Nov. 20, 2019 – At its upcoming Dec. 6 meeting, the State Bar of Wisconsin’s Board of Governors will discuss the State Bar’s “emeritus” membership category, which currently applies to members who attain the age of 70.

Those who elect emeritus status, regardless of whether they are actively practicing or not, receive full membership benefits without payment of State Bar dues or Supreme Court assessments, aside from an annual fee that funds the Wisconsin Lawyers’ Fund for Client Protection (currently, the fee is $20). Emeritus members are also exempt from continuing legal education (CLE) requirements.

The State Bar’s Board of Governors will discuss proposals developed by an Emeritus Task Force that has been studying the issue.

The proposals recognize that more lawyers continue to practice law well into their 70s and are not truly retired. That is, lawyers who continue practicing law would be considered “active” members and would continue to pay State Bar dues. The proposals also address court assessments and CLE requirements.

The proposals are discussed in more detail below. This article is intended to inform the membership of the proposals that will be discussed at the Dec. 6 board meeting, and to give members an opportunity to comment. 

If you would like to share your thoughts or concerns, please contact your representative(s) on the Board of Governors (see sidebar on how to do that).

Board of Governors Will Discuss Proposals

In 2018, then-State Bar President Christopher Rogers appointed an Emeritus Task Force to review the Emeritus membership category and make recommendations to the Board of Governors and, ultimately, to the Wisconsin Supreme Court. 

This Emeritus Task Force (task force) consists of a group of past and current State Bar presidents and officers, a retired Wisconsin Supreme Court justice, past presidents of the Senior Lawyers Division (SLD), attorneys who supervise or are actively involved in providing pro bono services, and others knowledgeable on this subject. 

This work continues into the current term of State Bar President Jill Kastner, who has been an active member and participant of the task force.

In reviewing the structure of emeritus status, Kastner has noted that change is hard but “we need to instill fairness and equity for all our members while also seeking long-term financial sustainability for our organization.”

The task force developed an initial proposal that was rejected by the Senior Lawyers Division (SLD) board (see Task Force Proposal No. 1 below).

The SLD board also rejected a more recent proposal (see Task Force Proposal No. 2 below), which was meant to take a position of compromise given earlier feedback from the SLD board. In both cases, the SLD board believes that the current structure in existence since 1975 should not be changed. 

On Nov. 8, 2019, State Bar’s Executive Committee voted to have the State Bar Board of Governors, at its Friday, Dec. 6, 2019 meeting, conduct an initial discussion on the task force proposals and at the close of that discussion, take a straw poll on the following four positions to help provide guidance as the task force continues its work:

1. Task Force Proposal No. 1;

2. Task Force Proposal No. 2;

3. maintain the status quo; or

4. suggest something different.

To provide more information, the following will briefly outline the current emeritus membership category, as well as the details of Task Force Proposal Nos. 1 and 2.

If a change in emeritus status is supported, proposals as to what “grandfathering” provisions and/or transition rules would eventually be adopted and how they would be applied may need to be further explored.

Current Emeritus Membership Category

Any member who attains the age of 70, regardless of whether they are actively practicing or not, may elect to become an Emeritus member. 

The Emeritus member is then no longer obligated to complete CLE reporting and is no longer obligated to pay State Bar dues.

Currently the Court has determined that the only Court assessment that an Emeritus member is required to make is the $20 fee for the Wisconsin Lawyers Fund for Client Protection.

The Emeritus status, however, is an active status. Therefore, any member wishing to elect Emeritus status who is not already in active status must go through procedures with the Board of Bar Examiners (BBE) to determine if catch-up CLEs are required, and with the State Bar to determine if there are any catch-up fees to get to “active” status before entering into the Emeritus membership category. 

Over time, this process has posed some real challenges for “inactive” members, many of whom have also been non-resident lawyers.

Proposals Address Challenges

The current “emeritus” membership category has a number of challenges or potential challenges that Task Force Proposal Nos. 1 and 2 seek to address:

1. Emeritus members have no Continuing Legal Education (CLE) requirements even if an Emeritus member is still actively practicing law full- or part-time.  This raises a consumer protection concern that has also been voiced by the Chief Justice.

2. Emeritus members pay no State Bar dues, even if they are still practicing and the State Bar still incurs costs to support them, exacerbated by the fact that the Emeritus membership category is growing faster than any other demographic within State Bar membership.

3. If the Emeritus category is changed, there should be special CLE and dues provisions for Pro Bono activities for “retired” Emeritus attorneys, and perhaps also for other membership categories, such as Inactive members.

4. The rules for an Inactive member to become an Emeritus member are confusing and cumbersome, including catch-up CLE requirements.

5. "Emeritus" connotes "retired," while many senior members continue to practice law.

6. Some members would like to keep their title or identity as a Wisconsin attorney but are finding themselves at a crossroads in which they feel they must relinquish their license and therefore no longer be members of the association.

Task Force Proposal No. 1

1.  If not “truly retired,” members must be either “Active” or “Inactive” members and must meet all requirements of whichever membership category is selected, including meeting CLE requirements and payment of dues required of the relevant category.

