants, rather than imposing conditions upon their admission, which would often be a more fitting option and one that would ensure greater protection of the public.

    Indeed, the BBE recently denied an applicant who was conditionally admitted in a neighboring state, but who otherwise would have been an ideal candidate for conditional admission had that option existed. Therefore, the BBE respectfully submits the revised Rule Petition 08-13 to the court and requests that the petition be adopted forthwith.

    Respectfully submitted,

    Jacquelynn B. Rothstein, Director

    Board of Bar Examiners

    Conditional Admission Draft

    This draft reflects the changes from the petition as originally submitted and the document presently before the court.

    SCR 40.075 Conditional Bar Admission.

    (1) Eligibility. The Board may recommend conditional bar admission if it concludes that an otherwise qualified applicant may have substantial difficulties in performing the essential responsibilities of a lawyer due to the applicant’s circumstances, including but not limited to: alcohol or other drug abuse, criminal record, financial mismanagement, mental or emotional instability.

    An applicant who currently satisfies all essential eligibility requirements for admission to practice law, including fitness requirements, and who possesses the requisite good moral character required for admission, may be conditionally admitted to the practice of law if the applicant demonstrates a record of rehabilitation from chemical dependency or successful treatment for mental or other illness, or for any other reason the board deems appropriate, that has resulted in conduct or behavior that would otherwise have rendered the applicant currently unfit to practice law, and the conduct or behavior, if it should recur, would impair the applicant’s current ability to practice law or pose a threat to the public.1

    (2) Conditions. The board may offer to impose any reasonable conditions upon a conditionally admitted applicant that will address the applicant’s individual circumstances and the board’s concern regarding the performance of those essential responsibilities of the applicant to a client or the public, including but not limited to any of the following2:

    (a) Pprofessional medical, psychological or other treatment;

    (b) Pprohibiting or limiting the use of alcohol or other drugs;

    (c) Rrandom alcohol or other drug testing;

    (d) Ssupervision;

    (e) Pperiodic reporting by the applicant;

    (f) Ffinancial, business, or law office management counseling or supervision (including inspection of records); and

    (g) Aany other condition tailored to meet the circumstances of the applicant.

    (3) Written Agreement; non-acceptance; hearing. The terms of a conditional bar admission shall be incorporated in a written agreement signed by the applicant and approved by3 the board. If the applicant does not accept conditional bar admission, the Board shall decide whether to certify or deny unconditional bar admission and advise the applicant of its decision. Prior to issuing its final decision, the Board shall notify the applicant of its intent to deny unconditional admission. Within 30 days of receiving the Board’s notice of intent to deny unconditional admission, the applicant may request a hearing pursuant to SCR 40.08.

    (4) Monitoring. If supervision is to be a condition of the written conditional admission agreement, the board, after consultation with the applicant, may designate itself, the Sstate Bbar of Wisconsin, an appropriate person, the Wisconsin Lawyers Assistance Program, or any combination thereof, as the supervising party. The board and the supervising party may, with notice to the applicant, exchange relevant information about the applicant.4

    (5) Costs. All costs of conditional bar admission, including monitoring, shall be borne by the applicant.

    (6) Length Duration of Conditional Admission. The initial period of conditional bar admission shall be up to one year 60 months.5 At the end of that year, the period conditional admission may be extended by the board in writing for good cause, but not to exceed one additional year. The board shall review an applicant’s conditional admission annually.6 At the end of the initial term of conditional bar admission, or any extension thereof, the board shall either permit the conditional admission agreement to expire and certify the applicant for unconditional admission or advise the applicant in writing that it will conduct a hearing to determine whether to7 issue an intent to deny admission letter to the applicant. In the event of the issuance of an intent to deny letter, the provisions of SCR 40.08 shall apply.

    (7) Failure. Failure of a conditionally admitted lawyer to fulfill the terms of a Conditional Admission Agreement may result in a modification, extension, or revocation of the agreement, or such other action as may be appropriate, including notice to the office of lawyer regulation.8

    (8) Grievance. Notwithstanding sub. (6), the filing of a grievance against a conditionally admitted applicant shall automatically extend the conditional admission until disposition of the grievance by the office of lawyer regulation and any resulting complaint and appeal.9

    (9) Confidentiality. Except as otherwise provided herein, and unless the court orders otherwise, the fact that an individual is conditionally admitted and the terms of the Conditional Admission Agreement shall be confidential provided the applicant shall disclose the entry of any Conditional Admission Agreement to the admissions authority in any jurisdiction where the applicant applies for admission to practice law, and the board shall disclose the entry of any Conditional Admission Agreement to the office of lawyer regulation. The board shall structure the terms, conditions, and monitoring of conditional admission to ensure that the conditional admission does not pose a significant risk to confidentiality. These provisions for confidentiality shall not prohibit or restrict the ability of the applicant to disclose to third parties that the applicant has been conditionally admitted under this rule, nor prohibit requiring third-party verification of compliance with terms by admission authorities in jurisdictions to which the conditionally admitted lawyer may subsequently apply.10

