Wisconsin Supreme Court orders $50 per lawyer assessment to
WisTAF
January 12, 2005
On Jan. 12 the Wisconsin Supreme Court imposed a $50 annual
assessment on each active Wisconsin attorney by granting the Wisconsin
Trust Account Foundation (WisTAF) petition. The court voted 5 - 2 to
require the Bar to collect the $50 assessment and pay it to WisTAF.
Justice Roggensack made the motion, seconded by Justice Crooks.
Voting in favor were Justices Abrahamson, Roggensack, Crooks, Bradley,
and Butler. Justices Prosser and Wilcox spoke against a mandatory
assessment and voted against the petition.
The court's order marks the first time any state supreme court
in a state with a mandatory bar association has assessed a tax on
lawyers to fund civil legal services.
The Wisconsin Trust Account Foundation (WisTAF) was created in 1986
by the Wisconsin Supreme Court to receive IOLTA funds and make grants of
IOLTA funds for the purpose of providing legal aid to the poor. WisTAF
filed its petition in June 2004.
The court-mandated assessment will appear on dues statements for
fiscal year 2006, which begins July 1, 2005. The court indicated that it
expects that a two-year study of civil legal needs of the poor in
Wisconsin will be conducted, and that the Bar will petition the court
when the study is completed.
Testimony on the petition. At the morning hearing,
State Bar President Michelle Behnke acknowledged that the State Bar
recognizes that a serious problem of access to justice exists for many
poor people in Wisconsin. At the same time Behnke noted Bar members
overwhelmingly – and often adamantly – oppose a mandatory
assessment and gave strong arguments against ordering a $50 assessment,
citing both feedback she received during numerous visits to local county
bar association meetings and feedback provided to the Bar.
Behnke told the court, it is the position of the State Bar that the
answer to this larger societal problem is not found in a $50 assessment
on Wisconsin lawyers. Behnke reminded the court that Wisconsin lawyers
do indeed volunteer and do provide legal services to the poor and
indigent and do make monetary contributions to civil legal services
providers.
Behnke further reminded the court that the Board of Governors, while
opposing a mandatory assessment on lawyers, supports a voluntary
contribution via the dues statement. The board voted 34 - 7 in November
to support a two-year $50 opt-out assessment and also approved
submission of the State Bar WisTAF Petition Study Committee's
final report to the supreme court. Behnke stressed that permitting each
lawyer to decide for himself or herself whether to make a contribution
to a legal services provider of the lawyers' choosing was an
important consideration for a mandatory Bar association.
In her testimony Behnke questioned whether coercing lawyers'
financial support was either wise or practical, noting that the problem
of access to justice is not a problem of lawyers only. Behnke added that
mandating an assessment against every active lawyer could erode support
for broader measures to address the problem by creating the impression
that the obligation is primarily one for lawyers and by causing the
legislature and the public to believe the need is being addressed by
lawyers.
If lawyers throw in all this money, argued Behnke, the legislature
will consider the matter addressed and will look to lawyers and not
society as a whole to fund civil legal services. With the pressure to
act lessened because of the compelled contributions of lawyers, civil
legal services funding will never rise to the level of being a state
priority, especially given Wisconsin's recent history of tight
budgets and budget shortfalls.
Behnke also argued that a mandated fee is likely to alter the
willingness of some attorneys' to perform pro bono service or
maintain their existing charitable support of legal services providers.
If this happens, the public may feel the effect of lost pro bono efforts
of individual attorneys.
At various points during the hearing it was pointed out that the
petition was flawed in several respects. Even the petitioners admitted
the $50 assessment was merely a stopgap measure and would not come close
to filling the unmet needs, that there was no sunset provision, and that
no long-range plan is in place. Behnke raised the prospect that once
imposed, the assessment was likely to become a permanent feature,
pointing to the example of our neighbor Minnesota where a $50 annual
assessment was imposed several years ago. A proposal to raise the
assessment by $75 to $125 is currently pending in Minnesota.
Behnke and other speakers raised the objection that by mandating
lawyers to fund WisTAF, the court would take away the attorneys'
freedom of choice for charitable donations and that this would establish
WisTAF as the preferred funder of legal services. This could harm other
legal service entities to the poor that are not funded by WisTAF, which
is an important consideration given that the WisTAF board's grants
committee has recently recommended completely defunding four programs
that formerly received WisTAF grants.
Representatives of remaining WisTAF grantees were prominent among
speakers in favor of the petition. Representatives of Legal Action of
Wisconsin, Wisconsin Judicare, ABC for Health all spoke in favor of the
mandatory assessment. In fact, more representatives of grantees spoke
than did WisTAF officials. Well over half of the grant amounts WisTAF
has proposed to make in 2005 will go to Legal Action of Wisconsin, an
agency that also receives federal funding from the Legal Services
Corporation (LSC). Another 20 percent of proposed WisTAF grants this
year are earmarked for Wisconsin Judicare, another entity that receives
federal LSC funding.
Deliberation over the petition. Justice Roggensack
made the motion to approve the petition. Justice Crooks seconded the
motion. Discussion ensued. A number of friendly amendments were adopted.
The court expects that a study of unmet civil legal needs will be
conducted and that the Bar will petition the court following completion
of that study. The court also expects that the Bar will continue its
programs in support of pro bono work by Bar members.
Noting that money is a major part of the answer but not the whole
answer, Justice Prosser raised a number of concerns with the assessment.
Justice Prosser observed that the court's action converts the
moral and ethical pro bono obligation of attorneys into legal obligation
for the first time, that the court's action will force lawyers to
support organizations whose activities they may find offensive, and that
it is not clear what specific problems of the poor will be addressed by
this stopgap funding. Justice Prosser reminded his colleagues on the
court that many members of the Bar have the option to avoid the
assessment by converting to inactive status.
Justice Wilcox said that he did not dispute the need for civil legal
services but disputed the mechanism being proposed to address the
need.
Justice Bradley rejected the argument that the court ought to ignore
the immediate short-range funding need merely because some members of
the court felt a long-range solution was needed, calling it a
"uniquely desperate situation." Justice Bradley spoke of
lawyers' special obligations that come from their special
privileges. She said she didn't think $50 would be considered an
excessive amount.
Chief Justice Abrahamson recognized the valuable pro bono efforts of
State Bar members despite the allegations in the WisTAF petition. The
Chief Justice cited a compelling need for the court to act to address a
critical situation and indicated she thinks the assessment is consistent
with both the duties of a lawyer and the purposes of the Bar
association. She added, however, that she wanted the court to
"send a clear message that this is not just an obligation of
supreme court and lawyers."
Members who wish to comment by email can do so by using the link
below. Unless you instruct otherwise, the Bar will forward these
comments to the President and Executive Director of WisTAF and to the
members of the supreme court.
