Marquette Admissions: Welcome to 155 New Lawyers
They are the 155 new Wisconsin lawyers, Class of 2019 graduates of the Marquette University Law School. Welcome to the practice of law!
Aurusa Kabani of Euless, Texas, center, poses with her family for a photo at the new lawyer name wall after becoming a lawyer.
See more photos of the event on the State Bar of Wisconsin’s Facebook Page.
May 23, 2019 – Family members and friends gathered in the Wisconsin Supreme Court Hearing Room to watch their child, cousin, spouse, friend, or colleague take the final steps in becoming a Wisconsin lawyer.
Before the Supreme Court, in five separate ceremonies, 155 new Wisconsin lawyers – new alumni of Marquette University Law School – took the Attorney’s Oath, and listened to words of wisdom.
Charles Polk’s image shows on his mother’s phone as he stands as his sister, a Missouri lawyer, acts as movant in the 11 a.m. ceremony on May 20, 2019.
“You have all worked hard to be here today,” said Chief Justice Pat Roggensack. She has a quote on her office door from Eleanor Roosevelt: “The future belongs to those who believe in the beauty of their dreams.”
It is important, said Chief Justice Roggensack, to not forget the dreams that brought you here today. “Follow them where it leads you,” she said.
The graduates also heard from State Bar President Chris Rogers. “Law school is now over,” he said. “You are now embarking on the start of your careers. You can do this, and the Bar will be there to support you.”
Curtis Walther, left, stands as three family members act as movants, from left: mother Karla Walther, father Christopher Walther, and (speaking with back to camera) grandfather David Walther, at the 1 p.m. ceremony on May 20, 2019.
A Veteran, Family Traditions, and Practice Goals
The new lawyers include Gulf War veteran Stephen DeGuire who, at age 55, is beginning a second career, following his first in the U.S. Navy. He is headed into working in intellectual property law. “This is a very big day for us,” said DeGuire’s father, Marquette Law School Dean Emeritus Frank DeGuire.
Stephen joins not just his father, but his brother, Frank DeGuire Jr., and nephew, Alex DeGuire, in the profession. All are graduates of Marquette University Law School. “We’ve got quite a family tradition here,” said the elder Frank DeGuire.
org sgreen wisbar Shannon Green is communications writer for the State Bar of Wisconsin, Madison. She can be reached by org sgreen wisbar email or by phone at (608) 250-6135.
Members of Jacob Armellani’s family members attended the ceremony, including his uncle, Owen Phelps. Armellani was a wrestler in college and became interested in law, Phelps said. And he joins three other family members who are lawyers, including one who is a judge in Kansas. “We’ve got one more in law school in Chicago,” Phelps said. Armellani is starting out in corporate law at Appvion in Appleton. And he’s getting married next month. “It’s a big spring for him,” Phelps said.
Forty-five years ago to the day, Brandon Brown’s grandfather John Schiek was admitted to practice in Wisconsin. Schiek proudly stood as his grandson’s movant, with both celebrating that they are each now Marquette alumni and Wisconsin lawyers. “We’ve had a lot of fun in the last few days,” he said. Brown will stay in Milwaukee to practice in workers’ compensation law.
Paulina Fernandez, third from right, and other Marquette University Law School graduates complete the Attorney’s Oath during the 9 a.m. ceremony on May 20, 2019.
Both Anne O’Meara and Nicholas Nelson are now the fifth generation of lawyers in their families. Garrett Johnson is the first in his family to complete college, let alone law school. Dominic Clark is headed to practice with his father, Timothy Clark in Elm Grove. Abby King traveled from Florida to act as movant for her best friend and brother, Cole Altman.
There’s Taylor Brisco, headed to New York to work in sports law; both Zeinat Hindi and Lizbeth Free, each of Milwaukee and each starting work in tax law; Jade Hall, starting in June in the Public Defender’s Office in Milwaukee; and Emily Gaertner, seeking to work in criminal law.
Claudia Ayala signs the Supreme Court Attorney’s Roll book, the last step in becoming a Wisconsin lawyer.
Claudia Ayala is headed to practice family immigration law in Milwaukee. She grew up in Texas in a small border town. “I grew up seeing a lot of the injustice happening with immigrants,” she said. “That drove my passion to come to law school.” And on a visit to Wisconsin, she fell in love with the state and with Marquette University.
Aurusa Kabani of Euless, Texas, took a year off after college, and worked for the Supreme Court of Pakistan – her family’s country of origin. She traveled to nearby countries and realized something. “No matter where I went, sports was a mechanism for communication, even if I couldn’t speak the language,” she said. “I realized I wanted to go into a profession where I could bring people together with a common language of ethics.”
She chose Marquette University for its sports law certificate program, and she’s interned with the NCAA and in China for a firm working with their football association. Eventually, she’d like to serve as an Olympic arbitrator. “That’s the goal,” she said.
Her next step is an internship with the Orlando Magic basketball team – and will take the bar exam for Florida admission.
Chue Xiong and Travis Yang pose for a photo at the name wall after becoming Wisconsin lawyers.
Travis Yang of Sheboygan is headed to work in general litigation with a firm in Manitowoc. “I found that my passion for reading and writing works well with the law,” he said.
Chue Xiong of Eau Claire is interested in a small-town practice. He worked with a nonprofit and with a police department, where he became interested in the legal field. The first lawyer in his family, he lived until age 7 in a refugee camp in Thailand – fleeing Laos – before immigrating to the U.S. in 1991. He’s a veteran of the Marine Corps and, an alum of the city’s North High School, has served on the Eau Claire School District Board of Education.
“I’m very happy,” Xiong said. “And I’m ready for what’s next.”
Welcome to these New Wisconsin Lawyers
Cole Altman, Milwaukee
Aaron R. Anderson, West Allis
Jacob T. Armellani, Milwaukee
John Atkisson, Milwaukee
Claudia Ayala, Waukesha
Travis Bachofen, Columbus
Kyle Bailey, Milwaukee
Lucas R. Baker, Milwaukee
Katie K. Bakunowicz, Wauwatosa
Adam Barraza, Milwaukee
James T. Barrett, Whitefish Bay
Edgar A. Beltran, Chicago
Aaron Benz, Milwaukee
Kathleen Bodenbach, Milwaukee
Matthew James Borkovec, Milwaukee
Taylor Brisco, New York, NY
Brandon J. Brown, Milwaukee
Zachary Buchta, Milwaukee
Antonio J. Cannavaro, Providence, Rhode Island
Ashley Castro, Milwaukee
Alec F. Cerqueira, Peabody, Massachusetts
Taylor Chase, Milwaukee
Khatija Choudhry, Milwaukee
Dominic L. Clark, Elm Grove
Killian James Commers, Milwaukee
Hannah Compton, Milwaukee
Samantha Connor, Milwaukee
Mariana Concepcion, Milwaukee
Joshua R. Cook, Milwaukee
Stephen C. DeGuire, Mequon
Jessica Delgado, Eagle Pass, Texas
William Alexander Demet, Whitefish Bay
Brayton Marie Deprey, Milwaukee
Ryan Duffy, Milwaukee
Lance Duroni, Milwaukee
Kaitlyn Dvorak, Milwaukee
Be’Jan Gervais Edmonds, Gary, Indiana
Elli Ehlen, Burlington
Emily Rose Endieveri, Glens Falls, New York
Brett M. Erdmann, Milwaukee
Paulina Andrea Fernandez, San Antonio, Texas
Michael A. Forella III, Milwaukee
Lizbeth Free, Milwaukee
Emily Kay Gaertner, Milwaukee
Anna E. Gage, Wauwatosa
Grace Margaret Gall, Milwaukee
M’Kenzee K. Galloway, Hemet, California
Olivia Garman, Milwaukee
Isabella Krystyna Gentile, Milwaukee
Andrew C. Goldner, Milwaukee
Molly A. Goza, Montgomery, Texas
Elizabeth C. Grabow, Milwaukee
Matthew R. Gralinski, Waukesha
Michelle A. Grasso, Buzzard’s Bay, Massachusetts
Alexandra Gregorski, Milwaukee
Ian Hackett, Milwaukee
Jade Hall, Milwaukee
Katherine Marie Hampel, Milwaukee
Molly Harding, Milwaukee
Simone Haugen, Milwaukee
Alexander Hensley, Milwaukee
Carlos Hernandez, De Pere
Zeinat Ata Hindi, Milwaukee
Erica Imhoff, Reedsburg
Jad M. Itani, Mequon
Garrett Tyler Johnson, Milwaukee
Margaret Johnson, Milwaukee
Randy Jones, Milwaukee
Renee Jones, Chicago
Aurusa Kabani, Euless, Texas
Daniel J. Kachur, Appleton
Ryan Kaufman, New Castle, Pennsylvania
Brooklyn Alyssa Kemp, Mequon
Michael M. Kennedy II, Milwaukee
Nicholas W. Kerkman, Milwaukee
Courtney E. King, Muskego
Elizabeth Anne King, Milwaukee
Sara Kirtley, Milwaukee
Emily Kraemer, West Allis
David Krienke, Milwaukee
Tyler Kongslien, Hewitt
Beau W. Krueger, Sherwood
Gerald Lalli, Milwaukee
Anne M. Lally, Milwaukee
John Lechuga, Chicago
Emily Grace Loe, Milwaukee
Jessie Long, Milwaukee
Yamilett M. Lopez, Milwaukee
Austin J. Lower, Milwaukee
Jillian Leigh Lukens, Furlong, Pennsylvania
Eric Wiseman Lyon, Niagara
Jordan Lysiak, Milwaukee
April Kutz Splittgerber, Fort Atkinson
Fatima Malik, Mequon
Gilbert Malis, Milwaukee
Aliya H. Manjee, Milwaukee
Alexander J. Marsland, Milwaukee
Maggie McCarthy, Milton
Matthew Steven McElroy, Milwaukee
Alexis Merbach, Appleton
Anne Marie Meulbroek, Indianapolis, Indiana
Ian Mickelson, Kenosha
Jonathan Javid Mohamed, Milwaukee
Riley Murphy, Milwaukee
Nicholas John Nelson, Milwaukee
Sarita R. Olson, Milwaukee
Anne Virginia O’Meara, Milwaukee
Jehona Osmani, Lemont, Illinois
Alex Ourada, Milwaukee
Kelly Owens, Milwaukee
Zachary Pasker, Milwaukee
Asia Patterson, Mansfield, Texas
Jason P. Perkiser, Cedarburg
John-Richard Peterson, Dallas, Texas
Charles E. Polk III, St. Louis
Ian Pomplin, Redgranite
Megan Pontius, Milwaukee
Frank J. Portera, Palatine, Illinois
Jenna N. Proudfit, Milwaukee
Sergio Maks Quinones, Milwaukee
Charles Raddatz, Hartland
Rohit J. Rangarajan, Milwaukee
Mitchell Raasch, Milwaukee
Andrew Peter Raymonds, Brookfield
Mark Paul Ropella, New Berlin
Samantha Roth, Madison
William Ruffing, Milwaukee
Andrew Scarpace, Mequon
Andrew J. Schlitt, Milwaukee
Emily Selner, Denmark
Derek Seyller, Belvidere, Illinois
Chad Shamali, Milwaukee
Samuel Simpson, Rockford, Illinois
Alex Slivinski, Oconomowoc
Taviss K. Smith, Milwaukee
Amy Elizabeth Spanczak, Milwaukee
Kelsey L. Stefka, Grafton
Shannon Strombom, St. Francis
Christina Sumer, Milwaukee
Christina Giovanna Szocka, Milwaukee
Andrew J. Tenuta, Kenosha
Aleysha R. Thomas, Hayward, California
Benjamin Timmerman, Wauwatosa
Jeroen Valensa, Muskego
Michael P. Van Kleunen, Milwaukee
Ryan C. Vargas, Arcadia, California
Curtis C. Walther, Milwaukee
Aleah Weber, Tucson, Arizona
David J. Wenthold, Wauwatosa
Brenna Wildt, Milwaukee
Andrew Wood, Port Washington
Logan A. Wood, Manitowoc
Chue Xiong, Eau Claire
Travis L. Yang, Sheboygan
Jennifer Zima, Milwaukee
Expungement Reform Passes Assembly
The bill has 74 co-sponsors in both parties, awaits action in the Senate.