    (10) Notice to the office of lawyer regulation. The board will notify the office of lawyer regulation when a conditional admission agreement is approved, modified, extended, revoked, or expires. The board and the office of lawyer regulation may exchange relevant information regarding a conditionally admitted applicant.11

    (11) Immunity. The director, staff, members of the board, and persons designated by the board to monitor compliance with conditional admission agreements or with conditions imposed on the applicant shall be immune from suit for any conduct in the course of their official duties.

    1At OAC on March 9, 2009 the Court voted to use the ABA Model Rule language as amended by the use of the phrase “demonstrates a record of rehabilitation.”

    2All changes in this provision suggested by the LRB.

    3Suggested by BBE Board Member.

    4Recommended after review of the OLR Monitoring petition and consultation with BBE Board Members.

    5Approved by the Court at the 3/9/09 OAC.

    6Suggested after consultation with BBE Board Members.

    7The Court indicated it wanted some reference to expiration of the Agreement. The BBE Board Members suggest this language, providing an opportunity for either simply letting the Agreement expire if all is going well or affording the applicant a hearing if it is likely admission will be denied.

    8At the 3/7/09 OAC the Court indicated it wanted a reference to what happens if a lawyer failed to comply with an Agreement. This language is derived from the ABA Model Rule as amended after discussion with BBE Board Members.

    9At the 3/9/09 OAC the Court indicated it wanted the BBE to have notice if a complaint was filed against a conditionally admitted applicant. The OLR suggested changing this language to “grievance” to permit earlier notification.

    10The Court voted at the 3/9/08 OAC to include a confidentiality provision and directed me to use the ABA Model Rule as a template. It was amended slightly to fit Wisconsin’s administrative structure and to explicitly permit sharing of information with the OLR.

    11The Court, the BBE and OLR all agree it is appropriate for the BBE and OLR to share information about a conditionally admitted applicant. This provision seeks to accomplish that shared objective.

    Discovery of Electronically Stored Information

    In the matter of amendment of Wis. Stat. §§ 802.10, 804.01, 804.08, 804.09, 804.12, and 805.07.

    Order 09-01A

    On April 23, 2009, the Wisconsin Judicial Council, by Staff Attorney April M. Southwick, petitioned this court for an order amending Wis. Stat. §§ 802.10, 804.01, 804.08, 804.09, 804.12, and 805.07, relating to discovery of electronically stored information. The court held a public hearing and administrative conference on Jan. 21, 2010. On March 19, 2010, petitioner filed an amended petition. The court held an administrative conference on April 28, 2010. Upon consideration of matters presented at the public hearing and submissions made in response to the proposed amendments, the court, on April 28, 2010, adopted the amended petition with a 4 to 3 vote. Chief Justice Shirley S. Abrahamson, Justice Ann Walsh Bradley, Justice N. Patrick Crooks, and Justice David T. Prosser, Jr. voted to adopt the petition, and Justice Patience D. Roggensack, Justice Annette Kingsland Ziegler, and Justice Michael J. Gableman dissented. The court also modified Wis. Stat. § 804.01(4m) by adopting a mandatory confer provision, sometimes referred to as “meet and confer” even though § 804.01(4m) does not require a meeting, for the discovery of electronically stored information. Chief Justice Abrahamson and Justice Bradley dissented to the adoption of a mandatory confer provision under the new Wis. Stat. § 804.01(4m).

    Following an administrative conference on June 30, 2010, the court issued an order on July 6, 2010. The court adopted the amendments, which become effective Jan. 1, 2011, subject to revision after a public hearing to be held in the fall of 2010 and an opportunity for public comment.

    The court held a public hearing and administrative conference on Sept. 30, 2010. Upon consideration of matters presented at the public hearing and submissions made, the court discussed amendments to the confer provision regarding the discovery of electronically stored information.

    Following an administrative conference on Oct. 18, 2010, the court adopted the following amendments to Wis. Stat. § 804.01.

    Therefore, IT IS ORDERED that the following amendments shall be effective Jan. 1, 2011:

    Section 1. 804.01(4m) of the statutes and accompanying 2010 Judicial Council Note are repealed.

    Section 2. 804.01(2)(e) of the statutes is created to read:

    804.01(2)(e) Specific Limitations on Discovery of Electronically Stored Information.

