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    Supreme Court Orders

    On Oct. 4, the Wisconsin Supreme Court will hold public hearings on Order 05-01 (cost assessments in the lawyer regulation system), Order 09-07 (expunction of circuit court records), and Order 10-07 (Lawyers Assistance Corporation). On Oct. 18, the court will hold a public hearing on Orders 07-11 and 07-11A (discretionary transfer of cases to tribal court). On Oct. 19, the court will hold public hearings on Order 10-03 (hourly rates of court-appointed lawyers) and Order 10-04 (standards and procedures for permanent law license revocation). In Order 09-03, the court has amended the statutes and supreme court rules relating to the submission of evidence originating in a language other than English. 
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    Wisconsin LawyerWisconsin Lawyer
    Vol. 83, No. 9, September 2010

    Cost Assessments in the Lawyer Regulation System

    In the matter of review of amendments to Supreme Court Rule 22.24 relating to Cost Assessments in the Lawyer Regulation System

    Order 05-01

    On Jan. 18, 2005, Keith Sellen, Director of the Office of Lawyer Regulation (OLR), filed a petition to amend Supreme Court Rule 22.001(3) relating to cost assessments in the lawyer regulation system. The State Bar of Wisconsin’s Board of Governors (Board) proposed an alternate approach. The court took the matter under advisement pending the receipt of further information, including the results of a Bench and Bar Survey conducted by the State Bar of Wisconsin, which included questions regarding the allocation of fees and costs in lawyer disciplinary proceedings.

    At its open administrative conference on March 7, 2006, the majority of the court voted to amend the rules relating to the assessment of costs in lawyer disciplinary proceedings. The effective date of these amendments was July 1, 2006. A copy of the court’s order dated May 1, 2006, is available on the Website of the Wisconsin Supreme Court under Rules. The order provided that the amendments would expire on Dec. 31, 2008, unless the court took further action.

    The court reviewed this matter at its open administrative conference on Oct. 28, 2008, and concluded it was appropriate for the amendments to continue in effect until further order of this court. The court issued an order (No. 05-01A) dated Dec. 1, 2008, to this effect and also ordered that a public hearing on the amendments to SCR 22.24 made pursuant to the May 1, 2006, order would be scheduled prior to Dec. 31, 2010. A copy of the court’s Dec. 1, 2008, order is also available on the Website of the Wisconsin Supreme Court under Rules. Therefore,

    IT IS ORDERED that a public hearing on the amendments to SCR 22.24 shall be held in the Supreme Court Room in the State Capitol, Madison, Wis., on Monday, Oct. 4, 2010, at 9:45 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 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, Wisconsin, this 3rd day of August, 2010.

    BY THE COURT:

    A. John Voelker, Acting Clerk of Supreme Court

    1Notice of the hearing will appear in the September 2010 Wisconsin Lawyer, the official publication of the State Bar of Wisconsin, approximately 19 days before the hearing rather than the required minimum of 30 days. Pursuant to its rule-making authority under Wis. Stat. section 751.12 and its Internal Operating Procedures, the court exercises its discretion to allow this unavoidable deviation from the requirements.

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    Defining the Practice of Law

    In the matter of the Definition of the Practice of Law and the Administration of a Rule Defining the Practice of Law

    Order 07-09

    IT IS ORDERED that effective Jan. 1, 2011, Chapter 23 of the Supreme Court Rules is created to read as set forth in the order of this court dated July 27, 2010.

    IT IS FURTHER ORDERED that the full text of the order creating SCR Chapter 23 shall be made available on the Website of the Wisconsin Supreme Court, http://wicourts.gov, and the Website of the State Bar of Wisconsin [www.wisbar.org].

    Dated at Madison, Wis., this 27th day of July, 2010.

    BY THE COURT:

    A. John Voelker, Acting Clerk of Supreme Court

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    Transfer of Cases to Tribal Court

    In the matter of review of Wis. Stat. § 801.54, discretionary transfer of cases to tribal court.