May 23, 2019 – Summer is right around the corner, leaves are returning to the trees, and flowers are in full bloom. Likewise the work of the legislature is in full swing, and some of the reform and funding efforts we have been advocating for are beginning to take shape. Here’s a quick rundown on where we are at with some of our top legislative priorities:
The Assembly passed AB 33, re: expungement reform, on May 15 and now awaits action in the Senate. The bill has bipartisan support, with 57 Assembly and 17 Senate co-sponsors, serving as an example of bipartisan cooperation in a time of split government. We continue to encourage our members to reach out to your state Senators
to either thank them or ask them to support SB 39.
Private Bar Rate and Justice System Funding
There have been many areas of disagreement between Republicans and Democrats on budget priorities this year, but there has been broad consensus developed around the need for additional funding for the criminal justice system. The biennial budget proposal retains provisions for an increase in the private bar rate to $70 per hour, as well as increased funding for positions for DOJ and District Attorneys offices. The Joint Finance Committee will vote on criminal justice measures on Tuesday, May 28th. Please consider sending your Senator a message about the importance of raising the private bar rate.
Grassroots Advocacy Network Meetings
Face-to-face meetings between State Bar constituents and their lawmakers are one of the most effective ways to educate, influence, and empower reform efforts. Our latest meeting was held May 16 with the Fond du Lac County Bar Association with guests Senator Dan Feyen and Representative Jeremy Thiesfeldt. Attendees received a brief update on the State Bar’s grassroots work and legislative priorities, heard from their state lawmakers, and held engaging discussions about what is important to Fond du Lac attorneys.
Interested in holding a meeting in your region with your lawmakers and fellow members of the State Bar? Reach out to Devin Martin at org dmartin wisbar wisbar dmartin org and we can help make one happen.
Our next Grassroots Advocacy Meeting will be a breakfast panel in Green Bay, Wednesday, June 12th from 8:00 to 9:30am, prior to the State Bar’s Annual Meeting and Conference, at the KI Convention Center in Green Bay. It will be open to all who are interested in attending, but focused on regional lawmakers and attorneys. Send an email to org dmartin wisbar wisbar dmartin org to ask questions or RSVP.
Inquiries on Concealed Carry Permit Did Not Unlawfully Extend Traffic Stop
May 21, 2019 – The Wisconsin Supreme Court has unanimously ruled that police did not violate a driver’s Fourth Amendment rights by asking whether the driver had a concealed firearm in the vehicle and whether he had a permit to carry it.
The circuit court in Milwaukee ruled that police violated John Wright’s constitutional right against unreasonable searches and seizures after stopping him for a faulty headlight.
When an officer approached Wright’s vehicle, the officer asked whether Wright had a permit to carry a concealed weapon. The officer also asked if Wright had a concealed weapon, and Wright told him he had a firearm in the glove compartment.
Wright then granted another officer permission to remove the firearm from the vehicle. The officer checked to see if Wright had a permit to carry a concealed weapon (CCW permit). Wright did not have a valid CCW permit. He was arrested and charged with unlawfully carrying a concealed weapon. Wright challenged the search in circuit court.
He moved to suppress evidence of the firearm and it was granted by the circuit court, which concluded that police unlawfully extended the traffic stop in violation of the Fourth Amendment. The Wisconsin Court of Appeals affirmed the lower court’s ruling.
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Court Says Transporting a Gun in a Glove Box Without a Concealed Carry License was Illegal – WisBar News (April 11, 2018)
The Wisconsin Supreme Court, in a 6-1 decision, upheld a man’s conviction for transporting a loaded handgun in his car’s glove compartment without a concealed carry license, rejecting an argument that the concealed carry statute is unconstitutionally vague when viewed in tandem with the “Safe Transport Statute.”
In State v. Wright, 2019 WI 45 (April 30, 2019), the Wisconsin Supreme Court unanimously reversed, noting “questions related to officer safety are part of the traffic stop’s mission, and therefore, those questions do not cause an extension of the stop.”
Justice Shirley Abrahamson wrote the unanimous decision, noting that the U.S. Supreme Court has ruled that “the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s ‘mission’” but covers “related safety concerns.”
“If a police officer may, in the interest of officer safety, order all occupants out of the vehicle for the duration of the stop without violating the Fourth Amendment, the officer may take a less burdensome precaution to ensure officer safety,” Abrahamson wrote.
Wright argued that police were asking about a CCW permit, and such knowledge would not make the officer any safer. The supreme court agreed, but made a distinction.
“In the absence of reasonable suspicion of criminal activity, asking whether a motorist holds a CCW permit and conducting a CCW permit check constitute an unrelated investigation into whether the motorist is unlawfully carrying a concealed weapon,” Justice Abrahamson noted.
But making unrelated inquiries is permissible, the Justice Abrahamson noted, “so long as those inquiries do not measurably extend the duration of the stop.”
“In the instance case, there is no evidence that the CCW permit question or the CCW permit check measurably extended the duration of the traffic stop.”
The court also concluded that conducting a CCW permit check “was conducted concurrently with mission-related activities, namely, running Wright’s information.” The supreme court vacated the circuit court’s order on suppression and remanded the case.
Members Only / Dunn Award Recipient
If you have moved, become a partner or an associate, or received a promotion or an award, let us know!
Meet Our Top 2018 Authors: 2 Articles Worth Another Look
Here are the Communications Committee’s annual top 2018 articles, recognizing writing excellence in Wisconsin Lawyer articles. The committee selected a top article, the Hon. Charles Dunn Author Award, and another noteworthy piece to receive a special commendation.
Best of the Best: Transgender Rights in Wisconsin
Article: “Transgender Rights in Wisconsin” (March 2018)
Award: Hon. Charles Dunn Author Award
Author: Joseph S. Diedrich
Judges’ comments: With approximately 60,000 transgender and gender-nonconforming individuals living in Wisconsin alone, raising awareness of these issues has never been more timely. “Transgender Rights in Wisconsin” touched on constitutional, statutory, and case law and matters related to employment, healthcare, incarceration, and public accommodations. With various issues that uniquely affect transgender individuals, the author provides an invaluable resource for Wisconsin lawyers as they seek to advocate in what has been called the next civil rights frontier.
Diedrich is an associate at Husch Blackwell LLP, Madison, focusing on commercial and constitutional litigation and appeals.
Criminal Justice System and Public Defender Pay
Article: “Frozen In Time: Criminal Justice System & Public Defender Pay” (June 2018)
Award: Special Commendation
Author: Hon. Thomas J. Walsh
Judges’ comments: With the $40-per-hour rate for private-bar lawyers taking appointments from the State Public Defender’s Office being the worst in the nation and the same as it was in 1985, making arguments to raise rates can feel like shooting fish in a barrel. Instead of being glib, the author carefully and thoughtfully discusses the role of publicly appointed criminal defense lawyers and analyzes the problems with the SPD pay. Thank you, your honor.
Walsh is a Brown County Circuit Court judge. He practiced privately in family law from 1992 to 2012. He is the 2016 recipient of the Hon. Charles Dunn Author Award for “In the Crosshairs: Heroin’s Impact on Wisconsin’s Criminal Justice System” (Jan. 2016).
Write for Wisconsin Lawyer
Grow your resumé, gain important recognition, lay the foundation for being a thought leader in the profession.
We’re looking for diverse viewpoints, voices, and expertise. If you’re the go-to person on a particularly timely subject, a thought leader, or a practical how-to-do kind of guru, we’d like to hear from you.
Contact managing editor Karlé Lester at org klester wisbar wisbar klester org or (608) 250-6127. Find writing guidelines at wisbar.org/wislawmag/guidelines.
New Hires, Promotions, Partners
Ryann H. Beck, Marquette 2010, and Emily M. Chilson, Marquette 2011, have become partners in Andrus Intellectual Property Law LLP, Milwaukee. Beck’s practice includes domestic and international patent and trademark prosecution, licensing, and enforcement. Chilson focuses on domestic and international patent, design, and trademark prosecution.
Nicholas Boerke, Marquette 2012, has joined the transactions practice group of Michael Best & Friedrich LLP, Milwaukee, as senior counsel. He advises clients on real estate, tax, and corporate transactions and litigation matters, including acquisitions and sales, eminent domain, property tax assessments, and leasing.
Christopher C. Drout, Marquette 2004, Patricia C. Lonzo, Univ. of the Pacific 2002, and Robert M. Piette, Marquette 1992, have been named partners with Gray & Associates L.L.P., New Berlin, and continue to focus on representing lenders and creditors in mortgage, foreclosure, and bankruptcy matters.
Claire E. Hartley, Marquette 2009, has been promoted to shareholder with Buelow Vetter Buikema Olson & Vliet LLC, Waukesha. Her practice focuses on representing school districts, municipalities, and private employers in all aspects of labor and employment law, general school law, and litigation.
Michael W. Curry, U.W. 2009, and Lora L. Zimmer, Yale 2003, have been named partners at McCarty Law LLP, Appleton. Curry focuses on civil litigation, representing clients in commercial litigation, product liability defense, personal injury matters, and probate and estate disputes. Zimmer focuses on representing health-care providers in regulatory and transactional matters and on general business law. She also performs Title IX investigations for educational institutions.
Dave McCormack, Loyola Chicago 1987, has joined Axley Brynelson’s Waukesha office. His practice focuses on employment law, commercial real estate, contract drafting and negotiation, finance, and environmental law. Previously, he was in-house senior counsel for BMO Harris Bank N.A.
Melita M. Mullen, U.W. 2012, has joined Bell, Moore & Richter S.C., Madison, as an associate and focuses on civil litigation and worker’s compensation. She has practiced in the Madison area since 2012.
Craig T. Papka, Chicago Kent 2005, has been promoted to shareholder at von Briesen & Roper s.c., Milwaukee. He focuses exclusively on labor and employment law.
Three patent attorneys have joined the intellectual property group at Quarles & Brady LLP.
Tolga Gulmen, Berkeley 2010, Ph.D. U.W.-Madison, is of counsel in the Madison office. He works with a wide range of technologies in chemical sciences, nanotechnology, life sciences and biotechnology, engineering, and software. Previously, he founded a law firm focused on university technology transfer offices and startups and was an instructor at the U.W. Law School.
