Wisconsin Lawyer
Vol. 81, No. 12, December 2008

Supreme Court Orders

• 02-03: State Legislative Redistricting
• 08-28: Correcting Typographical Errors in Order 06-06
• 08-08: Authorizing Registered Legal Consultants
• 08-09: Admitting Graduates of Law Schools in Other Nations
• 08-13: Conditional Admission to the Bar
• 08-24: Special Responsibilities of a Prosecutor

State Legislative Redistricting

In the matter of the adoption of procedures for original action cases involving state legislative redistricting

Order 02-03

On Nov. 25, 2003, this court appointed a committee to review this court’s opinion in Case No. 02-0057-OA, Jensen v. Wisconsin Elections Bd., 2002 WI 13, 249 Wis. 2d 706, 639 N.W.2d 537, and to review the history of state legislative redistricting in Wisconsin, and redistricting rules and procedures in other jurisdictions, including federal and state courts. The court authorized the committee, upon completion of its review, to propose procedural rules in the event an original action involving redistricting litigation was filed and accepted.

The committee’s appointment resulted from the original action petition filed in this court in the Jensen case by Assembly Speaker Scott R. Jensen and Senate Minority Leader Mary E. Panzer, representing Assembly and Senate Republicans, seeking this court’s involvement in the redistricting process due to a legislative impasse. The original action petition filed in Jensen sought a declaration that the existing legislative districts were constitutionally invalid due to population shifts documented by the 2000 census. The petition requested this court to enjoin the Wisconsin Elections Board from conducting the 2002 elections using the existing districts.

Although the court found that the petition filed in the Jensen case warranted this court’s original jurisdiction, it determined this court lacked procedures for redistricting litigation in the event of a legislative impasse resulting in a petition for an original action. The court’s decision in the Jensen case said this court’s existing original jurisdiction procedures would have to be substantially modified to accommodate the case’s requirements. It explained that a “procedure would have to be devised and implemented, encompassing, at a minimum, deadlines for the development and submission of proposed plans, some form of fact-finding (if not a full-scale trial), legal briefing, public hearing, and decision.”

The Jensen decision stated, in part: “[T]o assure the availability of a forum in this court for future redistricting disputes, we will initiate rulemaking proceedings regarding procedures for original jurisdiction in redistricting cases.” The timing of the request in Jensen for this court to take original jurisdiction did not permit the exercise of jurisdiction in a way to do substantial justice, and the dispute was ultimately resolved in federal court, where a case was already pending.

The Jensen decision indicated new procedures could include “provisions governing factfinding (by a commission or panel of special masters or otherwise); opportunity for public hearing and comment on proposed redistricting plans; established timetables for the factfinder, the public and the court to act; and if possible, measures by which to avoid the sort of federal-state court ‘forum shopping’ conflict presented [in this case].” Consequently, this court voted to convene a committee to study and draft procedural rules that govern state legislative redistricting litigation in Wisconsin.

The committee filed its initial report with the court in September 2007, which was distributed to interested parties and is available on the court’s Web site. See http://wicourts.gov/supreme/petitions_audio.htm. The committee has now filed a supplemental memorandum, which supplements information in the committee’s initial proposal and was drafted in response to public comment and questions asked by various justices during an open administrative conference held on April 8, 2008. The committee’s supplemental memorandum is also available on the court’s Web site. The supplemental memorandum addresses details of the committee’s original proposal, which outlined procedures that could be implemented if:

1) the Legislature is at an impasse in attempting to redraw legislative and congressional district boundaries; and

2) a party files a lawsuit asking the court to take original jurisdiction; and

3) the court agrees to grant the case; and

4) the court approves the procedures.

The court has invited public comment on the supplemental memorandum and will discuss the matter further, including any comments it receives, at future open administrative conferences and will decide any future steps that may be necessary.

IT IS ORDERED that on Thursday, Jan. 22, 2009, at 10 a.m., and on Friday, Feb. 20, 2009, at 9:30 a.m., at its open administrative conferences in the Supreme Court Room in the State Capitol, Madison, Wis., the court shall discuss the committee’s report, the committee’s supplemental memo, and comments received.

IT IS FURTHER ORDERED that any interested persons may file with the court a written submission for the court’s review at these conferences, preferably no later than Dec. 31, 2008. The court retains the entire file on this matter and interested persons are encouraged not to file duplicative submissions. As this matter is not presently scheduled for public hearing, general public testimony will not be entertained at the open conferences at this time. The court may, in its discretion, direct questions to individuals present at the conferences to aid the court’s consideration of these matters.