    Order 07-11 and 07-11A

    On July 31, 2008, this court created Wis. Stat. § 801.54 governing the discretionary transfer of cases to tribal court. See S. Ct. Order 07-11, 2008 WI 114 (issued Jul. 31, 2008, eff. Jan. 1, 2009) (Roggensack, J., dissenting). On July 1, 2009, this court granted the request of the Wisconsin Department of Children and Families to amend Wis. Stat. § 801.54(1) to create an exception to the rule to facilitate transfer of post-judgment child support cases to tribes under certain circumstances. See S. Ct. Order 07-11A, 2009 WI 63 (issued Jul. 1, 2009, eff. Jul. 1, 2009) (Roggensack, J., dissenting). Both of these orders are available on the Website of the Wisconsin Supreme Court under Rules.

    The court’s July 31, 2008, order stated the court would review the operation of this rule in two years from its effective date of Jan. 1, 2009. Therefore,

    IT IS ORDERED that a public hearing to review the operation of Wis. Stat. § 801.54 governing the discretionary transfer of cases to tribal court shall be held in the Supreme Court Room in the State Capitol, Madison, Wis., on Monday, Oct. 18, 2010, at 9:45 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 publication of a copy of this order in the official state newspaper once each week for three consecutive weeks, 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.

    Dated at Madison, Wis., this 3rd day of August, 2010.

    BY THE COURT:

    A. John Voelker, Acting Clerk of Supreme Court

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    Submitting Evidence Originating in Language Other than English

    In the matter of creation of Wis. Stat. § 887.27 and Wis. Stat. § 901.09 and amendment of Supreme Court Rule 70.155, relating to the submission of evidence originating in a language other than English.

    Order 09-03

    On May 26, 2009, the Director of State Courts, A. John Voelker, on behalf of the Committee to Improve Interpreting and Translation in the Wisconsin Courts, petitioned this court to create Wis. Stat. § 887.27, Wis. Stat. § 901.09, and Supreme Court Rule (SCR) 70.155(5), relating to the submission of evidence originating in a language other than English.

    On Oct. 16, 2009, the Wisconsin District Attorneys Association (WDAA) filed a letter raising some questions about the scope of the petition. On Nov. 2, 2009, the court conducted a hearing in this matter. The Hon. Ralph M. Ramirez presented the petition to the court. The petitioner agreed to certain changes suggested by the WDAA. Wisconsin Hispanic Lawyers’ Association (WHLA) appeared at the public hearing and requested additional time to respond to the petition.

    At the ensuing open administrative conference, the court granted the WHLA additional time to file a written response to the petition.

    On Nov. 20, 2009, the Hon. Juan Colás and the Hon. Elsa Lamelas filed a joint written statement expressing concern about the scope of the petition. On Dec. 1, 2009, the WHLA filed a letter setting forth its concerns. The petitioner formally requested and received an extension of time to consider the written responses. On March 15, 2010, the petitioner filed an amended petition adopting many of the suggestions proposed by the interested parties and setting forth the alternative language proposed by Judge Colás and Judge Lamelas and the WHLA, respectively. A primary difference of opinion was whether the proposed rule should be limited to written evidence. The WHLA and Judge Colás and Judge Lamelas asserted the proposed rule should be limited to written evidence. The petitioner maintained the rule should encompass nonwritten evidence.

    The court considered the matter at its open administrative conference on May 11, 2010. The court voted unanimously to adopt the proposed amendments to SCR 70.155(5) and Wis. Stat. § 887.26(8). With respect to Wis. Stat. § 901.09 of the statutes, a majority of the court voted to adopt the language as proposed by the Hon. Juan Colás and the Hon. Elsa Lamelas. Chief Justice Shirley S. Abrahamson, Justice Ann Walsh Bradley, and Justice N. Patrick Crooks dissented from this decision. Therefore,

    IT IS ORDERED that, effective Jan. 1, 2011:

    Section 1. 887.26 (8) of the statutes is renumbered 887.27 and 887.27 (title), as renumbered, is amended to read:

    887.27 (title) Translations Depositions, translations of.