M. Scott McBride, Marquette 2002, Ph.D. U.W.-Madison, is a partner in the Milwaukee office. He focuses on domestic and international patent prosecution and enforcement and provides counseling and opinion work related to freedom-to-operate, non-infringement, and patent invalidity. He has worked for university technology transfer offices, small startups, and large research companies.
Tambryn VanHeyningen, Washington Univ. 2005, Ph.D. Washington Univ., is a partner in the Madison office and focuses on domestic and international patent prosecution, licensing, and portfolio development and management. She also provides strategic counseling regarding patentability, freedom-to-operate, non-infringement, and invalidity opinions.
Two attorneys have joined the Milwaukee office of Reinhart Boerner Van Deuren s.c. Danielle E. Marocchi, Marquette 2018, is with the litigation practice and focuses on the defense of complex product liability claims.
Karla M. Nettleton, Marquette 2017 magna cum laude, is with the tax practice and counsels clients on matters including tax controversy, litigation, and planning. Previously she was a tax consultant for a Big Four accounting firm.
Andrew O. Christianson, U.W. 2005, has rejoined the Waukesha office of Reinhart as a shareholder in the employee benefits, institutional investor services, and corporate law and securities practices, representing public and closely held companies and institutional investors. Before rejoining the firm, he was a senior attorney at Sensient Technologies Corp.
Greg Rutzen, Indiana Univ. (Maurer) 1987, has joined the U.W.-Whitewater Office of University Advancement as director of corporate philanthropy.
John Pienkos, Harvard 1997, and Tom Pienkos, U.W. 1999, have joined the intellectual property practice group of SmithAmundsen, Milwaukee, as partners. Both formerly were at Husch Blackwell. John Pienkos is co-chair of the intellectual property practice group. He prepares and prosecutes domestic and foreign patent applications, advises on corporate transactions involving the purchase or sale of intellectual property assets, prepares patent opinions, and provides guidance regarding the scope of intellectual property rights.
Tom Pienkos counsels clients on the strategic protection, licensing, and enforcement of intellectual property rights and develops and negotiates licensing, cooperation, and joint development agreements; conducts intellectual property due diligence investigations for corporate mergers, acquisitions, and refinancing; and drafts and negotiates patent licenses, nondisclosures, and joint development agreements.
Clyde Wilson Tinnen Jr., Columbia 2006, has joined Foley & Lardner’s business law department and transactions practice group as a partner in the Milwaukee office. He advises clients ranging from startups to Fortune 100 companies across a variety of industries on transactional matters, particularly those related to financing and deal-making.
Gov. Tony Evers has named the following lawyers to his Judicial Selection Advisory Committee: Jeanne M. Armstrong, U.W. 1993, is a litigation attorney with Fuhrman & Dodge S.C., Middleton. Cochair Christine Bremer Muggli, Loyola Chicago 1978, is the chief shareholder of Bremer & Trollop Law Offices S.C., Wausau.
Truscenialyn Brooks, U.W. 2011, practices labor and employment law, general commercial litigation, and patent litigation with Perkins Coie LLP, Madison, and is on the State Bar of Wisconsin’s Board of Governors. Michael J. Brose, William Mitchell 1991, practices civil litigation with an emphasis on plaintiff's personal injury at Doar, Drill & Skow S.C., New Richmond, and is a contributing author to The Wisconsin Rules of Evidence: A Courtroom Handbook (State Bar of Wis.).
Kristen D. Hardy, Marquette 2014, is legal counsel at Rockwell Automation Inc., Milwaukee, an adjunct professor at Marquette Law School, and a member of the State Bar’s Young Lawyers Division board. Rebeca M. López, Marquette 2012 magna cum laude, is an employment attorney with Godfrey & Kahn S.C., Milwaukee. Craig Mastantuono, DePaul 1992, focuses on criminal defense work at Mastantuono & Coffee S.C., Milwaukee, and is also an adjunct faculty member at Marquette University Law School.
Cochair Ryan Nilsestuen, U.W. 2012 cum laude, is Gov. Evers’ chief legal counsel and previously was chief legal counsel for the Wisconsin Department of Public Instruction, a communications director in the Wisconsin Legislature, and a congressional aide. Odalo J. Ohiku, Marquette 2002, is the founder of the Law Office of Odalo J. Ohiku, Milwaukee, focusing on criminal defense, family law, and mediation and arbitration, and also is on the State Bar’s Board of Governors. Jon J. Padgham, U.W. 1995, is the Deputy State Public Defender, State Public Defender’s Office, Appleton. John Sacia, U.W. 2013, is the Trempealeau County district attorney, Whitehall.
Miriam Seifter, Harvard 2007, is an assistant professor at the U.W. Law School, Madison, focusing on administrative, governmental, property, and regulatory law. Dana Wachs, Valparaiso 1985, is a partner with Gingras, Cates, & Wachs, Eau Claire, focusing on complex civil litigation matters. Benjamin Wagner, U.W. 2003 magna cum laude, is a civil trial lawyer and a shareholder at Habush, Habush & Rottier S.C., Milwaukee. MaiVue K. Xiong, U.W. 2010, is a partner at Weld Riley S.C., Eau Claire, and practices in business, real estate, copyright and trademark, and banking law.
Mike Koehler, U.W. 2000, Elkhart Lake, is author of the recently published Strategies for Minimizing Risk Under the Foreign Corrupt Practices Act and Related Laws (Edward Elgar 2018). Koehler runs FCPA Professor LLC, including the FCPA Professor website, and is a law professor.
Carlton D. Stansbury, Iowa 1990 with distinction, and Colin A. Drayton, U.W. 2015 cum laude, authored Increasing the Likelihood of Enforcing a Prenup, American Journal of Family Law (Spring 2019). Stansbury and Drayton focus their practice in family law with Burbach & Stansbury S.C., Milwaukee.
Awards, Degrees, Honors
Jeff Billings, Michigan 2006, has been recognized as a Five Star Wealth Manager by Five Star Professional. His estate planning practice at Godfrey & Kahn S.C., Milwaukee, includes business succession planning, complex gifting strategies, charitable giving, and asset protection planning for families and business owners.
Timothy Edwards, Wayne State 1989, was recently recognized as the Adjunct Lecturer of the Year for 2018 by the U.W. Law School, where he has taught for almost 20 years.
The Eastern District of Wisconsin Bar Association recently honored three lawyers for their significant contributions to the practice of law and their positive impact on the legal community in the Eastern District of Wisconsin. Michelle L. Jacobs, U.W. 1993, Biskupic & Jacobs S.C., Mequon, received the Judge Robert W. Warren Public Service Award. David W. Asbach, U.W. 1988, U.S. Trustee Program, Milwaukee, received the Judge Dale E. Ihlenfeldt Bankruptcy Award. Nathan Oesch, Marquette 2018, U.S. District Court for the Eastern District of Wisconsin, Milwaukee, received the Ruth W. La Fave Trailblazer Award.
Max Neuhaus, Mitchell Hamline 2008, has been named a Public Health Hero by the Pierce County Department of Health for his pro bono work related to public health initiatives.
Robb Arent, Marquette 1996, New York, N.Y., Feb. 23, 1964 – Jan. 9, 2019.
James P. Burns, Marquette 1964, Greendale, Feb. 13, 1936 – Jan. 15, 2019.
John Stephen Carlson, Tennessee 1979, Crystal Lake, Ill., April 26, 1951 – Sept. 9, 2018.
William P. Croke, Marquette 1970, Milwaukee, June 8, 1943 – April 8, 2019.
Ronald S. Dague, Marquette 1990, Milwaukee, Jan. 5, 1954 – Aug. 31, 2018.
Hon. Candace J. DesArmo Coury U.W. 1992, Hales Corners, June 30, 1951 – Feb. 2, 2019.
Ray Eckstein, Marquette 1944, Paducah, Ky., Feb. 5, 1926 – April 20, 2019.
Kevin J. Hogan, Univ. of Denver 1984, Madison, March 16, 1959 – Oct. 29, 2018.
Harry G. Holz, Marquette 1958, Brookfield, Sept. 13, 1934 – Feb. 23, 2019.
Larry Eugene Nelson, U.W. 1988, Dodgeville, July 16, 1959 – April 16, 2019.
Jack A. Porter, Iowa 1969, Palm Beach, Fla., Nov. 20, 1945 – April 5, 2019.
Thomas S. Reynolds, Drake 1972, Sturgeon Bay, Jan. 6, 1945 – March 13, 2019.
David P. Schippers, Loyola Chicago 1959, Chicago, Ill., Nov. 4, 1929 – Sept. 28, 2018.
Dolores Topp Thimke, U.W. 1955, Stoughton, Sept. 8, 1930 – June 10, 2018.
John H. Zawadsky, U.W. 1980, Madison, Nov. 4, 1951 – Feb. 23, 2019.
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.
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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, 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 John F. Koenig
On March 21, 2019, the Wisconsin Supreme Court reinstated the law license of John F. Koenig, Milton, finding that Koenig fully complied with the post-suspension requirements set forth in SCR 22.29 and met all requirements for reinstatement stated in SCR 22.31. The court also ordered Koenig to pay the full cost of the proceeding, $3,646.23. Disciplinary Proceedings Against Koenig, 2019 WI 28.
Koenig’s law license had been suspended for two years, effective March 19, 2015, for misconduct involving the embezzlement of funds from his law firm.
The Wisconsin Supreme Court permits the Office of Lawyer Regulation (OLR) to publish, for educational purposes, a summary of facts and professional conduct rule violations in matters in which the OLR imposed private reprimands. The summaries do not disclose information identifying the reprimanded attorneys. The summaries of selected private reprimands are printed to help attorneys avoid similar misconduct problems.
Sale of Law Practice; Failure to Notify Client of Law Practice Sale
Violations of SCR 20:1.4 and SCR 20:1.17
In 2013, a lawyer (A) contacted another lawyer (B) to offer the sale of seven client files. Lawyer B agreed and purchased seven files of clients in the county. Lawyer A did not stop accepting trust clients in that county or cease to practice law in the county.
With regard to one of the files, Lawyer A wrote to the client, notifying the client of the lawyer’s decision to downsize practice and indicating that Lawyer B would help the client. Lawyer A did not offer the client an opportunity to object and did not inform the client of the sale of the file.
By failing to advise the client regarding the sale of the file and failing to cease providing services to clients in the county, Lawyer A violated SCR 20:1.17. By failing to communicate his intentions to the client, Lawyer A violated SCR 20:1.4.
The lawyer had private reprimands in 1979 and in 2013.
Criminal Act Reflecting Adversely on Fitness to Practice
Violation of SCR 20:8.4(b)
A lawyer entered a business and spoke to an employee. The lawyer’s statement threatened the safety of others. The employee instructed the lawyer to leave the business and then contacted police. The lawyer was charged with misdemeanor disorderly conduct. The lawyer claimed the statement was intended as a joke. The lawyer was found guilty following a jury trial and was ordered to pay a fine and costs and to perform community service.
By engaging in conduct leading to a misdemeanor conviction of disorderly conduct, the lawyer violated SCR 20:8.4(b).
The lawyer had no prior discipline.
Failure to Protect Client’s Interests at Termination of Representation
Violation of SCR 20:1.16(d)
A lawyer was appointed to represent a man in a criminal case. The client’s brother was also charged in the matter.