IT IS FURTHER ORDERED that notice of the open administrative conference 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 each of the two conferences, specifically in the State Bar’s November 2008, December 2008, and February 2009 publications.

Dated at Madison, Wis., this 1st day of October, 2008.

By the court:
David R. Schanker, Clerk of Supreme Court

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Correcting Typographical Errors in Order 06-06

In the matter of corrections to Supreme Court Order 06-06 amending Supreme Court Rules 20:5.5, 20:8.5, and 10.03(4)

Order 08-28

The court having identified typographical errors in its order issued July 30, 2008, amending Supreme Court Rules SCR 20:5.5, 20:8.5, and 10.03 (4), and deciding on its own motion to correct the errors so the accurate language is included in the rule when it takes effect on Jan. 1, 2009,

IT IS ORDERED that effective the date of this order, the typographical errors found in Supreme Court Order 06-06 amending Supreme Court Rules SCR 20:5.5, 20:8.5, and 10.03 (4) is corrected as follows:

Section 1. Supreme Court Rule 10.03 (4) (f) 2. is amended to read:

10.03 (4) (f) 2. An annual A nonrefundable fee of two hundred and fifty dollars ($250) to the Board of Bar Examiners;

Section 2. Supreme Court Rule 10.03 (4) (Appendix B) is amended to read: 

APPENDIX B

STATE OF WISCONSIN

SUPREME COURT

In-House Counsel Registration 

I, ____, request to be registered as in-house counsel for ____, a corporation, association, or other nongovernmental entity with an office in Wisconsin pursuant to Wisconsin Supreme Court Rules 20:5.5(d)(1) and SCR 10.03(4).

Wisconsin address of corporation/entity:

Wisconsin telephone number:

I declare under penalty of perjury that:

(1) I am employed as a lawyer by the above-named corporation/entity and that my employment conforms to the requirements of SCR 10.03 (4) (f).

(2) The above corporation, association or non-governmental entity is in good standing with the state of Wisconsin.

(3) I am admitted to practice law in the following jurisdictions, ____, without any restriction on my eligibility to practice law. I understand my obligation to notify this court immediately of any change respecting the status of my license to practice law in any jurisdiction in which I am licensed to practice law.

(4) I acknowledge that I am subject to the Wisconsin Supreme Court Rules, including the Rules of Professional Conduct for Attorneys.

(5) I understand that, as a registered in-house counsel, I am permitted to practice law in Wisconsin but only on behalf of the corporation, association or non-governmental entity for which I am employed, its directors, officers, and employees in their respective official or employment capacities, and/or its commonly owned or controlled organizational affiliates. I understand that I shall not appear in the courts of Wisconsin or in any agency or municipal proceeding that I have reason to believe prior to the proceeding is contested, unless pro hac vice admission is required and I am admitted pro hac vice pursuant to SCR 10.03(4).

I attach hereto the documents required by SCR 10.03 (4) (f).

I attach hereto evidence of my payment of the annual in-house counsel registration fee to the Board of Bar Examiners.

________

Signature

_________

Print Name

_________

Date

Address and Telephone Number

IT IS FURTHER ORDERED that notice of this correction to Supreme Court Order 06-06 amending Supreme Court Rules SCR 20:5.5, 20:8.5, and 10.03 (4), 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.

ANNETTE KINGSLAND ZIEGLER, J., and MICHAEL J. GABLEMAN, J., did not participate. 

Dated at Madison, Wis., this 31st day of October, 2008.

By the court:

David R. Schanker, Clerk of Supreme Court

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Authorizing Registered Legal Consultants

In the matter of creation of Supreme Court Rule SCR 40.056 Authorizing Registered Legal Consultants

Order 08-08

On April 1, 2008, the Board of Bar Examiners, by its director, John E. Kosobucki, filed a petition requesting this court create a supreme court rule to create a category of practitioners known as legal consultants, comprising of lawyers licensed and in good standing in other nations and authorized to serve clients in Wisconsin in the areas of international law and the law of nations, other than the United States.

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, Feb. 9, 2009, 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 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 31st day of October, 2008.