    Section 2. 901.09 of the statutes is created to read:

    901.09 Submission of writings; languages other than English. (1) The court may require that a writing in a language other than English offered in evidence be accompanied by a written translation of the writing into English with an attached affidavit by the translator stating his or her qualifications to perform the translation and certifying that the translation is true and correct.

    (2) A party may object to all or parts of a translation offered under sub. (1) or to the qualifications of the translator. The court may order a party objecting to all or part of a translation to submit an alternate translation of those parts of the original translation to which the party objects, accompanied by a translator’s affidavit as described in sub. (1). If an objection is made to the qualifications of the translator and the court finds that the translator is not qualified the court may reject the offered translation on that ground alone without requiring an alternative translation by the objecting party.

    (3) The court may require a party offering into evidence a translation under sub. (1) or an alternative translation ordered by the court under sub. (2) to bear the cost of the translation.

    Section 3. The following Comment to 901.09 of the statutes is created to read:

    Comment: This rule is not intended to apply strictly to evidence in documentary form. Parties often offer evidence not contained in documents that consists of or contains statements made in a foreign language, for example, recordings of telephone calls to 911 operators, recordings of police interrogations, and surveillance recordings. The better practice when offering such evidence is for a party to offer a written transcript of the recording, to aid the jury or the court in understanding the recording. Sometimes the transcript is received as evidence, but not always, and in any event the recording is considered primary and the transcript merely an aid. If a party offers in evidence a recording accompanied by a transcript, this rule governs the transcript.

    This rule does not require the court to provide the party with an interpreter for purposes of preparing the translation required by this rule.

    Section 4. 70.155 (5) of the Supreme Court Rules is created to read:

    70.155 (5) Any translation of a form shall be accompanied by an affidavit stating that the translator knows English and the second language and that in making the translation the translator carefully translated the form from English into the other language and that the translation is true and correct.

    IT IS FURTHER ORDERED that the Comment to 901.09 of the statutes is not adopted, but will be published and may be consulted for guidance in interpreting and applying 901.09 of the statutes.

    IT IS FURTHER ORDERED that notice of the creation of Wis. Stat. § 887.27, Wis. Stat. § 901.09, and SCR 70.155(5) 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 27th day of July, 2010.

    BY THE COURT:

    A. John Voelker, Acting Clerk of Supreme Court

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    Expunction of Circuit Court Records

    In the matter of amendment of Chapter 72 of the Supreme Court Rules relating to expunction of circuit court records.

    Order 09-07

    On June 30, 2009, the Board of Governors of the State Bar of Wisconsin, acting pursuant to the recommendation of the Criminal Law Section and the Individual Rights and Responsibilities Section, petitioned this court for an order amending Chapter 72 of the Supreme Court Rules relating to expunction of circuit court records. An amended petition was filed on Oct. 27, 2009. A public hearing was held on Feb. 24, 2010. At its open administrative conference, the court discussed the matter and requested that court staff conduct further research. The court stated that another open administrative conference would be scheduled to discuss the information on certain public records of the circuit courts that is available on Wisconsin Circuit Court Access (WCCA).

    IT IS ORDERED that on Monday, Oct. 4, 2010, at 9:45 a.m., at its open administrative conference in the Supreme Court Room in the State Capitol, Madison, Wis., the court shall discuss the public record information available on WCCA. As this petition has already been the subject of a public hearing, general public testimony will not be entertained at the open conference. The court may, in its discretion, direct questions to individuals present at the conference to aid the court’s consideration of these matters.

    IT IS FURTHER ORDERED that notice of the open administrative conference 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 not more than 60 days nor less than 30 days before the date of the hearing.1

    Dated at Madison, Wis., this 3rd day of August, 2010.

    BY THE COURT:

    A. John Voelker, Acting Clerk of Supreme Court

    1Notice of the administrative conference will appear in the September 2010 Wisconsin Lawyer, the official publication of the State Bar of Wisconsin, approximately 19 days before the conference rather than the required minimum of 30 days. Pursuant to its rule-making authority under Wis. Stat. section 751.12 and its Internal Operating Procedures, the court exercises its discretion to allow this unavoidable deviation from the requirements.