    1. No party may serve a request to produce or inspect under s. 804.09 seeking the discovery of electronically stored information, or respond to an interrogatory under s. 804.08(3) by producing electronically stored information, until after the parties confer regarding all of the following, unless excused by the court:

    a. The subjects on which discovery of electronically stored information may be needed, when such discovery should be completed, and whether discovery of electronically stored information shall be conducted in phases or be limited to particular issues.

    b. Preservation of electronically stored information pending discovery.

    c. The form or forms in which electronically stored information shall be produced.

    d. The method for asserting or preserving claims of privilege or of protection of trial-preparation materials, and to what extent, if any, the claims may be asserted after production of electronically stored information.

    e. The cost of proposed discovery of electronically stored information and the extent to which such discovery shall be limited, if at all, under sub. (3)(a).

    f. In cases involving protracted actions, complex issues, or multiple parties, the utility of the appointment by the court of a referee under s. 805.06 or an expert witness under s. 907.06 to supervise or inform the court on any aspect of the discovery of electronically stored information.

    2. If a party fails or refuses to confer as required by sub. (e)1., any party may move the court for relief under s. 804.12(1).

    3. If after conferring as required by sub. (e)(1), any party objects to any proposed request for discovery of electronically stored information or objects to any response under s. 804.08(3) proposing the production of electronically stored information, the objecting party may move the court for an appropriate order under sub. (3).

    Supreme Court Note, 2010: Sub.
    (2)(e) was created as a measure to manage the costs of the discovery of electronically stored information. If the parties confer before embarking on such discovery, they may reduce the ultimate cost.

    The rule does not require parties to confer before commencing discovery under ss. 804.05 (Depositions upon oral examination), 804.06 (Depositions upon written questions), 804.08 (Interrogatories to parties); or 804.11 (Requests for admission). These discovery devices, if employed before serving a request for production or inspection of electronically stored information, may lead to more informed conferences about the potential scope of such discovery.

    Parties may not be able to reach consensus on how discovery of electronically stored information is to be managed. Accordingly, subs. (e)2. and (e)3. confer authority on the court to intervene as appropriate. In determining whether to issue an order relating to discovery of electronically stored information, the circuit court may compare the costs and potential benefits of discovery. See Vincent & Vincent, Inc. v. Spacek, 102 Wis. 2d 266, 306 N.W.2d 85 (Ct. App. 1981). It is also appropriate to consider the factors specified in the Advisory Committee notes to Fed. R. Civ. P. 26(b)(2)(B): (1) the specificity of the discovery request; (2) the quantity of information available from other and more easily accessed sources; (3) the failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources; (4) the likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources; (5) predictions as to the importance and usefulness of the further information; (6) the importance of the issues at stake in the litigation; and (7) the parties’ resources.

    IT IS FURTHER ORDERED that notice of this amendment of Wis. Stat. § 804.01 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 10th day of November, 2010.

    By the court:

    A. John Voelker,
    Acting Clerk of Supreme Court

    ¶1 ANN WALSH BRADLEY, J. (dissenting). I fear that the majority is using a sledgehammer to crack a nut. The problems with electronic discovery in our state’s courts are few. Nevertheless, the majority responds with a statewide mandate that is all-encompassing and immediate.

    ¶2 Because I am concerned that this unnecessary new mandate has the potential to diminish both fairness and efficiency along with the potential of increasing the time and expense of litigation, I respectfully dissent.

    I.

    ¶3 After almost two years of study by the Judicial Council Evidence and Civil Procedure Committee, representing expert and diverse experience in the law,1 the Judicial Council advised that Wisconsin does not need a mandatory confer rule. It suggested that those who would have this court adopt the federal meet and confer requirement may not be considering the toll it would take on litigants in the vast majority of cases.

    ¶4 Explaining the rationale behind the Judicial Council recommendation, a member of the committee emphasized that there is little need for a mandatory rule in Wisconsin at this time.2 Unlike the federal courts, Wisconsin state courts do not have many cases involving a large number of documents and electronic discovery disputes. Instead our state court dockets are dominated by the more routine mortgage foreclosures, automobile accidents, collections, and contract enforcement cases. Concern was expressed that adopting a mandatory confer rule would impose “significant added burden on litigants while yielding little benefit.”3 Accordingly, the Judicial Council recommended that the meet and confer remain discretionary, to be used by the circuit court only when needed, rather than mandated for all cases involving the discovery of electronic records.

    ¶5 Nevertheless, the majority thought otherwise. Instead, the rule that the majority promulgates sets up a requirement for discovery of electronic records that is all-encompassing and immediate.

    ¶6 It requires a mandatory confer conference in all cases involving discovery of electronic records. Because most records today are kept electronically, the mandatory confer rule encompasses the lion’s share of all cases requesting discovery of a record.

    II.