By the court:

David R. Schanker,
Clerk of Supreme Court

Petition

The Board of Bar Examiners, by its director John E. Kosobucki, hereby petitions the Supreme Court of Wisconsin for an order creating Supreme Court Rule 40.056. The new section would create a category of registered legal consultants comprising lawyers licensed and in good standing in other nations and authorized to serve clients in Wisconsin in the areas of international law and the law of the nations, other than the United States, in which they are expert. If the Court issues this order, SCR 40.056 will read as follows:

PROPOSED AMENDMENT:

SCR 40.056 REGISTERED LEGAL CONSULTANTS.

(1) In its discretion, the board may certify for practice in this State as a legal consultant, without examination, an applicant who:

(a) is a member in good standing of a recognized legal profession in a foreign country, the members of which are admitted to practice as attorneys or counselors at law or the equivalent and are subject to effective regulation and discipline by a duly constituted professional body or a public authority;

(b) for at least five years immediately preceding his or her application has been a member in good standing of the legal profession and has been actually and continuously engaged in the practice of law in the foreign country or elsewhere substantially involving or relating to the rendering of advice or the provision of legal services concerning the law of the foreign country;

(c) possesses the good moral character and general fitness requisite for a member of the bar of this State;

(d) is at least 26 years of age; and

(e) intends to practice as a legal consultant in this State and to maintain an office in this State for that purpose.

(2) Proof Required

An applicant under SCR 40.056 shall file with the board:

(a) a certificate from the professional body or public authority in the foreign country having final jurisdiction over professional discipline, certifying as to the applicant’s admission to practice and the date thereof, and as to his or her good standing as an attorney or counselor at law or the equivalent;

(b) a letter of recommendation from one of the members of the executive body of the professional body or public authority or from one of the judges of the highest law court or court of original jurisdiction of the foreign country;

(c) a duly authenticated English translation of the certificate and the letter if, in either case, it is not in English; and

(d) such other evidence as to the applicant’s educational and professional qualifications, good moral character and general fitness, and compliance with the requirements of SCR 40.056(1) as the board may require.

(3) Reciprocal Treatment of Members of the Bar of this State

In considering whether to license an applicant to practice as a legal consultant, the board may in its discretion take into account whether a member of the bar of this State would have a reasonable and practical opportunity to establish an office for the giving of legal advice to clients in the applicant’s country of admission. Any member of the bar who is seeking or has sought to establish an office in that country may request the court to consider the matter, or the board may do so sua sponte.

(4) Scope of Practice

A person licensed to practice as a legal consultant under this Rule may render legal services in this State relating to international law and the law of other countries subject, however, to the limitations that he or she shall not:

(a) render professional legal advice on the law of this State or of the United States of America (whether rendered incident to the preparation of legal instruments or otherwise) except on the basis of advice from a person duly qualified and entitled (otherwise than by virtue of having been licensed under this Rule) to render professional legal advice in this State;

(b) appear for a person other than himself or herself as attorney in any court, or before any magistrate or other judicial officer, in this State (other than upon admission pro hac vice pursuant to applicable rules;

(c) prepare any instrument effecting the transfer or registration of title to real estate located in the United States of America;

(d) prepare:

(i) any will or trust instrument effecting the disposition on death of any property located in the United States of America and owned by a resident thereof, or

(ii) any instrument relating to the administration of a decedent’s estate in the United States of America;

(e) prepare any instrument in respect of the marital or parental relations, rights or duties of a resident of the United States of America, or the custody or care of the children of a resident;

(f) be, or in any way hold himself or herself out as, a member of the bar of this State; or

(g) carry on his or her practice under, or use in connection with his or her practice, any name, title or designation other than one or more of the following:

(i) his or her own name;

(ii) the name of the law firm with which he or she is affiliated;

(iii) his or her authorized title in the foreign country of his or her admission to practice, which may be used in conjunction with the name of the country; and

(iv) the title “legal consultant,” which may be used in conjunction with the words “admitted to the practice of law in [name of the foreign country of his or her admission to practice]”.

(5) Rights and Obligations

Subject to the limitations set forth in SCR 40.056(4), a person licensed as a legal consultant shall be considered a lawyer affiliated with the bar of this State and shall be entitled and subject to:

(a) the rights and obligations set forth in the Rules of Professional Conduct, SCR 20, or arising from the other conditions and requirements that apply to a member of the bar of this State under the rules of the Supreme Court; and

(b) the rights and obligations of a member of the bar of this State with respect to:

(i) affiliation in the same law firm with one or more members of the bar of this State, including by:

(A) employing one or more members of the bar of this State;

(B) being employed by one or more members of the bar of this State or by any partnership or professional corporation which includes members of the bar of this State or which maintains an office in this State; and

(C) being a partner in any partnership or shareholder in any professional corporation which includes members of the bar of this State or which maintains an office in this State; and

(ii) attorney-client privilege, work-product privilege and similar professional privileges.