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    Increasing Compensation for Court-appointed Lawyers

    In the matter of the petition to amend Supreme Court Rule 81.02.

    Order 10-03

    On March 5, 2010, Attorneys Dean A. Strang, John S. Skilton, and Timothy W. Burns filed a petition on behalf of Patricia K. Ballman, Thomas J. Basting Sr., Richard T. Becker, Michelle A. Behnke, Gregory B. Conway, Robert H. Friebert, Janine P. Geske, Franklyn M. Gimbel, E. Michael McCann, Gerald M. O’Brien, Jose A. Olivieri, G. Lane Ware, all members in good standing of the State Bar of Wisconsin. The petition asks this court to amend Supreme Court Rule (SCR) 81.02 by increasing the hourly rate of compensation for court-appointed lawyers from $70 to $80, indexing that rate to the Consumer Price Index, and specifying that the payment of an hourly rate less than the rate set forth in SCR 81.02(1) for legal services rendered pursuant to appointment by the State Public Defender under Wis. Stat. § 977.08 is unreasonable.

    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 Tuesday, Oct. 19, 2010, 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 Website 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.

    Dated at Madison, Wis., this 3rd day of August, 2010.

    BY THE COURT:

    A. John Voelker, Acting Clerk of Supreme Court

    Petition

    Patricia K. Ballman, Thomas J. Basting Sr., Richard T. Becker, Michelle A. Behnke, Gregory B. Conway, Robert H. Friebert, Janine P. Geske, Franklyn M. Gimbel, E. Michael McCann, Gerald M. O’Brien, Jose A. Olivieri, and G. Lane Ware, all members in good standing of the Bar of this Court, individually, by their attorneys, John S. Skilton and Timothy W. Burns of the firm of Perkins Coie LLP, and Dean A. Strang of Hurley, Burish & Stanton S.C. , petition this Honorable Court to amend Supreme Court Rule 81.02 to change the hourly rate of compensation for court-appointed lawyers to $80 and to add provisions indexing that rate to the Consumer Price Index and specifying that the payment of an hourly rate less than the rate set forth in Supreme Court Rule 81.02(1) for legal services rendered pursuant to appointment by the State Public Defender under Wisconsin statutes section 977.08 is unreasonable.

    (Proposed) SCR 81.02 Compensation

    (1) Except as provided under sub. (1m), attorneys appointed by any court to provide legal services for that court, for judges sued in their official capacity, for indigents and for boards, commissions and committees appointed by the supreme court shall be compensated at the rate of $80 per hour or a higher rate set by the appointing authority. The minimum rate shall be indexed to the Consumer Price Index (published by the U.S. Bureau of Labor Statistics).

    (1m) Any provider of legal services may contract for the provision of legal services at less than the rate of compensation under sub. (1).

    (2) The rate specified in sub. (1) applies to services performed after July 1, 2010.

    (3) The payment of an hourly rate less than the rate set forth in Supreme Court Rule 81.02(1) for legal services rendered pursuant to appointment by the State Public Defender under Wisconsin Statutes section 977.08 is unreasonable.

    _____________________

    The grounds for this petition are as follows:

    1. By statute, Wisconsin provides counsel to eligible indigent criminal defendants through the State Public Defender (SPD) or, if the State Public Defender has a conflict of interest or is otherwise unable to represent an eligible indigent defendant, through counsel appointed and paid by the State Public Defender. See Wis. Stat. §§ 977.05(4)(i), (j), (jm); 977.05(5)(a); 977.07; 977.08. The legislature requires that the SPD handle 67% of all felony and juvenile indigent representation, and the private bar therefore no more than 33% of indigent clients in those cases. Wis. Stat. §
    977.08(5)(c).

    2. Now, because of its own budgetary limitations, the State Public Defender appoints counsel in approximately 60,000 cases per year in Wisconsin. The private bar in recent years has been called upon to handle approximately 40-45% of all indigent representations. That increased allocation of cases to the private bar has put a strain on members of the private bar who accept assignment of cases from the State Public Defender.

