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  • Importing Goods from Abroad: Reading the Harmonized Tariff Schedule

    With tariffs and international trade in the news on a nightly basis, clients are paying close attention to the impact tariffs have on their business – especially if any of their supply chain relies on imports from abroad. Collin F. Schaefer encourages lawyers to take an important first step to helping those clients by learning to understand the Harmonized Tariff Schedule.

    Collin Schaefer

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    Tariffs – once talked about only by policy nerds and people obsessed with international trade – are now in the news nearly every day, and, having made its way into everyday discussions, it seems more and more clients are asking: “What do tariffs mean for my business? How I learn more about my options?”

    Obviously, each client’s situation is unique, but a critical “Step One” for practitioners in all situations is learning to read the Harmonized Tariff Schedule – the massive index that assigns a duty rate to almost every product conceivable.

    A Little Background

    First, if you didn’t know before, you probably know now: tariffs are political tools.

    Collin F. Schaefer law cfschaefer ogs Collin F. Schaefer, U.W. 2014, is a partner at Ogden Glazer + Schaefer in Cedarburg, where he practices in intellectual property and real estate law, and provides advice to growth-stage startup companies.

    So, it’s not at all uncommon to see a 0% import tariff (duty) levied on products imported from countries like Germany (or the many other counties the U.S. has a free trade agreement with) but a 40% duty on the same product imported from Cuba. Therefore, it is very important to help a client understand what to import and where to import it from.

    Second, it’s easier than ever to import today. Go to Alibaba.com and click “order.” But, with increased ease comes increased risk, because the law still imposes all the same requirements on your single client (an individual importing widgets from China using Alibaba) as it does a Fortune 500 company with millions of imports each year.

    Reading the Harmonized Tariff Schedule

    The first step to helping the client figure out the “what” and “where” is learning to read the Harmonized Tariff Schedule (HTS). The HTS is an ENORMOUS catalog that categorizes imports by number, and then assigns them a respective duty rate.

    Back in the day, the HTS was available in print, and it took a while to search, but now it’s an online searchable database.

    When looking at the HTS, see the columns to the right of the Article Description column. Figure 1, below, shows examples of the particular columns we are discussing, outlined in black:

    Figure 1

    Figure 1. Columns listing duties in the Harmonized Tariff Schedule are shown on the right.

    The first column is Unit of Quantity. This column tells you how duties on that particular product are assessed. For example, vinyl flooring is assessed by meters squared, while commodity goods (like oranges) are often assessed by kilogram. Therefore, in the case of vinyl flooring (HTS Code 3918.10.20), a client will get charged a 5.3% duty on the invoice value of each square meter imported.

    The next area lists values for Rates of Duty. This area has three parts:

    • General (under the label 1) tells you the general duty rate, i.e., “the general duty the U.S. charges other countries that we get along with but don’t have a free trade agreement with.” For legal nerds, this is called Most Favored Nation (MFN) treatment or a country with which the U.S. has Normal Trade Relations (NTR), and is a cornerstone concept of the World Trade Organization.

    • Special (under the label 1) lists the duty rate charged by the U.S. to countries with negotiated free trade agreements. There are a lot of free trade agreements out there, so be sure to check whether your client’s products' country of origin is included, since most “free” trade agreements set the duty rate as low as zero.

    • The column labeled 2 contains the “bad boy” duty rate that the U.S. charges on imports from countries where we do not have normal trade relations. The most recent example of a country moving from column 2 to the MFN (General) column is Vietnam. The only two countries remaining on the "bad boy" list are North Korea and Cuba.

    Conclusion: What Matters

    Before we can provide our clients with any useful information, we need to know how to read the HTS.

    Now that you’ve learned the basics, it can be entertaining to search different products in the HTS and see their respective duty rates (and hypothesize why the rates are what they are).

    Additionally, you’ll realize quickly that some very closely related products have totally different duty rates, and that minor changes to a client’s product design could have an incredible impact on their bottom line (just ask Columbia Sportswear about "nurses' pockets"). Indeed, determining what the client is actually importing (or what they should be importing) is often the most legally significant part of the process. To find out more about how important the “what” is (and if Columbia’s shirts aren’t interesting to you), check out the 2003 case of mutants vs. humans (see the case text) over the difference between a 12% or 6.8% duty rate – which Marvel won.

    ​​​​​​​​​​​​​​



  • Survey Highlights Issues Faced by Wisconsin Farmers

    A recent Wisconsin Farm Bureau Survey reports farmers are now receiving less than 15% of the money consumers spend on groceries. Nancy L. Trueblood talks about the survey and its impact, and urges attorneys to be aware of the perennial – and season-specific – issues faced by their clients who are Wisconsin farmers.

    Nancy L. Trueblood

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    Summertime, and the living’s ... not so easy for your clients who earn their living by farming.

    A recent Wisconsin­ Farm Bureau Federation survey found a typical summer cookout for 10 in Wisconsin costs $56.47, just a few cents more than the national level of $56.38. That might be good news for those hosting a cookout with the 14 food items surveyed, but it’s another worrisome sign for farmers.

    Thirty years ago, farmers received nearly one-third of the money consumers spent at grocery stores and restaurants. But even though the retail price of food has increased, farmers now get only about 14.6 percent, reports the Wisconsin Farm Bureau, citing the U.S. Department of Agriculture.

    Nancy L. Trueblood com nancy ntruelaw Nancy L. Trueblood, Marquette 2001, owns Trueblood Law Firm LLC, Wauwatosa, where she serves small businesses and people with estate planning needs.

    The USDA also says Americans spend about 10 percent of their disposable annual income on food – the lowest average in the world.

    So while cookout hosts may be thrilled to serve cheap fare such as hamburger and hot dogs on buns with condiments, deli potato salad, baked beans, and corn chips – all washed down with pre-mixed lemonade and topped off with watermelon and ice cream – for less than $6 per person, the typical farmer is getting only $8.24 of the $56.47 spent on that grocery bill.

    “With this year’s survey items being slightly updated, we are focusing on comparing national and state food prices,” said Sarah Hetke, the state farm bureau’s director of communications, quoted in the Farm Bureau Survey. “Next summer, we will be able to do a year-over-year comparison for state-specific pricing.”