The client pleaded guilty to some of the charges. At the rescheduled sentencing hearing, the court denied the lawyer’s motion for presentence plea withdrawal and then proceeded to sentencing.
Another lawyer was thereafter appointed to provide postconviction representation to the client.
The lawyer failed to provide the client’s file, specifically the discovery in his case, to successor counsel, despite the client’s and successor counsel’s requests for the same.
After the appeal, successor counsel sent the client his file at the client’s request. When the client asked successor counsel to provide him the discovery in his case, successor counsel told the client he did not have it and suggested the client request it from the lawyer. Successor counsel later explained the status of the discovery in a letter to the client stating he had access to the discovery through the client’s brother’s lawyer.
By failing to provide the client’s case file, including discovery, to his client or successor counsel, the lawyer violated SCR 20:1.16(d).
The lawyer previously received a private reprimand for misconduct that included violations of SCR 20:1.16(d) and a public reprimand for misconduct that included a violation of SCR 20:1.16(d). The misconduct in the instant case preceded the lawyer’s violations of SCR 20:1.16(d) in the above reprimands.
Lack of Diligence
Violation of SCR 20:1.3
A lawyer represented a client in the postconviction phase of a criminal matter. At the end of a jury trial in March 2013, the client was convicted of a felony stalking charge and sentenced to 18 months’ confinement. In May 2013, the lawyer entered his appearance and filed a notice of intent to pursue postconviction relief. Though the trial transcripts were available on Aug. 13, 2013, the lawyer did not file a motion for postconviction relief on behalf of the client until April 14, 2014. The motion alleged ineffective assistance of the trial counsel.
A hearing on the postconviction motion was scheduled for May 29, 2014. The lawyer did not hire an investigator to interview witnesses until about three weeks before the hearing. The investigator did not begin interviewing witnesses until two weeks before the hearing, and the lawyer did not receive and begin reviewing the packet of witness interview summaries until a few days before the hearing. At the hearing, the lawyer called only one witness, the trial counsel himself. When the trial counsel did not testify as the lawyer expected, the lawyer was ill-prepared to respond. The lawyer offered witness affidavits, but the hearing judge warned such affidavits would be hearsay and the judge offered an adjournment for the lawyer to call five witnesses if he so desired, but the lawyer declined.
By failing to file timely for, and diligently pursue, postconviction relief for his client, the lawyer violated SCR 20:1.3.
The lawyer had two prior private reprimands.
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
Solicitation of First-degree Reckless Injury – Solicitation of First-degree Recklessly Endangering Safety – Multiplicity
State v. Kloss, 2019 WI App 13 (filed 21 Feb. 2019) (ordered published 27 March 2019)
HOLDINGS: 1) The crime of solicitation of first-degree reckless injury exists under Wisconsin law. 2) Convictions for both solicitation of first-degree reckless injury and solicitation of first-degree recklessly endangering safety are multiplicitous. 3) The evidence adduced at trial was sufficient to support a conviction for solicitation of first-degree reckless injury.
SUMMARY: After a bench trial, the defendant was convicted of solicitation of first-degree reckless injury and solicitation of first-degree recklessly endangering safety. On appeal he argued that 1) solicitation of first-degree reckless injury does not exist as a crime under Wisconsin law, 2) the convictions for both solicitation of first-degree reckless injury and solicitation of first-degree recklessly endangering safety are multiplicitous and therefore one of those convictions must be reversed, and 3) the evidence presented at trial was insufficient to support either conviction. In an opinion authored by Judge Kloppenburg, the court of appeals affirmed in part and reversed in part.
First, the appellate court concluded that solicitation of first-degree reckless injury is a crime under Wisconsin law. The solicitation statute provides that “whoever, with intent that a felony be committed, advises another to commit that crime under circumstances that indicate unequivocally that he or she has the intent is guilty of a Class H felony.” Wis. Stat. § 939.30(1). The first-degree reckless injury statute provides that “[w]hoever recklessly causes great bodily harm to another human being under circumstances which show utter disregard for human life is guilty of a Class D felony.” Wis. Stat. § 940.23(1)(a). The defendant argued that it is not possible for a person to intend that another person succeed in causing great bodily harm by reckless conduct.
The appellate court disagreed. “We see no reason why a solicitor cannot intend, at the time he or she solicits reckless conduct from another, that great bodily harm result from the solicitee’s reckless conduct. It may be true that a solicitor cannot know with certainty at the time of the solicitation whether an injury will in fact result from the solicitee’s conduct – such uncertainty is inescapable in an inchoate crime such as solicitation. But no level of certainty is required to form a purpose to cause a particular result – that is, an intent that a result take place” (¶ 10).
Second, the appellate court concluded that convictions for both solicitation of first-degree reckless injury and solicitation of first-degree recklessly endangering safety are multiplicitous. The crimes are identical in law: The underlying crimes the defendant was accused of soliciting (first-degree reckless injury and first-degree recklessly endangering safety) have a greater inclusive-lesser included relationship (see ¶ 22), and it is impossible to prove solicitation of first-degree reckless injury without also proving solicitation of first-degree recklessly endangering safety (see ¶ 24).
In this case the crimes were also identical in fact. To prove both charges the state relied on a single course of conduct (the defendant’s placing numerous phone calls to his wife from jail instructing her to shoot a gun through the front door if any police officers came to their house). Accordingly, the appellate court reversed the defendant’s conviction for the lesser included offense of solicitation of first-degree recklessly endangering safety.
Third, on the facts of this case, the appellate court concluded that there was sufficient evidence to support the conviction for solicitation of first-degree reckless injury. The defendant argued that no reasonable factfinder, looking at the circumstances, could find that he was serious when he urged his wife to shoot any officers who approached their home because no reasonable person in his position would think that the police would ever approach their home. He pointed to evidence showing that he was aware that his calls to his wife were monitored and argued that he therefore knew that it was highly improbable that police would come to his house.
The court responded as follows: “This argument fails because, at least generally speaking, the unlikelihood that the solicitee will have the opportunity to commit the crime does not negate the intent of the solicitor. The intent question is whether, if circumstances do occur giving the solicitee an opportunity to commit the crime, the defendant actually intends that the solicitee commit the crime. Here, it was far from impossible that the police might for some reason approach the Kloss home. Thus, a fact finder could readily find that, based on the phone call evidence, if the police did come to the Kloss home, Kloss actually intended that [his wife] shoot the police” (¶ 14).
The appellate court remanded the matter for the defendant to be resentenced on the conviction for solicitation of first-degree reckless injury.
Guilty Pleas – Ineffective Assistance of Counsel – Failure to Establish That Defendant Would Not Have Pleaded Guilty and Would Have Gone to Trial
State v. Jeninga, 2019 WI App 14 (filed 21 Feb. 2019) (ordered published 27 March 2019)
HOLDING: In his motion seeking to withdraw his guilty plea on the basis of ineffective assistance of counsel, the defendant failed to establish a reasonable probability that he would not have pleaded guilty and would have gone to trial but for his lawyer’s allegedly deficient performance.
edu daniel.blinka marquette Prof. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.
edu thomas.hammer marquette Prof. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.
SUMMARY: Jeninga was charged with one count of repeated sexual assault of a child and in a separate case with 10 counts of possession of child pornography. Over the defendant’s objection, the circuit court joined the cases for trial. Pursuant to a plea negotiation, the defendant pleaded guilty to an amended charge of second-degree sexual assault of a child and one count of possessing child pornography.
After the defendant was sentenced, he filed a motion to withdraw his plea, alleging that his trial counsel was ineffective for not moving to suppress evidence of child pornography that was found on his cell phone. In the postconviction motion, counsel alleged that the defendant “will testify” that, had a suppression motion been filed and the evidence suppressed, “he would not have entered any plea” and would have gone to trial (¶ 6). The defendant did not submit an affidavit in support of his postconviction motion, and he did not testify at the Machner hearing at which his motion was litigated. The circuit court denied the postconviction motion.
In an opinion authored by Judge Fitzpatrick, the court of appeals affirmed. When claiming that counsel provided ineffective assistance, a defendant must demonstrate both that counsel’s performance was deficient and that the deficiency was prejudicial. See Strickland v. Washington, 466 U.S. 668 (1984).
In this case the court resolved the appeal based on the prejudice prong. “In the context of plea withdrawal, [to prove prejudice] a defendant must establish a reasonable probability that he or she would not have pled and would have gone to trial but for counsel’s ineffective performance” (¶ 12).
The appellate court concluded that “Jeninga has failed to establish a reasonable probability that he was prejudiced by the failure of trial counsel to move to suppress evidence because he did not present objective factual assertions about his subjective decision to enter into a plea agreement, including any effects that successful evidence suppression might have had on his decision to enter into the agreement” (¶ 10).
“Jeninga has failed to meet his burden because the only factual basis offered in support of his allegation about his subjective choice to enter the plea agreement is the limited testimony of his trial counsel as to her subjective opinion, merely suggesting what she believed Jeninga was thinking. [She testified to her belief that the trial court’s joinder decision affected the defendant’s decision on whether to go to trial or take a plea.] … In other words, Jeninga has not provided objective facts in support of his contention, nor has Jeninga provided his explanation as to why he would not have pled” (¶ 17).
Said the court: “At bottom, Jeninga asks us to assume, based on the general circumstances, that he would not have pled to any charge and, instead, would have gone to trial, based solely on trial counsel’s testimony regarding her beliefs, merely suggesting what his state of mind and thinking might have been. Although Jeninga’s postconviction motion alleged that he would not have pled, Jeninga provided no objective facts that evidenced his thinking and reasoning. Simply put, there is no record evidence that demonstrates from Jeninga himself that he would not have pled and instead would have gone to trial. Therefore, we conclude that Jeninga did not satisfy Strickland’s prejudice component” (¶ 18).
Duty to Defend – Four-corners Test – “Entire Suit” Rule
Anderson v. Kayser Ford Inc., 2019 WI App 9 (filed 7 Feb. 2019) (ordered published 27 March 2019)
HOLDING: Dismissal of an insurer from a lawsuit was improper because the insurer did not establish that it had no duty to indemnify its insured under any theory of liability.
SUMMARY: The plaintiff sued a used car dealer alleging a variety of regulatory violations involving fraud and deception. The dealer had a “garage policy” issued by Regent Insurance, which intervened in the litigation. Based on various pretrial rulings, Regent moved to be dismissed on grounds that it had no duty to indemnify the dealer. The circuit court dismissed Regent, finding it had no duty to defend or to indemnify its insured.
The court of appeals reversed in an opinion authored by Judge Blanchard. First, the court held that the garage policy fell within the line of cases controlling an insurer’s duty to defend (see ¶ 18). Although the “only arguably covered claim” had been dismissed on partial summary judgment, a trial was pending on another claim that was “not arguably covered.” The court concluded that a “reasonable insured would not have a clear understanding of whether there is a duty to defend based on the policy language alone” (¶ 19).
Second, applying the four-corners test and what it called the “entire suit” rule found in the duty to defend cases, the court held that Regent had a continuing duty to defend even though there was no coverage on the only claim left to be tried (see ¶ 27). Succinctly stated, “it is difficult for us to see how the duty to defend could end with a circuit court no merits determination that may be reversed on appeal and may yet result in an obligation by the insurer to indemnify” (¶ 39). The key then is the distinction between a duty to defend, which is triggered by the plaintiff’s claim, and a duty to indemnify, once liability is established (see ¶ 54).
