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    CLE Credit for Certain OLR Units

    In the matter of petition to amend Supreme Court Rule 31.05(6).

    Order 13-01

    On Jan. 8, 2013, the Preliminary Review Committee (PRC), Special Preliminary Review Panel (SPRP), Board of Administrative Oversight, and the Office of Lawyer Regulation (OLR) filed this petition. The petitioners request changes to Supreme Court Rule (SCR) 31.05(6) to provide continuing legal education credit to lawyer members of the PRC and SPRP.

    The court initially discussed this petition at its rules conference on Feb. 28, 2013. The court agreed unanimously to solicit public comment and to schedule the matter for further discussion at an upcoming rules conference. The court solicited public comment by letter on March 19, 2013. Comments were received from the State Bar of Wisconsin, Washington County Circuit Court Judge James G. Pouros, and the Legislative Reference Bureau. The Board of Bar Examiners indicated it does not oppose this petition. The court discussed the matter again at its rules conference on April 12, 2013, and agreed to adopt the petition, pending receipt of final comments. No comments opposing the petition were received.

    IT IS ORDERED that, effective the date of this order, Supreme Court Rule 31.05(6) is amended as follows:

    SCR 31.05 (6) Each hour of service on the office of lawyer regulation preliminary review committee, special preliminary review panel, district committee or as an office of lawyer regulation special investigator may be used to satisfy the requirements of SCR 31.02, to a maximum of 3.0 hours of legal ethics and professional responsibility credit per reporting period, provided that the office of lawyer regulation maintains a roster verifying service and provides the roster to the board if requested.

    IT IS FURTHER ORDERED that notice of this amendment of SCR 31.05(6) be given by a single publication of a copy of this order in the official publications designated in SCR 80.01, including the official publishers’ online databases, and on the Wisconsin court system’s web site. The State Bar of Wisconsin shall provide notice of this order.

    Dated at Madison, Wis., this 14th day of June, 2013.

    By the court:

    Diane M. Fremgen, Clerk of Supreme Court

    Professional Conduct Rules for Attorneys

    In the matter of the amended petition to amend various Rules in Chapter 20 of the Supreme Court Rules

    Order 10-09

    On Oct. 21, 2010, Attorney John Nicholas Schweitzer petitioned this court for an order amending various rules in Chapter 20 of the Supreme Court Rules, Rules of Professional Conduct for Attorneys. On Feb. 24, 2011, the court discussed this matter in open conference. A majority of the court voted to request the petitioner convene a working group including the Office of Lawyer Regulation, Board of Administrative Oversight, and the State Bar Standing Committee on Professional Ethics, to discuss and potentially refine his proposal. After convening the working group, Attorney Schweitzer filed an amended petition on April 23, 2013, which proposes two amendments to the rules: (1) a change to SCR 20:4.1, and (2) an addition to the comment in SCR 20:8.4 (Misconduct).

    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 Thursday, Sept. 12, 2013, 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 publication of a copy of this order and of the petition 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 8th day of July, 2013.

    By the court:

    Diane M. Fremgen, Clerk of Supreme Court

    AMENDED PETITION

    The Petitioner, John Nicholas Schweitzer, attorney, hereby files this amendment to the petition originally filed on Oct. 21, 2010, and now designated Petition for Rule-making 10-09. Following its filing, the petition was reviewed by Dean Dietrich, the chair of the State Bar’s Professional Ethics Committee; Tim Pierce, the State Bar’s Ethics Counsel; attorneys Elizabeth Estes and Cathe Hahn of the Office of Lawyer Regulation; the State Bar’s Family Law Section; and the Board of Administrative Oversight, and as a result of that review objections or concerns were raised to almost all of the original 17 proposed amendments and to 2 more that were proposed along the way.

    All proposed amendments to which any objection or concern was raised have been removed from this Amended Petition, which therefore presents to the Supreme Court only the 2 proposed amendments to which no objection or concern was raised by any of the reviewers. The director of OLR recommended that the petition be withdrawn as he sees no advantage to either of the remaining two requested changes, but he has no objection to them.

    The Petitioner therefore asks the Supreme Court of Wisconsin for an order that amends Rules SCR 4.1 and SCR 8.4 in Chapter SCR 20 as described below.

    PROPOSED AMENDMENT 1 

    SCR 20:4.1 Truthfulness in statements to others

    (b) Notwithstanding par. (a), SCR 20:5.3(c)(1), and SCR 20:8.4, a lawyer may advise or supervise others with respect to lawful investigative activities. Lawful investigative activity may involve a lawyer as an advisor or supervisor only when the lawyer in good faith believes there is a reasonable possibility that unlawful activity has taken place, is taking place or will take place in the foreseeable future. 

    WISCONSIN COMMITTEE COMMENT: Paragraph (b) has no counterpart in the Model Rule. As a general matter, a lawyer may advise a client concerning whether proposed conduct is lawful. See SCR 20:1.2(d). This is allowed even in circumstances in which the conduct involves some form of deception, for example the use of testers to investigate unlawful discrimination or the use of undercover detectives to investigate theft in the workplace. When the lawyer personally participates in the deception, however, serious questions arise. See SCR 20:8.4(c). Paragraph (b) recognizes that, where the law expressly permits it, lawyers may have limited involvement in certain investigative activities involving deception.