    Members of Wisconsin Farm Bureau collected price samples of 14 food items in 28 communities across Wisconsin in June to come up with its figures. The July Cookout Survey is part of the national Farm Bureau’s Marketbasket series, which also includes an annual Thanksgiving dinner cost survey.

    It might be helpful to let your farming clients know you understand this seemingly perennial problem. It would be as if lawyers in Wisconsin worked the same number of billable hours every year, but forces beyond their control cut their income by one-third.

    Spring-seeded Crop Filing Deadline Extended

    Meanwhile, your farming clients did get some good news this month, when the federal government extended the filing deadline to report spring-seeded crops to Farm Service Agency offices and crop insurance agents.

    Wisconsin farmers were among those in 12 states granted the extension because of 2019’s unusual weather, which has forced many to delay planting or even re-plant. Just setting up an appointment by July 22 to file acreage reports with FAA county offices signaled compliance, even if the appointment is set for after the deadline.

    Other states granted an extension include Arkansas, Illinois, Indiana, Iowa, Kentucky, Michigan, Missouri, Minnesota, North Dakota, Ohio, and Tennessee.

    The Solo, Small Firm and General Practice Section is offering four scholarships to attend the Wisconsin Solo/Small Firm Conference on Oct. 24-26, 2019. For more information, contact Jane Corkery at org jcorkery wisbar wisbar jcorkery org.




  • Executive Committee Takes Up Keller Dues Evaluation Aug. 23 for Fiscal Year 2021

    State Bar members are invited to attend the meeting of the Executive Committee when it will conduct its annual evaluation on the amount of dues members may deduct for activities that are not reasonably related to regulating the legal profession or improving the quality of legal services.
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    July 17, 2019 – On Aug. 23, the State Bar of Wisconsin Executive Committee will conduct its annual Keller dues reduction evaluation of Fiscal Year 2019 (FY19) activity for the Fiscal Year 2021 (FY21) reduction calculation.

    FY21 begins July 1, 2020, and runs through June 30, 2021.

    Under Keller v. State Bar of California, 496 U.S. 1 (1990), the State Bar may not use the compulsory dues of objecting members for activities that are not reasonably related to regulating the legal profession or improving the quality of legal services.

    Each year the State Bar Board of Governors approves an annual reduction amount for members who object to certain State Bar expenditures as identified by the Executive Committee. The calculation is completed using financial statements and activities for the State Bar’s most recently audited fiscal year; for FY21, it is FY19 (July 1, 2018 - June 30, 2019).

    The Executive Committee invites members to attend the meeting that will determine the optional amount that members can deduct from State Bar dues for FY21. Members who plan to attend the meeting should contact Jan Marks at (608) 250-6106 by Aug. 19.




  • Eviction Defense: Volunteer Attorneys Assert Tenant Rights

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    July 17, 2019 – August is landlord-tenant season, in some parts of Wisconsin. Lease agreements will generally govern the landlord-tenant relationship, but if conflicts or disputes arise, landlords and tenants may find themselves in the court system.

    Raphael Ramos, an attorney at Legal Action of Wisconsin, helps tenants through the Eviction Defense Project, which provides free legal aid to low-income tenants facing eviction. The project operates in both Dane and Milwaukee counties.

    “Generally, most clients that we’re working with have their first court appearance that day. They come into court. They don’t have representation,” Ramos said.

    “A lot of tenants, unfortunately, don’t know what their rights are, what their legal arguments could be. So tenants may not realize that procedurally, there are a lot of steps landlords have to take in order to properly file and pursue an eviction.”

    Ramos said that if the landlord fails to take those steps, such failure can be a defense to an eviction action. Without representation, tenants may not be aware of defenses and may not raise them. Or, they may be in a situation where they don’t have a defense, but an eviction defense lawyer can help negotiate and compromise with the landlord.

    “Having the benefit of a trained attorney who is emotionally detached to the case, and able to provide objective, reasoned advice, is incredibly beneficial,” Ramos said.

    A lawyer can help facilitate a realistic set of terms. “They know what the consequences are if they are not able to do it,” Ramos said. “Having an attorney there to negotiate and advocate for them can result in better and more realistic terms. That is likely to be beneficial, not just for the tenant, but for the landlord as well.”

    Ramos said that in 2016, there were approximately 13,500 eviction cases filed in Wisconsin. Tenants had an attorney in about 112 of the cases.




  • Phyllis Frye: The Grandmother of the Transgender Rights Movement

    Phyllis Frye, an attorney and judge in Texas, became an open transgender woman in the 1970s, and has fought to promote and protect transgender rights ever since. She is a featured speaker at the upcoming Health, Labor, and Employment Law Institute.

    Joe Forward

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    July 17, 2019 – Phyllis Frye fully transitioned from a man to a woman in 1976, living in Houston, when it was still illegal to cross-dress in public. Her community excluded and shunned her. But in 2010, she became the first (out) transgender judge in the country.

    Attorney Frye, who practices law at her own, six-attorney firm in Houston, is a featured speaker on day one of the State Bar of Wisconsin’s upcoming Health, Labor, and Employment Law Institute, August 15-16, at the Wilderness Resort in Wisconsin Dells.

    In this article, Attorney Frye discusses her transition experience, including her fight against exclusionary laws, and building a law practice. Known as the “grandmother” of the transgender civil rights movement, Frye sheds light on the decades-long struggle.

    Phyllis Frye

    Phyllis Frye became the first (out) transgender judge in the country in 2010. She is a featured speaker at the State Bar of Wisconsin’s upcoming Health, Labor, and Employment Law Institute, August 15-16, in Wisconsin Dells.

    Transitioning

    Long before Caitlyn Jenner publicly came out as a transgender woman, in 2015, Phyllis Frye was fighting for transgender rights on her own behalf and on behalf of the lesbian, gay, bisexual, transgender, queer (LGBTQ) community, starting in the 1970s.

    But the story starts two decades earlier. In the 1950s, growing up as Phillip Frye in San Antonio, the young boy knew something was different. By age nine, he was secretly cross-dressing. By 14, he was an Eagle Scout. And in 1966, Frye was an A+ student, a ranking ROTC commander, and a bright young man who wanted to be a woman.