2. To be “truly retired” a member may not be engaged in the “practice of law” and/or participating in the “unauthorized practice of law” with the exception that an Emeritus member may be an attorney for a “qualified pro bono program” that is authorized in SCR 31.01(12), so long as they meet the training, competence, and other vetting requirements of and are supervised by such organizations.

3. Any Emeritus member may convert back to “Active” or “Inactive” status by paying the back dues for such category and, if applicable, by meeting the back CLE requirements as set forth from time to time by the Board of Bar Examiners.

   a. NOTE: The task force, through the State Bar Presidents, will request that the Board of Bar Examiners and State Bar coordinate a process by which either Emeritus or Inactive members may elect to report CLE credits, including seeking and obtaining approval for their CLE activities in Wisconsin OR in other venues during Emeritus or Inactive membership periods that will count toward any CLE requirements required to convert to Active membership.

   b. NOTE: Since Emeritus members will no longer be allowed to practice law (except Pro Bono activities noted above), there should no longer be a requirement for Inactive members to convert to Active status before electing Emeritus status. The task force, through the State Bar Presidents, will request that the Board of Bar Examiners confirm this assumption.

4. The changes noted above will be effective for the first fiscal year of the State Bar following approval of the new Emeritus category by the State Bar Board of Governors (BOG), and approval of the State Bar’s petition to establish the newly defined Emeritus membership category by the Wisconsin Supreme Court.   All existing Emeritus members at such time must elect to become Active members, Inactive members, or Emeritus members (if they qualify under the new Emeritus requirements). 

   a. NOTE:  Any State Bar member previously classified as “Emeritus” that moves to Active status as of this effective date will not be obligated to pay any retroactive State Bar dues or fulfill any catch-up as to CLE requirements. Their next 2-year CLE reporting period will commence with this effective date. The task force, through the State Bar Presidents, will request that the Board of Bar Examiners confirm this assumption.

5. Going forward, any Wisconsin-licensed attorney upon turning 70 years of age should they be a member in good standing, whether Inactive or previously Active and newly retired, may elect to become an Emeritus member. At such time, the member will no longer pay State Bar dues or have CLE requirements.  Any obligation for Supreme Court assessments will be determined by the Wisconsin Supreme Court.

Task Force Proposal No. 2

1. State Bar members who reach age 70 may request Emeritus status from the State Bar with the understanding that Emeritus status means that the lawyer is not actively engaged in the practice of law and therefore the lawyer would not be required to pay State Bar dues or take CLE credits;

2. Inactive status would continue under the State Bar Rules and would apply to lawyers under age 70 who are not actively engaged in the practice of law but would continue to be required to pay 50 percent of the State Bar dues and the Supreme Court assessments but would not be required to take CLE credits;

3. Since Emeritus would then be an inactive status (no longer an active status as it currently is), a Bar member could convert from Inactive status to Emeritus status without the need for catch-up CLE credits (something that has been troublesome for many of our State Bar members over time, especially our NRLD members);

4. State Bar members who are actively engaged in the practice of law and reach age 70 would continue on Active status and be required to pay full State Bar dues and take full CLE credits; however, when the lawyer reaches age 75, the lawyer who is still actively engaged in the practice of law would automatically convert from Active status to Senior Active status and would only be required to pay 50% of the State Bar dues (plus Supreme Court assessments) and only be required to take 15 total credits every two years (which must include 3 ethics credits). The proposal regarding a limit on the number of credits that the Senior Active lawyer must take is still subject to review and approval by the Board of Bar Examiners and the Supreme Court;

5. Current Emeritus lawyers (who are not paying Bar dues or required to take CLE credits) would be given the opportunity to move to Senior Active status immediately without any requirement for payment of back dues or taking of catch-up CLE credits and this transition would apply to any senior lawyer over age 70 as a one-time transition to Senior Active status.  As noted above, under Senior Active status these attorneys will only be required to pay 50% of the State Bar dues (plus Supreme Court assessments) and only be required to take 15 total credits every two years (which must include 3 ethics credits).

6. Pro bono members. The proposal creates an exception to allow Inactive members or Emeritus members who wish to provide pro bono legal services to render such pro bono legal services under the supervision of a pro bono program as defined in SCR 31.01(12). It is expected that this exception will help ease the burden of unmet legal services needs in Wisconsin and still provide for legal education, supervision, and training required to provide competent pro bono services. At least 38 states have membership categories easing the licensing burden for retired or inactive lawyers who agree to limit their practice to pro bono cases. The goal of this exception is to encourage pro bono work by lawyers who would otherwise not be eligible to perform such services, while still insuring competence, training and appropriate supervision.

Some Statistics

During the course of discussions, it was noted that approximately 22 percent of the State Bar members age 70 to age 74 are “active” status with the State Bar, approximately 19 percent “inactive” status, and approximately 59 percent have requested Emeritus status.

At age 75 and older, the percentage of lawyers requesting “emeritus” status increases to approximately 83 percent and the percentage claiming “active” status changes to approximately 6 percent.

This background information was provided for purposes of discussion regarding the consideration of Senior Active status commencing at age 75. 

Again you are encouraged to please contact your representative(s) on the Board of Governors ahead of the Dec. 6 meeting if you have any feedback that you would like to share.