    3. This strain is exacerbated further by the fact that one-half or fewer of the lawyers on the SPD assigned counsel list handle the vast majority of assigned cases. The SPD’s assigned counsel list includes approximately 1,000 lawyers. However, according to SPD records, approximately 300-400 of these lawyers accept one case per month or fewer.

    4. SCR 81.02 currently sets compensation for court-appointed lawyers at $70 per hour. Pursuant to Wisconsin Statutes section 977.08, lawyers appointed by the State Public Defender receive $40 per hour in compensation.

    5. Lawyers whom the State Public Defender appoints receive less per hour than the average hourly overhead expense in Wisconsin and court-appointed lawyer’s margin after expenses is low. These low hourly rates have caused qualified lawyers to decline appointments and has shifted work from lawyers who, as Wisconsin lawyers traditionally have, perform their work in a professional law office with a secretary and support staff to lawyers whose only office is their home6. The present rate of $40 per hour is inadequate and cannot support adequate representation by criminal indigents.  

    7. In 1994, the Supreme Court increased the hourly compensation under SCR 81.02 from $60 to $70 after hearing argument and evidence that the $60 rate (a) was significantly lower than the average hourly rate charged by Wisconsin lawyers; (b) was not much higher than the office overhead rate for most lawyers; (c) reduced the number of experience lawyers taking court-appointed cases; and (d) impeded the provision of and reduced the quality of legal services to persons in need of these services.

    8. The hourly compensation under SCR 81.02 has remained unchanged since July 1994, despite the requirement under the Rule that the Supreme Court review the compensation every two years.

    9. From July 1994 to October 2009, the Consumer Price Index increased by 52%. If the rate set by SCR 81.02 had increased by the same percentage, that rate would now be $106.

    10. The increase in the cost of living is even reflected in the salaries of circuit judges. Those salaries have risen by 49% in the same time frame, from $86,289 to $128,600.

    11. In 1978, when the legislature established the State Public Defender’s role in circuit courts, the hourly rate of compensation for appointed lawyers was $35 ($25 for travel time). In 1992, the legislature increased private bar compensation to $50 for in-court time and $40 for out-of-court time; travel time remained unchanged at $25. However, in 1995, the legislature reduced the in-court rate to create a uniform $40 hourly rate. Again, the $25 hourly rate for travel remained unchanged. The same compensation structure continues to apply today.

    12. Since 1995, the legislature has not responded to requests to increase the compensation of appointed counsel. While the lack of adjustment to the compensation of court appointed counsel has been less than ideal, the lack of adjustment to Public Defender appointed counsel has been shameful. The $40 hourly rate for criminal defense counsel is just 57% of the $70 hourly rate that the Wisconsin Supreme Court found reasonable in 1994 for court appointed counsel under SCR 81.02(1).

    13. This level of compensation ($40 per hour) is well below the standards set by the National Legal Aid and Defenders Association (NLADA), which even in the case of contracts for indigent defense calls for a contracting governmental entity to compensate lawyers at “the customary compensation in the community for similar services rendered by privately retained counsel to a paying client …” NLADA Guidelines for Negotiating and Awarding Governmental Contracts for Criminal Defense Services, Guideline III-10(b)(1).6. Wisconsin’s $40 hourly rate puts it on par with the states paying the lowest rates for state-wide appointed defense counsel.

    14. The low rate of compensation to the private bar on SPD cases, coupled with the increased share of cases assigned to the private bar, has produced results incompatible both with the reality of justice and the appearance of justice. Wisconsin is meeting neither the promise nor the obligation of Gideon v. Wainwright, 372 U.S. 335 (1963) (felony prosecutions); and Argersinger v. Hamlin, 407 U.S. 25 (1972) (misdemeanor prosecutions). Although measurements are difficult, petitioners offer some objective indicators:

    a. In recent years, a disproportionately high number of all lawyers whom OLR has disciplined publicly were or are on the SPD assigned counsel list.

    b. Judges grant motions of indigent clients to dismiss their SPD-appointed private lawyers for cause in about 5% of all cases. But judges grant motions of indigent clients to dismiss an SPD staff lawyer for cause in only about 1% of all cases.

    c. On serious felonies and Ch. 980 (sexually violent person civil commitment) trials, for want of willing and qualified local lawyers, the SPD has to appoint lawyers from as far away as Madison and Milwaukee to handle cases in the northeast region of the state (for example, Brown, Door, Kewaunee, Marinette Counties and surrounding areas).

    d. The SPD has had to cut off appointments to some assigned counsel because they are above the weighted equivalent of 150 felony cases in a 12 month period. The SPD uses that NLADA standard as a minimal assurance of the effective assistance of counsel that the Sixth Amendment requires.