    ¶7 In moving immediately rather than cautiously, the majority fails to heed its own advice. This court advised the Judicial Council that the Wisconsin rules should follow the federal rules of civil procedure, where appropriate, and benefit from the federal experience. Realizing the need to monitor the consequences of the new federal electronic discovery rules, the Seventh Circuit Court of Appeals moved cautiously.

    ¶8 It established a pilot program in the northern district of Illinois and commissioned a multi-year study to explore how the principles underpinning the federal rules relating to the discovery of electronically stored information were working in practice. The report of phase one of the pilot program indicates that a majority of attorneys who responded to a survey opined that the principles underpinning the new federal rules, which included a mandatory meet and confer, neither enhanced fairness nor increased efficiency.4

    ¶9 I likewise am not persuaded that the principles behind the federal electronic discovery rules, including the mandatory confer rule, will either enhance fairness or increase efficiency. This is especially true in a jurisdiction like Wisconsin where the mandate is unnecessary because electronic discovery issues have not posed a statewide problem.

    ¶10 Rather than enhancing fairness and increasing efficiency, I believe that a mandatory confer rule has the potential to diminish both. A mandate to confer can diminish fairness if used as a sword against unrepresented litigants. It has the potential to decrease efficiency by spawning satellite litigation regarding compliance issues.

    III.

    ¶11 Another unfortunate consequence of this unnecessary mandate is that it will increase the cost of litigation. When the parties are represented by attorneys, the expenses associated with the mandated conference will be added to the client’s bill. When one or more of the parties is self-represented, the procedure likely will be more cumbersome and costly. It is not just a matter of one person picking up the telephone to confer with another. Many adults work during the day and cannot be reached by phone at home during the day. More problematic is that the trend is moving toward more people having only a cell phone where there may be no easy way to discover the litigant’s cell phone number.5 How are they to be contacted? If a letter is sent and there is not an immediate response, what is the next step? How much added time and expense will be incurred?

    ¶12 Unlike the majority, I would follow the initial recommendation of the Judicial Council committee and make a meet and confer discretionary. Also, unlike the majority, I would follow the lead of the Seventh Circuit and cautiously continue to test how this newly mandated procedure is working. Accordingly, I urge judges, lawyers and litigants from around the state to monitor this new mandate, and if it is not working, petition the court for change.

    ¶13 For the reasons set forth above, I respectfully dissent.

    ¶14 I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON joins this dissent.

    1The following persons were on the Committee: Judge Edward Leineweber, Richland County; Tom Bertz, Anderson, O’Brien, Bertz, Skrenes & Golla, Stevens Point; Jim Boll, State Bar President, Madison Gas & Electric, Madison; Al Foeckler, Cannon & Dunphy S.C., Brookfield; Kathleen Grant, Borgelt, Powell, Peterson & Frauen S.C., Milwaukee*; Prof. Jay Grenig, Marquette Law School, Milwaukee; Beth Hanan, Gass Weber Mullins LLC, Milwaukee; Catherine LaFleur, LaFleur Law Office, Milwaukee; Robert McCracken, State Bar Litigation Section, Nash Spindler Grimstad & McCracken, Manitowoc; Robin Ryan, Legislative Reference Bureau, Madison*; Chief Judge Mary Wagner, Kenosha County; Corey F. Finkelmeyer, Dep’t of Justice, Madison*; William Gleisner, Law Offices of William C. Gleisner, III, Milwaukee; Marty Kohler, Kohler & Hart, Milwaukee; Richard B. Moriarty, Dep’t of Justice, Madison; Judge Richard Sankovitz, Milwaukee County; Deborah M. Smith, State Public Defender’s Office, Madison.*

    The persons whose names have been starred are persons no longer on the Committee. The Committee began its work in September 2007.

    2“First, our courts have yet to see many cases involving electronic discovery. Only a handful of judges report having had to decide electronic discovery disputes. … Electronic discovery is expensive and warranted mainly in cases in which large numbers of documents or electronic communications are at issue. That simply isn’t the case in the mortgage foreclosure, automobile accident and contract enforcement cases that dominate our civil caseloads.” Rule 09-01, In the Matter of Amendment of Wis. Stat. §§ 802.10, 804.01, 804.08, 804.09, 804.12, and 805.07 (Abrahamson, C.J., dissenting, Appendix D, Jan. 11, 2010 Letter from Judge Richard J. Sankovitz Explaining Reasoning of Judicial Council’s Proposed Rules, at 2).

    3Id. at 3.

    4A substantial portion of the responding attorneys, forty-three percent (43%), reported that the Principles “increased” or “greatly increased” the fairness of the discovery process. Fifty-five percent (55%) stated they believed the Principles had no effect on the fairness of the discovery process, and just under three percent (3%) felt that the Principles decreased the fairness.