    But Phillip Frye could not tell anyone. In a front page 2015 New York Times article, Frye notes that her parents “would have pitched me out if I told the truth.”

    Frye continued public life as a man, obtained two engineering degrees at Texas A&M University, married his first wife, had a son, and became a lieutenant in the U.S. Army. But the marriage, and his military career, fell apart when Frye’s truth became known.

    In 1972, the Army required Frye to undergo “aversion therapy.” Ultimately she was discharged, honorably, because she told the truth about identifying as a woman. A divorce followed, and Frye spiraled into a period of deep depression.

    But she got through it, and made a decision. In 1976, Phillip Frye became Phyllis Frye, publicly. Phyllis said she felt normal for the first time in 28 years, but the reality of being a transgender woman in Houston, in that era, became clear.

    “I got blackballed by the engineering community,” she said. “I was taking a lot of crap from my neighbors and a lot of other people.”

    “My house was egged, they graffitied the driveway with spray paint, slashed our tires,” Frye said. “We would get obscene phone calls, usually around Christmas and Easter.”

    By then, Frye was with her current wife, Trish, who came to accept her as a transgender woman. But the couple fell on extremely hard times, financially.

    “For 10 years in Houston, we did not run our air conditioner to save money. I got the sewing machine out and started making our clothes,” said Frye, the recipient of her church’s “White Christmas” one year, a supply of canned goods for the neediest family.

    Frye could not get steady work. She decided to get a joint MBA/J.D. degree on the GI Bill. “I went to law school by accident,” she said. “I wanted the MBA but the University of Houston had the joint degree. I thought my neighbors might leave me alone if I was a lawyer, and they did. That’s the only reason I became a lawyer.”

    Up Against the Law

    Frye has long opposed so-called bathroom bills and restroom laws that deny access to gender-based restrooms by individuals who do not identify with their gender at birth. That fight began while she was in law school, at the University of Houston.

    Joe Forwardorg jforward wisbar Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by org jforward wisbar email or by phone at (608) 250-6161.

    “I tried using the men’s bathroom once. Oh my god,” Frye said, “and the men didn’t want me in there either. When I started law school, they took half the one-hole bathrooms and marked them ‘restroom,’ and I was supposed to use those.”

    But those restrooms were located far from her classrooms and the law library. After people started getting used to her, Frye started using the women’s restrooms. “I got called in by the dean of students and we went through the whole thing,” Frye recalled.

    The dean said five women complained. “I said, I’ll tell you what. I counted all the bathrooms. There are eight. I’ll take these three and they can have the other five. And so that’s what happened,” Frye said. “The other women didn’t care. I wasn’t hanging around in there.”

    That was not the last time Frye dealt with a gender-based ordinance. Frye was also up against an ordinance that prohibited people from cross-dressing in public. “My wife was a teacher. She would come home each night wondering if I would be in jail,” Frye said.

    Since coming out in 1976, Frye had lobbied the city council to repeal the cross-dressing ordinance. But by the time Frye was a 3L, it was still on the books. A law professor, Jim Hensley, placed 3Ls in internships with civil law firms and the district attorney’s office.

    Frye knew she needed courtroom experience and said a law firm “would have just put me in the law library.” So Hensley placed her with the district attorney’s office. But the district attorney said he would have Frye arrested if she showed up for work.

    One week before she started the internship, the city council repealed the ordinance. Frye had been volunteering for a city council member, Ernest McGowan, an ally in Frye’s fight to repeal it. Through political maneuvering, another council member friend, Johnny Goyen, presiding as mayor pro tem, helped repeal the ordinance.

    So, it was repealed when Frye showed up for the internship at the district attorney’s office. “About a year later, I heard that Hensley told the DA that if he did not accept me, the DAs office would get no more 3Ls from the University of Houston, period,” Frye said.

    But that didn’t end Frye’s troubles. Although her office was on the 10th floor, she was told she had to use the single-stall restroom on the second floor.   

    “I had to go down the elevator, go through security, and walk by a whole row of secretaries if I had to go. Well, I did that once,” said Frye, who started using the public women’s restrooms at the criminal courts building next door. “I was called in and told that if I did it again, I would be let go because of the restroom ordinance,” Frye said.

    Frye was shattered. She visited one of the judges who befriended her (and later swore her in as judge), Joseph Guarino. “I was in his office crying. He came in and wanted to know what happened,” Frye said.

    “I told him. He got pissed! Oh, he was mad. He called in the clerks, and the court reporter, and the bailiff and everybody on his courtroom staff. And he looked at all of them and pointed to the door to his office, and he says ‘if my door is closed and she even looks at it, you unlock that door. She can use Judge Guarino’s restroom!”

    Living the Law

    Frye didn’t go back to her space in the DA’s office. “I would be in the court where I was assigned for docket call. When it was over, I would just go to other criminal courts and introduce myself to the judges,” Frye said. “Because that’s the thing, you have to meet people. They have to meet you and find out that you are okay.”

    After graduating from law school in 1981, things did not get easier. Aside from an occasional divorce or a will, Frye could not get any legal work for about five years.

    “All the gay and lesbian lawyers in town, and there were a few – they weren’t out-out – they weren’t going to hire me,” Frye remembers. “So, I sold Amway cleaning products to the gay bars to make money. And the whole time, my wife was scared to death because she thought she was going to lose her teaching job because of me.”

    In 1986, a military serviceman hired Frye to represent him in a DWI case. “He wanted to keep it out of the newspaper. I said I could do that. Then it dawned on me,” said Frye.

    Frye knew a lot of judges from her DA internship. Active in the local LGBTQ political caucus, she also helped screen Democratic candidates for judgeships. “I started asking the judges to appoint me to represent indigent defendants. Before you knew it, I was in business. I wasn’t making much money, but it was better than nothing,” Frye said.

    Frye and her wife saved what they earned. It took four years, but they paid off all debts, including their mortgage. They no longer had to live in fear of losing their home. “Suddenly we were debt free, and that just changed everything,” she said.

