State Bar's 2021-2022 Session Preview: Multiple Challenges and Gridlock Ahead
Mr. Cale Battles
Jan. 15, 2021 – After the COVID-19 pandemic abruptly ended the 2019-20 session, unfinished business remains for the legislature in 2021-22. With sizable majorities in the Senate and Assembly, Republicans will have considerable control over the legislative agenda. But a very tenuous and shaky relationship with Governor Evers and the Executive branch over dealings with the COVID-19 pandemic will likely temper expectations for any sizeable policy victories.
Legislative Leadership Changes
Many of the legislative leaders in the Assembly will return to their posts in 2021-22. Rep. Robin Vos (R-Burlington) returns as the Speaker of the Assembly and Rep. Jim Steineke (R-Kaukauna) will remain as Majority Leader. In the Senate, Sen. Devin LeMahieu (R-Oostburg) replaces Sen. Scott Fitzgerald after his successful election to Congress as Majority Leader and Chris Kapenga (R-Delafield) is the new Senate President. On the Democrats side, Gordon Hintz (D-Oshkosh) returns as the Assembly Minority Leader and Janet Bewley (D-Mason) will continue as Senate Minority Leader.
The biggest changes were made to the Joint Finance Committee leadership. Sen. Howard Marklein (R-Spring Green) and Rep. Mark Born (R-Beaver Dam) will jointly lead the committee as it deals with Governor Evers biennial budget proposal this spring.
State Bar to Focus on Expungement, Returning 17-Year-Olds to Juvenile Court and Funding Issues
The State Bar of Wisconsin’s lobbying focus will be on a number of issues this session. Efforts over the past two sessions to pass a bipartisan reform of the expungement statute have just narrowly missed. Last session, AB 33 passed with an overwhelming majority voice vote and has the cosponsored support of a majority of State Senators, but was unable to reach the Senate floor for a final vote. A top priority of the State Bar’s legislative agenda and grassroots efforts will be to push for this important criminal justice reform. The State Bar anticipates a new bill draft will be introduced soon for the 21-22 session and will continue to encourage our members to engage in finding legislative support.
org cbattles wisbar Cale Battles is a Government Relations Coordinator for the State Bar of Wisconsin. He can be reached by org cbattles wisbar email or by phone at (608) 250-6077.
Passing the Second Chance Bill will also be a priority for this session. The Second Chance Bill would return first-time, nonviolent 17-year-old offenders to the jurisdiction of the juvenile justice system. The legislation received bipartisan support in previous sessions and the Governor included this important initiative in his last biennial budget only to see it removed as non-fiscal policy. Efforts to revitalize this important issue are ongoing for the upcoming session. Wisconsin is now only one of three states that continue to recognize 17-year olds as adults in court proceedings.
Court funding and budget needs of District Attorneys, the State Public Defenders and the Private Bar rate will continue to be a bedrock of the State Bar’s agenda. Maintaining funding for our courts to lead our judiciary with post-pandemic efforts as well as advocating for pay progression for our Assistant District Attorneys and State Public Defenders and keeping the Private Bar rate at the recently increased level of $70 will continue to be important priorities in the budget. State support of Civil Legal Needs funding will also be an important ask during the budget process. Fallout from the pandemic has shown that many of our fellow Wisconsinites need the assistance of attorneys in civil matters. Assistance with maintaining employment, housing, veterans’ issues, domestic violence have all risen during these past 10 months.
Practice Sections to be Deeply Involved in Multiple Legislative Proposals
The lobbying sections at the State Bar will introduce a number of proactive legislative initiatives during the upcoming legislative cycle. A number of these projects have been studied and worked on by the sections for many years. Below is a summary of just some of those proposals.
The Business Law section will reintroduce, Assembly Bill 854, from last session. AB 854 will foster uniformity with other states and update current laws to assist in creating and growing current Wisconsin businesses. The Elder Law and Special Needs section (ELSN) will continue to work on elder abuse legislation. The ELSN last session opposed two bills, Assembly Bill 481 and Assembly Bill 482, which the section felt went too far both on the definition of age and increased ability of financial institutions to freeze assets of customers or valid Powers of Attorney documents.
Real Property, Probate and Trust section (RPPT) continues to review updates to the Uniform Trust Code. RPPT also continues to monitor potential changes to remote notary and witnessing requirements. Bankruptcy, Insolvency and Creditor Rights (BICR) plans to reintroduce language, Assembly Bill 541, creating exemptions from bankruptcy judgements for Health Savings Accounts and Medical Savings Accounts.
The Public Interest Law and other sections will be pro-actively working on legislation regarding ending the practice of allowing courts to order driver’s license suspensions and warrants for the purpose of collecting unpaid ticket debt. The Taxation Law section is reinvigorating a proposal to establish a ten year statute of limitations on tax collections.
The Family Law Section is planning to reintroduce their contingent placement initiative, Assembly Bill 95, along with a few other new initiatives the section is working to finalize. These involve stipulation orders and exchanging financial information post-divorce. They also hope to support some initiatives from the 2018 Child Placement and Support Study Committee, which included section members, when they are reintroduced. Those bills were affected by the early end of session due to the pandemic.
The Children and the Law Section continues its review of the Uniform Parentage Act, conforming the Uniform Law Commission proposal with WI statutes withhopes to see introduction of that legislation this session. Finally, the Construction Law Section is exploring making some changes to lien laws in the future.
State Bar’s Grassroots and Advocacy Network
Launched in 2019, the State Bar continues to grow our outreach efforts to members and encourages lawyer participation in the legislative process. Member engagement is a vital tool to let policy makers know of support or concerns for legislative issues. The State Bar’s Advocacy Network encourages a productive and positive contribution to the legislative process. Attorney input, advice and expertise is very impactful on the legislative process and continued engagement into the process leads to better policy outcomes.
The State Bar Government Relations Department also encourages members to sign-up for our department’s newsletter, Rotunda Report or follow us on Twitter at @SBWRotundaRpt.
On the Continuing CHIPS Ground: The Current State of the Law
With the April 2018 revision of the termination of parental rights (TPR) ground for continuing need of protection or services, it is still unclear in certain cases which version of the law is applicable to certain cases. Jenni Spies Kara discusses the issue, to be heard by the Wisconsin Supreme Court in February 2021.
Jenni Spies Karas
On April 6, 2018, the Wisconsin Legislature revised the involuntary ground for termination of parental rights based on continuing need of protection or services (continuing CHIPS).
The new Wis. Stat. section 48.415(2) modified the fourth element of the ground. Specifically, if a child had been in foster care for 15 of the most recent 22 months, the petitioner is no longer required to prove that there was a substantial likelihood that the parent would not meet the conditions of return within nine months from the trial date. Pursuant to this change, the courts issued a revised form for Notice Concerning Grounds to Terminate Parental Rights, JD-1753.
Old or New?
Now that the statute has been revised and warnings modified, the question is deciding which version of the grounds to proceed under at the grounds phase trial – the “old version” or the “newly revised version.”
Jenni Spies Karas, Marquette 2006, is an assistant district attorney with Milwaukee County, where she practices in termination of parental rights and children in need of protection and services cases.
This is important, because under the newly revised version of continuing CHIPS, the evidence presented by both the petitioner and the respondent is severely limited. The petitioner would likely be restricted in presenting any evidence prior to the child’s placement in out of home care.
Under LaCrosse County Department of Human Services v. Tara P.,1 the petitioner has generally been permitted to present pattern evidence of respondent parent’s past behaviors if it is reasonably related to the respondent parent’s likelihood to not meet the conditions of return in the next nine months.
If the petitioner is no longer required to prove the projective element, any evidence of negative behavior by the respondent parents prior to children’s detention is likely no longer relevant. Furthermore, for both the petitioner and the respondent parent, any progress or lack of progress on meeting the conditions after the TPR petition is filed may also be deemed not relevant, since the jury is no longer being asked to determine the future likelihood of failing to meet the conditions.
Two Published Decisions
There are two published decisions related to the revised continuing CHIPS ground since the law was enacted in April 2018: Dane County Department of Human Services v. J.R.2 and Eau Claire County Department of Human Services vs. S.E.3
Dane County DHS v. J.R. was an interlocutory appeal by the respondent parent asking the appeals court to determine the version of the continuing need ground the jury should be presented with, when there are two CHIPS dispositional orders with different warnings attached.
J.R. was first warned under the old continuing CHIPS statute in May 2017, August 2017, and February 2018. In May 2018, the county filed a revision, asking that J.R. be warned under the new statute. The court granted the request, and entered identical orders to those previously entered, but included the newly revised continuing CHIPs warnings.
In November 2018, the county filed a TPR petition, alleging the ground of continuing CHIPS under the revised ground. The appeals court held that the county was only required to prove the continuing CHIPs ground as alleged in the revised statute – without the projective element – because that was the law in effect at the time the petition was filed.
The court rejected both of J.R.’s claims that the newly revised statute should not apply under Wis. stat. section 990.04 because the action was already pending, and that an application of the new law was retroactive and therefore unconstitutional as applied to him.
Eau Claire County DHS vs. S.E. was another interlocutory appeal, with the respondent parent asking the court of appeals to determine which version of the continuing needs ground the jury should be presented with. However, in this case, the only CHIPS dispositional orders entered in the underlying CHIPS case included warning under the old version of the statute. The respondent mother received warnings attached to the original CHIPS dispositional order in August 2016 under law at the time, the old version.
The county filed a TPR petition in June 2018 alleging the continuing need ground under the newly revised statute, requiring them to only prove the first three elements of the ground.
The appeals court again held that the county must proceed under the newly revised CHIPs ground, because that was the law in effect when the TPR petition was filed in June 2018. The court dismissed each of the respondent mother’s arguments:
that the amended law was an impermissible retroactive application of the statute;
that the amended statute violates her due process law; and
that as a matter of statutory construction, the 15 out of 22 month timeframe period can only begin with a CHIPS order including notice of that time period.
Relying on its reasoning from J.R., the court of appeals held that this statute was not a retroactive application because the TPR petition was an entirely new action, and the respondent parent did not have a vested interest to protect.
The court further distinguished this case from State v. Patricia A.P.,4 because the statutory change in Patricia A.P changed “the quality of the very nature of the acts leading to termination,” while with this most recent statutory change, the nature of the conduct the petitioner needs to prove remains substantially the same.5
A Decision Forthcoming
Eau Claire County DHS v. S.E. was accepted for review by the Wisconsin Supreme Court in October 2020, and is scheduled for oral arguments on Feb. 25, 2021. The decision is likely to have significant impact on the continuing CHIPS ground moving forward, as long as there still linger CHIPs dispositional orders with both old and new TPR warnings.
This article was originally published on the State Bar of Wisconsin’s Children & the Law Section Blog. Visit the State Bar sections or the Children & the Law Section webpages to learn more about the benefits of section membership.
All section members are invited to attend to the annual Children and the Law Section meeting at 1 p.m. to 3 p.m. on Friday, Jan. 22. Reserve your spot with org rkohlmeyer wisbar Rebecca Kohlmeyer, and tune in on Friday at gotomeet.me/sbwroom9 or call toll-free at (877) 309-2073 and use access code 711-575-685.
Reserve your seat for the CLE session Wellness for Attorneys, on Feb. 2, noon to 1:15 p.m. The session is free for Children and the Law Section members. Register on WisBar.org's Marketplace.
1 LaCrosse County Department of Human Services v. Tara P., 2002 WI App. 84.
2 Dane County Department of Human Services v. J.R., 2020 WI App 5, 390 Wis. 2d 326, 938 N.W.2d 614 (2019).
3 Eau Claire County Department of Human Services vs. S.E., 2020 WI App 39, 392 Wis.2d 726, 946 N.W.2d 155.
4 State v. Patricia A.P., 195 Wis. 2d 855, 537 N.W.2d 47 (Ct. App. 1995).
5 2020 WI 39, ¶¶21-23.
COVID-19 Vaccine Policy Considerations for Wisconsin Employers
With COVID-19 vaccinations now available, employers may want to implement a mandatory vaccine policy within their organization. Janelle Schlosser reviews the risks for employers related to mandatory vaccine policies in the workplace.