(6)Disciplinary Provisions

A person licensed to practice as a legal consultant under this rule shall be subject to professional discipline in the same manner and to the same extent as members of the bar of this State and to this end, every person licensed to practice as a legal consultant under these rules:

(a) shall be subject to control by the supreme court and to censure, suspension, removal or revocation of his or her license to practice by the supreme court and shall otherwise be governed by SCR 21 and 22; and

(b) shall execute and file with the supreme court, in the form and manner as the court may prescribe:

(i) his or her commitment to observe the Rules of Professional Conduct and all other rules of the supreme court governing members of the bar to the extent applicable to the legal services authorized under SCR 40.056(4);

(ii) an undertaking or appropriate evidence of professional liability insurance, in the amount the court may prescribe, to assure his or her proper professional conduct and responsibility;

(iii) a written undertaking to notify the court of any change in the person’s good standing as a member of the foreign legal profession referred to in SCR 40.056(1) (a) and of any final action of the professional body or public authority referred to in SCR 40.056 (2) (a) imposing any disciplinary censure, suspension, or other sanction upon the person; and

(iv) a duly acknowledged instrument, in writing, setting forth his or her address in this State and designating the clerk of the supreme court as his or her agent upon whom process may be served, with like effect as if served personally upon him or her, in any action or proceeding thereafter brought against him or her and arising out of or based upon any legal services rendered or offered to be rendered by him or her within or to residents of this State, whenever after due diligence service cannot be made upon him or her at the address or at the new address in this State as he or she shall have filed in the office of the clerk by means of a duly acknowledged supplemental instrument in writing. 

(7) Subject to suit.

After suit is commenced in any state or federal court, process may be served on a registered legal representative by serving the summons and complaint on the clerk of the Supreme Court pursuant to the above designation. Service may be made by personally delivering to and leaving with the clerk, or with a deputy or assistant authorized by him or her to receive service, at his or her office, duplicate copies of the process together with a fee of $10. Service of process shall be complete when the clerk has been served. The clerk shall promptly send one of the copies to the registered legal consultant to whom the process is directed, by certified mail, return receipt requested, addressed to the consultant at the legal consultant’s last known address.

(8) Fees

(a) An applicant for a license as a legal consultant under this rule shall pay an application fee in the amount set out in SCR 40.14(3)(c). The Board may add a surcharge in individual cases if it finds that extraordinary costs have been or will be incurred in its investigation of the applicant’s qualifications.

(b) Registered legal consultants shall be adjunct members of the State Bar of Wisconsin and shall pay annual dues at a rate set by the bar.

(9) Revocation of License

Persons licensed as legal consultants shall be subject to the lawyer regulation system set out in SCR 21 and 22. In the event that the supreme court determines that a legal consultant no longer meets the requirements for licensure set forth in SCR 40.056(1)(a) or (c), it shall revoke the license granted to the person hereunder.

(10) Admission to Bar

In the event that a person licensed as a legal consultant is subsequently admitted as a member of the bar of this State under the provisions of SCR 40.03, 40.04 or 40.05, the license granted to the person hereunder shall be deemed superseded by the license granted to the person to practice law as a member of the bar of this State. 

JUSTIFICATION: Like the proposed SCR 40.055, this rule is intended to benefit Wisconsin consumers of legal services. In a global economy, Wisconsin clients may need advice about the laws of foreign nations. SCR 40.056 is designed to create a category of Wisconsin practitioners – to be known as registered legal consultants – who may be able to satisfy that need.

The proposed SCR 40.056 is patterned on a model rule drafted by the American Bar Association. (See www.abanet.org/cpr/mjp/FLC.pdf). Registered legal consultants under the rule would be lawyers licensed to practice and in good standing in one or more foreign countries. Their practice would be limited to international and foreign law. They would be expressly forbidden, except in conjunction with a Wisconsin lawyer, to practice Wisconsin law.

Dated this 31st day of March, 2008.