    Frye built a criminal defense practice, and she was strategic about it. “I figured there were going to be conservatives on the jury panel. With conservatives, in Texas, that means you have to go over and above to convince them for an acquittal,” Frye said.

    “I wanted to smoke them out and get them off the venire panel without using a preemptory strike,” Frye recalls. She would ask the jury pool if they knew her, from radio or television. “Then I would say something like, ‘I don’t want to get into a philosophical or morality argument. I’m certainly not going to get into a religious argument. But I know some of you may not be comfortable with me in here defending this person.’”

    She would ask whether any of them thought they would have a bias against her client because the client’s lawyer was openly transgender and a member of the queer community. “You go about halfway down, and somebody has to say it for Jesus,” Frye said. “And I say that’s fine, and I put a little check mark by their name.”

    By the end, Frye would have automatic strikes for cause against all of them, since they said they could not make decisions based solely on the evidence. “I had strikes on every conservative on the panel. I lost some trials, but I won a lot of them,” Frye said.

    Frye did a lot of criminal defense work. Now, as a partner at Frye & Benavidez PLLC, she practices exclusively in the area of LGTBIQ rights, helping transgender clients with name and gender changes on legal documents. Other lawyers in the firm, an “out LGBTIQ-and-straight-allies” law firm, practice in a variety of other areas.

    Speaking Up

    In 2010, Houston Mayor Annise Parker appointed Frye as the first, out, transgender judge in the nation. It is a part-time position as associate municipal judge for the city of Houston. Over the decades, Frye has worked tirelessly to assert transgender rights.

    In the 1990s, she convened conferences on transgender law, including the first International Conference on Transgender Law and Employment Policy.

    That conference resulted in an International Bill of Gender Rights (easily Googled), which proclaimed that everyone has a right to define their own gender identity. Frye stayed active politically, engaging in lobbying activity at the local, state, and federal level to promote equality.

    As mentioned, one of her targets is restroom laws that do not recognize gender identity. She argues that every state and municipality maintain criminal codes that protect people from the types of assaults or deviant behavior at issue in the restroom debate.

    Although Frye is partially passing the baton of her political activism, she is still a prolific speaker and writer on transgender rights, and her message rings loud and clear.

    “If every LGBTQ person came out of the closet, it would do a lot of good but we are still in the minority,” Frye said. “So, we depend on allies.” Frye says in this day and age, social courage is an important aspect of the movement to protect transgender rights.

    “Say you’re at an office party, or at family Christmas or Thanksgiving, at the watercooler, and you hear someone say something derogatory. You may think it doesn’t affect you, you’re not Black or Muslim, not gay or transgender. You may say to yourself, I’ll let it go. You can’t do that,” Frye exclaimed. “You can’t do that anymore.

    “You have to stand up and say, ‘no, you can’t say that. That has to stop.’ You have to gather up the social courage within your soul and make that declaration. You have to carry water for all the groups if you want them to carry your water. You have to speak up, now.”




  • Order 19-05: Amending Rules Regarding OLR Referee Authority

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    Wisconsin Supreme Court Notice

    Order 19-05: Amending Rules Regarding OLR Referee Authority

    On March 13, 2019, the OLR Procedure Review Committee petitioned the court to modify the supreme court rules to afford referees more authority to rule on certain matters.

    ORDER ISSUED: June 26, 2019

    DISPOSITION: Petition held in abeyance pending further order of the court

    Quick Reference for Official Notices

    Visit the Official Notices page for a quick reference for locating recent official notices of Wisconsin Supreme Court orders adopting, amending, or repealing rules, statutes, or policies related to Supreme Court rules and State Bar of Wisconsin rules and bylaws. SCR 10.12 allows the State Bar to provide these notices to members through print or electronic media, including the Wisconsin Lawyer magazine, WisBar InsideTrack, or WisBar.org.

    For a comprehensive collection of all official notices, including pending rule petitions, court orders, and other material such as audio of public hearings, visit the Wisconsin Court System’s website or use the quick links on this page. Refer to the Publication Plan for more information on how the State Bar delivers notices to its members.

    Quick Links to Wisconsin Court System




  • Order 19-04: Amending Rules Regarding OLR Referee Appointment and Training

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    Wisconsin Supreme Court Notice

    Order 19-04: Amending Rules Regarding OLR Referee Appointment and Training

    On March 13, 2019, the OLR Procedure Review Committee petitioned the court to amend the supreme court rules pertaining to the appointment and training of referees.

    ORDER ISSUED: June 26, 2019

    DISPOSITION: Petition granted, effective Jan. 1, 2020

    Quick Reference for Official Notices

    Visit the Official Notices page for a quick reference for locating recent official notices of Wisconsin Supreme Court orders adopting, amending, or repealing rules, statutes, or policies related to Supreme Court rules and State Bar of Wisconsin rules and bylaws. SCR 10.12 allows the State Bar to provide these notices to members through print or electronic media, including the Wisconsin Lawyer magazine, WisBar InsideTrack, or WisBar.org.

    For a comprehensive collection of all official notices, including pending rule petitions, court orders, and other material such as audio of public hearings, visit the Wisconsin Court System’s website or use the quick links on this page. Refer to the Publication Plan for more information on how the State Bar delivers notices to its members.

    Quick Links to Wisconsin Court System




  • Order 13-11C: Amending SCR 10.03(4)(b)2 Relating to Pro Hac Vice Applications

    Effective July 1, 2019, the State Bar of Wisconsin will receive and administer the fee for admission pro hac vice according to the terms the court’s rule and a Memorandum of Understanding between the State Bar and the recipients of those funds. This order reflects the court’s approval of the Memorandum.
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    Wisconsin Supreme Court Notice

    Order 13-11C: Amending SCR 10.03(4)(b)2 Relating to Pro Hac Vice Applications

    On May 16, 2019, the court amended SCR 10.03(4), that effective July 1, 2019, the State Bar of Wisconsin will receive and administer the fee for admission pro hac vice according to the terms the court’s rule and a Memorandum of Understanding between the State Bar and the recipients of those funds. This order reflects the court’s approval of the Memorandum.