Janelle E. Schlosser
Since COVID-19 vaccinations have received emergency use approval (EUA) by the Food and Drug Administration (FDA) and are being distributed in the United States, employers should evaluate whether they will implement mandatory vaccine policies in their workplaces and the legal and regulatory implications of doing so.
Employers should look at the risks associated with a mandatory policy versus those associated with a voluntary policy, and how these competing risks may affect their business practices.
If employers decide to make the vaccine mandatory, they will need to understand employees’ refusal rights, how refusal impacts a mandatory policy, and whether termination of employment is permitted in response to refusal.
If employers decide to mandate the COVID-19 vaccine, it is important for them to review the U.S. Equal Employment Opportunity Commission (EEOC) guidance on anti-discrimination laws pertaining to mandating a COVID-19 vaccination policy.
Most Wisconsin employers with 15 or more employees must adhere to EEOC regulations and any state laws to determine their rights as businesses and the rights of their employees.
Mandated Vaccine Policies
As a best practice, if an employer decides to mandate the COVID-19 vaccine in the workplace, the policies and procedures should reflect that decision. When deciding what the mandated vaccination policy will include, employers should begin by looking at:
how the vaccine will be administered;
procedures to follow for those that refuse the vaccination or cannot be vaccinated due to an exception;
communicating the policy to employees; and
employer considerations in making it mandatory.
It is important for employers to have clear policies in place for consistent workplace practices.
Employers have various options when deciding how to mandate a vaccine for their employees.
One way is to administer the vaccine themselves or contract with a third party to administer the vaccination. The other option is to have an independent or outside party provide the vaccine, and then the employer would just require proof the vaccine was administered.
If the vaccination is administered by the employer or its third party, the employer must follow the ADA regulations to avoid asking questions that can elicit information concerning a disability.1 If an employer decides to allow the employee to use an independent or outside provider, then the employer would not be the party asking questions that could elicit disability information, thereby avoiding violating ADA regulations.
Janelle Schlosser, Mitchell Hamline 2017, is a content attorney/market specialist with Zywave in Milwaukee, where her practice involves OSHA and DOT.
The EEOC further advises that when an FDA-approved vaccine is administered, the administration of the vaccine itself is not considered a medical exam and, therefore, the ADA regulations do not apply. If the employer requests medical information, then at that point the ADA regulation would apply. Under the ADA, a medical examination is “a procedure or test usually given by a health care professional or in a medical setting that seeks information about an individual’s physical or mental impairments or health.”2
Medical information is normally obtained during the pre-screen vaccination questions used to determine whether individuals can receive the vaccine. Employers should understand that when these questions are asked, the medical examination provision of the ADA can be triggered, because questions are being asked that could elicit a disability-related response. Even if a third-party provider asks pre-screen vaccination questions, it can be construed as a medical examination by employer, as they contracted with the third-party to provide the vaccinations.
Normally an employer is only allowed to ask those types of questions under two circumstances:
if doing so under the “job related and consistent with business necessity” standard of the ADA; or
if the employee receives the vaccine from an independent provider and only has to provide proof of vaccination to the employer absent any medical information.
The “job related and consistent with business necessity” standard allows employers to pre-screen vaccination questions and not violate the employees’ rights only if it is based on an objective belief that, if an employee does not answer the questions and cannot be vaccinated, it will pose a direct threat to other employees in the workplace.3
The pre-screen vaccine questions asked by the independent provider are not considered a violation of the ADA standard, because the employer did not contract with the independent provider, had no access to disability information, and was not screening the employee.
Refusals or Exemptions
Employees can refuse to be vaccinated. However, just because they refuse does not mean they can be terminated.
Two specific federal exemptions that employees can claim are a disability or religious exemption. Wisconsin does not have any specific waivers or exemptions for adults, only school-aged children. However, under Wis. Stat. section 252.041, during a public health emergency, individuals can be ordered to receive a vaccination unless the vaccination is reasonably likely to lead to serious harm to the individual or unless the individual, for reasons of religion or conscience, refuses to obtain the vaccine.4
Wisconsin has not expressed, up to this point, that it will exercise its power under this statute.
The ADA prohibits discrimination on the basis of disability. If an employee is unable to be vaccinated due to a medical reason or refusal to answer the pre-vaccination questions, employers cannot remove them from the workplace without trying to first find an accommodation that does not create an undue hardship.
An undue hardship would be any accommodation for an employee that creates a significant difficulty or expense to the employer.5
However, the ADA does allow employers to use the direct threat standard, preventing employees from posing a direct threat to the health and safety of other employees. If an employer uses the direct threat standard, they would be able to remove the employee from the workplace to prevent “significant risk of substantial harm” to other employees if they are unable to reduce to an appropriate level.6
COVID-19 has been determined by the ADA as a direct threat to the health and safety of others.7 Even though it has been determined a direct threat, employers should always do an individual assessment using four factors to make the determination. These four factors are:
what is the duration of the risk;
what is the nature and severity of the potential harm;
what is the likelihood that a potential harm will occur; and
what is the imminence of the potential harm.8
If an employer finds that an unvaccinated employee is a direct threat in the workplace, they can exclude the employee from the workplace, but the employee cannot be terminated without determining if there is a reasonable accommodation that can be made (working remotely, if applicable) or if the employee is eligible for leave under federal programs or employee policies.
Religious exemptions must be made under Title VII of the Civil Rights Act. This means that employees with sincerely held religious beliefs cannot be required to vaccinate. When this exemption applies, employers must provide an alternative means to the vaccination requirement unless it poses an undue hardship under Title VII.
During COVID-19, undue hardship may not be as difficult for employers to establish as compared to before the pandemic. There are different resources employers may rely on to determine undue hardship, such as the requirements under the Centers for Disease Control and Prevention (CDC) or the Occupational Safety and Health Administration (OSHA).
If an employer is unable to accommodate an employee with a sincerely held religious belief, the employer is able to exclude the employee from the workplace, which again does not necessarily mean the employee can be terminated. The employer must review all other rights prior to making any decision.
Communication of Mandatory Vaccine Policy
Employers should train their supervisors and managers on how to reasonably identify when an employee is requesting an accommodation and to whom accommodation requests should be directed. Employers should try to be flexible in assisting employees with finding reasonable accommodations for their exemptions.
Employers should also be proactive in communicating with employees. Employers should explain employees’ rights regarding the vaccine, the safety of the vaccine, and the employers’ vaccination policies.
Although employers now have the option to require a mandatory vaccine for their employees, it is necessary for employers to consider all avenues to provide the safest work environment for their employees. Making a mandatory vaccination policy for some employers may not be the most effective route to providing that environment.
There may be more risks with implementing a mandatory policy versus a voluntary policy, so it is important that employers research and identify all their options and the legalities that come with the different choices.
This article was originally published on the State Bar of Wisconsin’s Labor & Employment Law Section Blog. Visit the State Bar sections or the Labor & Employment Law Section webpages to learn more about the benefits of section membership.
1 See U.S. Equal Employment Opportunity Commission, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (2020).
4 Wis. Stat. § 252.041 (2001).
5 EEOC, What You Should Know About COVID-19.
Who's become a partner, changed firms, received an award, and more.
New Hires, Promotions, Partners
Griselda Aldrete, Marquette 2017, has joined Madison-based Alliant Energy as director of stakeholder engagement. She previously was the CEO of Hispanic Professionals of Greater Milwaukee and executive director of the Milwaukee Police and Fire Commission.
Amy Harriman, U.W. 2020, and Emilia Janisch, Penn State 2020, have joined the Madison office of Axley. Harriman is with the business practice group and focuses on corporate governance, mergers and acquisitions, securities, real estate, construction, employment, and government relations. Janisch is with the litigation practice group and represents clients in areas including commercial, employment, intellectual property, personal injury, and municipal matters.
Kate Campbell, Univ. of Southern California 2008, has joined Godfrey & Kahn S.C., Milwaukee, with the data privacy & cybersecurity and technology & digital business practice groups. She counsels clients on compliance with state, federal, and international privacy laws and assists with establishing data privacy programs, information security programs, information handling, and data breach prevention, response, and remediation. Campbell previously practiced in the litigation departments of firms in Washington, D.C., Chicago, and Los Angeles.
Jeffrey A. Conen, Chicago-Kent 1985, has joined Hansen Reynolds LLC as a partner in the Milwaukee office. His practice concentrates on mediations, arbitration, trial and jury consulting, and general civil litigation. He previously was a judge on the Milwaukee County Circuit Court for 23 years.
Christian A. Jenkins, U.W. 1995, managing partner of Minnillo & Jenkins Co. LPA, Cincinnati, Ohio, has been elected to a six-year term as a trial court judge on the Hamilton County, Ohio, Court of Common Pleas.
Matthew Kurudza, Marquette 2014, has joined Lindner & Marsack S.C., Milwaukee, as an associate on the worker’s compensation defense team. He previously represented major corporations, small businesses, insurance companies, and self-insured employers.
Laura E. Pedersen, Marquette 2020, has joined Strang, Patteson, Renning, Lewis & Lacy s.c. in the Madison office. She represents public- and private-sector clients in school and higher education law and labor and employment law and provides support for the firm’s other practice areas.
Peter Silver, Marquette 1987, has been promoted to partner with Hennessy & Roach P.C., Milwaukee. He represents employers, insurance carriers, and third-party administrators defending worker’s compensation claims.
Adam Stephens, U.W. 1999, has joined the City Attorney’s Office in Fort Collins, Colo., focusing on litigation, risk management, police services, and marijuana licensing. He previously led the Neighborhood Revitalization and Ordinance Enforcement section of the Milwaukee City Attorney’s Office for five years and served as a community prosecutor and civil rights litigator before that.
Mergers, Relocations, New Offices
Dale M. Krause, Thomas M. Cooley 1985, has opened a satellite office of Krause Financial Services in Fort Lauderdale, Fla. Krause Financial Services, headquartered in Wisconsin, partners with elder law attorneys nationwide to help senior clients by offering Medicaid-compliant annuities and long-term care insurance.
Alexander “Alec” Fraser, New York Univ. 1994, has been named co-managing partner of the Milwaukee office of Michael Best. Fraser continues to lead the firm’s national derivatives and LIBOR transition teams, which serve more than 90 national, regional, and community banks, and represents corporate clients and banks on commercial lending matters and corporate finance.
The Lawyer Chronicles, a book of poetry by Thomas J. Erickson, Marquette 1985, was published by Kelsay Press in October.
Kathleen McDonough, Chicago-Kent 1994, has authored Badger State: A Wisconsin Memoir (Henschel House 2020). She is with Wilson Elser Moskowitz Edelman & Dicker LLP, Chicago.
Staff from the Wisconsin State Public Defender’s Office recently provided trial-skills training to attorneys in the country of Georgia. Training was provided by SPD training director Gina Pruski, U.W. 1992, and SPD attorneys Guy Cardamone, Univ. of Cincinnati 2012, Eric Heywood, U.W. 2010, Richard Jones, Marquette 1989, and Ashley Morse, U.W. 2009.
Marilyn Townsend, Potomac 1979, recently presented on “Employees’ Rights and Employers’ Legitimate Expectations in the Age of the Pandemic.” She operates Marilyn Townsend Law Office, Madison, and her practice emphasizes labor and employment issues on behalf of employees.
Awards, Degrees, Honors
The Wisconsin Association for Justice has named Christopher J. MacGillis, Marquette 2008, as Outstanding Young Trial Lawyer of 2020. He is a founder and partner at MacGillis Wiemer LLC, Wauwatosa, and focuses on personal injury matters, including representing first responders and police and firefighters’ unions.
Timothy S. Trecek, Marquette 1993, has been named Robert L. Habush Trial Lawyer of the Year. He leads the Milwaukee and West Bend offices and is the corporate secretary at Habush Habush & Rottier S.C. He previously won the award in 2011 and is one of only two individuals to have been honored twice. Trecek handles all types of personal injury cases, including auto accidents, nursing home abuse, electrical accidents, premises liability cases, and others, and has special emphasis and expertise in complex product liability cases.