    15. The strain on the private bar, and on the SPD in maintaining a sufficient number of qualified and willing private bar lawyers on its assigned counsel list, also has had a dramatic adverse impact on counties and on property tax payers.

    a. When lawyers are unavailable or unwilling to represent indigent clients at the SPD rate of $40 per hour, or when clients do not qualify under existing SPD eligibility standards but nonetheless are unable financially to retain counsel, judges face the need to appoint lawyers at county expense. See State v. Dean, 163 Wis. 2d 503, 471 N.W.2d 310 (Ct. App. 1991). Counties are required to reimburse appointed counsel at the $70 per hour rate that SCR 81.02 sets.

    b. In calendar year 2008 alone, Wisconsin’s counties expended at least $5,965,186 on court-appointed counsel for indigent defendants, according to figures that the SPD maintains. Especially in less populous counties, that expense can be significant.

    c. Such appointments represent a shift of a state obligation to counties, with a corresponding unfunded burden imposed on property tax rolls.

    WHEREFORE, the petitioners request the Court to adopt the proposed amendment to SCR 81.02 and to grant such other relief as the Court may deem necessary.

    Dated at Madison, Wis. this 5th day of March, 2010.

    Dean A. Strang, Hurley, Burish & Stanton S.C., Madison, Wis.

    John S. Skilton and Timothy W. Burns, Perkins Coie LLP, Madison, Wis.

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    Standards and Procedures for Permanent Law License Revocation

    In the matter of the petition to amend Supreme Court Rules 21.16, 22.19, and 22.29, establishing standards and procedures for permanent revocation.

    Order 10-04

    On March 16, 2010, the Board of Administrative Oversight and the Preliminary Review Committee filed a petition with this court for an order to amend Supreme Court Rules (SCRs) 21.16, 22.19, and 22.29, by establishing standards and procedures for permanent revocation of lawyer licenses in cases where the seriousness of the lawyer’s misconduct and significance of the public interest require it.

    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 Tuesday, Oct. 19, 2010, 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 Website 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.

    Dated at Madison, Wis., this 3rd day of August, 2010.

    BY THE COURT:

    A. John Voelker, Acting Clerk of Supreme Court

    Petition

    The Board of Administrative Oversight and Preliminary Review Committee hereby petition the Supreme Court of Wisconsin for an order establishing standards and procedures for permanent revocation of lawyer licenses in cases where the seriousness of the lawyer’s misconduct and significance of the public interest require.

    Petitioners specifically request that the Supreme Court amend Supreme Court Rules 21.16, 22.19, and 22.29 in the manner provided by Appendix A.

    Petitioners submit Appendix A (text of proposed rule amendments), Supporting Memorandum, and Cover Sheet in support of this request.

    Respectfully submitted:

    Steven J. Koszarek, Chair, Board of Administrative Oversight

    Edward A. Hannan, Chair, Preliminary Review Committee

    APPENDIX A

    (In the Matter of the Petition For Establishment of Standards And Procedures for Permanent Revocation)

    SCR 21.16 Discipline  

    (1m) Any of the following may be imposed on an attorney as discipline for misconduct pursuant to the procedure set forth in SCR chapter 22:

    (a) Revocation of license to practice law. The supreme court, in any order or judgment in which a lawyer’s license is revoked, retains the discretion to permanently revoke the lawyer’s license and permanently prohibit any such lawyer’s license from being reinstated. Considerations pertinent to imposing the sanction of permanent revocation without right of reinstatement include, but are not limited to, one or more of the following:

    (i) conviction of a serious crime as defined in SCR 22.20(2); or

    (ii) a pattern of misconduct evincing:

    1. disregard for the trust and confidence fundamental to the attorney-client relationship; or

    2. flagrant disregard for the Rules of Professional Conduct; or

    3. lack of cooperation in and contempt for the disciplinary process; or

    4. neglect of client matters demonstrating the lawyer’s lack of fitness to continue the practice of law; or

    5. intentional corruption of the judicial process and/or the administration of government; or

    6. engaging in the unauthorized practice of law during the period of time in which the lawyer is suspended from the practice of law or revoked; or

    (iii) prior misconduct, and the nature and duration of prior misconduct.

    (b) Suspension of license to practice law.

    (c) Public or private reprimand.

    (d) Conditions on the continued practice of law.

    (e) Monetary payment.

    (em) Restitution, as provided under sub. (2m).

    SCR 22.19 Petition for consensual license revocation.

    (1) An attorney who is the subject of an investigation for possible misconduct or the respondent in a proceeding may file with the supreme court a petition for the revocation by consent or his or her license to practice law. The petition shall state whether the revocation is with or without right of reinstatement.

    (2) The petition shall state that the petitioner cannot successfully defend against the allegations of misconduct.

    (3) If a complaint has not been filed, the petition shall be filed in the supreme court and shall include the director’s summary of the misconduct allegations being investigated. Within 20 days after the date of filing of the petition, the director shall file in the supreme court a recommendation on the petition. Upon a showing of good cause, the supreme court may extend the time for filing a recommendation.

    (4) If a complaint has been filed, the petition shall be filed in the supreme court and served on the director and on the referee to whom the proceeding has been assigned. Within 20 days after the filing of the petition, the director shall file in the supreme court a response in support of or in opposition to the petition and serve a copy on the referee. Upon a showing of good cause, the supreme court may extend the time for filing a response. The referee shall file a report and recommendation on the petition in the supreme court within 30 days after receipt of the director’s response.

    (5) The supreme court shall grant the petition and revoke the petitioner’s license to practice law or deny the petition and remand the matter to the director or to the referee for further proceedings.

    SCR 22.29 Petition for reinstatement.

    (1) A petition for reinstatement of a license suspended for a definite period may be filed at any time commencing three months prior to the expiration of the suspension period.

    (2) A petition for reinstatement of a license that is revoked may be filed at any time commencing five years after the effective date of revocation.

    (2m) A lawyer who has been revoked without right of reinstatement may not petition for reinstatement.

    (3) A petition for reinstatement shall be filed in the supreme court. A copy of the petition shall be served on the director and on the board of bar examiners.

    (3m) The petitioner shall file 9 copies of a petition for reinstatement.

    (4) The petition for reinstatement shall show all of the following:

    (a) The petitioner desires to have the petitioner’s license reinstated.

    (b) The petitioner has not practiced law during the period of suspension or revocation.

    (c) The petitioner has complied fully with the terms of the order of suspension or revocation and will continue to comply with them until the petitioner’s license is reinstated.

    (d) The petitioner has maintained competence and learning in the law by attendance at identified educational activities.

    (e) The petitioner’s conduct since the suspension or revocation has been exemplary and above reproach.

    (f) The petitioner has a proper understanding of and attitude toward the standards that are imposed upon members of the bar and will act in conformity with the standards.

    (g) The petitioner can safely be recommended to the legal profession, the courts and the public as a person fit to be consulted by others and to represent them and otherwise act in matters of trust and confidence and in general to aid in the administration of justice as a member of the bar and as an officer of the courts.

    (h) The petitioner has fully complied with the requirements set forth in SCR 22.26.

    (j) The petitioner’s proposed use of the license if reinstated.

    (k) A full description of all of the petitioner’s business activities during the period of suspension or revocation.

    (4m) The petitioner has made restitution to or settled all claims of persons injured or harmed by petitioner’s misconduct, including reimbursement to the Wisconsin lawyers’ fund for client protection for all payments made from that fund, or, if not, the petitioner’s explanation of the failure or inability to do so.