Duty to Defend – Delayed Payments
Choinsky v. Germantown Sch. Dist. Bd. of Educ., 2019 WI App 12 (filed 20 Feb. 2019) (ordered published 27 March 2019)
HOLDING: Several insurance companies did not breach their duty to defend.
SUMMARY: A group of retired teachers and other former employees sued a school district after it discontinued a group long-term insurance policy that affected their benefits. The district tendered its defense to several insurers, which denied coverage on grounds that the district had engaged in intentional conduct. When the district disagreed, the insurers moved to intervene and bifurcate the merits from coverage. The circuit court granted the motion in December 2013.
In April 2016, the coverage issue was tried to a jury, which found against the insurers (see ¶ 17). The trial judge ruled that the insurers had not breached their duty to defend because they followed court-approved procedures to resolve the coverage dispute. The merits case was tried in June 2017, and the jury ruled in the district’s favor.
The court of appeals affirmed in a majority opinion, authored by Chief Judge Neubauer, that rejected the district’s demand for various unpaid claims against the insurers, specifically the “contention that the insurers breached their duty to defend because their agreement to defend was ‘belated’ and insufficiently ‘immediate’” (¶ 26). The insurers were “actively pursuing a court-approved approach to resolving the coverage dispute” (¶ 31).
The record did not support the district’s claim for $50,000 in unpaid fees in addition to the more than $250,000 paid to the district’s law firm. Moreover, because the district was not forced to simultaneously defend the merits and establish coverage, it was responsible for its own coverage-related fees (see ¶ 37). Thus, the “special circumstances and equitable considerations” present in Elliot v. Donahue, 169 Wis. 2d 310, 485 N.W.2d 403 (1992), were not present in this case (¶ 41).
Dissenting, Judge Reilly contended that the majority incorrectly found that 1) the district had no burden to prove that the insurers’ delay constituted a breach, and 2) there had been no “delay” when the insurers refused to pay $50,000 in damages incurred by the district in its earlier defense.
Objective Bias – Social Media Contacts
Miller v. Carroll, 2019 WI App 10 (filed 20 Feb. 2019) (ordered published 27 March 2019)
HOLDING: Social media contacts between the trial judge and a litigant demonstrated objective bias by the judge.
SUMMARY: This case arose out of a child-custody-and-placement dispute. While the litigation was pending, the trial judge accepted a Facebook “friend” request from the mother. The connection was not disclosed to the opposing party. The judge did not “like” or comment on any posts by the mother, nor did he reply to her comments about his Facebook posts. (In later proceedings, the judge never denied reading the mother’s posts.)
The judge ruled in the mother’s favor. Shortly thereafter, the guardian ad litem discovered the judge’s Facebook contacts and alerted the father’s counsel. The trial judge denied a motion requesting that he disqualify himself and grant a new hearing.
In an opinion authored by Judge Seidl, the court of appeals reversed the circuit court. The court of appeals’ opinion provides guidance on electronic social media contacts between judges and litigants. There was no contention that the trial judge was subjectively biased.
Nonetheless, the circumstances demonstrated objective bias, which occurs “(1) where there is the appearance of bias or partiality; or (2) where objective facts demonstrate that a judge treated a party unfairly” (¶ 13). No Wisconsin authority addressed the electronic social media issues, so the court looked to persuasive authority from other states and professional commentary.
The court of appeals declined to determine whether a bright-line rule was necessary or appropriate, but it found that the record here showed an appearance of partiality (see ¶ 18). The court examined five factors that justified disqualification on this record, including concerns over ex parte communications (see ¶ 24). In sum, the presumption of impartiality had been rebutted (see ¶ 29).
Recreational Immunity – “Owner” of Property – Recreational Activity
Langenhahn v. West Bend Mut. Ins. Co., 2019 WI App 11 (filed 12 Feb. 2019) (ordered published 27 March 2019)
HOLDING: The circuit court correctly granted summary judgment to an American Legion post on the basis of recreational immunity with respect to injuries sustained by a guest at an event the post sponsored.
SUMMARY: American Legion Post 469, a nonprofit organization, organizes and produces Marathon Fun Days in the village of Marathon City each year during the Labor Day weekend. The event is held at Marathon City Veterans Park. Paula Langenhahn attended an informal class reunion at the 2011 Marathon Fun Days. When leaving the park, she tripped over a metal barricade that was being used to block motor vehicle traffic on a street adjacent to the park and was injured as a result. She and her husband filed personal-injury claims against Post 469 and its insurer.
The circuit court granted summary judgment to the defendants on the basis of recreational immunity, and the plaintiffs appealed. In an opinion authored by Judge Hruz, the court of appeals affirmed.
The recreational immunity statute (Wis. Stat. § 895.52) reflects a legislative choice to expand liability protection for landowners who open their private property for public recreational use (see ¶ 10). The immunity applies only to an “owner” of the property and the owner’s officers, employees, or agents. An owner is defined as a “[a] person, including a governmental body or nonprofit organization, that owns, leases or occupies property.” It was undisputed that Post 469 did not own or lease Veterans Park or the surrounding area.
Thus, Post 469 could prevail on recreational immunity grounds only if it “occupied” the relevant real property. Prior cases interpreting the statute have concluded that the producer of a fair or event “occupied” the property (¶ 16). In a footnote, the court noted that the plaintiffs did not develop any argument that Post 469 is not entitled to immunity because Marathon Fun Days primarily took place in a public park. “In any event, prior cases establish that an event organizer receives the benefit of recreational immunity even if the event takes place on public lands” (¶ 18 n.6).
The court also rejected any argument that Post 469 did not “occupy” the crosswalk where the plaintiff was injured. “The presence of the barricades plainly evidences Post 469’s occupancy of it, and no reasonable fact finder could conclude otherwise” (¶ 27).
The court also held that the plaintiff was participating in a recreational activity at the time of her injury. “More recent case law … supports our conclusion that attendance at the Marathon Fun Days event – even for an informal class reunion – constitutes a ‘recreational activity’” (¶ 34).
“The [plaintiffs’] walking to exit Marathon Fun Days was inextricably connected to their attendance at the event, and it was therefore a recreational activity qualifying Post 469 for immunity. ‘Our case law makes clear that the act of walking to or from an immune activity constitutes a recreational activity.’ The [plaintiffs] were on a course to their car to leave the event at the time Paula was injured, and they were therefore engaged in a ‘recreational activity’” (¶ 35) (citation omitted).
Supreme Court Digest
In this column, Prof. Daniel D. Blinka and Prof. Thomas J. Hammer summarize all decisions of the Wisconsin Supreme Court (except those involving lawyer or judicial discipline).
Daniel D. Blinka & Thomas J. Hammer
Legal Malpractice – Nonclients – Negligent Administration of Estates
MacLeish v. Boardman & Clark LLP, 2019 WI 31 (filed 26 March 2019)
HOLDING: The court upheld the general rule of nonliability of a lawyer to a nonclient, except in narrow instances involving the drafting and execution of a will as well as the administration of an estate.
SUMMARY: In 1967, counsel drafted a will for Charles MacLeish. When MacLeish died in 1984, another lawyer handled the administration of the estate, advising Mr. MacLeish’s widow to make full use of the federal estate tax marital deduction. After Mrs. MacLeish died in 2008, the estate incurred a federal estate tax of more than $250,000. The MacLeish children sued the law firm for malpractice, asserting that the estate should have been administered differently and that a trust should have been established.
The circuit court ruled that as nonclients, the children could not bring a legal malpractice claim against the lawyer unless they could show that the lawyer’s actions “thwarted” the decedent’s wishes – the so-called Auric exception. The circuit court granted summary judgment to the lawyer. In an unpublished decision, the court of appeals affirmed.
The supreme court affirmed the court of appeals in an opinion authored by Justice A.W. Bradley. First, the supreme court declined to displace the narrow Auric exception (Auric v. Continental Cas. Co., 111 Wis. 2d 507, 509, 331 N.W.2d 325 (1983)) with a broader rule set forth in the Restatement (Third) of the Law Governing Lawyers § 51 (see ¶ 33).
“Adopting the Restatement would unmoor the exception to nonliability from its constitutional foundation and potentially open liability of attorneys to third parties in a variety of contexts beyond the facts of this case” (¶ 38). The Auric standard is “consistent with the ethical duties of estate planning attorneys” (¶ 41).
The supreme court, however, extended Auric to claims of negligent administration of an estate (see ¶¶ 44, 48). Applying the rule to the facts, the court further held that Mr. MacLeish’s “clear testamentary intent” had not been “thwarted” by the absence of a trust (see ¶ 52).
Limited Liability Companies – Standing – Members – Common-law Claims
Marx v. Morris, 2019 WI 34 (filed 2 April 2019)
HOLDINGS: 1) Members of a limited liability company (LLC) have standing to assert individual claims against other members and managers. 2) Principles of derivative standing do not apply to “the distinct business form of an LLC.” 3) The plaintiffs’ common-law claims survive. 4) Genuine issues of material fact remain for trial.
edu daniel.blinka marquette Prof. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.
edu thomas.hammer marquette Prof. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.
SUMMARY: Members of an LLC sued another LLC member, alleging he had sold valuable assets to another company in which he was interested. The plaintiffs said this was a conflict of interest that violated Wis. Stat. section 183.0402(1). They also alleged common-law claims relating to fair dealing. The circuit court denied the defendant’s motion for summary judgment, and the court of appeals certified the matter to the supreme court.
The supreme court affirmed in an opinion authored by Chief Justice Roggensack. First, “the members of an LLC have standing to assert individual claims against other members and managers of the LLC based on harm to the members or harm to the LLC. Corporate principles of derivative standing do not apply to the distinct business form of an LLC” (¶ 4). The court rejected the contention that Wis. Stat. section 183.1101 requires that claims against LLC members be brought in the name of the LLC and also held that the statute does not limit a member’s ability to sue other members (see ¶ 39).
Second, Wisconsin’s LLC laws, Wis. Stat. ch. 183, did not eliminate the members’ common-law claims (see ¶ 47). No provision of Wis. Stat. chapter 183 “displaces” their common-law claims; chapter 183 does not state or imply that Wis. Stat. section 183.0402 “constitutes the entirety of an LLC member’s or manager’s obligations to other members and to the LLC” (¶ 53).
Third, genuine issues of material fact precluded summary judgment (a necessarily fact-intensive analysis) (see ¶ 55).
Concurring in part and dissenting in part, Justice Kelly was joined by Justice Abrahamson and Justice R.G. Bradley in an opinion that addressed “six erroneous propositions” advanced by the majority. These justices said, for example, that most of the errors arose from the majority’s failure to recognize that “the distinction between an LLC and its members necessarily affects who may bring what types of actions against which defendants” (¶ 70).
Plea of Not Guilty by Reason of Mental Disease or Defect – Erroneous Information About Maximum Period of Civil Commitment
State v. Fugere, 2019 WI 33 (filed 28 March 2019)
HOLDINGS: 1) A circuit court is not required to inform a defendant who enters a plea of not guilty by reason of mental disease or defect (NGI) about the maximum possible term of civil commitment. 2) The circuit court’s provision of erroneous information about the maximum period of civil commitment the defendant faced on his NGI plea was harmless error.