Roxanne Kunda, a paralegal at Gingras, Thomsen & Wachs LLP, was named Paralegal of the Year. Since 2010, she has used her expertise exclusively on behalf of injured plaintiffs.
Pro Bono, Public Service
Hupy and Abraham S.C., a personal-injury firm, and firm president Michael F. Hupy, Marquette 1972, recently donated to Milwaukee Crime Stoppers. Hupy also is president of the nonprofit organization, which, since its creation in October 2019, has assisted in gathering information that has led to 27 arrests and has paid more than $6,500 in rewards.
James A. Kohlstedt, Indiana Univ. McKinney 1976, Oakbrook Terrace, Ill., June 1, 1949 – Oct. 10, 2020.
William L. Seymour, U.W. 1953, Oconomowoc, April 3, 1928 – Nov. 5, 2020.
Thomas R. Timken, U.W. 1961, Eagle River, Sept. 10, 1932 – May 23, 2020.
Jon R. Wilsnack, William Mitchell 1981, Markesan, March 20, 1955 – Nov. 1, 2020.
How to Place your Announcement
If you have moved, become a partner or an associate, or received a promotion or an award, let us know! Email announcements to: org MembersOnly wisbar wisbar MembersOnly org. Notices about State Bar members in good standing are printed as space is available, and subject to editing. Writing guidelines are available here. Questions? org MembersOnly wisbar Email us or call (608) 250-6139.
Photo placement: Submit a professional-quality photo. If the photo is used, the State Bar will issue an invoice ($35 each). Group photos are not accepted. High-resolution electronic photos are preferred.
Deadline: The first of the month preceding publication. For example, to place an announcement in the May issue, it must be received before April 1.
Ineligible announcements: Talks, speeches (unless they are of national stature), honors from other publications, and political announcements are not accepted.
The Office of Lawyer Regulation (OLR), an agency of the Wisconsin Supreme Court, provides these summaries for educational purposes.
The Office of Lawyer Regulation (OLR), an agency of the Wisconsin
Supreme Court, provides these summaries for educational
purposes. The OLR assists the court in supervising the practice
of law and protecting the public from misconduct by lawyers.
Find the full text of these summaries at www.wicourts.gov/olr
Reinstatement of Michael R. Bauer
On Nov. 24, 2020, the Wisconsin Supreme Court reinstated the law license of Michael R. Bauer and ordered him to pay the $4,093.40 cost of the reinstatement proceeding. As a condition of reinstatement, Bauer must provide quarterly trust and business account records to the Office of Lawyer Regulation (OLR) for two years after the date of reinstatement. Disciplinary Proc. Against Bauer, 2020 WI 86.
The court had suspended Bauer’s law license for one year, effective June 27, 2018. Bauer committed 22 counts of misconduct, including 17 trust account violations and five violations of SCR 20:8.4(c), and converted $376,818.63.
Disciplinary Proceedings Against Michael F. Torphy
The OLR and Michael F. Torphy, Waukesha, agreed to the imposition of a public reprimand pursuant to SCR 22.09(1). A supreme court-appointed referee approved the agreement and issued the public reprimand on Nov. 16, 2020, in accordance with SCR 22.09(3). Public Reprimand of Torphy, 2020 OLR 6.
In August 2017, Torphy succeeded another attorney (“predecessor counsel”) in representing a client and the client’s limited liability company (LLC) as defendants in a civil case in Milwaukee County Circuit Court. Torphy’s misconduct stemmed from 1) his representation of the client and the client’s LLC in the Milwaukee County civil case and 2) his concurrent representation of the client and the client’s LLC in the civil case while also representing predecessor counsel in a disciplinary action brought by the OLR and an open grievance investigation pending with the OLR related to predecessor counsel’s representation of another client.
By failing to promptly inform the client of case developments, including receipt of discovery requests and developments related to discovery deadlines, Torphy violated SCR 20:1.4(a)(3).
By failing to promptly work with the client regarding production of discovery responses, failing to review discovery materials provided by the client before relaying them to opposing counsel, and failing to file a witness list by the deadline established in a court scheduling order, Torphy violated SCR 20:1.3.
By providing plaintiffs’ counsel with untimely and incomplete discovery responses, Torphy violated SCR 20:3.4(d).
By discussing with the client potential claims the client or the client’s LLC might have had against predecessor counsel, when a significant risk was present that his representation would be materially limited by a duty of loyalty owed to predecessor counsel as a result of his concurrent representation of predecessor counsel in the OLR matters, without explaining the ramifications of the dual representation to the client and without obtaining the client’s informed, written consent to the dual representation, Torphy violated SCR 20:1.7(a)(2).
By notarizing the affidavit in support of the client’s motion to dismiss in the civil case and misrepresenting that the affidavit was subscribed and sworn before Torphy on Dec. 14, 2017, Torphy violated SCR 20:8.4(c).
By making misrepresentations to the client regarding the timing and substance of Torphy’s knowledge about the client’s grievance against predecessor counsel and regarding matters related to the conflicts of interest caused by Torphy’s concurrent representation of predecessor counsel, the client, and the client’s LLC, Torphy violated SCR 20:8.4(c).
By making misrepresentations to the Milwaukee County Circuit Court during the two hearings in the civil case, Torphy violated SCR 20:3.3(a)(1).
By making misrepresentations to the OLR during the investigation of the client’s grievance against him, Torphy violated SCR 22.03(6), enforced via SCR 20:8.4(h).
As a precondition of this public reprimand, Torphy paid $1,248 owed to opposing counsel for sanctions in the Milwaukee County civil case.
Torphy had no prior discipline.
Public Reprimand of Ann T. Bowe
On Nov. 24, 2020, the supreme court publicly reprimanded Ann T. Bowe, Milwaukee. Disciplinary Proc. Against Bowe, 2020 WI 87. The court also ordered Bowe to pay the $6,482.86 cost of the disciplinary proceeding.
Bowe represented a client charged with first-degree intentional homicide and other felony counts. The homicide victim was the client’s girlfriend and a relative. Bowe received a large amount of the client’s money from his prior attorney and deposited the funds into her trust account. Thereafter, at the client’s request, Bowe wrote several trust account checks from the client’s funds payable to the client’s friends and family members, including the client’s mother and the victim’s parents. The checks were collected from Bowe’s law office and delivered to the intended recipients. Bowe knew that the recipients of the two largest sums of money were the victim’s parents and that the client’s mother – who received the third largest check – was a co-defendant in the client’s criminal case. Bowe also wrote three trust account checks payable to cash.
The victim’s mother notified the district attorney’s office that she and the victim’s father had received checks from Bowe’s law office, after which the state filed an “other-acts” motion and a motion to disqualify Bowe alleging a conflict of interest likely to result in ineffective assistance of counsel. The other-acts motion identified the victim’s parents and the defendant’s mother as state witnesses. The court later allowed Bowe to withdraw from representing the client.
A referee and the supreme court found that by issuing checks from her trust account to potential state witnesses against the client, Bowe violated SCR 20:1.7(a)(2); and by writing trust account checks payable to cash, she violated SCR 20:1.15(f)(2)a.
Bowe had been privately reprimanded in 1993 and publicly reprimanded in 2011.
Disciplinary Proceedings Against Cole J. White
On Nov. 25, 2020, the supreme court suspended the law license of Cole J. White, Green Bay, for four years. Disciplinary Proc. Against White, 2020 WI 88. The court ordered White to pay $11,900 in total restitution to four clients and $18,340 to the Wisconsin Lawyers’ Fund for Client Protection. The court further ordered White to pay the $2,514.74 cost of the disciplinary proceeding.
In addition to the four-year disciplinary suspension, White remains subject to administrative suspensions imposed for noncompliance with mandatory-dues and trust-account-certification requirements.
White engaged in 44 counts of misconduct across 13 client matters. White’s misconduct included failing to hold advanced fees in trust; failing to provide written communications defining the terms and scope of the representation; using threatening, vulgar, and abusive language toward clients and OLR staff; failing to respond to client requests for case status updates and accountings; lying to clients about the status of cases; lying to a client about the status of White’s pending disciplinary matters; failing to pursue client matters; failing to return unearned fees; entering into a business transaction with a client without providing required written advice or obtaining informed written consent; and failing to cooperate with the OLR investigations.
In his representation of clients, White violated SCR 20:1.3, SCR 20:1.5(b)(1), (2), (3), (c), and (f), SCR 20:1.8(a)(2) and (3), SCR 20:1.16(d), SCR 20:8.4(c), and SCR 40.15, enforceable via SCR 20:8.4(g). White’s failures to cooperate with the OLR investigations and his misrepresentations to the OLR during the course of OLR investigations violated SCR 22.03(2) or (6), enforceable via SCR 20:8.4(h)
The court previously suspended White’s law license for 15 months, effective Oct. 4, 2019.
Cite to 94. Wis. Law. 49-50 (January 2021).
Court of Appeals Digest
In this column, Profs. Daniel D. Blinka and Thomas J. Hammer summarize select published opinions of the Wisconsin Court of Appeals. Full-text decisions are linked below.
Daniel D. Blinka & Thomas J. Hammer
Joinder – Third-party Complaints
Nelson v. Loessin, 2020 WI App 72 (filed 28 Oct. 2020) (ordered published 19 Nov. 2020)
HOLDING: The circuit court erred by not dismissing a third-party complaint that joined, in a case involving a married couple, a vehicle’s driver, and the driver’s insurance company, four other individuals (two married couples) who were injured in the same vehicle accident.
SUMMARY: A vehicle driven by Loessin, who was allegedly drunk, collided with the rear of a van occupied by six individuals (three married couples): the Nelsons, the Rosenthals, and the Eastons. All six were injured. The Nelsons sued Loessin and his insurer, Allstate Property and Casualty Insurance Co. (Allstate), seeking both compensatory and punitive damages. The other four individuals were still in active treatment; apparently, the same lawyer represented all six injured individuals (see ¶ 3).
Allstate filed a third-party complaint that named the Rosenthals and the Eastons as “third-party defendants” because they too may have suffered injuries (see id.). The circuit court rejected a motion, brought by the Rosenthals and the Eastons, to dismiss the third-party complaint.
The court of appeals reversed in an opinion authored by Judge Gundrum. Simply put, the rules of civil procedure did not permit the third-party complaint over the objection of the Rosenthals and the Eastons. The court examined Wis. Stat. section 803.03, which applies to “necessary parties”; Wis. Stat. section 803.04, governing “permissive parties”; and the interpleader rule, Wis. Stat. section 803.07. The interpleader rule did not apply because under Wis. Stat. section 803.07 the Rosenthals and the Eastons had no claim against the Nelsons, the plaintiffs who were with them in the van (see ¶ 9). Under the plain language of Wis. Stat. section 803.04, there was no proper basis for permissive joinder (the Rosenthals and the Eastons were not seeking to “join in” the Nelsons’ suit nor were they joined in that suit as “defendants” – they were “third-party defendants”) (¶ 30).
Third-party practice is governed by Wis. Stat. section 803.05. Under that rule, Allstate’s third-party complaint could only stand if the Rosenthals and the Eastons were “necessary parties to the Nelson’s suit under § 803.03” (¶ 10). Wisconsin Statutes section 803.03 did not apply because the other two couples were not “already parties” to the lawsuit and “there is simply no reason to believe that complete relief cannot be accorded” among the Nelsons, Allstate, and Loessin (¶ 12).
The court rejected Allstate’s multiple attempts to justify the third-party complaint under various provisions in Wis. Stat. section 803.03. The Rosenthals and the Eastons were not making any claims related to the Nelsons’ suit (see ¶ 18). Because the Rosenthals and the Eastons were still being treated, their interests were more “speculative and tangential” than those of the Nelsons (¶ 21). Allstate seemingly assumed that the six people in the van had a “collective claim” but cited nothing to suggest that “separate, individual lawsuits arising out of the same accident are not permissible” (¶ 25).