    More than thirty-eight percent (38%) of the responding attorneys stated that the Principles increased the parties’ ability to resolve e-discovery disputes without court involvement, sixty-one percent (61%) stated the Principles had no effect on this, and less than one percent (1%) stated the Principles decreased their ability to resolve e-discovery issues without court involvement.

    Seventh Circuit Electronic Discovery Pilot Program, Report on Phase One, May 20, 2009-May 1, 2010, at 2-3, available at http://www.7thcircuitbar.org/associations/1507/files/05-2010%20Phase%20One%20Report%20and%20Appendix%20with%20Bookmarks.pdf (last accessed Nov. 8, 2010).

    5One of every four American homes (24.5%) had only cellular telephones during the last half of 2009. Among households with both landline and cellular telephones, 25.7% received all or almost all calls on the cellular telephones. Stephen J. Blumberg, Ph.D. and Julian V. Luke, Wireless Substitution: Early Release of Estimates From the National Health Interview Survey, July-December 2009, Centers for Disease Control, released May 12, 2010, at 1, 5.

    Diploma Privilege

    In the matter of the petition to amend or repeal Superme Court Rule 40.03, Diploma Privilege.

    Order 09-09

    On Sept. 28, 2009, Attorney Steven Levine and 71 other members of the State Bar of Wisconsin petitioned this court to amend Supreme Court Rule (SCR) 40.03 by extending diploma privileges to graduates of all ABA-approved law schools, or in the alternative, to repeal SCR 40.03 in its entirety.

    The court held a public hearing and administrative conference on Sept. 30, 2010. The court continued to discuss the petition at an administrative conference on Oct. 4, 2010. Upon consideration of the matters presented at the public hearing and submissions made in response to the proposed amendments, the court voted unanimously that the petition to amend or repeal Supreme Court rule 40.03 be denied.

    IT IS ORDERED the petition is denied.

    IT IS ORDERED that notice of this order be given 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 4th day of November, 2010.

    By the court:

    A. John Voelker, Acting Clerk of Supreme Court

    ¶1 SHIRLEY S. ABRAHAMSON, C.J. (concurring). Neither graduating from law school nor passing a bar examination guarantees that a person will be a competent or trustworthy lawyer. These two methods, although not perfect, are the only ones that have been developed that give some protection to the public, which is a fundamental purpose of educating and licensing lawyers.

    ¶2 The 50 states should find a way to allow lawyers to practice across state borders without the costs lawyers presently incur. Our 50-state bar admission system should give us pause when we see the European Union, which is made up of 27 different countries with different languages and different legal systems, possibly allowing more cross-border practice than our states do.1

    ¶3 Nevertheless I would neither abandon nor extend the Wisconsin diploma privilege. I favor the diploma privilege for the two Wisconsin law schools.2 It has worked well in Wisconsin. With only two law schools in the state, the Wisconsin Supreme Court is in an excellent position to monitor and evaluate the content and quality of the legal education received by the law students of these two universities.

    ¶4 Thirty-two states have granted the diploma privilege at one time or another,3 and all but Wisconsin have abandoned the practice. The fact that “everyone else is doing it” is not a reason for Wisconsin to abandon the diploma privilege. As Justice Brandeis wrote, “It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”4

    ¶5 I do not, however, favor extending the diploma privilege to all graduates of all ABA-accredited law schools. Law schools have varied requirements for entry, for curriculum, and for grading. Extending the diploma privilege would place on the Court too great a burden of monitoring the standards of law schools across the country. We can keep tabs on the two Wisconsin law schools.

    ¶6 The only alternative suggested to the diploma privilege over these many years has been a bar examination.

    ¶7 Although I believe the Wisconsin bar examination is as good as any other state’s professional qualifying instrument, I have doubts whether bar examinations in general truly measure an applicant’s competence to practice law. I am not alone in expressing these doubts.

    ¶8 In 2002, the Society of American Law Teachers (SALT) issued a “Statement on the Bar Exam,”5 in which it expressed its belief that bar examinations, as currently administered, fail to adequately measure professional competence to practice law.6

    ¶9 The SALT statement asserts that
    “[t]he bar examination does not even attempt to screen for many of the skills” that a competent lawyer should possess, such as the ability to perform legal research, investigate facts, communicate orally, interact with clients, and negotiate.7 SALT further criticizes the bar exam’s overemphasis on memorizing legal principles, and points out that practitioners who rely on their memory of the law instead of conducting legal research may find themselves subject to disciplinary complaints and malpractice claims.8

    ¶10 In addition to concerns about whether a bar examination actually accomplishes its purpose, I am concerned, as is Attorney Steven Levine, one of the petitioners, about the financial burden bar examinations place on law school graduates from law schools around the country who wish to practice in Wisconsin and on Wisconsin law graduates who wish to practice in other states.