    ORDER ISSUED: July 1, 2019

    DISPOSITION: Memorandum of Understanding approved

    Quick Reference for Official Notices

    Visit the Official Notices page for a quick reference for locating recent official notices of Wisconsin Supreme Court orders adopting, amending, or repealing rules, statutes, or policies related to Supreme Court rules and State Bar of Wisconsin rules and bylaws. SCR 10.12 allows the State Bar to provide these notices to members through print or electronic media, including the Wisconsin Lawyer magazine, WisBar InsideTrack, or WisBar.org.

    For a comprehensive collection of all official notices, including pending rule petitions, court orders, and other material such as audio of public hearings, visit the Wisconsin Court System’s website or use the quick links on this page. Refer to the Publication Plan for more information on how the State Bar delivers notices to its members.

    Quick Links to Wisconsin Court System




  • Order 19-14: Amending Rules to Create a Voluntary State Bar of Wisconsin

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    Wisconsin Supreme Court Notice

    Order 19-14: Amending Rules to Create a Voluntary State Bar of Wisconsin

    On May 2, 2019, Attorney Seven Levine petitioned the court to amend supreme court rules to abolish the mandatory bar and create a voluntary State Bar of Wisconsin.

    ORDER ISSUED: July 1, 2019

    DISPOSITION: Petition denied

    Quick Reference for Official Notices

    Visit the Official Notices page for a quick reference for locating recent official notices of Wisconsin Supreme Court orders adopting, amending, or repealing rules, statutes, or policies related to Supreme Court rules and State Bar of Wisconsin rules and bylaws. SCR 10.12 allows the State Bar to provide these notices to members through print or electronic media, including the Wisconsin Lawyer magazine, WisBar InsideTrack, or WisBar.org.

    For a comprehensive collection of all official notices, including pending rule petitions, court orders, and other material such as audio of public hearings, visit the Wisconsin Court System’s website or use the quick links on this page. Refer to the Publication Plan for more information on how the State Bar delivers notices to its members.

    Quick Links to Wisconsin Court System




  • Ethical Dilemma:
    Job Negotiations and Conflicts

    Job searches can give rise to conflicts for lawyers. Just when do lawyers have to notify clients that they are seeking a new position?

    Timothy J. Pierce

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    job interview

    July 17, 2019 – Conflicts can arise when a lawyer seeks a new position. But precisely when do those conflicts arise? When should lawyers notify clients that they are seeking a new position?

    Question

    I work as a criminal defense attorney at a small firm, taking mostly public defender appointments.

    Recently, a position for an assistant district attorney opened in a neighboring county and I applied. After two interviews, I was offered the position and accepted. I notified my firm and told them I would begin telling clients, withdrawing from my cases, and requesting that new counsel be appointed.

    The senior lawyer at my firm told me that I should have informed my criminal defense clients much sooner, when I agreed to an interview.

    I found that surprising as I thought it wouldn’t make any difference, in my opinion, if I didn’t get the job, and I did not want word getting to my employer that I was looking for a new position

    Did I have an obligation to notify my criminal defense clients that I was just interviewing for a job as an assistant district attorney?

    Answer

    Most lawyers understand that it is well established that job searches can give rise to conflicts for lawyers, but the question here is when the conflict arises.

    Tim Pierceorg tpierce wisbar Tim Pierce is ethics counsel with the State Bar of Wisconsin. Reach him by org tpierce wisbar email or through the Ethics Hotline at (608) 229-2017 or (800) 254-9154.

    This was addressed in the recently released Wisconsin Formal Ethics Opinion EF-19-01. The opinion begins by noting that the Rules of Professional Conduct for Attorneys1 and the Restatement of the Law Governing Lawyers2 agree that when a lawyer has an active and material role in the representation of a client, engaging in job negotiations with an opposing firm or party will create a conflict of interest for both the job seeking lawyer and the potential employing law firm.

    In addressing the question of when the conflict arises, the opinion agrees with influential ethics opinions3 from other jurisdictions, which hold that the conflict arises before an actual offer of employment is made and accepted:

    Both opinions take the position that a conflict will arise whenever a lawyer agrees to substantive discussions, such as an interview, with an opposing law firm when the lawyer has a material and active role in the matter. Further, a lawyer who has a material and active role in a matter, will have a conflict when the lawyer sends a targeted and specific expression of interest to an opposing firm or party. Both opinions also note the difficulty in establishing a bright line test and that some situations will depend on specific facts. The Committee agrees with this analysis.

    In this situation, the criteria for the existence of a conflict under SCR 20:1.7(a)(2) exists.

    • First, the lawyer had an active and material role in the representation of the clients, as the lawyer was the lawyer appointed to represent the criminal defense clients.

    • Second, the lawyer sent a targeted expression of interest and agreed to substantive discussions (interviews) about possible employment with an opposing law firm, the district attorney’s office.4

    If the lawyer wished to continue with the interview process with the opposing law firm, the lawyer would have to disclose that fact to his criminal defense clients, and either obtain their written and signed informed consent to the conflict or withdraw from the representation.5

    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.

    The opinion notes that that this duty is part of the lawyer’s obligation to provide sufficient information to make informed decisions about the representation:

    As discussed below, most job-seeking conflicts will be consentable, and so it is useful to consider what would be the reasonable expectations of the client in knowing when their lawyer is seeking employment from the client’s opposing firm or adversary. In the view of the Committee, most clients would consider this to be important information and material as to their choice of counsel.

    The opinion goes on to offer some guidelines for lawyers seeking jobs from opposing firms or parties:

    With that in mind, we offer the following guidelines as to when the conflict arises:

    1) Generalized, non-specific job searches normally do not result in a conflict. For example, a lawyer who sends out the same resume to multiple potential employers, which may include an opposing firm, will not have a conflict.

    2) If a potential employer that is an opposing firm responds to a generalized job search with an offer of an interview (or other concrete offer to discuss possible employment), the lawyer will have a conflict if the lawyer agrees to the interview. If the lawyer declines the interview, or if the potential employer indicates that they are not interested, the lawyer does not have a conflict.