Exclusionary Rule – Impeachment Exception
State v. Garcia, 2020 WI App 71 (filed 7 Oct. 2020) (ordered published 19 Nov. 2020)
HOLDING: The impeachment exception to the exclusionary rule did not permit the prosecution to use, in its case-in-chief, a statement by the defendant that the circuit court suppressed before trial.
Prof. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.
Prof. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.
SUMMARY: Garcia was convicted of reckless homicide arising out of his abuse of a young child. Before trial, the court suppressed the statement Garcia made to police officers after he was arrested, on grounds that he did not properly waive his Miranda rights because of his inability to speak English. The court did find, however, that the statement was voluntary and hence could be used for impeachment purposes.
During the state’s case-in-chief, the defense cross-examined a police officer about his failure to investigate other sources of the victim’s injuries unrelated to the defendant’s conduct. Based on this line of cross-examination, the trial judge permitted the prosecutor to introduce Garcia’s statement in which he described his physical abuse of the child (see ¶ 2).
The court of appeals reversed the conviction in an opinion authored by Judge Reilly. It crystallized the issue as follows: “may the State invoke the impeachment exception to the exclusionary rule during the State’s case-in-chief to ‘rehabilitate’ one of its witnesses?” (¶ 1). The answer: an emphatic no. The long-recognized impeachment exception to Miranda is limited to impeachment of the defendant himself or herself – if the defendant testifies during the defense’s case-in-chief. Case law has rejected a broader reading that would allow the government to use unlawfully obtained (albeit voluntary) statements to buttress other weaknesses in its case (see ¶ 15).
Victims’ Rights – Marsy’s Law – Standing to Challenge Shiffra-Green Motion
T.A.J. v. Johnson, 2020 WI App 73 (filed 29 Oct. 2020) (ordered published 19 Nov. 2020)
HOLDING: The victim in this case had standing to object to the defendant’s Shiffra-Green motion.
SUMMARY: Defendant Johnson was charged with multiple crimes stemming from his alleged sexual assault of the victim. Johnson filed a motion for the circuit court to conduct an in camera inspection of the victim’s health care records to determine whether those records should be shared with the parties. This is known as a Shiffra-Green motion.
“State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993), and State v. Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298, established a judicial process by which a criminal defendant may trigger an in camera review by the circuit court of an alleged victim’s health care records in order for the court to determine whether any records should be released to the parties for potential use at trial” (¶ 3).
The victim, with the assistance of counsel, filed a pleading in the circuit court opposing the defendant’s motion. The circuit court concluded that the victim lacked standing to object to the motion; it relied on Jessica J.L. v. State, 223 Wis. 2d 622, 589 N.W.2d 660 (Ct. App. 1998), which held that an alleged victim does not have standing to object to, or to make arguments to the court regarding, a defendant’s Shiffra motion (see ¶ 6).
The victim later petitioned the court of appeals for leave to appeal the circuit court’s nonfinal order. The court of appeals granted the petition. After briefing in the court of appeals was completed, Wisconsin voters in the April 2020 election voted in favor of a victims’ rights amendment to the Wisconsin Constitution (commonly known as Marsy’s Law).
In a decision authored by Judge Fitzpatrick, the court of appeals reversed the circuit court. First, it concluded that “the pertinent provisions of the 2020 constitutional amendment grant a crime victim, such as [the victim here], standing to oppose and to make arguments supporting his or her opposition to a defendant’s Shiffra/Green motion for an in camera review, and the amendment to this extent abrogates Jessica J.L.” (¶ 24).
The amendment gives a victim the right to be heard in any proceeding “during which a right of the victim is implicated.” See Wis. Const. art. I, § 9m(2)(i). In this case it was undisputed that the victim has rights to confidentiality and privilege regarding the victim’s health care records. See Wis. Stat. §§ 146.82(1), 905.04(2) (see ¶ 25).
The court of appeals also concluded that “the pertinent provisions of the 2020 constitutional amendment apply retrospectively to [the victim’s] assertion of standing to oppose Johnson’s pending Shiffra-Green motion that was filed before the effective date of the amendment” (¶ 24).
Discrimination – WFEA – LIRC’s Findings – “Credibility” Findings
Robles v. Thomas Hribar Truck & Equip. Inc., 2020 WI App 74 (filed 7 Oct. 2020) (ordered published 19 Nov. 2020)
HOLDING: The Labor and Industry Review Commission (LIRC) properly rejected the findings of an administrative law judge (ALJ) that an employee was discharged on the basis of race and national origin.
SUMMARY: Robles was discharged from his employment at a trucking company ostensibly because of “unprofessional interaction” with other employees. Robles filed a complaint under the Wisconsin Fair Employment Act with the Department of Workforce Development, alleging his firing resulted from racial discrimination. After a hearing, an ALJ ruled that Robles was fired because of his race and national origin.
The trucking company appealed to LIRC, which reversed the ALJ’s decision and found instead that Robles was fired for having been disrespectful and for having threatened another employee. The circuit court reversed LIRC’s decision on the ground that LIRC had no basis for overturning the ALJ’s credibility determination.
In an opinion authored by Judge Reilly, the court of appeals reversed the circuit court and thereby reinstated the LIRC findings. All of LIRC’s findings of fact were supported by “substantial evidence in the record” (¶ 11). Moreover, LIRC had properly conducted a “credibility conference” with the ALJ as required by case law (¶ 14). The facts were vigorously contested. LIRC reasonably found that Robles’ assertions of racial discrimination were not credible and that the employer’s witnesses carried greater weight on the facts (see ¶ 16).
Restrictive Covenants – Requirement of Clear, Unambiguous, and Peremptory Terms – “Garage”
Buehrens v. Schave, 2020 WI App 75 (filed 7 Oct. 2020) (ordered published 19 Nov. 2020)
HOLDING: The term “garage” in a subdivision’s restrictive covenant does not unambiguously preclude the defendants’ garage based on its size and structure.
SUMMARY: The issue in this case was whether a large structure built by the Schaves on their property in a residential subdivision qualifies as a “garage” under the subdivision’s restrictive covenant. The covenant states, “In addition to the residence, the only other building to be allowed on said premises shall be a garage” (¶ 9). The Schaves’ building, including an electric door, is 36 feet by 80 feet and 16 feet high. Neighbors filed this action seeking enforcement of the restrictive covenant and an order requiring removal of the building, which they contended is a pole barn, not a garage. They moved for summary judgment.
The Schaves also moved for summary judgment; their affidavits stated that they planned to use the building as a garage, specifying the vehicles and trailers they planned to store in it. The circuit court granted the Schaves’ motion. In an opinion authored by Chief Judge Neubauer, the court of appeals affirmed.
The term “garage” is not defined in the restrictive covenant. Thus, looking to common dictionary definitions of the term, the court determined that the common and ordinary meaning of the term “garage” is not limited to certain size or material. The only requirement is that the building be used to store vehicles (see ¶ 10). The restrictive covenant is ambiguous as to any intent to limit the size and structure of the building (see ¶ 19).
In sum, the appellate court concluded that “[t]he term ‘garage’ in the subdivision’s restrictive covenant does not unambiguously preclude the Schaves’ garage based on its size and structure. Following well-established Wisconsin law, we must favor the free and unencumbered use of property when purported restrictions in covenants are not in clear, unambiguous, and peremptory terms. We affirm the court’s order dismissing this action” (¶ 21).
Cite to 94. Wis. Law. 47-48 (January 2021).
Supreme Court Digest
In this column, Prof. Daniel Blinka and Prof. Thomas Hammer summarize all decisions of the Wisconsin Supreme Court (except those involving lawyer or judicial discipline).
Daniel D. Blinka & Thomas J. Hammer
Alford Pleas – “Strong Proof of Guilt”
State v. Nash, 2020 WI 85 (filed 19 Nov. 2020)
HOLDING: The circuit court record established strong proof of the defendant’s guilt that overcame the innocence maintained by the defendant’s Alford plea.
SUMMARY: This criminal case involved what is known as an Alford plea. “An Alford plea is a conditional guilty plea, which allows the defendant to maintain his or her innocence outright, but nonetheless accept a conviction and sentence for the crime. The United States Supreme Court found this type of plea to be constitutionally acceptable. North Carolina v. Alford, 400 U.S. 25, 37 (1970)” (¶ 33). The Wisconsin Supreme Court has also recognized that Wisconsin circuit courts can accept Alford pleas. See State v. Garcia, 192 Wis. 2d 845, 532 N.W.2d 111 (1995).
Prof. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.
Prof. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.
To accept an Alford plea, the circuit court must determine that the summary of the evidence the state would offer at trial constitutes strong proof of guilt. “Strong proof of guilt” is not the equivalent of proof beyond a reasonable doubt, but it is clearly greater than what is needed to meet the factual basis requirement under a guilty plea (¶ 35). “Because an Alford plea often results from agreed-upon plea negotiations between a defendant and the State, a court need not go to the same length to determine whether the facts would sustain the charge as it would where there is no negotiated plea” (¶ 36).
The circuit court need not use “magic words” when it accepts an Alford plea. To accept an Alford plea, “the circuit court looks at the record as a whole and determines whether the facts in the record show a strong proof of guilt as to each element of the alleged crime. However, what constitutes an adequate record in a particular case is specific to the facts and circumstances of that case, and such determinations are left to the discretion of the circuit court”
In this case, defendant Nash originally was charged with first-degree sexual assault of a child under the age of 12 [hereinafter victim 1] and with repeated sexual assault of another child [hereinafter victim 2]. The criminal complaint also specifically alleged that the state would seek to introduce other-acts evidence and the victims’ forensic interviews.
Pursuant to a plea negotiation, the defendant entered an Alford plea to a single count of second-degree sexual assault of a child under 16 years of age. Fifteen months after being sentenced, the defendant filed a postconviction motion seeking to withdraw his Alford plea, claiming that the circuit court failed to establish strong proof of guilt as to each element of the crime to which he had entered the Alford plea. The circuit court denied the motion. In an unpublished opinion, the court of appeals affirmed.
The supreme court affirmed the court of appeals in a unanimous opinion, authored by Justice Ziegler, that contains a lengthy transcript of the plea hearing under scrutiny. The supreme court concluded that the record in this case demonstrated strong evidence to support each element of the crime (see ¶ 41).
Said the court: “During the plea hearings, Nash admitted verbally and in writing that he understood the nature and elements of the offense. The criminal complaint and amended criminal complaint outlined the detailed victim accounts of the forced sexual intercourse and contact. The record also contains significant other acts evidence that the court deemed admissible at a prior hearing. The court heard the prosecutor describe the victim’s forensic interviews, the facts of the charges at issue, and the details regarding other uncharged sexual assaults in other jurisdictions. The court heard of the witnesses who would testify about the assaults, and the court also had, as other acts evidence, a statement Nash made to law enforcement admitting to sexually assaulting [victim 1]” (¶ 42).
“In addition, the prosecutor provided a summary explaining how Nash engaged in multiple acts of sexual intercourse with the victims, all of whom were under age 16. The record reflects that the State would call the three victims [victim 1, victim 2, and another victim] and also the forensic examiner to testify against Nash. Nash’s counsel acknowledged the State’s witnesses. In sum, the record contains ample evidence to support ‘strong proof of guilt,’ and Nash has failed to meet his burden to prove by clear and convincing evidence that his plea resulted in manifest injustice” (id.).
Lastly, the court rejected the defendant’s proposal that it exercise its superintending authority to require that courts employ a specific procedure to establish a sufficient factual basis when accepting an Alford plea (see ¶¶ 46-49). However, in a footnote, the court “recognize[d] the importance of Wis. JI-Criminal SM-32A and recommend[ed] that circuit courts review it when determining whether to accept a defendant’s Alford plea” (¶ 38 n.11).
Justice R.G. Bradley joined the majority opinion in full but also wrote separately in a concurrence “to point out the pitfalls of plea bargaining – particularly when Alford pleas are part of the deal” (¶ 51).
Justice Karofsky, joined by Justice A.W. Bradley and Justice Dallet, also joined the majority opinion in full but wrote separately in a concurrence “to discourage the acceptance of Alford pleas in Wisconsin circuit courts” (¶ 66).