    ¶11 The American Bar Association reports that the average amount borrowed by a student at a public law school for the 2007-08 academic year was $59,324.9 For private law school students, the average for that year was $91,506.10 On top of this debt (and any undergraduate debt), a law graduate must pay a filing fee to take the exam, which ranges from $150 to upwards of $1,000.11 In Wisconsin, the fee to sit for the bar examination is $450.12 A law graduate is likely to take a bar review course, which may cost well over $2,000.13 And the law graduate will spend several weeks studying for an examination, rather than being productively employed. I do not relish the idea of adding these costs of a bar examination to the already enormous debt load carried by many law school graduates.

    ¶12 I have searched for a method other than the bar examination or extended diploma privilege to ensure competence and protect the public, and I have not found one. I do suggest, however, that the current admission system of 50 state bar examinations, with varying rules and requirements, might at least be simplified, and perhaps made less costly, through a uniform bar exam.14 An examinee taking a uniform bar examination in one jurisdiction would receive a score that would be transferrable to other jurisdictions that use the UBE.15

    ¶13 I agree with the resolution adopted by the Conference of Chief Justices on July 28, 2010, Endorsing Consideration of a Uniform Bar Examination, which reads as follows:

    Resolution 4: Endorsing Consideration of a Uniform Bar Examination
    “WHEREAS, the states’ highest courts regard an effective system of admission and regulation of the legal profession as an important responsibility for the protection of the public; and

    “WHEREAS, the increased demand for lawyer mobility results in greater multijurisdictional practice and increased access to admission on motion; and

    “WHEREAS, the increasing use of uniform, high quality testing instruments has rendered most jurisdictions’ bar examinations substantially similar; and

    “WHEREAS, law is the only major profession that has not developed a uniform licensing examination; and

    “WHEREAS, a uniform licensing examination for lawyers would facilitate lawyer mobility and enhance protection of the public; and

    “WHEREAS, state bar admission authorities and state supreme courts would remain responsible for making admission decisions, including establishing character and fitness qualifications and setting passing standards, and enforcing their own rules for admission; and

    “WHEREAS, issues relating to knowledge of local law can be addressed through a mandatory educational component, a separate assessment, or a combination thereof;

    “NOW, THEREFORE, BE IT RESOLVED that the Conference of Chief Justices urges the bar admission authorities in each state and territory to consider participating in the development and implementation of a uniform bar examination.”16

    ¶14 In the interest of protecting the public and law graduates and allowing persons to prosecute or defend their suits by attorneys of their choice,17 I write separately to urge the Wisconsin Board of Bar Examiners to explore ways of reducing the costs of the Wisconsin bar examination to graduates of law schools outside Wisconsin, to explore the use of a uniform bar examination for graduates of law schools outside Wisconsin, and to be open to new ways of unlocking state borders to competent attorneys.

    ¶15 I am authorized to state that Justices ANN WALSH BRADLEY and N. PATRICK CROOKS join this concurrence.

    1See, e.g., Christine R. Davis, Approaching Reform: The Future of Multijurisdicitonal Practice in Today’s Legal Profession, 29 Fla. St. U. L. Rev. 1339, 1357-58 (2002):

    “[The European Union] model permits lawyers from any of the EU’s … member states to cross jurisdictional borders and practice within another EU country. … The attorney is required only to register in the member country. … The EU adopted this directive after recognizing the dramatic increase in cross-border activity similar to that of the U.S. (footnotes omitted).”

    2Wisconsin apparently has “the most restrictive diploma privilege statute ever written.” Thomas W. Goldman, Use of the Diploma Privilege in the United States, 10 Tulsa L.J. 36, 42-43 (1974-75) (referring to Wis. Stat. § 256.28(1)(1971), the provisions of which are now contained in SCR ch. 40).

    3Beverly Moran, The Wisconsin Diploma Privilege: Try It, You’ll Like It, 2000 Wis. L. Rev. 645, 646 (quoting George Neff Stevens, Diploma Privilege, Bar Examination or Open Admission: Memorandum Number 13, 46 Bar Examiner 15, 17 (1977)).

    4New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) (footnote omitted).

    5Society of American Law Teachers Statement on the Bar Exam, 52 J. Legal Educ. 446 (2002).

    6Id. at 446.

    7Id. at 447.

    8Id.

    9American Bar Association, Average Amount Borrowed for Law School 2001-2008, available at http://www.abanet.org/legaled/statistics/charts/stats%20-%2020.pdf (last visited Oct. 25, 2010).

    10Id.