SUMMARY: Fugere was charged with four counts of first-degree sexual assault of a child under the age of 12. Pursuant to the plea agreement, the defendant pleaded NGI to one of the four counts, waived his right to trial regarding guilt, and admitted that there was a factual basis that he committed the sexual assault. In addition, the state and the defendant agreed to stipulate that the defendant, as a result of a mental disease or defect, lacked substantial capacity to appreciate the wrongfulness of his conduct or conform his conduct to the requirements of the law. Finally, the parties agreed to recommend that the defendant be civilly committed for 30 years as a result of being found not guilty by reason of mental disease or defect.
At the plea hearing, the circuit court judge correctly advised the defendant that the maximum penalty for first-degree sexual assault is 60 years. However, the judge inaccurately informed him that the potential maximum period of civil commitment on a finding of not guilty by reason of mental disease or defect is 30 years when in fact the maximum is 40 years. After finding the defendant not guilty of sexual assault by reason of mental disease or defect, the court ordered that he be committed for 30 years.
The defendant later moved to withdraw his NGI plea because of the erroneous information the court provided about the potential length of the civil commitment he faced. The circuit court denied the motion. In a published decision, the court of appeals affirmed. See 2018 WI App 24. In a majority opinion authored by Justice Ziegler, the supreme court affirmed the court of appeals.
The supreme court concluded that “a circuit court is not required to inform an NGI defendant of the maximum possible term of civil commitment at the guilt phase (1) because a defendant who prevails at the responsibility phase of the NGI proceeding has proven an affirmative defense in a civil proceeding, avoiding incarceration, and is not waiving any constitutional rights by so proceeding in that defense; and (2) because an NGI commitment is not punishment but rather, is a collateral consequence to one who successfully mounts an NGI defense to criminal charges. We therefore decline to exercise our superintending and administrative authority to require circuit courts to advise NGI defendants of the maximum period of civil commitment” (¶ 55).
The majority further concluded that “the circuit court’s error was harmless because it was unrelated to the guilt phase of the NGI defense, and instead, the inaccurate information pertained to the potential civil commitment at the responsibility phase. Additionally, Fugere received the benefit of his plea agreement with the State and otherwise understood the consequences of prevailing on an NGI defense as he was already civilly committed for an unrelated charge. Thus, there was no manifest injustice and we affirm the court of appeals” (¶ 56).
Justice A.W. Bradley filed a dissenting opinion that was joined in by Justice Abrahamson and Justice Dallet.
Sentence Credit – Time Spent “in Custody”
State v. Friedlander, 2019 WI 22 (filed 12 March 2019)
HOLDING: The defendant was not entitled to sentence credit for time when he was at liberty and not subject to an escape charge.
SUMMARY: Friedlander, the defendant, was serving time in a state prison. He was concurrently serving eight months of jail time that had been imposed as a condition of probation in an unrelated case from Jefferson County. When the defendant was released from prison, 75 days remained to be served as a condition of probation. However, instead of turning over the defendant to the Jefferson County authorities to serve that time, the prison authorities released him outright.
Sixty-five days after Friedlander was released and while he was still at liberty, the Jefferson County Circuit Court held a hearing to determine how much of the conditional jail time the defendant still needed to serve. The defendant argued that he was entitled to sentence credit for the 65 days he was at liberty. Citing State v. Riske, 152 Wis. 2d 260, 448 N.W.2d 260 (Ct. App. 1989), and State v. Dentici, 2002 WI App 77, 251 Wis. 2d 436, 643 N.W.2d 180, he claimed that he should receive the 65-days’ credit because he was at liberty through no fault of his own.
The circuit court determined that Friedlander had to serve the full 75 days still remaining on his conditional jail time. In an unpublished, per curiam opinion, the court of appeals reversed, relying on Riske and Dentici.
In a majority opinion authored by Justice Ziegler, the supreme court reversed the court of appeals. It held “for the purpose of receiving sentence credit under § 973.155 [for time spent in custody], a defendant is ‘in custody’ whenever the defendant is subject to an escape charge under Wis. Stat. § 946.42, or another statute which expressly provides for an escape charge, as this court held in [State v.] Magnuson, [2000 WI 19, 233 Wis. 2d 40, 606 N.W.2d 536]. In doing so, we overrule the court of appeals’ decisions in Riske and Dentici” (¶ 48).
The court then analyzed whether the defendant was entitled to sentence credit for the time he was at liberty after being mistakenly released from prison without being transferred to Jefferson County to serve his remaining conditional jail time. “We conclude that Friedlander is not entitled to sentence credit because Friedlander, who was at liberty, could not have been subject to conviction for escape under Wis. Stat. § 946.42” (¶ 49).
Justice Abrahamson and Justice A.W. Bradley filed separate dissenting opinions.
Treatment Courts – Expulsion – Substantive and Procedural Due Process
State v. Keister, 2019 WI 26 (filed 19 March 2019)
HOLDINGS: 1) A defendant does not have a fundamental liberty interest in continued participation in a treatment court program funded by Wis. Stat. section 165.95. 2) As a funding statute, section 165.95 need not provide expulsion procedures to survive a procedural due process challenge.
SUMMARY: This case concerns drug treatment court programs and the expulsion of participants therefrom. Wisconsin Statutes section 165.95(2) provides, in relevant part, that the Wisconsin Department of Justice shall make grants to counties and tribes “to enable them to establish and operate programs … that provide alternatives to prosecution and incarceration for criminal offenders who abuse alcohol or other drugs.”
The statute sets forth rules and guidelines for programs receiving grant funds. Section 165.95(3)(c) requires that programs created pursuant to the grant program establish criteria for a person’s participation, including criteria that specify that a “violent offender” is not eligible to participate in the program. Section 165.95(1)(a) (later renumbered as 165.95(1)(bg)1.) defines a violent offender as a person who “has been charged with or convicted of an offense in a pending case and, during the course of the offense, the person carried, possessed, or used a dangerous weapon, the person used force against another person, or a person died or suffered serious bodily harm” (¶ 7).
Facing expulsion from a treatment program, the defendant challenged the constitutionality of Wis. Stat. section 165.95(1)(a) and (3)(c). He asserted that the statutes violated his substantive and procedural due process rights because they require mandatory expulsion of a “violent offender” from drug treatment court with no requirement that the allegations be proven and no meaningful opportunity to be heard before expulsion. The circuit court issued a declaratory judgment, ruling that section 165.95(1)(a) and (3)(c) violated the defendant’s substantive and procedural due process rights.
At the supreme court, the defendant conceded that the circuit court erred in declaring the statute unconstitutional. In a per curiam opinion, the supreme court agreed with this concession and concluded that the defendant “does not have a fundamental liberty interest in continued participation in a treatment court funded by Wis. Stat. § 165.95 and that as a funding statute, § 165.95 need not provide expulsion procedures to survive a procedural due process challenge” (¶ 12). Accordingly, the supreme court summarily reversed the circuit court’s declaratory-judgment order.
Confrontation – Other Acts – Ineffective Assistance of counsel
State v. Reinwand, 2019 WI 25 (filed 19 March 2019)
HOLDINGS: 1) The victim’s statements were not testimonial hearsay for confrontation purposes. 2) Other-act evidence was properly admitted. 3) Defense counsel was not ineffective at trial.
SUMMARY: The defendant was convicted of first-degree intentional homicide for the shooting death of the father of the defendant’s granddaughter. The supreme court took the case on certification from the court of appeals and, in an opinion authored by Chief Justice Roggensack, affirmed the circuit court.
First, the state’s use of various statements by the victim about the defendant did not offend the confrontation clause. Considering the host of factors set forth in Ohio v. Clark, 135 S. Ct. 2173 (2015), the court held that the hearsay was not testimonial; that is, the statements were made to family and friends and not for the “primary purpose” of providing evidence against the defendant.
Second, other-act evidence involving a “prior non-violent burglary” was properly admitted to undercut the defendant’s assertion of a memory loss. The evidence took the form of a letter by the defendant to his granddaughter (see ¶ 33). The defendant had told police officers he could recall neither the homicide nor the burglary (see ¶ 35).
Third, defense counsel was not ineffective during the trial or at sentencing (a necessarily fact-intensive analysis).
Justice Dallet concurred, joined by Justice Abrahamson and Justice A.W. Bradley. Although “almost all” of the victim’s statements to family and friends were nontestimonial, the victim’s instructions to his pastor to have the police “dig deeper” if he were found dead was testimonial (¶ 59). The victim’s purpose was to provide evidence. But although the testimonial hearsay did not fall within the forfeiture-by-wrongdoing exception, any error was harmless.
Compensation – Commute Time
Kieninger v. Crown Equipment Corp., 2019 WI 27 (filed 20 March 2019)
HOLDING: Statutes and regulations did not require an employer to pay employees for the time the employees spent commuting between their homes and a job site in a company-owned vehicle.
SUMMARY: The plaintiffs are technicians who worked for a company that manufactures industrial equipment, including forklifts. They drive to job sites to repair and service machinery in vans, stocked with tools and equipment, that the company owns. Technicians are given the option of commuting between work and home in their personal vehicles or in the company’s vans. After the Department of Workforce Development (DWD) denied the plaintiffs’ claim for compensation for driving one of the company’s vans directly from home to a job site, the circuit court ruled in the technicians’ favor.
The court of appeals disagreed with the circuit court. In an unpublished decision it remanded the matter for further briefing but agreed that the federal Employee Commuting Flexibility Act (ECFA) did not “guide” Wisconsin law.
In a decision authored by Justice Kelly, the supreme court reversed the court of appeals, concluding there was no need for further briefing and that the plaintiffs are not entitled to compensation for driving between home and the workplace. The opinion construed pertinent statutes and regulations promulgated by the DWD.
The court said that the plaintiffs’ contention came down to this: “[They] must be paid for [their] commute because the tools in Crown’s vans are integral and indispensable to a principal activity, to wit, repairing forklifts.” Yet this “proves too much.” “A paralegal who goes home in the evening with a company-provided computer and then travels the next day to a witness’s location to conduct an interview is transporting the resources necessary to do his job. So is every office-worker who brings a file home after work, and then returns it the next morning” (¶ 23). Federal law did not undercut this conclusion; “the ECFA plays no part in our analysis of this case” (¶ 31).
Finally, the court’s “holding is limited, and applies only to circumstances in which an employee drives a company-provided vehicle between home and a jobsite. It does not disturb the compensability of travel between an employer’s location and a jobsite, or between jobsites” (¶ 32).
Public Employee Pensions – Construction of Amendment to Milwaukee County Ordinances Affecting Retirement Benefits
Milwaukee Dist. Council 48 v. Milwaukee Cty., 2019 WI 24 (filed 19 March 2019)
HOLDING: Within the meaning of the county ordinance under review in this case, union members were not “covered by the terms of a collective bargaining agreement” after that agreement had expired.
SUMMARY: This case concerns an amendment to Milwaukee County ordinances enacted after the passage of 2011 Wis. Act 10. The amendment applied the “rule of 75” (a calculation according to which an employee receives a full pension when his or her age plus years of service total 75) to employees “not covered by the terms of a collective bargaining agreement” on Sept. 29, 2011, and hired before Jan. 1, 2006. For an employee who, on Sept. 29, 2011, was “covered by the terms of a collective bargaining agreement” with District Council 48 (DC-48) or various other unions specified in the ordinance, the rule of 75 applied only if the employee was hired before Jan. 1, 1994.