Said Justice Karofsky: “I fully recognize that in certain cases, especially those involving child sexual assault victims, an Alford plea may be the only avenue by which victims are spared from testifying and offenders are still held accountable. This is why I do not believe an absolute ban to the Alford plea practice is warranted. However, the acceptance of Alford pleas is troubling because a system allowing defendants to accept punishment without admitting guilt may rob victims of needed closure and may prevent defendants from being rehabilitated” (id.).
Cite to 94. Wis. Law. 46 (January 2021).
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How Ike Led: The Principles Behind Eisenhower’s Biggest Decisions
By Susan Eisenhower (New York, NY: Thomas Dunne Books, 2020). 365+ pgs. $21.61. Order, www.amazon.com.
Reviewed by James Casey
The author of this engrossing book – Susan Eisenhower – is a granddaughter of Dwight D. Eisenhower, the 34th president of the United States (1953-61). Dwight Eisenhower had a distinguished military career (most famously as the architect of the D-Day invasion and NATO commander) and academic career (president of Columbia University) before assuming the presidency.
The author shows what leadership is through case studies. This is the ultimate strength of the book. Topics covered include U.S. Supreme Court appointments, accountability, ethnic kinship, personal political leanings (and the lack thereof), shaping the middle way, rules for good governance, the relationship between war and peace, Wisconsin Sen. Joseph McCarthy, foreign policy and relations, civil rights, and Eisenhower’s post-presidential years (1961-69). These chapters illustrate the depth of issues that were facing the United States during the Eisenhower years. The 1950s are generally portrayed as a boring and sleepy era, but this book helps make clear that era was anything but boring and sleepy.
The discussion of the U.S. Supreme Court might be of special interest to lawyers. Eisenhower appointed Chief Justice Earl Warren (1953) and four Associate Justices: William Brennan (1957), Potter Stewart (1959), John Marshall Harlan II (1955), and Charles Evans Whittaker (1957). Of particular importance were the appointments of Chief Justice Warren and Justice Brennan. Eisenhower thought that the Supreme Court should have a balance of Republicans and Democrats because he believed that would best preserve an impartial, apolitical nature on the Court. Warren was a moderate Republican (or so Eisenhower thought), and Brennan was a Democrat and Catholic. These appointments represented Eisenhower’s “middle way” approach to governing. Beginning with Brown v. Board of Education and continuing through the 1960s, the Warren Court expanded the civil rights of Americans.
This book is a must read. It is well worth your time and attention.
James Casey, Dayton 1988, is an attorney, privacy advisor, and CUNY Adjunct Associate Professor in Washington, D.C. He is a State Bar of Wisconsin delegate to the ABA House of Delegates; a member of the State Bar Board of Governors, the Nonresident Lawyers Division (NRLD) board, and the Lawyer Well-Being Task Force; and a past president of the NRLD.
VERDICT: It’s a Keeper!
The Catalyst: How to Change Anyone’s Mind
By Jonah Berger (New York, NY: Simon & Schuster, 2020). 270 pgs. $18.61. Order, www.amazon.com.
Reviewed by Thomas J. McClure
In chemistry, the word “catalyst” refers to things that enable other things to change, often in a more productive, multiplicative, or synergistic way. In this well-written and crisply paced book, author Jonah Berger uses the metaphor of a catalyst to describe five persuasion strategies that can determine whether people will respond to an opportunity to change. The book encapsulates both some history of marketing campaigns and a survey of current techniques that are interesting and thought provoking.
Berger is a prolific business consultant and writer in addition to his day job as a marketing professor at the Wharton School at the University of Pennsylvania. Rather than focusing on the theoretical, Berger’s analysis relies significantly on case studies that dramatically illustrate the ways in which people make decisions in real life to resist, or embrace, change. Reading this book is not an academic endeavor but more like a quick travelogue through the quirks and logic of the human condition, where remarkable things in sales and corporate worker improvement can be accomplished merely by applying new ideas to old problems. The book is for “anyone who wants to catalyze change,” and it contains convincing evidence that Berger has a good grasp on the best ways to do so.
The book is basically structured into five chapters, each covering a “catalyst” technique that the reader will find mind opening yet somewhat familiar. With Berger’s guidance, readers can readily see how each technique can help move people to reconsider their default positions, or choices, on everything from internet purchasing, to getting behind corporate initiatives, to changing voting decisions. The chapters represent each of Berger’s five key concepts: reactance, endowment, distance, uncertainty, and corroborating evidence.
Reactance, or the natural resistance to change, can be overcome by persuading people to convince themselves by talking through the issues. Endowment, or reliance on the safety of the status quo, can be overcome by illustrating the cost of falling behind if one does not act. Distance, in the form of antipathy to a proposal, can be lessened by small steps of finding a mutual acceptance point, then expanding the discussion to overcome a person’s boundary of rejection.
Uncertainty, or fear of failure, is overcome by offering simple options to try new things so there is no downside to the consumer, for example, by offering free test drives, free samples, free shipping, and lenient return policies. Finally, corroborating evidence refers to the behavioral science of using multiple resources, and their timing, to progressively build confidence that a change is in a person’s interest. Each chapter ends with a real-life case study.
Lawyers engaged in acquisitions, sales, negotiations, advocacy, plea bargaining, mediations, or trial work, to name a few, will find substantial food for thought to hone their persuasion skills with this contemporary marketing primer.
Thomas J. McClure, Marquette 1980, operates Thomas J. McClure LLC, Delafield.
VERDICT: It’s a Keeper
Cynical Theories: How Activist Scholarship Made Everything about Race, Gender and Identity
By Helen Pluckrose & James Lindsay (Pitchstone Publishing, 2020). 351 pages. $19.61. Order, www.amazon.com.
Reviewed by Kevin M. Connelly
According to the authors, “white fragility,” “implicit bias,” “cultural appropriation,” “intersectionality,” “privilege,” “silence is violence,” and many other similar terms are the lexicon of a tribalistic and cynical ideology that underpins the current social justice movement.
Examining decades of social justice scholarship, they trace the underlying theory from its origins in the diffuse radical skepticism of postmodernism philosophy of the 1960s through its evolution into present-day group identity variants including critical race theory, postcolonial theory, queer theory, intersectional feminism, and gender, disability, and fat studies.
Two core principles frame these theories: first, a radical skepticism of universal objective and scientific truth because, it contends, all knowledge is relative as a cultural construct of power. Second, society is formed by systems of power and hierarchy wherein a dominant culture, such as white western culture, oppresses marginalized cultures using language and “discourses” to maintain its privilege.
This conceptual framework led to the worldview that power imbalances and prejudice exist everywhere, in all social relations, all the time, though largely invisible. For example, the history of civil rights progress in this country may appear to have been a moral arc, but, according to the late legal scholar Derrick Bell, a leading progenitor of critical race theory, achievements such as desegregation were just measures “whites allowed” in furtherance of their self-interest.
Casting aside the epistemological rigors of the western scientific method, members of marginalized identity groups have constructed their own knowledge, (rewritten) histories, and truths derived from “lived experiences” and “standpoint theory.” Dissent is not tolerated; to question these theories and their relativistic truths is to commit “epistemic oppression.”
With dogmatic and nonfalsifiable precepts (like a religion), these theories escaped the academy to fuel the identity-based activism we see today. For example, antiracist activism jettisoned the colorblind and individual rights political goals of liberalism as deficient and naïve in favor of race-identity tactics targeting “white privilege” and “systemic oppression.”
Theory-educated activists have ensconced themselves in “diversity, equity and inclusion” offices and “bias response teams” in universities, corporations, and governments to enforce the truth according to social justice.
The obvious casualty is free speech: Saying the perceived wrong thing has often led to public shaming by “cancel culture” or losing one’s job (James Damore fired by Google); scholars who publish papers straying from the orthodoxy have had death threats and coerced retractions (Bruce Gilley); STEM departments and school curricula are pressured to incorporate critical race theory; speakers are removed from programs; physicians worry their advice might be construed as fat shaming.
The authors note the contradiction that critical race theory begins with the belief that all categories, such as race, are socially constructed, and then does exactly that in its activism – it puts social significance back into racial categories, which inflames racism.
All lawyers who believe Enlightenment values have been, and will continue to be, the best path for social progress must read this book to be equipped to recognize and resist this well-intentioned but counterproductive ideology.
Kevin M. Connelly, Duke 1988, operates Connelly Legal Services, Westby.
Want to Review a Book?
Please request a book and writing guidelines from Wisconsin Lawyer managing editor Karlé Lester, at org klester wisbar wisbar klester org or (608) 250-6127. Reviewers may keep the book reviewed. Reviews of about 500 words are due within 45 days of receiving the book. Reviews are published, space permitting, in the order received and may be edited for length and clarity.
Cite to 94. Wis. Law. 37-38 (January 2021).
Interesting facts, trends, tips, bits and bytes in the news.
Baby Bar Exam: Accommodations for Pregnant Test-takers?
You may have heard about Brianna Hill. She made national news after giving birth in the middle of the Illinois bar exam (she passed, by the way). In October, she was 45 minutes into the remote exam, at home, when her water broke.
But fearing a disqualification, she kept going and finished both sections of day one before going to the hospital to give birth. The next day, she finished the final bar exam sections from her hospital bed.
“Many are applauding Ms. Hill’s determination. But some recent law school graduates say her story highlights longstanding issues around when and how a person must take the bar exam – issues that have been amplified by the pandemic,” wrote Heather Murphy for the New York Times.
Hill was supposed to take the bar exam in July, but it was postponed because of COVID-19.
She had emailed bar exam officials for additional bathroom breaks, knowing she would be close to her due date, but her request was denied.
Got a Nugget to Share?
Send your ideas for interesting facts, trends, tips, or other bits and bytes to org wislawmag wisbar wisbar wislawmag org, or comment below.
The Push to Expand Diploma Privilege Continues
For many years, Wisconsin was the only state with a diploma privilege that allows graduates of Wisconsin’s law schools to become licensed without taking the state’s bar exam.
Then came COVID-19, and law students in many jurisdictions began demanding a temporary diploma privilege in their states, including out-of-state students subject to the Wisconsin bar exam.
Oregon, Washington, Utah, Louisiana, and the District of Columbia granted temporary, emergency diploma privileges in 2020 but now will do bar exams online. At least 30 states also opted for online bar exams in 2020.
A group called United for Diploma Privilege (UDP), with leadership in 33 states, is still pushing for expanded diploma privileges in all jurisdictions.
When COVID-19 is behind us, Wisconsin will likely be the nation’s only diploma privilege state once again, though Karen Sloan at Law.com notes that “organizers of the diploma privilege movement say they will continue to push for changes to attorney licensure even after the pandemic subsides.”
By the Numbers
– The number of state and federal court decisions (including tribal courts) that include the terms “COVID-19” or “coronavirus,” as of mid-December. Most of them are federal cases (9,427), and many of those involve prisoners seeking compassionate releases because of COVID-19.
Many more cases will likely be decided in 2021. About 2,000 lawsuits are pending in state and federal courts that involve business insurance coverage, including several that were consolidated as multi-district litigation.
This month 101 years ago, on Jan. 13, 1920, an Ohio court ruled in favor of Emma Frush, who lost her husband, Walter, to influenza after he was drafted for World War I. He died at Camp Sherman in Ohio.
Walter’s life insurance policy excluded coverage “if the insured engaged in military or naval service in time of war.” But the court ruled the exclusion did not apply because Walter died of influenza, not as a result of military service.
New Year’s Resolutions: 12 Ideas to Thrive in 2021
Law practice management company Clio published “12 Realistic New Year’s Resolutions for Lawyers,” and they may get you thinking about how to make the most of 2021:
- Get organized.
- Take a client-centered approach to practicing law.
- Accept credit cards.
- Network more.
- Bring more of your practice on the go.
- Revamp your online reputation.
- Become more data-driven.
- Prepare for client intake before you meet your next client.
- Take better care of yourself.
- Manage your time more wisely.
- Attend events to invest in your firm’s future.
- Try a new tool to help your practice succeed.