Respectfully submitted,
John E. Kosobucki,
Director, Board of Bar Examiners

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Admitting Graduates of Law Schools in Other Nations

In the matter of creation of Supreme Court Rule SCR 40.055 Relating to Admitting Graduates of Law Schools in Other Nations

Order 08-09

On April 1, 2008, the Board of Bar Examiners, by its director, John E. Kosobucki, filed a petition requesting this court create a supreme court rule that would permit graduates of law schools in other nations to take the Wisconsin bar examination, and if successful, to be admitted to the Wisconsin 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 Monday, Feb. 9, 2009, 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 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 31st day of October, 2008.

By the court:

David R. Schanker,
Clerk of Supreme Court

Petition

The Board of Bar Examiners, by its director John E. Kosobucki, hereby petitions the Supreme Court of Wisconsin for an order creating Supreme Court Rule 40.055. The new section would permit graduates of law schools in other nations to take the Wisconsin bar examination and, if successful, to be admitted to the Wisconsin bar. If the Court issues this order, SCR 40.055 will read as follows:

PROPOSED AMENDMENT:

SCR 40.055 ADMISSION OF GRADUATES OF FOREIGN LAW SCHOOLS 

Any person who has received his or her legal education and law degree in a country other than the United States of America may apply to take the Wisconsin bar examination and, if successful, to be admitted to the Wisconsin bar upon the following conditions:

(1) The applicant has been licensed to practice law in the foreign country in which the law degree was conferred or in another foreign country and is in good standing as an attorney or counselor at law (or the equivalent of either) in a country where admitted to practice.

(2) The applicant has been actively and continuously engaged in the practice of law under one or more of such licenses for at least five of the seven years immediately before making application.

(3) The Board has determined that the quality of the applicant’s preliminary, college and legal education, or experience, or the combination of the two, is acceptable for admission to the bar of this state based upon its review and consideration of any matters deemed relevant by the Board including, but not limited to, the jurisprudence of the country in which the applicant received his or her education, training and experience, the curriculum of the law schools attended and the course of studies pursued by the applicant, accreditation of the law schools attended by the applicant by competent accrediting authorities in the foreign country where situated, post-graduate studies and degrees earned by the applicant in the foreign country and in the United States, and the applicant’s success on bar examinations in other jurisdictions in this country.

(4) If the Board determines that an applicant’s qualifications under section (3) are inadequate, the Board may, in consultation with the applicant, set out a supplemental education program which, if successfully completed by the applicant, will be sufficient to remedy the inadequacies in the applicant’s educational record.

(5) The applicant has satisfied the character and fitness requirements set out in SCR 40.06.

(6) Applicants shall submit such proofs and documentation as the Board may require. Documents must be in English or must be accompanied by a translation into English prepared and certified by a neutral translator.

(7) The applicant has paid the applicable fees for the bar examination and for the character and fitness investigation. The Board may add a surcharge in individual cases if it finds that extraordinary costs have been or will be incurred in its investigation of the applicant’s qualifications.

JUSTIFICATION: The board recommends creation of SCR 40.055 because Wisconsin is part of the global economy. As economists put it, the world is flat and getting flatter. Twenty-nine states, two U.S. territories and the District of Columbia allow graduates of foreign law schools to be admitted to their bars upon examination.¹

Wisconsin clients’ needs for legal services are varied. Some, desiring to do business with overseas firms, need lawyers, or teams of lawyers, who know both the law of the other nation and the law of Wisconsin. Immigrants are likely to adapt more comfortably to the Wisconsin legal system if they can consult lawyers who speak their language and know their mores.

Lawyers admitted under this rule (unlike those admitted under the proposed SCR 40.056) would be fully licensed Wisconsin lawyers, with plenary authority to practice law here. For that reason, the board believes it should exercise greater scrutiny and discretion in considering applications from the graduates of overseas law schools. The proposed rule, adapted from Illinois Supreme Court Rule 715, provides for that more careful consideration.

Broad discretion is necessary because the education in foreign law schools varies broadly. Some nations have systems for approving qualified law schools; some do not. Diplomas and transcripts from some nations are trustworthy, but not all. Some applicants will have a good knowledge of the common law system that undergirds Wisconsin jurisprudence, and some will not. The board believes a mechanical application of explicit standards for foreign applicants would not work, while a rule like this one would well serve Wisconsin consumers of legal services.

¹See Comprehensive Guide to Bar Admission Requirements 2007, published by the National Conference of Bar Examiners and the American Bar Association Section of Legal Education and Admissions to the Bar, at 30-31. 

Dated this 31st day of March, 2008.