When the ordinance was enacted, the last CBA between the county and DC-48 had expired. The union thus argued that its members were not covered by the terms of a CBA on Sept. 29, 2011, and that the later cutoff date of hire (2006) for rule of 75 benefits applied to them. The county argued that employees represented by DC-48 on Sept. 29 were covered by the terms of a CBA despite the last CBA expiring in 2009 and therefore only those employees hired before Jan. 1, 1994, were eligible for the rule of 75 benefits.
In this declaratory-judgment action, the circuit court granted DC-48’s motion for summary judgment. In a published decision, the court of appeals affirmed. See 2017 WI App 82.
In a majority opinion authored by Justice R.G. Bradley, the supreme court affirmed the court of appeals. It concluded that the plain meaning of “covered by the terms” of a CBA includes only those employees bound by a valid CBA. “It is difficult to imagine how an employee could be ‘covered by the terms’ of an expired CBA that no longer binds its parties” (¶ 13). The county’s invocation of the statutory duty to bargain in good faith and to maintain the status quo (see Wis. Stat. § 111.70) did not alter the majority’s interpretation of the plain text of the ordinance (see id.). In short, “[b]ecause no contractual obligations existed on September 29, 2011, the members of DC-48 were not ‘covered by the terms’ of a CBA on that date” (¶ 16).
Justice Ziegler filed a dissenting opinion that was joined in by Chief Justice Roggensack.
Property Taxes – Classification of Property as “Agricultural Land”
State ex rel. Peter Ogden Family Tr. of 2008 v. Board of Review, 2019 WI 23 (filed 14 March 2019)
HOLDING: For land to be classified as “agricultural land” for property tax purposes, a business purpose is not required.
SUMMARY: This case concerns two lots owned by the Ogdens in the town of Delafield. They maintain a barn and a one-acre apple orchard on the smaller of the two lots, the remainder of the lot consisting of untillable forest. The apples trees are individually staked out and planted in clean rows. The larger of the two lots contains a four-to-five-acre Christmas tree farm and a three-acre hayfield. The Christmas trees, like the apple trees, are individually staked out and planted in clean rows (see ¶ 43).
In 2016 the town’s board of review reclassified these two lots from “agricultural land” to “residential.” This resulted in a significant increase in the property tax owed for the two lots. The board’s position was that the land, to qualify for the “agricultural land” classification, had to be farmed for a business purpose. In his testimony before the board, the assessor admitted that the Ogdens had planted things on the lots, but he did not think they did so for business reasons.
On certiorari review of the board’s decision, the circuit court sustained the board’s classification of the property as “residential.” In a published decision, the court of appeals reversed. See 2018 WI App 26.
In a majority opinion authored by Justice Abrahamson, the supreme court affirmed. It agreed with the court of appeals that a business purpose is not required for land to be classified as agricultural land for property tax purposes (see ¶ 5). “No statute, administrative rule, or case law supports a business purpose requirement for the ‘agricultural land’ property tax classification” (¶ 32). “As the court of appeals correctly emphasized, it is of great import that the relevant statutes and administrative rules refer to ‘growing’ the relevant crops – here, Christmas trees, apples, and hay – not marketing, selling, or profiting from them” (¶ 31).
The supreme court further concluded that “under the circumstances of the instant case, the record conclusively demonstrates that the two lots at issue are entitled to be classified as ‘agricultural land’” (¶ 47). Therefore, it remanded the cause to the circuit court “with instructions that the circuit court order the Board: (1) to overturn the Assessor’s assessment and classify the appropriate portions of the two lots as ‘agricultural land’ and ‘agricultural forest land’; and (2) to affix a valuation to the two lots” (id.).
Justice Dallet filed a concurring opinion that was joined in by Justice A.W. Bradley.
Interesting facts, trends, tips, bits and bytes in the news.
Basketball, Philanthropy, and the Law
Dwyane Wade, the former Marquette University basketball standout (2001-03) and Miami Heat all-star, played the final game of his NBA career last month. But this story isn’t about basketball.
In 2010, Tamara Johnson, now a lawyer in Santa Fe, New Mexico, was one of three students nationwide to receive a full-tuition scholarship, cosponsored by Wade, to attend Marquette University.
Johnson went on to graduate from Marquette University Law School in 2017 and is a member of the State Bar of Wisconsin.
Before Wade’s final game, Budweiser released a video that showed Johnson and other beneficiaries of Wade’s philanthropy thanking him for the life-altering assistance. Johnson gave Wade her graduation cap and gown from Marquette.
Wade averaged 15 points per game in his final season, and scored 25 points in his final game.
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.
By the Numbers
– The estimated amount that will be spent on blockchain technology in 2019, a projected 89% increase from 2018, according to a report from International Data Corporation, a U.S.-based market research firm.
“According to the report, the financial sector will be the leading industry for spending in blockchain development this year,” wrote Helen Partz at the CoinTelegraph. The publication also reported that “demand for legal experts with blockchain technology is high.”
“For law students and those early in their legal careers, coupling a practical business approach with a working understanding of the technology is a good way to go,” said Brian Burlant, managing director at Major, Lindsey & Africa, a recruiting firm.
On the Radar
Sandra Day O’Connor: A Consequential Woman
Evan Thomas’s biography about Sandra Day O’Connor, the first woman justice on the U.S. Supreme Court, is getting good reviews.
“The book is billed as an ‘intimate portrait’ of O’Connor, and it certainly is,” writes Jeffrey Toobin in a book review of First: Sandra Day O’Connor, for the New York Times.
“The O’Connor family gave Thomas open access to the justice’s papers, including letters and diaries, and encouraged all who knew her, law clerks, as well as colleagues, to speak with him.”
Toobin describes O’Connor as “the most consequential woman in American history,” noting her immense power to shape American constitutional law as a swing justice for many years.
“It was her vote that saved abortion rights, her vote that preserved affirmative action, and her vote that delivered the presidency to George W. Bush in 2000,” Toobin wrote.
Turning to another U.S. Supreme Court justice, CNN legal analyst Joan Biskupic recently wrote a biography about Chief Justice John G. Roberts Jr.
Biskupic will be at the State Bar of Wisconsin’s Annual Meeting & Conference on June 13 in Green Bay to talk about the chief justice and the final days of the U.S. Supreme Court’s 2018-19 term.
Ethics in Utah: Is Bigamy Grounds for Disbarment?
The ABA Journal recently reported the Utah State Bar is investigating complaints that seven lawyers are violating professional ethics rules based on their polygamous relationships.
Bigamy is a crime in Utah, and the ethics rules prohibit attorneys from engaging in criminal acts that reflect adversely on the lawyer’s honesty, trustworthiness, or fitness. But do polygamous relationships, criminal or not, reflect adversely on a lawyer’s honesty, trustworthiness, and fitness to practice law?
At least one legal expert, Jonathan Turley, said this may be the start of an effort to challenge the state’s bigamy statute. Turley represented the family from “Sister Wives,” a reality TV show about a polygamist household.
“These lawyers should challenge the effort and underlying law,” Turley told the Salt Lake Tribune. “They enjoy the same constitutional protections as their clients. An effort to disbar them based on their lifestyle would raise serious constitutional questions.”
“We have taken this as seriously as a heart attack, because it’s that important.”
– Katherine “Shelley” Broderick, former dean of the University of the District of Columbia David A. Clark School of Law. She was responding to comments about the school’s bar exam passage rate in 2017, which sank to 38 percent. As a result, the school implemented several initiatives to improve the bar passage rates.
“How to reverse sliding bar exam pass rates is a puzzle that law deans across the country are trying to solve,” wrote Karen Sloan at Law.com. “The national average score on the Multistate Bar Exam – the multiple-choice portion of the exam – hit a 34-year low last July, and thousands of law graduates each year are failing to make the cut.”
Wisconsin remains the only state with a “diploma privilege.” Graduates of Marquette and U.W. law schools, if they meet certain curriculum requirements, don’t need to take the bar exam to gain admission to practice law in Wisconsin.
Extended Support for Windows 7 Ends Soon. Are You Prepared?
Microsoft will end extended support for Windows 7 on Jan. 14, 2020. Although Microsoft made its intentions known several years ago, the topic recently generated significant discussion on the State Bar of Wisconsin Practice411™ e-list.
The discussion focused on the risks of using expired Windows software and what to do now to upgrade computers running on Windows 7.
Microsoft publishes a help page for users with questions about Windows 7, other Windows 7 editions, and costs of upgrading to a current version of Windows. Visit the help page.
Before upgrading, ensure your current computer system requirements will support the hardware requirements for the new version of Windows. The help page also contains information regarding the end of support for other Windows products, so it’s worth a view.
To review the archived discussion, join the Practice411 e-list by visiting www.wisbar.org/Practice411elist.
Source: Christopher C. Shattuck – Practice Management Advisor (Practice411™), State Bar of Wisconsin
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A Different Perspective on Cuba
In terms of “Cuba: A Perspective from Wisconsin” (Wisconsin Lawyer, April 2019), thanks to Mr. Forward for opening up this important place and rich culture with his review of the trip taken there recently by 40 Wisconsin lawyers. My wife and I were there in May 2016 for five days. At that time, travel restrictions were lifted by President Obama in the context of a thaw in relations. It was very simple to obtain a travel visa; you could get it at the gate at the airport from the airline.
My assessment is somewhat harsher than Mr. Forward presented Cuba. I’m trying not to be polemical and the Cuban people are very pleasant, but Communism since 1959 has left Cuba in miserable shape for which the people have their leaders to thank. Havana is largely a slum. Your article says that the government does not control where tourists can go, which is true, but the tours and guides always drop people off in the small high-rent area of galleries and souvenir shops. That is, areas the government wants you to see.
My wife and I walked the slums, which went on and on. As far as market reforms are concerned, there are no markets to reform at present. Cuba is devoid of private stores, shops, or outlets except in a narrow range of tourist attractions. Food is scarce and tastes lousy. Only 20-30 percent of the population have some form of internet access, which is strictly censored and spotty. Cell phone coverage is weak and spotty the further you go out from central Havana.
Our five days there were more than enough for us to realize that the communist socialist dream is a nightmare. No one has money. There is nothing for the common person to buy even if they did have money. The old cars are charming. The island is quaint and sad.
Scott R. Winkler
Winkler Law Firm SC, Milwaukee
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Can Mere Mortals Really Keep All Those Files?
In “Storage: What to Do With All Those Closed Files” (Wisconsin Lawyer, March 2019), Tom Watson wrote that one topic keeps coming up at CLE programs where he speaks on risk management issues. That topic? File storage. More specifically, the questions were this: “What should I do with all those old files in my office, and how long should I keep them before it’s safe to toss them out?”
Like most things in the law, Watson wrote, there’s no magic answer. The solution is not as simple as a one-size-fits-all rule for when to destroy closed files. File retention and destruction are more complex than that.
A reader posted a comment:
Reader: Keeping a file “indefinitely” is not a possibility for mortal lawyers. Just a reminder that if lawyers are storing files electronically, they also must keep (in working order) whatever electronics are necessary to read and retrieve the files. I hope no one stored on Beta tapes!
