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    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 proposed two amendments to the rules: (1) a change to SCR 20:4.1 (Truthfulness in statements to others), and (2) an additional comment in SCR 20:8.4 (Misconduct). The court discussed the amended petition at its open conference on June 11, 2013, and voted to schedule a public hearing, which was conducted on Sept. 12, 2013.

    Attorney Schweitzer presented the petition to the court at the public hearing. No other testimony was given.

    At its ensuing open conference, the court voted to deny the amended petition in part, and grant the amended petition in part. The court voted 5 to 2 (Chief Justice Abrahamson and Justice Crooks, dissenting) to deny the part of the petition relating to the proposed amendment to SCR 20:4.1.

    The court then voted unanimously to grant the part of the petition relating to the proposed additional comment to SCR 20:8.4, as modified. Therefore,

    IT IS ORDERED that, effective the date of this order, the following Comment to Supreme Court Rule 20:8.4(b) is created to read:

    Wisconsin Comment: In addition to the obligations in this rule, Wisconsin attorneys should note the obligations concerning notification set forth in SCR 21.15(5) and SCR 22.22(1).

    IT IS FURTHER ORDERED that the comment to SCR 20:8.4(b) is not adopted, but will be published and may be consulted for guidance in interpreting and applying the rule.

    IT IS FURTHER ORDERED that notice of this amendment of the supreme court rules 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 1st day of October, 2013.

    By the court:

    Diane M. Fremgen, Clerk of Supreme Court

    Waiver of Fees for Qualified Veterans

    In the matter of the Petition to Create Supreme Court Rule 40.145 relating to the Waiver of Fees for Qualified Veterans.

    Order 13-02A

    On April 19, 2013, this court created a fee waiver program for qualified veterans. See S. Ct. Order 13-02, 2013 WI 33 (issued Apr. 19, 2013; eff. Apr. 19, 2013). In the interests of implementing the fee waiver program quickly, the court solicited public input after the order was issued and took effect, reserving the right to revisit the rule if public comment identified issues with the rule that warranted the court’s attention. The deadline for any comments was July 19, 2013. No comments were filed so the court can close the matter. Therefore,

    IT IS ORDERED that this matter is closed.

    Dated at Madison, Wis., this 16th day of September, 2013.

    By the court:

    Diane M. Fremgen, Clerk of Supreme Court

    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 (State Bar), the Office of Lawyer Regulation (OLR), 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.

    The court conducted a public hearing on this rule petition on Thursday, Sept. 12, 2013. Keith Sellen, Director of the OLR, presented the petition on behalf of the petitioners. George Brown, Executive Director of the State Bar, also testified in support of the petition.

    At its ensuing open conference, the court voted unanimously to adopt the petition, with amendments. Therefore,

    IT IS ORDERED that, effective Jan. 1, 2014, the Supreme Court Rules are amended as follows:

    Section 1. 10.03 (3) (b) of the Supreme Court Rules is repealed and recreated to read:

    10.03 (3) (b) 1. Any inactive member in good standing who has actively practiced law in this state during the last 10 years may change his or her classification to that of an active member by filing with the secretary a written request for transfer to the class of active members and by paying the dues required of active members.

    2. a. Any inactive member in good standing who has not actively practiced law in this state during the last 10 years may change his or her classification to that of an active member by filing with the secretary a written request for transfer to the class of active members, paying the dues required of active members, and obtaining supreme court approval as provided in subd. 2. b.

    b. Any inactive member described in subd. 2. a. seeking to change his or her classification to that of an active member shall file a copy of his or her request for transfer to active membership with both the board of bar examiners and the office of lawyer regulation. The member shall pay $200 each to the board of bar examiners and the office of lawyer regulation, which payment shall accompany the copy of the request. Within 90 days after receipt of the copy of the request, the board of bar examiners shall make a determination regarding compliance with continuing legal education requirements and file its finding with the clerk of the supreme court. Within 90 days after receipt of the copy of the request, the director of the office of lawyer regulation shall investigate the eligibility of the requestor and file a response with the clerk of the supreme court in support of or in opposition to the request. Following receipt of the determination of the board of bar examiners and the response of the office of lawyer regulation, the supreme court shall consider and approve or disapprove the inactive member’s request for transfer to active membership.

    Section 2. 10.03 (3) (bf) of the Supreme Court Rules is created to read:

    10.03 (3) (bf) Any judicial member who is no longer serving in a judicial office may change his or her classification to that of an active member by filing with the secretary a written request for transfer to the class of active members and paying the dues required of active members.

    Section 3. 10.03 (7) of the Supreme Court Rules is renumbered 10.03 (7) (a).

    Section 4. 10.03 (7) (b) of the Supreme Court Rules is created to read:

    10.03 (7) (b) 1. An attorney who has resigned as a member of the state bar may be readmitted to the state bar with approval of the supreme court as provided in subd. 2.

    2. The attorney shall file an original petition for readmission to the state bar with the clerk of the supreme court and shall file copies of the petition with the board of bar examiners and the office of lawyer regulation. The member shall pay $200 each to the board of bar examiners and the office of lawyer regulation which payment shall accompany the copy of the petition. Within 90 days after receipt of the copy of the petition for readmission, the board of bar examiners shall make a determination regarding the eligibility of the petitioner for readmission and file its finding with the clerk of the supreme court. Within 90 days after receipt of the copy of the petition for readmission, the director of the office of lawyer regulation shall investigate the eligibility of the petitioner for readmission and file a response with the clerk of the supreme court in support of or in opposition to the petition. Following receipt of the determination by the board of bar examiners and the response of the office of lawyer regulation, the supreme court shall consider and approve or disapprove the petition for readmission.