Respectfully submitted,

John E. Kosobucki,
Director, Board of Bar Examiners

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Conditional Admission to the Bar

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

Order 08-13

On May 1, 2008, the Board of Bar Examiners, by its director, John E. Kosobucki, filed a petition requesting this court create a supreme court rule pertaining to conditional admission to the bar. The proposed new 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.

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, March 9, 2009, 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 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 31st day of October, 2008.

By the court:

David R. Schanker,
Clerk of Supreme Court

Petition

The Board of Bar Examiners, by its director John E. Kosobucki, hereby petitions the Supreme Court of Wisconsin for an order creating Supreme Court Rule 40.075 pertaining to Conditional Admission to the Bar. The new 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.

PROPOSED RULE

SCR 40.075 CONDITIONAL ADMISSION TO THE BAR

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.

(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: professional medical, psychological or other treatment; prohibiting or limiting the use of alcohol or other drugs; random alcohol or other drug testing; supervision; periodic reporting by the applicant; financial, business, or law office management counseling or supervision (including inspection of records); and any 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 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 agreement, the board, after consultation with the applicant, may designate itself, the State Bar, an appropriate person, or any combination thereof, as the supervising party.

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

(6) Length of Conditional Admission. The period of conditional bar admission shall be up to one year. At the end of that year, the period may be extended by the board in writing for good cause, but not to exceed one additional year. At the end of the initial term of conditional bar admission, or any extension thereof, the board shall either certify the applicant for unconditional admission or issue an intent to deny admission letter to the applicant. In the latter event, the provisions of SCR 40.08 shall apply.

JUSTIFICATION: Under current Supreme Court Rules the Board of Bar Examiners has only two options when considering an applicant for admission to the bar: certify the applicant or deny certification. There may be circumstances of an applicant who currently satisfies all requirements for admission to practice law, including character and fitness requirements, and possesses the requisite good moral character for admission, but whose recent history demonstrates rehabilitation from past chemical abuse or dependency, treatment for a mental health condition, or other conduct or condition that, if it should recur, would impair the applicant’s ability to practice law or pose a threat to the public. A conditional admission rule would allow the Board of Bar Examiners the leeway of admitting the applicant under conditions whereby the applicant would be monitored or until the applicant demonstrates rehabilitation from the conduct which gave rise to the Board’s concerns. A conditional admission rule would protect the public and allow conditionally admitted attorneys the opportunity to demonstrate that they deserve full admission to the bar.

A conditional admission rule recognizes past difficulties and encourages rehabilitation. A conditional admission process can remove impediments to early diagnosis and treatment, reduce the apprehension of full disclosure, and thereby increase candor in the admission process and potentially provide for a more solid foundation on which to make an accurate assessment of character and fitness, and assure continuing fitness through a contract with the applicant and official monitoring of the applicant’s compliance.

NOTE: Language in paragraphs 3 and 6, above, refer to the Board’s “intent to deny.” The Board has previously submitted a petition to amend SCR 40.08 to specify that an application is “at risk of being denied,” which more accurately reflects the Board’s preliminary determination. If the petition to amend SCR 40.08 is approved, then the corresponding “intent to deny” language in this petition should also be changed to “at risk of being denied.”

Dated this 1st day of May, 2008.

Respectfully submitted,

John E. Kosobucki,
Director, Board of Bar Examiners

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Special Responsibilities of a Prosecutor

In the matter of amendment of Supreme Court Rules Chapter 20, Rules of Professional Conduct for Attorneys

Order 08-24

On Sept. 19, 2008, the Wisconsin District Attorney’s Association, through its president, Ralph Uttke, District Attorney for Langlade County, filed a petition requesting this court modify Supreme Court Rule SCR 20:3.8 to adopt the substance of recent changes to the American Bar Association Model Rule 3.8 relating to special responsibilities of a prosecutor.

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, March 9, 2009, 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 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 31st day of October, 2008.