    Comment: An attorney seeking reinstatement of a suspended or revoked license is required to reimburse the Fund for any payments made to injured clients as a result of the attorney’s conduct, or to explain why this is not possible. Fund payment to a client signifies that the lawyer’s dishonest conduct caused a loss that was restored through an assessment against all members of the bar. The attorney responsible should be required to reimburse the Fund before resuming practice. In cases where the attorney demonstrates that he or she cannot make full restitution to injured clients and to the Fund, the Fund will defer its right to reimbursement until the clients have been made whole.

    (5) A petition for reinstatement shall be accompanied by an advance deposit in an amount to be set by the supreme court for payment of all or a portion of the costs of the reinstatement proceeding. The supreme court may extend the time for payment or waive payment in any case in which to do otherwise would result in hardship or injustice.

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    Lawyers Assistance Corporation

    In the matter of the petition to amend Supreme Court Rules 12.02(6) and 12.03(7) concerning the Lawyers Assistance Corporation.

    Order 10-07

    On June 29, 2010, the State Bar of Wisconsin, by its then-president, Douglas W. Kammer, filed a petition with the Wisconsin Supreme Court. The petition requests the court amend Supreme Court Rules (SCRs) 12.02(6) and 12.03(7) concerning the Lawyers Assistance Corporation. The petitioners propose that the Lawyers Assistance Corporation be removed from the Rules and that the State Bar of Wisconsin, the corporation’s sole member, be authorized to dissolve the corporation.

    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 Monday, Oct. 4, 2010, at 9:45 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 website 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 3rd day of August, 2010.

    BY THE COURT:

    A. John Voelker, Acting Clerk of Supreme Court

    1Notice of the hearing will appear in the September 2010 Wisconsin Lawyer, the official publication of the State Bar of Wisconsin, approximately 19 days before the hearing rather than the required minimum of 30 days. Pursuant to its rule-making authority under Wis. Stat. section 751.12 and its internal Operating Procedures, the court exercises its discretion to allow this unavoidable deviation from the requirements. 

    Petition

    The State Bar of Wisconsin petitions the Court for a revision to Supreme Court Rules 12.02(6) and 12.03(7), concerning the relationship of attorneys appointed as trustees to handle the law practices of sole practitioners who have died, disappeared or become medically incapacitated and the Lawyers Assistance Corporation, which was created by the State Bar of Wisconsin in response to these Rules. The Board of Governors approved this petition on Feb. 26, 2010, by a unanimous vote, adopting the recommendation of the board of directors of the Corporation.

    A memorandum supporting this petition is attached.

    Proposed Change

    SCR 12.02 Sole practitioners; medical incapacity. 

    ***

    (6) The trustee attorney appointed under sub.(1)(a) shall be an employee of the Lawyers Assistance Corporation, a nonstock, nonprofit corporation created by the state bar of Wisconsin. That corporation shall procure and maintain professional liability insurance coverage through a Wisconsin-admitted legal malpractice insurance carrier, which coverage shall insure all trustee attorneys acting under this section. In addition, each trustee attorney shall have his or her own professional liability coverage with a carrier admitted to do insurance business in this state and whose coverage language clearly covers the work of the trustee attorney acting under this section, which individual coverage shall act as secondary coverage only.

    SCR 12.03 Sole practitioners; death or disappearance. 

    ***

    (7) The trustee attorney appointed under sub. (1)(a) or (2)(a) shall be an employee of the Lawyers Assistance Corporation, a nonstock, nonprofit corporation created by the state bar of Wisconsin. That corporation shall procure and maintain professional liability insurance coverage through a Wisconsin-admitted legal malpractice insurance carrier, which coverage shall insure all trustee attorneys acting under this section. In addition, each trustee attorney shall have his or her own professional liability coverage with a carrier admitted to do insurance business in this state and whose coverage language clearly covers the work of the trustee attorney acting under this section, which individual coverage shall act as secondary coverage only.

    In addition, the State Bar of Wisconsin is authorized, in its discretion, to dissolve the Lawyers Assistance Corporation.

    Respectfully submitted:

    Douglas W. Kammer, President, State Bar of Wisconsin

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