Tax Identity Theft: Get Your IRS Identity Protection PIN
Tax fraud can happen to anyone. If your Social Security number has been subject to a public data breach, fraudsters can use your number to file a fictitious tax return. The stolen return will be filled with wage and deduction information that will allow the phony filer to obtain the highest refund without tipping off the IRS.
Starting in 2021, taxpayers have the ability, after first passing an identity verification process, to obtain an Identity Protection PIN (IP PIN). The IP PIN is a six-digit number that prevents someone else from filing a tax return using your Social Security number, according to the IRS.
To get your IP PIN, you must first register your identity on IRS.gov. Your IP PIN will be valid for one year, and you must apply each year for a new PIN. If you are not able to validate your PIN with the online tool, or if you make $72,000 or less per year, you can file Form 15227 with the IRS.
If your identity has been stolen in the past or if you want to take precautions to protect your tax identify in the future, consider obtaining an IP PIN from the IRS.
Source: Christopher Shattuck, State Bar practice management advisor (Practice 411™).
“2020 forced us out of our comfort zones, likely for the better. The gaping holes and stark inequities within various systems we once held dear were laid bare. Our ‘normal’ was dysfunctional.”
– Milwaukee attorney Emil Ovbiagele. Reflecting on 2020, Ovbiagele is ready for the new year.
“I am not interested in going back to whatever ‘normal’ was because it wasn’t working for so many,” he said. “I hope in 2021, we don’t forget the lessons 2020 taught us. I hope we use our new-found resilience to continually up the ante.”
Cite to 94. Wis. Law. 14-15 (January 2021).
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Practicing in Greater Wisconsin is Great, If You Have Reliable Broadband Internet
I appreciated President Brost’s recent message about practicing in Greater Wisconsin (“Is Greater Wisconsin for You?” Wisconsin Lawyer, November 2020). My run of more than 30 years practicing from downtown offices in Milwaukee, Chicago, and Phoenix came to an end on March 12, and I’ve spent the past nine months of the COVID pandemic working from my home office. The transition home was almost entirely seamless – consistent with President Brost’s statement that “it no longer matters where you are so long as you have a working internet connection.”
Nowadays, I conduct my practice through a dedicated high-speed line downloading at 300 mbps, in a home wired with three high-speed wireless networks. Including my wife (a law firm manager, also working from home) and my two college-age kids, we run about 650-800GB of data each month without a hitch.
Inspired by the success of the venue change – and worn down, I’ll admit, by three summers in the furnace that passes for summertime in central Arizona – I also recently bought a home “up north” with the plan of decamping there for the summer months. What I didn’t appreciate entirely is just how impossible it is, practically speaking, to find a decent high-speed connection in the Northwoods. At my new home in southern Iron County, Wis., for example, the very best I can hope for is satellite wireless downloading at 20 mbps (uploading at 3 mbps). In fact, I’ll be lucky to get 12-15 mbps. And this assumes, I might add, that we can engineer the necessary sightlines; if not, we’ll need a tower as well.
It also bears noting that the available service runs $155 per month for usage capped at 50GB. Even with the college kids spending summers elsewhere, we will need to carry two wireless services, for a total of $310 per month. This compares to the $120 I pay for a plan that maxes at 1280GB per month to my home in Arizona. While $310 per month and the necessary hardware aren’t a financial hardship for a law firm partner, it’s an outlandish sum of money for a working family to pay for what amounts to a public good.
Thus, while “a working internet connection” makes law practice highly mobile in concept, the practical fact is that the inaccessibility of decent, affordable high-speed service is most certainly an impediment to relocating a law practice to Greater Wisconsin. More importantly, it is a considerable disadvantage to students and to businesses in rural areas, where unequal access to competent internet service is adding another stressor to the pandemic. In this respect, Wisconsin trails neighboring Minnesota, its economic competitor, by a considerable stretch. While 16 percent of rural households in Minnesota lack access to high-speed internet, that fraction in Wisconsin is 31 percent.
The State Bar of Wisconsin could, it seems to me, have a role in addressing the state’s failure to invest in the wireless infrastructure that is increasingly crucial to economic growth. Bar leadership should, it seems to me, do so from both a policymaking and an advocacy standpoint – perhaps even from a functional standpoint (helping establish, for example, wireless service cooperatives as part of a solution). Doing so would draw more lawyers and other professionals and knowledge workers out of southern Wisconsin and make the services those folks provide more accessible in Greater Wisconsin.
Response: Thank you for your response to my article in Wisconsin Lawyer. High-speed internet continues to be an issue that hinders the ability of lawyers to work in many areas of Wisconsin. Some areas have acceptable service but many areas do not. The circuit courts seem to have acceptable service throughout the state, but many attorneys, their clients, and their families are unable to access high-speed service in their offices and in their homes.
The State Bar of Wisconsin supports establishing high-speed internet statewide. The State Bar’s Strategic Planning Committee and Greater Wisconsin Initiative task force are both reviewing what the State Bar can do to increase high-speed internet development for lawyers working in rural areas of Wisconsin. Thankfully, it is an issue that is getting bipartisan support throughout the United States and in Wisconsin. Governor Evers has established a task force on developing high-speed internet throughout rural Wisconsin. In addition, I have specifically asked Wisconsin’s Congressional delegation to support legislation for developing high-speed internet in rural areas of the United States.
Thank you for sharing your situation. It is incredibly helpful to have specifics to support and increase our advocacy on this topic.
President, State Bar of Wisconsin
firstname.lastname@example.org; com kbrost brostlawoffices brostlawoffices kbrost com
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Finding a Solution for Overwhelming Student Debt
In “Time to Address Student Debt” (Wisconsin Lawyer, November 2020), State Bar executive director Larry Martin wrote, “For thousands of lawyers across our state and nation, the thought of being able to move beyond a life of heavy school debt is but a dream.” He described how the State Bar is working to support legislative efforts that reduce the cost of legal education and to provide loan repayment assistance programs when appropriate, and invited members’ direct involvement in those efforts.
A reader responded.
Reader: Thank you for your recent focus on student debt in the November Wisconsin Lawyer and via social media. We were fortunate to have several Wisconsin lawyers serve on the Governor’s Council on Student Debt. Their combined experiences and intellect provided great ideas and recommendations that are now under consideration by Governor Evers.
We appreciate all the work that you and the State Bar of Wisconsin do and look forward to working together in the future.
Cabinet Secretary, Wisconsin Department of Financial Institutions
How Do GALs Actually Get Appointed?
In “GAL Appointments: Am I Eligible?” (Wisconsin Lawyer, September 2020), Gretchen Viney answered the frequently asked question: Am I eligible to accept a court appointment as guardian ad litem? The article incorporates changes to Supreme Court Rule 35, effective for family court orders entered after Jan. 1, 2021.
A reader posed a question.
Reader: I have been certified and have attended many GAL continuing education offerings in the past, and I plan on doing so for 2021. The problem is that I don’t know how to actually get appointed. It seems that the counties I work in are doing anything but randomly appoint GALs, and the same GALs get appointments consistently. How does someone get on the list somewhere to actually get appointed? (I work in Outagamie, Winnebago, and Calumet and surrounding counties.)
Steven D. Johnson
Johnson Law Firm SC, Appleton
Author response: The process for garnering GAL appointments varies widely from county to county and depends on the type of appointment (children, Wis. Stat. ch. 48; adult guardianship and protective placement, Wis. Stat. chs. 54 and 55; family, Wis. Stat. ch. 767).
In some counties, the appointment lists are kept by the individual judges and court commissioners. In other counties, appointments are based on centralized lists for each type of appointment, typically maintained by the offices of the clerk of courts, register in probate, and children’s court clerk (which may be the same as the register in probate). In a few counties, some or all of the appointments are based not on lists but on contracts. In those counties, lawyers and the county have entered into an agreement that governs appointments and payment rates. Although the specifics of these contracts differ, the common element is that the courts appoint only the lawyers “on the contract.”
Just to complicate the situation, some counties may have contracts for only certain areas of GAL work. For example, a county might have a wide-open list for ch. 767 appointments but have a contract-only list for ch. 48. Or, a county might have one contract that covers all areas of GAL work.
The easiest way to find out your county system is to talk to a GAL, if you can identify one. More formally, you can check with the offices of the clerk of courts, register in probate, children’s court clerk (which may be the same as the register in probate), and family court commissioner. Once you know the system, you will know who to contact to be added to the appointment lists.
Make a Difference: Give to Our Communities and Profession
In “Helping Others: Support for Worthy Organizations” (Wisconsin Lawyer, October 2020), State Bar executive director Larry Martin wrote, “For those of us who are in a position to do so, I urge you to join me in supporting the work of these critically needed organizations.”
Martin wrote that worthy charitable organizations are being hit hard, at the very time when their work is needed in our communities more than ever. This includes the Wisconsin Equal Justice Fund (WEJF), the Wisconsin Trust Account Foundation (WisTAF), and the Wisconsin Law Foundation (WLF), the charitable arm of the State Bar of Wisconsin.
A reader responded.
Reader: I just wanted to thank you for the shout-out to the WEJF (as well as WisTAF and the Wisconsin Law Foundation). Your efforts as well as those of the State Bar of Wisconsin on behalf of pro bono civil legal aid are extremely meaningful, especially during the current economic environment. I wanted to personally thank you for your leadership and support of the WEJF.
As you know, the WEJF is very fortunate to have Tom Hornig at the helm this year. With Melissa Sullivan’s continuing guidance and direction, the WEJF will keep moving forward in its efforts on behalf of its three beneficiary organizations.
National Pro Bono Partner, Quarles & Brady LLP, Milwaukee
Calling All Innovators: Tout Your Solutions
In “Legal Innovation in 2020” (Wisconsin Lawyer, November 2020), Ed Finkel wrote that this year’s Wisconsin Legal Innovators, amid difficulties created by COVID-19, came up with creative solutions to address a range of issues: access to healthcare, technology advances in state court operations, compassionate release of dying prisoners, accuracy in forensic science, and socially distanced assistance for domestic violence victims.
Last year’s Lifetime Legal Innovator honors Bobby Peterson for his career-long passion to keep learning and thinking creatively to ensure all people have access to healthcare. He is the executive director of Madison-based ABC for Health Inc.
Know a legal innovator? Are you one? Nominations for 2021 open March 1 and close on June 30. Learn more at ThatsaFineIdea.com.
A reader responded with a photo.
Reader: The magazine arrived in our mailboxes today, and it looks great. Congrats to this year’s winners and your team! We’ve already gotten some nice emails, phone calls, and text messages. My sister sent the accompanying photo of my nephew when the magazine arrived at her house. He loved it!
ABC for Health Inc., Madison
Cite to 94. Wis. Law. 6-8 (January 2021).
Final Thought: If You Are Unhappy …
May I be candid with you? Life sucks right now. I cannot recall another time in recent history when so many negative forces were working against us. And yet, I have reasons to hope.
We are living during a global health pandemic where a friend’s whisper could be a death sentence. Covid-19 has upended our world by changing how we practice law, collaborate with colleagues, maintain friendships, be present for our families. Essentially, how we interact with anyone. It has put a significant emotional toll on me. To be blunt, I am miserable, and chances are, you may be too.
A Colleague and Friend practices in Wisconsin law. The editors granted this rare approval for anonymity because the author is concerned that this deeply personal admission might undermine client confidence in his/her representation during COVID.
Practicing law has always been challenging, even in good times. There is a reason why lawyers have higher rates of depression, anxiety, alcoholism, drug addiction, and suicides compared to other occupations. What we do is stressful.
We do this because we want to help our clients or pursue a cause greater than ourselves. And, many of us are rewarded well for our efforts with financial security that allows us more freedom to explore other aspects of our lives that nourish our souls. What happens when we can no longer do the things that bring us joy and have no energy left for our clients because we are existing in isolation combined with the fear of contracting a deadly virus from anyone we meet? We are left with mourning our many losses.
I recognize that many people are experiencing far more dire circumstances than I am. The fact that other people are suffering more than me does not bring me any satisfaction nor diminish my own experience.
You may not share my own fear and concern regarding COVID, but you cannot deny that the world around you has changed and your normalcy is no longer “normal.”