By the court:

David R. Schanker,
Clerk of Supreme Court

Petition

The Wisconsin District Attorneys Association, through its president, Ralph Uttke, District Attorney of Langlade County, respectfully petitions this court to modify Rule 20:3.8 of the Wisconsin Rules of Professional Conduct to adopt the substance of the recent changes to the American Bar Association Model Rule 3.8, accompanied by a Wisconsin comment to the rule and in support of this petition states as follows:

1. Public prosecutors, like all attorneys licensed to practice law in Wisconsin, are subject to the Wisconsin Rules of Professional Conduct approved by this court on January 5, 2007, and effective as of July 1, 2007;

2. However, as frequently recognized by this court,¹ the role of the public prosecutor as a “minister of justice” is distinct from that of a lawyer representing an individual client, and his statutory and constitutional responsibilities to simultaneously protect the public and respect the procedural rights of the accused have no counterpart in the lawyer-client paradigm. As a consequence, much of the content of contemporary ethical codes – designed to guide lawyers who represent clients – are minimally helpful to those attorneys without actual clients such as public prosecutors;

3. Petitioner recognizes that by nature of the position, a prosecutor has a unique role and special obligation to rectify the wrongful conviction of an innocent person. Earlier this year the American Bar Association amended Model Rule 3.8 to recognize the responsibility of a prosecutor to the wrongly convicted. (Exhibit A) We believe Wisconsin should take similar action. This petition is intended to reinforce our commitment to justice under law. We urge the court to amend SCR 20:3.8 as outlined below, a proposal similar to the new A.B.A. rule with the exception of the substitution of “request” for “undertake” in subsection (g)(2)(B) as shown below, and a revision of the language of subsection (h). The new language proposed is underscored; the language deleted from the A.B.A. rule is stricken:

PROPOSED AMENDMENTS TO SCR 20:3.8

(g) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall:

(1) Promptly disclose that evidence to an appropriate court or authority, and

(2) If the conviction was obtained in the prosecutor’s jurisdiction,

(A) Promptly make reasonable efforts to disclose that evidence to the defendant unless a court authorizes delay, and

(B) Undertake Request further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.

(h) When a prosecutor knows of comes to know of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the a prosecutor shall seek to remedy the conviction. notify the court where the conviction occurred and make reasonable efforts to notify the defendant. 

4. Petitioner proposes a modification of subsection (g)(2)(B) because few Wisconsin district attorney offices internal investigative resources, instead relying on other police agencies. This modification reflects the reality of how investigations are conducted in most Wisconsin counties;

5. The modification of subsection (h) is intended to clarify the prosecutor’s duties similar to subsection (g) instead of simply requiring that he or she “remedy” the matter;

5. To provide context for the new rule and clarify the circumstances in which it would apply, the court should include new paragraphs seven through nine of the A.B.A. Commentary to the rule (Exhibit B), as well as the following proposed Wisconsin comment:

Wisconsin prosecutors have long embraced the notion that the duty to do justice requires both holding offenders accountable and protecting the innocent. New Rule 20:3.8(g) and (h) reinforces this notion. The Wisconsin rule differs slightly from the new A.B.A. rule to recognize limits in the investigative resources of Wisconsin prosecutors and to clarify the prosecutor’s duties when presented with “clear and convincing” evidence of innocence under subsection (h).

6. As additional support and background for this proposed the petitioner submits that in February of this year, the A.B.A. called on states to amend their legal ethical rules to require prosecutors to disclose evidence creating a reasonable likelihood that a defendant did not commit the crime for which he or she was convicted, and to take steps to remedy such convictions. Science-based exonerations of the wrongly convicted were the catalyst for the new ABA rules. Although the overwhelming majority of prosecutors across the country have acted to remedy wrongful convictions when they became known, some have not.

7. Petitioner asserts that the prosecutor’s duty to seek justice not only requires the prosecutor to take precautions to avoid convicting innocent individuals but also requires action when it appears likely that an innocent person was convicted.

8. Both the A.B.A. changes and the instant proposal define two situations when action is required – when there is a “reasonable likelihood” or “clear and convincing evidence” that a person was wrongly convicted.

9. In the first instance, addressed by subsection (g), when a prosecutor comes to know of new and material evidence creating a “reasonable likelihood” that a person was wrongly convicted, the prosecutor must examine the evidence and undertake whatever further inquiry or investigation is necessary to determine whether the conviction was wrongful. It would impose no new responsibilities for the mass of requests for post-conviction relief which lack merit and do not raise claims of innocence. Stated otherwise, the rule would not apply when new evidence is relevant but its significance is subject to reasonable disagreement. Petitioner agrees with the view expressed in paragraph 9 of the A.B.A. commentary, “(a) prosecutor’s independent judgment, make in good faith, that the new evidence is not of such a nature to trigger the obligation of §(g) and (h), though subsequently determined to have been erroneous, does not constitute a violation of the rules.” (Exhibit B) Faced with proof of a “reasonable likelihood” of innocence, the A.B.A. rule would require a prosecutor to: (1) notify an “appropriate court or authority,” (2) tell the offender or his lawyer, and (3) either investigate further or make “reasonable efforts to cause an investigation” that could resolve the factual questions presented. Our proposed subsection (g) is identical to A.B.A. Rule 3.8(g).