    Lawful investigative activity may involve a lawyer as an advisor or supervisor only when the lawyer in good faith believes there is a reasonable possibility that unlawful activity has taken place, is taking place or will take place in the foreseeable future. 

    JUSTIFICATION: Moving the language from the comment to the rule will help clarify the situations in which an attorney may engage in “lawful investigative activity.”

    PROPOSED AMENDMENT 2 

    SCR 20:8.4 Misconduct 

    WISCONSIN COMMENT: In addition to the obligations in this rule, Wisconsin attorneys should note the obligation in SCR 21.15 (5) to notify the Office of Lawyer Regulation and the Supreme Court if convicted of a crime and the obligation in SCR 22.22 (1) to notify the Director of the Office of Lawyer Regulation of public discipline for misconduct or a license suspension for medical incapacity imposed in another jurisdiction.

    JUSTIFICATION: The proposed comment would not create a new obligation but it would serve to inform Wisconsin attorneys of existing reporting obligations in other chapters of the Supreme Court Rules.

    Respectfully submitted:

    John Nicholas Schweitzer, Attorney

    Inactive Members Requesting Active Status and Readmission After Resignation from the State Bar

    In the matter of the petition to amend Supreme Court Rules 10.03(3) and (7) relating to inactive members requesting active status and readmission after resignation from the State Bar.

    Order 13-03

    On May 22, 2013, the Board of Administrative Oversight, State Bar of Wisconsin, the Office of Lawyer Regulation, and the Board of Bar Examiners filed a joint petition seeking to amend Supreme Court Rules 10.03(3) and (7) relating to the procedure for inactive members to request active status, and to provide a procedure for readmission after resignation from the State Bar.

    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 Thursday, September 12, 2013, 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 publication of a copy of this order and of the petition 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, Wisconsin, this 8th day of July, 2013.

    By the court:

    Diane M. Fremgen, Clerk of Supreme Court 

    PETITION

    The State Bar of Wisconsin, Board of Bar Examiners, Board of Administrative Oversight, and Office of Lawyer Regulation hereby petition the Supreme Court of Wisconsin for an order amending Supreme Court Rule (SCR) 10.03(3) & (7) to modify the procedure for inactive members to request active status and to provide a procedure for reinstatement after resignation from the State Bar of Wisconsin.

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

    Respectfully submitted:

    Kevin G. Klein, President, State Bar of Wisconsin

    Daniel D. Blinka, Chairperson, Board of Bar Examiners

    Rod W. Rogahn, Chairperson, Board of Administrative Oversight

    Keith L. Sellen, Director, Office of Lawyer Regulation 

    BBE Notice of Hearing

    In the matter of revisions to SCR Chapter 31 Appendix regarding CLE credit for legal writing.

    A hearing to consider proposed revisions to SCR Chapter 31 Appendix will be held at the regular meeting of the Board of Bar Examiners on Friday, Sept. 20, 2013, at 10 a.m., on the Garden Level of the Tenney Building located at 110 E. Main Street in Madison, Wis. Written comments may be submitted by Monday, Sept. 9, 2013, to the Board of Bar Examiners, P.O. Box 2748, Madison, WI 53701.  

    PROPOSED REVISIONS TO SCR CHAPTER 31 APPENDIX: 

    CLE 7.06 is repealed and recreated:

    (a) It is in printed form as a book, a supplement or a pocket part to a book, or an article in a publication that is included in the Index to Legal Periodicals. For the purposes of this definition, systems manuals that are developed and offered for sale are deemed to be books;

    (b) It is commercially available or distributed to at least 500 lawyers; and

    (c) It satisfies the criteria set forth in SCR 31.07(2)(a) and (b) in that its objective is to increase the reader’s professional competence as a lawyer, and in that its content must deal primarily with matters related to the practice of law, professional responsibility or ethical obligations of lawyers.

    (2) Published legal writings specifically exclude the following:

    (a) Compilations of materials written by others;

    (b) Contributions to newsletters;

    (c) Written materials that are developed and distributed at CLE activities in accordance with SCR 31.07(2)(e).

    CLE 7.06

    (1) A published legal writing is defined as material that satisfies all of the following criteria:

    (a) It has been published, in print or electronically, in the form of an article, chapter, book, or significant revision;

    (b) It was written in whole or in substantial part by the lawyer submitting the request for approval; and

    (c) It satisfies the criteria set forth in SCR 31.07(2) (a) and (b) in that its objective is to increase the reader’s professional competence as a lawyer, and in that its content must deal primarily with matters related to the practice of law, professional responsibility or ethical obligations of lawyers.

    (2) Published legal writings specifically exclude the following:

    (a) Compiling or editing materials written by others;

    (b) Contributions to blogs or current-awareness entries in newsletters or magazines;

    (c) Material that is produced on behalf of or in support of a client, including submissions to a court of law or to an administrative agency;

    (d) Authorship of published decisions;

    (e) Material appearing in any media, whether print or electronic, that is controlled by the applicant or by the applicant’s firm or employer or that is published by the applicant;

    (f) Material appearing in a publication for general circulation or in a publication directed to a non-lawyer audience; and

    (g) Materials that are developed and distributed at CLE activities in accordance with SCR 31.07(2) (e).




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