Why am I sharing this with you and not my therapist? Trust me. My therapist knows. I share it with you for two reasons. First, if you are feeling emotions of loss, isolation, depression, and disconnection, I want to remind you of the good news. Vaccines are coming. We just need to stay the course for only a few more months. When we measure a year against a lifetime, we can find the strength to persevere. We will come out of this stronger and with so much more gratitude for the “little” things we have had the luxury to take for granted until now.
The second reason is to let you know that if you are feeling pessimistic, irritable, or simply sad, you are not alone. When I have genuine conversations with other lawyers, they tell me that they are feeling similarly, which brings me some measure of solace. Lawyers are expected to always be strong and fearless. During this challenging time, allow yourself to be vulnerable and know that it is okay to be a bit miserable right now. There is light at the end of the tunnel. Hang in there. Despite our six feet apart, you are not alone.
WisLAP Can Help
The Wisconsin Lawyers Assistance Program (WisLAP) offers confidential assistance to lawyers, judges, law students, and their families who are suffering from alcoholism, substance abuse, anxiety, and other issues that affect their well-being and law practice.
WisLAP 24-hour helpline: (800) 543-2625
National Suicide Prevention Lifeline: (800) 273-TALK (8255); suicidepreventionlifeline.org
Cite to 94. Wis. Law. 56 (January 2021).
Solutions: COVID-19 and Employment-related Claims
As of early December 2020, more than 260 citations for violations of the OSHA Act have been issued by the OSHA Administration related to COVID-19, ranging in monetary penalties from $0 to $32,956 and totaling in excess of $3.5 million. More COVID employment-related claims under the OSHA Act and other laws are sure to follow.
Erica N. Reib
In the wake of the coronavirus pandemic, lawyers expected a wave of employment law litigation. While some litigation has already materialized, more is certainly on the horizon. This update to “The New Wave of Litigation: An Early Report on COVID-19 Claims” (Wisconsin Lawyer, June 2020) provides a broad overview of claims and cases seen to date and ones anticipated in the near future.
Workplace Safety Claims
Although the Occupational Safety and Health Administration (the “OSHA Administration”) has yet to issue any pandemic-specific guidance related to workplace safety, that has not prevented employees from filing complaints and the OSHA Administration from conducting investigations and issuing citations and corresponding penalties under the Occupational Safety and Health Act (OSHA Act) related to COVID-19.
com erica.reib wilaw Erica N. Reib, Marquette 2011, practices with O’Neil, Cannon, Hollman, DeJong & Laing S.C., Milwaukee. She represents businesses with regard to their employment law matters, including policies and practices, investigations, and litigation.
As of early December 2020, more than 260 citations for violations of the OSHA Act have been issued by the OSHA Administration related to COVID-19, ranging in monetary penalties from $0 to $32,956 and totaling in excess of $3.5 million.1 Three of these citations were issued against Wisconsin entities.2 The majority of OSHA citations to date have dealt with respiratory protection, the recording and reporting of occupational injuries and illnesses, personal protective equipment, and failure to abide by the general duty clause.3 Under the OSHA Act, employers have a general duty to furnish a place of employment free from recognized hazards that are causing or are likely to cause the death of or serious physical harm to employees.4
It is highly unlikely that claims like these, related to employees’ safety in the workplace as it relates to COVID-19, will disappear any time in the near future. A recent survey (see accompanying infographic) showed that approximately one-third of employees would sue their employer if they contracted COVID-19 at work as a result of a coworker being sick.
The End of FFCRA? What’s Next?
Since it became effective on April 1, 2020, employers have been dealing with various leave requests under the Families First Coronavirus Response Act (FFCRA).5 Under the FFCRA, private employers with fewer than 500 employees were required to provide certain types of paid sick leave and expanded paid family and medical leave.6 However, this leave entitlement was scheduled to sunset on Dec. 31, 2020, and as of this writing, no expansion of this leave has been proposed by Congress, signed by the President, or enacted into law. Therefore, while employers might no longer have to comply with the FFCRA’s complicated provisions, they potentially face lingering claims under the FFCRA, as well as new and uncertain claims under the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act of 1990 (ADA), and the state equivalents of such laws.
If employees either sick with COVID-19 or caring for someone with COVID-19 no longer have leave protections under the FFCRA, employers will need to evaluate whether their employees are entitled to leave under the FMLA, the ADA, or state law equivalents. The FMLA provides up to 12 weeks of unpaid leave7 to eligible employees8 of covered employers9 for qualifying reasons, among them the following: 1) a serious health condition that makes the employee unable to perform the functions of his or her job; and 2) to care for the employee’s spouse, son, daughter, or parent who has a serious health condition. Although the definition of a serious health condition relies on detailed statutory and regulatory evaluation,10 it is likely that coronavirus will often qualify as such. Therefore, it will be incumbent on employers to carefully track whether they are covered employers, which employees are eligible for FMLA leave, and why a particular employee needs leave and to provide timely eligibility notices and other documentation to such employees.
Additionally, the ADA and the Wisconsin Fair Employment Act (WFEA) prohibit discrimination based on disability and require reasonable accommodations for disabilities, including unpaid leaves of absence. The ADA defines disability as “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.”11 Whether coronavirus is a disability is likely to be a hotly litigated point and, given the virus’s different effects on each individual, may depend on the specific facts and circumstances of each case. Additionally, some employees might have other disabilities that make their in-person attendance at work more dangerous during a pandemic, and therefore they might also need accommodations. As companies continue to trend back toward “normal” work requirements, employers will need to be continually cognizant of potential accommodations, including continued remote work, limited travel, and personal protective equipment. Failure to provide such accommodations could result in additional claims.
Before the pandemic, many employers denied work from home as an accommodation on grounds that an employee would not be able to perform the essential functions of the job remotely. After months of working from home, that analysis may have changed. While the EEOC has taken the position that employers are still entitled to engage in an interactive process to determine whether working from home will actually accommodate the disability and whether there is another effective accommodation, it has also stated that “the temporary telework experience could be relevant to considering the renewed request [for a work from home accommodation]” and that “the period of providing telework because of the COVID-19 pandemic could serve as a trial period that showed whether or not this employee with a disability could satisfactorily perform all essential functions while working remotely, and the employer should consider any new requests in light of this information.”12 Therefore, moving forward, employers must carefully consider whether working from home is a necessary and available disability accommodation.
Infographic by Michaela Paukner/Wisconsin Law Journal
Work from Home as a Wage and Hour Concern
Companies may face lawsuits related to work from home expenses incurred by employees, such as phone and internet service. Unlike California and Illinois, Wisconsin does not have an expense-reimbursement statute. However, under the Fair Labor Standards Act, such expenses may not cut into the minimum wage that a nonexempt employee is legally owed without violating federal law.
Additionally, employers must ensure that they are properly tracking the hours worked by their nonexempt employees while they work from home. On Aug. 4, 2020, the Department of Labor issued a Field Assistance Bulletin13 outlining how employers must exercise reasonable diligence in providing reporting mechanisms, encourage accurate reporting, and compensate employees for all hours worked.
WARN Act and WBCL Claims
Under the Federal Worker Adjustment and Retraining Notification Act (WARN) and the Wisconsin Business Closing and Mass Layoff Law (WBCL), certain companies are required to provide employees with 60 days’ written notice before a business closing or mass layoff. As companies continue to face operational restrictions as a result of governmental mandates and general declines in business as a result of individual hesitation, they may be faced with the need to downsize their staffs. If they are unable to provide the required 60-day notice, they may face steep damages and penalties, unless they can show that they are entitled to an exception. One such exception is the “unforeseeable business circumstance” whereby the circumstances that caused the business closing or mass layoff were not reasonably foreseeable at the time that the 60-day notice would have been required.14
It is important to note that, even if an employer is entitled to an exception to WARN or the WBCL, such as an “unforeseen business circumstance,” they are still required to give as much notice as possible.15 The alleged failure to give such notice has resulted in additional lawsuits, claiming that employers should have known earlier that a layoff was imminent. For example, Calero v. Fanatics Inc.16 is a proposed class action, filed in the U.S. District Court for the Middle District of Florida, that alleges the company provided only four days’ notice to the employees before terminating their employment, despite the fact that the company allegedly knew months earlier that a mass layoff would likely be necessary. Therefore, to avoid costly class action litigation and potential damages and penalties, companies must realistically evaluate their future viability and notify employees, union officials, and governmental entities as soon as practicable of impending mass layoffs and plant closures.
There is little doubt that there will continue to be substantial employment litigation relating to COVID-19. It is imperative that companies, employees, and their counsel stay updated on such legal developments.
Cite to 94. Wis. Law. 43-45 (January 2021).
4 29 U.S.C. § 654.
5 Pub. L. No. 116-127 (March 18, 2020); 29 C.F.R. pt. 826.
6 29 C.F.R. § 826.10; 29 C.F.R. § 826.20; 29 C.F.R. § 826.40.
7 29 U.S.C. § 2612.
8 29 U.S.C. § 2611(2).
9 29 U.S.C. § 2611(4).
10 29 U.S.C. § 2611(11); 29 C.F.R. § 824.113.
11 42 U.S.C. § 12102(1).
14 20 C.F.R. § 639.9(b).
15 20 C.F.R. § 639.9.
16 No. 8:20-cv-02114.
Technology: Pick Your Winner: 2021 Smartphone Lineup
In the market for a new smartphone? A handy comparison chart of the latest available smartphones can help with your purchase decision. This year's lineup reveals a focus on 5G compatible devices, increasingly better cameras, and battery-life improvements.
This is the seventh annual State Bar of Wisconsin summary of the best currently available smartphones. Attorneys I corresponded with for this article say the top concerns surrounding smartphones are overall performance, battery life, and price. Secondary and almost tied are the operating system, storage, camera, and screen quality.
About 20 percent more correspondents have adopted Apple iOS devices compared to those adopting Android-based devices. And, attorneys stated they were unlikely to change their device platform, choosing instead to stay with the OS and carriers they know. Security is also a big issue this year, especially as COVID-19 pushes more attorneys to work remotely and rely on their mobile devices more than ever.
Changes for 2021
Smartphone manufacturers are addressing camera quality, including phones with multiple cameras and improved features such as better low-light pictures, wide angle, and greater zoom, with improved designs. Consumers continue to do more with their phones, using them as primary devices for communication as well as entertainment, making 5G coverage increasingly important. Battery-life improvements include faster charging technology and bigger batteries whenever possible. Processors have increased performance in phones this year as well.
As our consumption of streaming audio and video and need to access data continue to grow, network speeds and coverage become more important. This is evident by the number of phone providers actively promoting their compatibility with 5G networks. The T-Mobile/Sprint merger has extended 5G coverage, arguably making T-Mobile the largest 5G provider in the nation.
com james.pearson computer-center James Pearson owns The Computer Center, Janesville. He is a Microsoft Certified Professional and a frequent author and speaker on cybersecurity and safety topics.
Even with T-Mobile and Sprint’s merger, the conversion will take some time. T-Mobile has publicly made a commitment to provide 5G access to “99% of Americans” over the next six years.1 When choosing a provider, however, it is essential to review their current coverage map, especially as it relates to 5G.
Let us get this out of the way first. No provider or operating system (Android or Apple’s iOS) will provide 100 percent security for smartphones and users right out of the box. Just as with personal computers, security is as much a function of behavior as it is of a manufacturer’s smartphone design.
If you are security conscious, here are some things to consider when further researching your next smartphone purchase.
Both iOS and Android device manufacturers are constantly improving security and take it very seriously. Look for items such as facial recognition, PIN password protection, and frequent security patches. Apple’s iOS devices have generally been considered more secure because of Apple’s tight control over the operating system, vetting of apps, and sandboxing (not allowing applications to access data from each other).
Because nobody owns the Android OS (Google developed it but released the code as open source), manufacturers are free to apply it how they see fit. This means that there are fewer standards and that updates and patches are up to each individual phone manufacturer. So, while being a significantly more customizable experience on smartphones, Android’s OS has traditionally been considered less secure out of the box than devices with the Apple iOS.