    3) If a lawyer has an active and material role in a matter, and the lawyer sends a targeted, specific expression of interest to an opposing firm, the lawyer normally will have a conflict of interest when the expression of interest is communicated to the opposing firm. For example, a partner who has primary responsibility for a matter and is the main client contact, ordinarily must disclose before specifically seeking employment with an opposing firm. Likewise, a criminal defense lawyer who sends a targeted and specific expression of interest to an opposing prosecutor’s office has a conflict requiring disclosure and consent from the lawyer’s criminal defense clients.

    4) A lawyer who receives a contact from a potential employer, or a head-hunter acting on behalf of a potential employer, offering to discuss potential employment has a conflict when the lawyer agrees to participate in such a discussion. If, however, the lawyer declines to participate, no conflict arises.

    While these guidelines do not cover every possible situation, and are not meant to be exhaustive, it is hoped that they serve as useful examples of the principles set forth in the conflict rules.

    The opinion also lists ways to deal with the conflict:

    Once a lawyer has determined that a conflict has arisen, it is the responsibility of the lawyer to address the conflict. Normally, this can be accomplished in one of three ways:

    1) Reassignment or withdrawal: If the job-seeking lawyer works in a law firm with other lawyers, and it will not be harmful to the interests of the client, the lawyer may seek to be relieved of responsibility for the matter.6 The Committee understands that for many lawyers, disclosing the fact that the lawyer is seeking employment elsewhere to the lawyer’s supervisors will not be realistic because the lawyer fears either immediate termination or retaliation.7 This fear does not, however, relieve the lawyer of the responsibility to appropriately address the conflict.8 Alternatively, the lawyer may withdraw from the matter pursuant to SCR 20:1.16(b)(1) if the withdrawal could be accomplished without material adverse effect on the client.

    2) Disclosure and Consent: Conflicts arising pursuant to SCR 20:1.7(a)(2) may be subject to consent by the affected client if the conditions set forth in SCR 20:1.7(b) are met. If the lawyer believes that the conflict is consentable, the lawyer must ensure that the conflict waiver meets the informed consent standard, is in writing and is signed by the affected client.

    3) Cessation of discussions about employment: While putting the possibility of future employment with an opposing firm “on hold,” may resolve the issue, the job seeking lawyer must still consider whether the prospect of future employment still creates need for disclosure and consent.

    Actively Seeking

    While the conflicts that arise from job negotiations are generally subject to client consent, the requirement for disclosure and consent comes when the lawyer is actively seeking employment from the firm representing the client’s opponent.

    If defense counsel is actively seeking to become an assistant district attorney, the clients are entitled to be made aware of that fact when considering their choice of counsel.

    In Case You Missed It: Read Past Ethical Dilemmas

    Ethical Dilemmas appears monthly in InsideTrack. Check out these topics from recent issues:

    • Guardian ad Litem Work: Analyzing Potential Conflicts, June 19, 2019
      The unique role of guardians ad litem (GAL) pose challenges in applying the Rules of Professional Conduct for Attorneys, such as determining whether GAL work may conflict with your other cases. Tim Pierce, State Bar of Wisconsin ethics counsel, provides insight into one particular case that may help.

    • My Client Needs a Guardian: May I Represent Someone Seeking that Appointment?, May 15, 2019
      A client with diminished capacity is owed all the duties, loyalty, and confidentiality that a lawyer owes to any client. Does that mean that you can represent someone seeking a guardian appointment to your client?

    Endnotes

    1 See SCR 20:1.7(a)(2), ABA Comment [10].

    2 See §125, cmt. d.

    3 See ABA Formal Opinion 96-400 and DC Bar Ethics Opinion 367.

    4 Note that the fact the district attorney’s office was in a neighboring county does not alter the analysis. For purposes of the Rules, district attorney’s offices, like public defender’s offices, are offices of one statewide law firm. See Wisconsin Ethics Opinion EF-11-02.

    5 Note that the analysis would be the same if the lawyer who was seeking a position at the district attorney’s office was a staff public defender.

    6 This is possible because, as discussed below, the conflict of the job-seeking lawyer is normally not imputed to other lawyers in the firm.

    7 There are situations, however, where the firm is aware that the lawyer is seeking another job, such as when an associate has been told they are unlikely to make partner and the firm encourages the associate to seek a new job.

    8 The Rules do sometimes require lawyers to put the interests of clients ahead of their own interests and the lawyer may have to choose between notifying the client and the firm or forgoing the job search. If a lawyer does notify their firm of a conflict arising from a job search, supervisory lawyers within the firm should be mindful of their obligations to clients. See SCR 20:5.1.




  • West's Jury Verdicts, Bench Decisions, Settlements, and Arbitration Awards

    A selection of recent Wisconsin case verdicts are shared below.
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    July 17, 2019 – A selection of recent Wisconsin case verdicts are shared below. The information is provided as a service to State Bar of Wisconsin members in cooperation with Westlaw's® West's Jury Verdicts – Wisconsin Reports, a Thomson Reuters business.

    Featured Cases

    Bidne v. Vanta Commercial Properties (Wis. Cir. Ct. - Dane County)

    Premises Liability - Settlement: $225,000
    Office Building Slip, Fall Returns $225K

    Sinkler v. American Family Mutual Insurance (Wis. Cir. Ct. - Brown County)

    Vehicle Negligence - Settlement: $175,000
    State Hwy. 42 MVA Settles for $175K

    Kantner v. Artisan & Truckers (Wis. Cir. Ct. - Outagamie County)

    Vehicle Negligence - Verdict: $230,581
    Jury Awards Passenger $230K for MVA Injuries

    State Bar members can:

    • Request a full case summary, free of charge
    • Submit their own case results for online publication in Westlaw’s® West's Jury Verdicts – Wisconsin Reports, free of charge
    • Order a paid online subscription to Westlaw’s® West's Jury Verdicts – Wisconsin Reports
    • Contact West: com west.juryverdicts thomsonreuters thomsonreuters west.juryverdicts com or (800) 689-9378

    For State Bar members submitting their own results for publication, West will:

    • Send each submitter a pdf of his/her published case as it appears online in Westlaw’s® West's Jury Verdicts – Wisconsin Reports, free of charge
    • Consider featuring the case in the State Bar’s WisBar InsideTrack publication

    © 2019 Thomson Reuters/West. All rights reserved. Users may download and print extracts of content from this Web site for their own personal and noncommercial use only. Republication or redistribution of Thomson Reuters/West content is expressly prohibited without the prior written consent of Thomson Reuters/West.