    11National Conference of Bar Examiners & American Bar Association Section of Legal Education and Admissions to the Bar, Comprehensive Guide to Bar Admission Requirements 2010 35 (2010), available at http://www.ncbex.org/fileadmin/mediafiles/downloads/Comp_Guide/CompGuide_2010.pdf (last visited Oct. 25, 2010).

    12See Information and Filing Instructions: 2011 Wisconsin Bar Examinations, available at http://wicourts.gov/formdisplay/BE-170.pdf?formNumber=BE-170&formType=Form&formatId=2&language=en (last visited Oct. 25, 2010).

    13See, e.g., http://www.barbri.com/[...] (last visited Oct. 25, 2010) (stating $2,625 price for BARBRI’s 2010 Wisconsin bar exam review course).

    14Susan M. Case, The Uniform Bar Examination: What’s In It For Me?, Bar Examiner, Feb. 2010, at 50.

    15Id.

    16The Council of the American Bar Association Section of Legal Education and Admissions to the Bar adopted a similar resolution on Aug. 6, 2010 (available at http://www.abajournal.com/files/Uniform_Bar_Exam_2010_Council_(9-14)_v2.pdf (last visited Oct. 25, 2010)).

    17Wis. Const. Art I, § 21: “In any court of this state, any suitor may prosecute or defend his suit either in his own proper person or by an attorney of the suitor’s choice.”

    Trust Account Insurance and Safety Requirements

    In the matter of the petition to amend Supreme Court Rule 20:1.15(e)(2)a., relating to trust account insurance and safety requirements.

    Order 10-05

    On March 16, 2010, the Board of Administrative Oversight and the Office of Lawyer Regulation filed a petition with the Wisconsin Supreme Court. The petition requests the court amend Supreme Court Rule (SCR) 20:1.15(e)(2)a., its comment, and the comments to SCR 20:1.15(cm)(3), to provide greater protection to the public when a lawyer holds trust property at a credit union.

    On Nov. 5, 2010, the court held a public hearing and administrative conference. Upon consideration of matters presented at the public hearing and submissions made in response to the proposed amendments, the court unanimously adopted the petition.

    Therefore,

    IT IS ORDERED that effective Jan. 1, 2011:

    Section 1. 20:1.15(e)(2)a. of the Supreme Court Rules is amended to read:

    20:1.15(e)(2)a. Each trust account shall be maintained at a financial institution that is insured by the federal deposit insurance corporation, the national credit union share insurance fund, the securities investor protection corporation, or any other investment institution financial guaranty insurance. Except as provided in subs. (b)(6) and (cm)(3)b. and c., trust property shall be held in an account in which each individual owner’s funds are eligible for insurance.

    Section 2. The Comment to SCR 20:1.15 (cm) (3) pertaining to insurance requirements is amended to read:

    COMMENT

    SCR 20:1.15(cm)(3) Insurance and safety requirements.

    Pursuant to SCR 20:1.15(cm)(3), IOLTA accounts are required to be held in IOLTA participating institutions that are insured by the federal deposit insurance corporation (FDIC), the national credit union share insurance fund (NCUSIF), the securities investor protection corporation (SIPC) or any other investment institution financial guaranty insurance. However, since federal law dictates the amount of available insurance coverage available from the FDIC, the NCUSIF and the SPIC, funds in excess of the those limit limits are not insured. Federal law also limits the types of losses that are covered by SIPC insurance. Consequently, the purpose of the insurance and safety requirements is not to guarantee that all funds are adequately insured. Rather, it is to assure that trust funds are held in reputable IOLTA participating institutions and, as specified in subsection (e)(2)a., that the funds are eligible for the insurance that is available.

    SCR 20:1.15(e)(2)a. requires a lawyer to hold funds in an account where each owner’s funds are eligible for the financial institution’s insurance coverage. Practitioners should exercise care when placing trust funds in an IOLTA or any other type of lawyer trust account at a credit union, because an individual owner of funds held in any type of lawyer trust account (i.e., a client or third party) is eligible for NCUSIF insurance only if that individual owner is a member of the credit union, or if the credit union is designated by the National Credit Union Administration (NCUA) as a “low-income” credit union. The exceptions to the SCR 20:1.15(e)(2)a. requirement relate to trust property other than funds and to IOLTA accounts that are subject to the safety requirements of SCR 20:1.15(cm)(3)b. and c.

    Section 3. The Comment to SCR 20:1.15(e)(2) pertaining to insurance requirements is amended to read:

    COMMENT

    SCR 20:1.15 (e) (2) Insurance and safety requirements.