Improved Camera Technology
Smartphone camera quality and features continue to improve this year. Most devices now have at least two separate rear-facing cameras, with as many as four. How do multiple cameras affect the quality of photos? Unlike traditional cameras, phone cameras are limited by size. Therefore, features such as wide-angle, low-light, and telephoto lenses must be implemented as separate lenses, instead of one larger adjustable lens such as on 35MM SLR cameras.
Each lens on a phone is designed for a different function, such as a telephoto lens. This means that the lens takes a picture using the telephoto lens settings instead of using digital zoom, resulting in a significantly higher quality image.
Further, phones with multiple cameras can use all the lenses at once and combine the images to create a truly stunning photo.
While all the phones have better cameras than before, if you are a shutterbug, choosing one with multiple built-in cameras is the way to go. On the accompanying table, phones with multiple cameras are designated 12/12/48 in the format column. This indicates three separate lenses rated at 12, 12, and 48 megapixels (MP). A whole article could be written on camera quality, so if this feature is important to you, be sure to do additional research, focusing on lenses and how the phone uses each of the built-in cameras.
Battery life is a tricky one to rate.2 For one thing, each manufacturer’s ratings are often marketing based, using terms such as “up to 3 days without a recharge.” But how you use your phone is what truly determines how quickly the battery drains. Additionally, settings such as screen brightness, screen-lock timeout, and application background usage all affect battery life.
In the comparison table I have listed an additional column this year that shows battery life. Whenever possible, I have indicated the phone’s battery life based on video-streaming usage. When independent testers review smartphones, they typically run software that emulates a consistent heavy usage similar to this. The battery size is also a good indication of battery life. A larger battery typically means longer battery life but also increases a phone’s overall weight and size.
Click on the image to view larger table.
The Field: Performance
Apple iPhone 12 Pro Max ($1,099) – Best overall performance.
Samsung Galaxy Note 20 5G ($999) – Snapdragon 865+ processor and battery make for a good performance phone.
OnePlus 8 Pro ($799) – The Snapdragon 865 processor makes this a fast phone.
The Field: Battery Life
OnePlus 8 and 8 Pro ($499-799) – Best overall battery life.
Google Pixel 5 ($699) – Gets high battery-life ratings with good overall features.
Motorola Moto G Power ($249) – The price can’t be beat.
The Field: Camera Quality
Samsung Galaxy Note 20 Ultra 5g ($1,299) – With a 108MP camera, this is the winner.
Apple iPhone 12 Pro ($999) – Lots of great technology besides the three cameras.
The Field: Price
Motorola Moto G Power ($249) – The most economical on this year’s list.
Google Pixel 4a with 5G ($499) – Great value in a 5G Phone.
You can still purchase a new phone this year with monthly payments and no interest. If you are a budding photographer, then look for a phone with multiple cameras to get the greatest range of features such as telephoto and wide-angle lenses. For battery life, turn to Motorola’s Moto series and OnePlus models. Best overall performance goes to Apple’s iPhone 12 and 12 Pro and Samsung’s Galaxy Note 20 Ultra.
If 5G coverage is your main concern, be sure to review your carrier’s coverage map to ensure 5G availability in your area. Even if the coverage is not there now, if you typically don’t swap phones every year, then you’re likely to see speed improvements within the next three years regardless of your carrier.
Cite to 94. Wis. Law. 39-42 (January 2021).
Meet Our Contributors
How did you find your way to your current position?
I started working for The Computer Center in 1999. I began as an engineer and taught computer classes. In 2009 I purchased the company from the founder. Like any small business owner, I wear a lot of hats. Juggling all the responsibilities can get a little hectic at times and deciding where I need to focus my energy to move our company forward is always the key. Sometimes it’s sales and marketing, sometimes I must focus on improving operational and service delivery issues, and sometimes I need to step back and work on my business instead of in it.
When I started in the IT industry, I had no idea that I would have to become a security expert, a phone expert, and even a signage expert. Everything is connected these days, and that means that IT professionals must know a little bit about everything. I’m constantly studying and learning. It is a never-ending process.
My family moved to Appleton when I was in the sixth grade. I graduated from Appleton West High School and still consider Appleton my childhood home. I love the Fox Cities area. Now that I live in southern Wisconsin, I enjoy my annual getaway at the Grand Geneva in March. I’m truly a nerd at heart, and the Grand Geneva has hosted the Gary Con convention for the past several years.
com james.pearson computer-center James Pearson, The Computer Center, Janesville.
Become a contributor! Are you working on an interesting case? Have a practice tip to share? There are several ways to contribute to Wisconsin Lawyer. To discuss a topic idea, contact Managing Editor Karlé Lester at (800) 444-9404, ext. 6127, or email org klester wisbar wisbar klester org. Check out our writing and submission guidelines.
1 T-Mobile/Sprint Merger.
2 Battery life based on video playback or lowest number. Whenever possible results were taken from https://www.gsmarena.com/battery-test.php3.
As I See It: Judges & Excessive Force: Holding Law Enforcement Personnel Accountable
Where does the responsibility to address the problem of excessive use of force by law enforcement lie? Who is the final repository of power sitting in a position to effectively address the problem?
John A. Kucinski
I write in response to Executive Director Larry Martin’s request for State Bar of Wisconsin members to do something in response to the evolving problem of law enforcement’s inappropriate use of force against citizens. (“Racial Equity: It’s Time to Step Up,” Wisconsin Lawyer, July/August 2020.)
We are living in times of unrest and protest across the nation because of decades of law enforcement abuse, culminating most recently with the George Floyd case in Minnesota and the Jacob Blake case in Wisconsin. Sadly, had it not been for video footage taken by bystanders, these incidents may have gone undetected or underreported.
The issue at hand for the State Bar and its members is, where does responsibility for excessive use of force by law enforcement lie? Who is the final repository of power sitting in a position to effectively address the problem? I suggest that the answer is the trial and appellate courts.
Courts Should Hold Police Accountable for Excessive Force
Astute criminal defense attorneys recognize that good law enforcement personnel are tremendously valuable. I have known many. However, the badge carries with it the option of using force against the public. As such, the officers and their departments must be held accountable for their use of force. But it is readily apparent that defective police policy, abusive compliance holds, inadequate training, a flawed militaristic chain of command, and an “us against them” mentality fosters inappropriate uses of force against the public. These failings have directly led to incidents like those experienced by George Floyd, Jacob Blake, and their families.
com johnakucinski gmail John A. Kucinski, U.W. 1978, is a criminal defense lawyer in Hudson.
I have practiced criminal law for 40 years. I have had more than 100 trials. I have conducted hundreds of suppression hearings. I have appeared before more than 30 judges. And I have had the benefit of practicing in front of some truly excellent trial judges.
However, many trial judges do not hold law enforcement accountable when law enforcement inflicts excessive force on the public. Although trial judges regularly advise juries that law enforcement does not get a “rung up” on the ladder of credibility, experience says that judges often do not apply this principle themselves. Often judges decide “credibility” based on the officer’s status as a law enforcement professional, ignoring the testimony of other witnesses as well as the burden of proof.
I and numerous other criminal defense attorneys have presented trial judges with testimonial and video evidence of excessive force by law enforcement. We have submitted evidence of defective police policies, racial profiling, boilerplate search warrants, and pretextual and inappropriately prolonged traffic stops. I and my criminal defense colleagues have been doing this for decades.
How Close Is Too Close?
Unfortunately, in rural Wisconsin counties, trial judges regularly engage in dialogue with law enforcement officers and form relationships with them. They also often meet with the heads of their departments, which tends to foster a “pro law enforcement” bias on the bench, and this bias is then applied in court proceedings and produces flawed results.
The best trial judges hold law enforcement accountable. They recognize the imbalance of power and resources that exists between the state and the accused. These judges value aggressive, competent, and outspoken defense attorneys because they understand that they are the group who protects the Constitution and the rights it grants to individual citizens.
Likewise, my experience has been that appellate courts often adopt a “pro law enforcement” stance, often seeking to save the state’s case by using doctrines like “harmless error,” “good faith” exceptions to the Fourth Amendment, and other judicially created means to ameliorate inappropriate law enforcement conduct.
Eliminate “Pro Law Enforcement” Bias to Restore Community Faith
When trial and appellate courts apply a “pro law enforcement” bias, not only do they reach the wrong decision in an individual case, they also embolden law enforcement to continue on in the same course of conduct that leads to cases such as those of George Floyd and Jacob Blake. And while it may be difficult for the courts to admit and eliminate their “pro law enforcement” bias, it is necessary that they do so. They have the power to hold law enforcement accountable, and by doing so, they may also go a long way toward restoring the community’s faith in law enforcement.
Cite to 94. Wis. Law. 34-36 (January 2021).
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If you are going to become a successful criminal defense attorney, then right from the get-go you need to litigate all evidentiary hearings and pursue jury trials on your cases. Preparation and practice drive success. Become an expert on the rules of evidence with all of their nuances. Figure out the defense or story and garner the facts and evidence to support your closing argument. Be confident. Be wary of plea bargains. Surround yourself with other litigators and attend seminars taught by litigators.
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com johnakucinski gmail John A. Kucinski, Hudson, WI.
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Ethics: Email: No Personal Attacks
Using email to insult or attack lawyers or other individuals might not violate a rule, but it reflects poorly on you and the legal profession and should be avoided.
Dean R. Dietrich
I have received some emails recently from opposing counsel that are personal attacks on me or my client. Are there any rules that prevent this?
There is no specific rule that addresses lawyer behavior when sending an email to another lawyer or another person. Some rules address lawyer conduct in a general way that may be violated based on the lawyer’s behavior.
SCR 20:4.4(a) of the Wisconsin Rules of Professional Conduct speaks generally to lawyer conduct and provides that a lawyer must not use means or tactics that are designed solely to embarrass or create a burden for another person. This rule provides as follows:
SCR 20:4.4(a) Respect for rights of 3rd persons. (a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a 3rd person, or use methods of obtaining evidence that violate the legal rights of such a person.
While the language in this rule is very focused on certain types of behavior, it could form the basis for some type of discipline involving the inappropriate conduct of a lawyer. Several lawyers have been disciplined recently for their inappropriate behavior in using email communications to others. These incidents include the following:
Two lawyers were accused of misconduct for participating in an email chain with a group of people who were called “The Forum of Hate.” The two lawyers used offensive terms to refer to minorities and women and participated in email chains mocking officials’ accents and using slurs based on people’s sexual orientation.
A lawyer was suspended “immediately and until further order of the court” for sending inappropriate emails to opposing counsel and making false claims and “inappropriate diatribes” in pleadings. Another ground for the suspension was the lawyer’s inappropriate attack on an expert witness and the lawyer’s filing of baseless or unnecessary motions.
SCR 20:8.4 might also come into play. SCR 20:8.4(g) provides as follows:
SCR 20:8.4 Misconduct. It is professional misconduct for a lawyer to:
(g) violate the attorney’s oath;…
Under the attorney’s oath, found in SCR 40.15, a lawyer agrees to not engage in offensive behavior. Again, the facts and circumstances of the behavior will determine whether discipline can be issued for violating the attorney’s oath, but this sets some general ground rules for attorney conduct.
It is disappointing that some lawyers have decided to exhibit aggressive or inappropriate language in communicating by email with other lawyers. It is an example of how “professionalism” and “civility” have been tarnished by attorney behavior. Lawyers should strive to engage others in a professional way to countermand this behavior.
It is disappointing that some lawyers have decided to exhibit aggressive or inappropriate language in communicating by email with other lawyers.
Need Ethics Advice?
As a State Bar member, you have access to informal guidance and help in resolving questions regarding Wisconsin’s Rules of Professional Conduct for Attorneys.
Ethics Hotline: To informally discuss an ethics question, contact State Bar ethics counselors org tpierce wisbar Timothy Pierce or org akaiser wisbar Aviva Kaiser. They can be reached at (608) 229-2017 or (800) 254-9154, Monday through Friday, 9 a.m to 4 p.m.
Cite to 94. Wis. Law. 33 (January 2021).