  • Tackle Marital Property Issues Efficiently with 'Marital Property Law & Practice in Wisconsin'

    For anyone handling marital property issues, Marital Property Law & Practice in Wisconsin, from State Bar of Wisconsin PINNACLE®, provides a practical guide that answers your in-depth questions and saves you time with its quickly accessible forms and flowcharts.
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    July 17, 2019 – Wisconsin will see roughly 30,000 marriages, 15,000 divorces, and 50,000 adult deaths in 2019 alone, enough to keep family law attorneys, estate planners and administrators, and probate professionals hard at work.

    With the recently revised and completely updated Marital Property Law & Practice in Wisconsin (formerly Marital Property Law in Wisconsin) from State Bar of Wisconsin PINNACLE®, anyone in the trenches can find what they need to ensure that every case is handled properly.

    The new, streamlined 2019 edition contains everything a practitioner requires to take on tough questions in numerous areas on which marital property law touches – and all in one comprehensive volume. With several new authors, top-notch in their areas, this revision contains recent court decisions, discussions of legislative developments, and new and updated flowcharts, examples, and tables.

    With all that’s new, though, what hasn’t changed is the expert and comprehensive coverage of issues that arise in conjunction with marital property law in Wisconsin.

    Stay on Top of a Decade of Changes

    In this revision – the first since 2010 – you will:

    • learn about the basics of property classification, and why it matters;

    • find out what remedies and protections spouses may have against their spouse’s property mismanagement and debts;

    • read about changes in tax laws and how they might impact your clients and their estate planning and administration needs;

    • explore potential ethical issues and how to best handle them.

    Why Re-Invent the Wheel? Use the Sample Agreements, Letters, and Court Documents

    The sample marriage agreements in Marital Property Law & Practice in Wisconsin, including statutory agreements, plus sample client representation letters, sample complaints for enforcing property rights, and other useful forms will save you drafting time. The fact that the sample documents are fillable from your computer is yet another time-saver.

    Quickly Find Answers to Your Marital Property Questions

    Written by several renowned experts in probate, family law, taxation, estate planning and administration, and creditor-debtor rights, responsibilities, and remedies, among other areas of law, the book gives you plenty of practice tips and advice on potential pitfalls to avoid.

    Topics include:

    • types and principles of classifying property, illustrated by new, user-friendly flowcharts and classification exercises;

    • management and control of property during marriage, and interspousal remedies for enforcement;

    • marriage agreements and how, when, and why to consider using them;

    • creditor and debtor issues;

    • income and transfer taxes, in light of federal laws like the Tax Cuts and Jobs Act and Wisconsin law;

    • estate planning and administration and nonprobate transfers;

    • conflicts of laws and jurisdictional scenarios; and

    • ethical pitfalls that may arise in undertaking representation of a client in any of the above areas.

    How to Order

    Marital Property Law & Practice in Wisconsin is available both in print for $249 for members and $309 for nonmembers, and online via Books UnBound®, the State Bar’s interactive online library.

    For more information or to place an order, visit the WisBar Marketplace or call the State Bar at (800) 728-7788 or (608) 257-3838.




  • Stay Up to Date on the Latest Trends at the 2019 Health, Labor, and Employment Law Institute

    Keep up with the evolving trends, technology, and political policies impacting health care and the workplace at the 2019 Health, Labor, and Employment Law Institute, Aug. 15-16, at Glacier Canyon Lodge in Wisconsin Dells.
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    July 17, 2019 – Learn the latest insights and best practices from experienced practitioners at the 2019 Health, Labor, and Employment Law Institute, Aug. 15-16 at Glacier Canyon Lodge at The Wilderness in Wisconsin Dells.

    Three Tracks, 12-plus CLE Credits

    Choose from breakout sessions in three tracks – Health Law, Labor and Employment Law, and Practical Perspectives – and earn up to 12 CLE credits and 1 EPR credit. Plus, after the institute, all attendees have access to free webcast replays of select sessions to earn even more CLE credits.

    The Labor & Employment Law Track provides insight to help employers and employees navigate an increasingly challenging working world. Sessions include:

    • recognizing and addressing “hidden” age-related disabilities in the workplace;

    • employers’ and employees’ rights and obligations in regards to arrest and conviction records;

    • the implications of fluctuating employee classification tests; and

    • what to do (or not do) when you have a matter before the Equal Rights Division.

    The Health Law Track sessions keep you updated on the latest issues, including:

    • risks of cloning electronic health records;

    • ADA accessibility standards and emerging health care technologies;

    • federal enforcement trends in the opioid crisis;

    • recurring problems in physician compensation;

    • creating HIPAA-compliant business associate agreements; and

    • case law and legislative developments.

    Keynote Presentation & Luncheon

    Join the optional luncheon and keynote with Phyllis Randolph Frye, the first “out” transgender judge in the U.S., for “The Courage to Get Off the Fence.”

    A senior partner at the law firm of Frye, Benavidez and O’Neil PLLC, in Houston, Frye devotes her practice to helping transgender clients change their names and genders on legal documents.

    Frye, credited with being the “grandmother” of transgender law, will explore ongoing legal and political transgender issues of concern, such as anti-crossdressing criminal laws and ordinances, public restroom usage, and name-gender ID changes without surgery. Learn more about Frye in our feature article.

    Read more about Frye in this issue of InsideTrack.

    Four Plenaries

    Begin with the opening plenary on Thursday, “Identifying, Investigating, and Preventing Harassment and Bullying in the Workplace,” to identify the differences between bullying and unlawful harassment and learn methods to eradicate behaviors that create a toxic work environment.

    Thursday’s afternoon plenary, “How Legal Counsel Can Help In-House Investigators Avoid Common Pitfalls” examines common ways in-house investigations miss the mark. Learn how outside counsel can help clients identify and avoid investigation missteps, and how to conduct a fair, efficient, effective, and defensible internal investigation.