10. Subsection (h) of the new A.B.A. Rule concerns the situation where the prosecutor is confronted with “clear and convincing evidence” of innocence. It provides that the prosecutor “shall seek to remedy the conviction.” Here it is assumed that further investigation is not needed. Our proposed subsection (h) would replace the general requirement that a prosecutor “seek to remedy the conviction” with a more specific articulation of duties, requiring the prosecutor to notify the court of record and make reasonable efforts to notify the convicted person. In this respect it parallels the requirements of subsection (g). Wisconsin case law recognizes judicial authority over the decision to dismiss a pending case.² The language proposed in subsection (h) acknowledges this authority and provides clarity in articulating a prosecutor’s responsibilities under the rule.

11. These amendments protect the rights of criminal defendants who may have been wrongfully convicted and also protect the public by alerting authorities that the actual perpetrator of a crime may still be at large. The amendments also serve to increase public confidence in state and our criminal justice system as a whole. Petitioner also believes, based upon consultation with prosecutors throughout the state of Wisconsin, that the proposed Rule is consistent with prevailing policies and practices.

CONCLUSION: For these reasons, petitioner respectfully requests that SCR 20:3.8 be amended as described herein.

¹The court has long recognized the unique role of prosecutors as quasi-judicial officers whose duty is to seek justice rather than merely convictions. State v. Karpinski, 92 Wis. 2d 599, 285 N.W. 2d 729 (1979); Thompson v. State, 61 Wis. 2d 325, 212 N.W.2d 109 (1973); State v. Peterson, 195 Wis. 351, 218 N.W. 367 (1928); O’Neil v. State, 189 Wis. 259, 207 N.W. 280 (1926).

²State v. Kenyon, 85 Wis. 2d 36, 270 N.W.2d 160 (1978). 

Respectfully submitted,

Ralph Uttke,
Langlade County District Attorney;
President, Wisconsin District Attorney’s Association

EXHIBIT C

Current Rule 20:3.8 with proposed changes underscored:

SCR 20:3.8 Special responsibilities of a prosecutor

(a) A prosecutor in a criminal case or a proceeding that could result in deprivation of liberty shall not prosecute a charge that the prosecutor knows is not supported by probable cause.

(b) When communicating with an unrepresented person in the context of an investigation or proceeding, a prosecutor shall inform the person of the prosecutor’s role and interest in the matter.

(c) When communicating with an unrepresented person who has a constitutional or statutory right to counsel, the prosecutor shall inform the person of the right to counsel and the procedures to obtain counsel and shall give that person a reasonable opportunity to obtain counsel.

(d) When communicating with an unrepresented person a prosecutor may discuss the matter, provide information regarding settlement, and negotiate a resolution which may include a waiver of constitutional and statutory rights, but a prosecutor, other than a municipal prosecutor, shall not:

(1) otherwise provide legal advice to the person, including, but not limited to whether to obtain counsel, whether to accept or reject a settlement offer, whether to waive important procedural rights or how the tribunal is likely to rule in the case, or

(2) assist the person in the completion of (i) guilty plea forms (ii) forms for the waiver of a preliminary hearing or (iii) forms for the waiver of a jury trial.

(e) A prosecutor shall not subpoena a lawyer in a grand jury or other proceeding to present evidence about a past or present client unless the prosecutor reasonably believes:

(1) the information sought is not protected from disclosure by any applicable privilege;

(2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and

(3) there is no other feasible alternative to obtain the information.

(f) A prosecutor, other than a municipal prosecutor, in a criminal case or a proceeding that could result in deprivation of liberty shall:

(1) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; and

(2) exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under SCR 20:3.6.

(g) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall:

(1) Promptly disclose that evidence to an appropriate court or authority, and

(2) In the conviction was obtained in the prosecutor’s jurisdiction,

(A) Promptly make reasonable efforts to disclose that evidence to the defendant unless a court authorizes delay, and

(B) Request further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.

(h) When a prosecutor comes to know of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, a prosecutor shall notify the court where the conviction occurred and make reasonable efforts to notify the defendant.

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