    Pursuant to SCR 20:1.15(e)(2), trust accounts are required to be held in financial, investment, or IOLTA participating institutions that are insured by the federal deposit insurance corporation (FDIC), the national credit union share insurance fund (NCUSIF), the securities investor protection corporation (SIPC) or any other investment institution financial guaranty insurance. However, since federal law limits dictates the amount of available insurance coverage available from the FDIC, the NCUSIF and the SIPC, funds in excess of the those limit limits are not insured. Federal law also limits the types of losses that are covered by SIPC insurance. Consequently, the purpose of the insurance and safety requirements is not to guarantee that all funds are adequately insured. Rather, it is to assure that trust funds are held in reputable financial, investment, or IOLTA participating institutions and, as specified in subsection (e)(2)a., that the funds are eligible for the insurance that is available.

    SCR 20:1.15(e)(2)a. requires a lawyer to hold funds in an account where each owner’s funds are eligible for the financial institution’s insurance coverage. Practitioners should exercise care when placing trust funds in an IOLTA or any other type of lawyer trust account at a credit union, because an individual owner of funds placed in any type of lawyer trust account (i.e., a client or third party) is eligible for NCUSIF insurance only if that individual owner is a member of the credit union, or if the credit union is designated by the National Credit Union Administration (NCUA) as a “low-income” credit union. The exceptions to the SCR 20:1.15(e)(2)a. requirement relate to trust property other than funds and to IOLTA accounts that are subject to the safety requirements of SCR 20:1.15(cm)(3)b. and c.

     

    IT IS ORDERED that notice of this amendment of Supreme Court Rule (SCR) 20:1.15(e)(2)a., its comment, and the comments to SCR 20:1.15(cm)(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 5th day of November, 2010.

    By the court:

    A. John Voelker,
    Acting Clerk of Supreme Court

    Required Court Reporting and Videotape Procedure

    In the matter of the amendment of Supreme Court Rule 71.01, regarding required court reporting, and Wis. Stat. § 885.42, videotape procedure.

    Order 10-06

    On April 14, 2010, the Director of State Courts on the recommendation of the Committee of Chief Judges and District Court Administrators, filed an administrative rule petition proposing amendments to SCR 71.01(2)(e) and Wis. Stat. § 885.42(2) and (4). The petition was filed in response to this court’s order dated Dec. 11, 2009. See S. Ct. Order 09-05, 2009 WI 104 (issued Dec. 11, 2009, eff. Jan. 1, 2010).1

    The Dec. 11, 2009, order addressed an earlier rule petition filed by the same petitioners regarding the interpretation of SCR 71.02(2) (Required Court Reporting) and directed the Committee of Chief Judges and District Court Administrators to collaborate with appellate practitioners and other interested parties to evaluate whether amendments to Wis. Stat. § 885.42(4) may be warranted. The pending petition addresses the court’s questions about possible conflicting language in § 885.42 by proposing that videotape depositions continue to be reported and transcribed by the court reporter but other audio and audiovisual recordings need not be reported and transcribed unless ordered by the court.

    On Friday, Nov. 5, 2010, this court conducted a public hearing on the petition. The Honorable Chief Judge Jeffrey A. Kremers presented the petition to the court. At the ensuing open administrative conference the court voted unanimously to grant the petition.

    IT IS ORDERED that, effective Jan. 1, 2011, Supreme Court Rule 71.01(2) and Wis. Stat. §§ 885.42(2) and (4) are amended as follows:

    Section 1. SCR 71.01(2)(e) of the Supreme Court Rules is amended to read:

    SCR 71.01(2)(e) Audio and audiovisual recordings of any type, if not submitted under par. (d), that are played during the proceeding, marked as an exhibit, and offered into evidence. If only part of the recording is played in court, the part played shall be precisely identified in the record. The court may direct a party or the court reporter to prepare the transcript of a recording submitted under this paragraph.

    Section 2. The Comment to Supreme Court Rule 71.01(2) is deleted.

    Section 3. 885.42(2) of the statutes is amended to read:

    885.42(2) Other evidence. Such other evidence as is appropriate may be recorded by videotape and be presented at a trial. The court may direct a party or the court reporter to prepare a transcript of an audio or audiovisual recording presented under this subsection in accordance with SCR 71.01(2)(e).

    Section 4. 885.42(4) of the statutes is amended to read:

    885.42 (4) Trial record. At trial, videotape depositions and other testimony presented by videotape shall be reported unless accompanied with a certified transcript submitted in accordance with SCR 71.01(2)(d).

    IT IS FURTHER ORDERED that notice of the amendment of Wis. Stat. §§ 885.42(2), 885.42(4) and SCR
    71.01(2)(e) shall 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 5th day of November, 2010.

    By the court:

    A. John Voelker,
    Acting Clerk of Supreme Court

    1A copy of the court’s order dated Dec. 11, 2009, is available on the Web site of the Wisconsin Supreme Court.




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