    Friday morning’s plenary explores “Ethics for Organizational Lawyers” to help lawyers understand how the Rules of Professional Conduct apply in situations common to lawyers who represent organizations. Explore ethical issues related to conflicts, confidentiality, and the no-contact rule.

    Finally, don’t miss Friday’s closing plenary, “Bias & Privilege in the Legal World,” an interactive examination of implicit bias, cultural competency, and equity-based principles. Recognize how legal professionals can play a part in addressing systemic bias, and gain strategies for reducing the harmful impacts of implicit bias in your work.

    Register Today for Best Rates

    Visit hle.wisbar.org to view the full schedule, find out more about hotel rates and reservation information, registration details, attendee FAQs, and more.

    Register by the early-bird deadline of July 26 to save $50 on tuition. To register, visit WisBar.org’s Marketplace.

    To make hotel reservations, call the Glacier Canyon Lodge at (800) 867-WILD and mention you’re with the Health, Labor, and Employment Law Institute.




  • Solo and Small-firm Lawyers: Who's Your Mentor?

    Solo and small-firm lawyers, who is your go-to colleague for your most pressing questions? Nominate a solo or small-firm lawyer for the 2019 John Lederer Service Award. Nominations are due Aug. 19.
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    July 17, 2019 – Practicing as a solo or small-firm attorney often means knowing who to turn to for answers to your practice questions.

    Have you gotten advice or inspiration from a colleague? Has someone in a similar practice setting ever helped you feel more confident or optimistic about the future and boosted your ability to practice?

    Now is the time to honor that person.

    To say “thank you,” submit a nomination for the John Lederer Service Award given by the State Bar of Wisconsin Solo/Small Firm & General Practice Section, which recognizes those focused on improving the lives and practices of solo and small firm attorneys in Wisconsin.

    “We would love to honor an individual helping you along your legal journey. All nominations are appreciated and encouraged,” said Shannon Wynn, chair of the award committee.

    The award is presented at the Wisconsin Solo & Small Firm Conference, Oct. 24-26, 2019, at the Kalahari Resort in Wisconsin Dells.

    About The John Lederer Service Award

    The award is presented annually to an individual, group, or organization exemplifying the leadership, spirit, and dedication of John Lederer, who saw it as his mission to help solo and small firm lawyers master the skills and technology needed to build their practices. Lederer, who died in March 2009, spearheaded many of the things Wisconsin lawyers take for granted in their work today – such as the Uniform Citations System.

    The Lederer Service Award nominee must show leadership in furthering the mission of the Wisconsin Solo and Small Firm Conference – to educate and support solo and small-firm attorneys as they practice law, manage their businesses, and enjoy their lives.

    Nominees are evaluated on their continued, selfless service to projects, efforts, or organizations of benefit to solo and small-firm practitioners across Wisconsin.

    So, who has your back? Let others know by submitting a nomination for this year’s John Lederer Service Award.

    Nominations Due Aug. 19

    Nominations may be submitted via email, and should include:

    • name and contact information of the person making the nomination;

    • name and contact information of the individual, group, or organization being nominated;

    • a one-paragraph statement on how the nominee meets the criteria for the award; and

    • in addition, three letters of recommendation may be submitted with the nomination​.

    Nominations may be sent to com swynn wynnatlaw Shannon Wynn at swynn@wynnatlaw.com.

    Who was John Lederer?

    John LedererLederer was a visionary when it came to integrating technology into the practice of law. He chaired the State Bar’s Technology Resource Committee (TRC). While serving on the TRC, he took on the copyright controversy with Westlaw and facilitated Wisconsin’s universal citation program.

    The universal citation, issued by courts, prevents any company from claiming a copyright on the publication of cases, making them available to attorneys at no cost.

    Lederer was key in creating the Solo & Small Firm Conference and saw it as an opportunity to better the practices and lives of Wisconsin’s attorneys.

    Past Recipients of the John F. Lederer Service Award




  • Attorney General Josh Kaul to Speak at Indian Law CLE in August

    Learn more about current Indian law issues from notable practitioners, and hear about legal issues and opportunities for mutual state and tribal benefit from Attorney General Josh Kaul at the eighth annual Indian Law CLE, Aug. 1-2, 2019, in Wisconsin Dells.
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    July 17, 2019 – Wisconsin’s 11 federally recognized tribes make a significant impact on Wisconsin’s economy, and each have their own governments and interactions with the State of Wisconsin.

    Whether you are a practitioner currently working in Indian Country or looking to learn more about Indian Law, register now for the eighth annual Indian Law CLE, Aug. 1-2, 2019, at the Wilderness Resort in Wisconsin Dells.

    Explore current topics in Indian Law and gain tips from leading practitioners in many practice areas – including social welfare, environmental issues, economic development, and more.

    “Indian Law is an ever-growing, ever-changing practice,” said Dennis Puzz, member of the CLE planning committee and president of the Indian Law Section. “This conference is a perfect opportunity to learn from some of the best attorneys in the nation.”

    A Vision for Opportunities

    A featured speaker, Attorney General Josh Kaul, will discuss his vision for opportunities to produce positive results for both tribal and state governments during the complementary lunch program on Thursday, Aug. 1.

    “There is a great potential for tremendous benefit for both governments and their citizens in their governmental relations,” Puzz said.

    Two Days, Up to 11.0 CLE Credits

    This year’s CLE sessions cover significant topics, including:

    • case law updates;

    • updates on Indian Country issues at the federal and state levels;

    • business ventures;

    • sports betting;

    • social welfare issues like human trafficking and urban housing;

    • employment law;

    • environmental threats; and

    • ethical considerations for maintaining cybersecurity.

    To see the schedule, visit WisBar.org’s Marketplace.

    The program will be submitted to the Wisconsin Board of Bar Examiners for up to 11.0 CLE credits, including one EPR credit.

    Family Fun at the Wilderness

    Puzz invites attendees to take advantage of the resort while at the conference. “The Wisconsin Dells is one of the most beautiful places on earth,” he said. “Bring your family along for a mini-vacation.”

    Hotel reservations should be made directly with the resort at (800) 867-9453. Rates include four wristbands per room for entry into all waterparks on property.

    How to Register for the Conference




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