    Section 5. The following Comment to 10.03 (3) and (7) of the supreme court rules is created to read:

    Wisconsin Comment: Information regarding continuing legal education requirements is set forth in SCR ch. 31. See also CLE 3.015. The standards the OLR uses to investigate a requestor’s eligibility for reinstatement are described in In re Reinstatement of Polk, 2007 WI 51, ¶10, 300 Wis. 2d 280, 732 N.W.2d 419 (explaining that “investigation of eligibility for reinstatement … is akin to the review conducted by the BBE during an initial application for a license to practice law in this state” such that the applicant must demonstrate that he or she has good moral character and the fitness to practice law). See also SCR 40.06(1) and (3) and Rule BA 6.01-6.02.

    IT IS FURTHER ORDERED that the comment to SCR 10.03 (3) and (7) is not adopted, but will be published and may be consulted for guidance in interpreting and applying the rule.

    IT IS FURTHER ORDERED that notice of this amendment of SCR 10.03(3) and SCR 10.03(7) 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 1st day of October, 2013.

    By the court:

    Diane M. Fremgen, Clerk of Supreme Court

    State Bar Bylaws Amendments

    In the matter of the petition to review State Bar Bylaws amendments.

    Order 13-13

    Pending before the court is a challenge to recent amendments to Article II, Section 7(b), and Article III, Section 10(b), of the bylaws of the State Bar of Wisconsin. The Board of Governors approved the changes on June 12, 2013.1 On July 3, 2013, these proposed bylaw changes were duly filed with the clerk of Supreme Court pursuant to SCR 10.13(2) and Article IX of the State Bar bylaws.2 Supreme Court Rule 10.13(2) provides, in relevant part:

    “A petition for review of any such change in the bylaws will be entertained by the court if signed by 25 or more active members of the association and filed with the clerk of the court within 60 days after publication of notice of the change. Hearing upon such a petition will be pursuant to notice in such manner as the court directs.”

    On Sept. 10, 2013, 27 active members of the State Bar of Wisconsin filed a petition asking this court to review and reject Article II, Section 7(b), and Article III, Section 10(b), of the bylaw amendments. The challenged bylaw amendments concern procedures relating to the manner of succession in the event of a vacancy among officers or governors of the State Bar, the definition of a vacancy, and the terms under which an officer or member of the Board of Governors could be removed.

    The petitioners argue the challenged bylaws are inconsistent with SCRs 10.04(1) and 10.05(3) and are therefore void. In addition, the petitioners argue the bylaw amendments are unacceptably vague, threaten governors’ First Amendment rights, and are undemocratic and unnecessary. The petitioners request the court reject these bylaw amendments.

    The court discussed the matter at open conference on Sept. 12, 2013, together with pending rule petition 13-07, Petition to Amend SCRs 10.04 and 10.05 relating to Officers and the Board of Governors of the State Bar of Wisconsin. The court deemed it appropriate to consider rule petition 13-07 and the pending bylaw challenge together at a future public hearing. The court also concluded it would benefit from additional information prior to proceeding on these matters. Therefore,

    IT IS ORDERED that on or before Jan. 3, 2014, the petitioners and the State Bar of Wisconsin shall each file and exchange letter briefs addressing the proposed bylaws and the challenge filed. Responsive letter briefs may be filed within ten (10) days of receipt of the initial letter briefs.

    IT IS FURTHER ORDERED the letter briefs ordered above shall be submitted in hard copy (include one original and nine copies). The paper copies shall be mailed to the Clerk of the Supreme Court, P.O. Box 1688, Madison, WI 53701, and an electronic copy of the letter briefs (in MS Word format) shall be e-mailed to the Office of the Clerk of the Supreme Court at gov clerk wicourts wicourts clerk gov.

    IT IS FURTHER ORDERED that the court will consider this matter together with rule petition 13-07 at a future public hearing.

    Dated at Madison, Wis., this 2nd day of October, 2013.

    By the court:

    Diane M. Fremgen, Clerk of Supreme Court

    1 SCR 10.13(2) provides that the provisions of the bylaws of the State Bar are subject to amendment or abrogation by resolution adopted by vote of two-thirds of the members of the board of governors, or action of the members of the association expressed through the referendum procedure defined in SCR 10.08.

    2 The amendment was also duly published in the July 2013 Wisconsin Lawyer

    BBE Notice of Revision to SCR Chapter 31 Appendix

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

    Order

    Supreme Court Rule 31.14 provides the Board of Bar Examiners with rule-making authority for Chapter 31 of the Wisconsin Supreme Court Rules. The Board of Bar Examiners, after appropriate notice, conducted a public hearing on Sept. 20, 2013, regarding proposed revisions to SCR Chapter 31 Appendix. Now, therefore, it is hereby ordered that the Appendix to Chapter 31 of the Supreme Court Rules is repealed and recreated as follows:

    SCR CHAPTER 31 APPENDIX:

    CLE 7.06 is repealed and recreated to read:

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

    (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 brief 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 the published content of which 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). 

    These rules shall become effective Sept. 20, 2013.




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