U.W. Law School, Madison
Revisiting Wisconsin’s Birth Cost Reimbursement Policy
“Medicaid: New Birth Cost Recovery Rules for Unmarried Parents” (Wisconsin Lawyer, March 2019) contains misleading information regarding Wisconsin’s birth cost reimbursement policy.
Birth cost reimbursement orders apply to fathers with higher incomes as well as low-income fathers. Such orders can reimburse mothers who personally incur expenses related to the birth of their children, as well as reimbursing Medicaid when the state pays for the birth. Wisconsin’s limits (orders are capped at one-half the actual cost, and are limited to 5 percent of a father’s monthly income over 36 months) protect all fathers from unreasonable reimbursement orders while providing mothers and the state a vehicle to share reasonable costs with the other parent.
Federal law supports Wisconsin’s birth cost reimbursement policy. In 2007 the federal government directed states to update birth cost policies to ensure that they were not placing an undue burden on low-income fathers. Unlike many states, Wisconsin took the steps necessary to align its birth cost policy with the new federal standards and received permission from the federal government to continue collecting partial reimbursement pursuant to those new steps. States that did not update their policies in compliance with federal rules could not continue to collect reimbursement.
There is no objective evidence to support claims that birth cost reimbursement is linked to infant mortality, perpetuation of family poverty, family conflict, or delayed prenatal care. In fact, one study found that paternity establishment has a protective effect for children, particularly on infant mortality.1 The work of Wisconsin’s child support agencies to establish paternity for children born without a father’s name on the birth certificate provides the path for those fathers to have a greater level of involvement with their children, including the provision of social, economic, and emotional support.
Birth cost reimbursement is based in well-established public policy that Medicaid is the payer of last resort. Like the child support program itself, birth cost reimbursement stems from the principle that children are the primary responsibility of their parents, not taxpayers. Wisconsin’s birth cost reimbursement policy is designed such that fathers, to the extent that they are able, share some responsibility for the birth of their children.
1 Emmanuel M. Ngui et al., Relationship of Paternity Status, Welfare Reform Period and Racial/Ethnic Disparities in Infant Mortality, 9. Am. J. Men’s Health 350, 356 (2015).
Chief Legal Counsel
Milwaukee Department of Child Support Services
Author response: Proponents of Medicaid birth cost recovery conflate the practice with the benefits of establishing paternity and traditional child support obligations. They ignore the fact that the vast majority of states successfully accomplish those objectives without imposing the counterproductive burdens of birth cost arrearages. Unlike child support, birth cost recovery deprives children of money that might otherwise be available to support their needs. It supports government, not children. Ultimately, we need to consider whether our collective values are fairly represented by a policy that takes from a child for the questionable aim of teaching the father some illusive lesson in responsibility.
Richard A. Lavigne Jr.
ABC for Health Inc., Madison
Dispelling the Taboo of a Solo Practice
It's time to bust the myth that solo practice is only for lawyers who can't make it somewhere else.
Derek A. Hawkins
“Oh wow, good for you,” “Really? Why did you do that?,” and “How is that working out for you?” are some of the condescending comments I received when discussing my journey with fellow lawyers and disclosing that I started my own law practice right out of law school in 2014.
com derek.hawkins harley-davidson Derek A. Hawkins, Marquette 2013, is trademark corporate counsel at the Harley-Davidson Motor Co., Milwaukee. He previously operated a Milwaukee-based private practice focusing in trademark law and served as general counsel for Markable Inc., an AI-based startup in Madison.
When hearing these comments, I couldn’t help but reflect on my time as a law student and my exposure, or lack thereof, to what life as a solo practitioner would entail. Granted, there are courses that touch on the basics of private practice and what is required to start a law firm. But I think current instruction is particularly lacking.
Law school left me with the impression that starting a solo practice was an avenue reserved exclusively for people who couldn’t find a decent job at a law firm or who first worked in Big Law for several years, aggregated a large book of business, and established themselves as an expert in a field. In the five years since graduation, I have found that this rhetoric hasn’t changed much – you attend law school, work as a summer clerk at a big firm, get hired by a big firm upon graduation, and thereby kickstart your career. This was the primary narrative provided to me as a student, and current law students echo this sentiment from their respective law schools. Why is this the standard?
I took what would be classified as a “nontraditional” approach to my career. Disinterested with my internships and work experiences as a rising 2L, I looked for other ways to put my legal skills to good use. I managed to spool online consulting gigs with law firms across the United States and nonprofit organizations into relationships that would help me obtain great work experience and clients when I opened my private practice. The discipline, perseverance, and tenacity to build an efficient business that would provide for me and my family led me to my current in-house position with one of the world’s largest companies, responsible for protecting their multibillion-dollar brand.
Nontraditional pathways should be respected, celebrated, and put in the forefront of law students’ minds.
I say this to highlight that there is no talismanic approach to leveraging a law degree and there is nothing wrong with starting a solo practice right out of law school or deliberately building an experience that aligns with your interests. This might take you away from the law entirely, but that’s okay! While any endeavor should be met with preparation, due diligence, and humility, a nontraditional pathway can provide unparalleled experience. A certain level of discipline and responsibility comes from having your name on the door and taking your career squarely into your own hands.
Nontraditional pathways should be respected, celebrated, and put in the forefront of law students’ minds. As lawyers we serve at the pleasure of individual clients, businesses, and their owners, but it is time for lawyers to become entrepreneurs and build their own pathway in the law on their own terms. I challenge my colleagues to question the status quo, take a different approach to their careers and, in the words of the late songwriter, entrepreneur, and community activist Ermias Asghedom, be prolific, so gifted, and the type that’s going to go and get it.
Three Pathways Lead to Happy Lawyers
Autonomy, mastery, and connection to others correlate most strongly with lawyers' long-term well-being. Learn how to reclaim your best, authentic self and other ways to be a happier lawyer.
Paula M. Davis-Laack
Happy lawyer – sounds like an oxymoron, right? Having practiced law for seven years, I can’t think of many colleagues I would classify as happy or even mildly enthusiastic. More troubling, when I ask lawyer audiences how many would pick this profession if they had to do it all over again, very few hands go up. The law is a well-regarded profession (despite all the lawyer jokes you hear) that affords most in it a very comfortable income, prestige, and respect – yet something is missing.
I recently spoke at a conference on lawyer well-being and was thrilled to co-present with one of my favorite law professors, Larry Krieger. Krieger, together with social scientist Ken Sheldon, authored a wonderful study examining lawyer satisfaction. They discovered that the things that lawyers think will make them happy long term in the profession (for example, money, prestige, making partner, status) are exactly the opposite of what actually does lead to well-being in the law, and scientifically, have little to no correlation with happiness. They found, instead, that three pathways correlate most strongly with long-term well-being.1
Pathways to Long-term Lawyer Well-being
Autonomy. Lawyers who are highly autonomous feel like they can make their preferred choices and can express themselves authentically. Authenticity was a consistent problem for me when I practiced law because I often felt as though I left the best of who I was in the car. I would pull into the parking structure and become “Paula the lawyer” – the person I thought I needed to be to be successful in the law – rather than the person I really was who was already a success.
com paula marieelizabethcompany Paula Davis-Laack, Marquette 2002, MAPP, is the founder of the Stress & Resilience Institute, a training and consulting firm focused on enhancing resilience, well-being, and engagement in the legal profession. She is the author of the e-book, From Army Strong to Lawyer Strong.
In addition, this can be a big barrier to success for younger lawyers who don’t have much opportunity to say no to a partner or to create flexibility in their day, and it’s something firms and organizations should begin to pay attention to.
Working with people who actively support this autonomy in others is strongly tied to well-being, while working with a partner with a more controlling style is predictably de-motivating.2 Importantly, autonomy-support can be taught, and research shows that even formerly controlling teachers can be trained to provide better autonomy support to employees.3 In fact, businesses that supported an autonomous environment (versus top-down direction) grew at four times the rate of control-oriented companies and had one-third the turnover.4
Mastery. Happy lawyers are the masters of their domain. Mastery is your desire to get better at something that matters to you, to feel competent and be successful at difficult tasks. Getting frequent feedback (especially about what is going right as you develop your practice), observing others who have mastered the skills you seek to develop, coaching in areas that need development, and mentoring all help to develop a sense of mastery.
Connection to Others. Relatedness is how you connect or relate to others and whether you feel a sense of belonging at work. Chronic incivility depletes the legal profession’s one true resource – its people. Collegiality, on the other hand, fosters psychological safety – the feeling that the work environment is trusting, respectful, and a safe place to take risks. When lawyers don’t feel psychologically safe, they are less likely to seek or accept feedback, experiment, discuss errors, and speak up about potential or actual problems.5
More importantly, there is a loneliness problem in the legal profession. A study written about in Harvard Business Review in 2018 found that of all the professions measured, lawyers scored the highest on loneliness.6 This may be because lawyers’ work is often solitary, but also because they are busy. After long hours at the office, many lawyers report that they just want to get home to their families, hobbies, or other pursuits.
Businesses that supported an autonomous environment (versus top-down direction) grew at four times the rate of control-oriented companies and had one-third the turnover.
I have also seen similar data with my own work – many lawyers report a range of social-connection concerns ranging from not having a strong network of mentors or people they can count on for support to actually reporting that they feel lonely.
Harvard Law School professors Scott Westfahl and David Wilkins emphasize the importance of networks and connecting in their recent Stanford Law Review article. These connections allow lawyers to leverage their technical and professional skills in new ways, collaborate meaningfully to solve complex client problems, and provide the space to find different ideas, people, and opportunities. Sheldon and Krieger’s study further supports the assertion that relationships, in all forms (to self, others, work, community and your direct partner/supervisor) are the ultimate key to lasting satisfaction in the legal profession.7
Additional Ways to Build the Pathways
Westfahl and lawyer-consultant Avery Blank offer these other suggestions to build the three pathways outlined above:
Give attorneys greater responsibility for hiring, pro bono, and charitable activities, including real leadership roles.
Ask associates to develop new training, lateral integration programs, and metrics for success and to report regularly to management about associate preparedness and perceived gaps.
Provide more opportunities for lawyers to write, speak, and otherwise represent the firm through activities that can also promote business development.8
Lawyers are like everyone else in terms of what they need to feel satisfied and happy at work, but their training can interfere with their capacity to meet these needs of autonomy, connection, and mastery. Professionally, lawyers are responsible for doing all of the due diligence in a matter, analyzing what could go wrong in a situation, and steering their clients away from negative effects. That’s important when lawyers are engaged in the practice of law; however, when lawyers practice looking at issues in a skeptical way 12-14 hours per day, that thinking style becomes harder to turn off when it’s not needed. Ultimately, it can undercut leadership capabilities, interactions with clients, staff, and family, and the way life is viewed generally.
In addition, law firm and organizational leaders aren’t always well-versed in this research and are often unaware of the powerful effect of these psychological needs on motivation and engagement and the simple practices that can influence them.
So yes, happiness is in fact possible in the legal profession; firms, organizations, and the individuals in them simply need to pay attention to the things that actually cultivate it, which is often the opposite of what society tells us really matters.
Three Pathways that Correlate Most Strongly with Long-term Well-being
Larry Krieger and Ken Sheldon’s study on lawyer satisfaction found that autonomy, mastery, and relatedness are the three factors that correlate most strongly with long-term well-being.
Autonomy is the ability to make one’s own choices.
Mastery means getting better at something that matters and feeling competent and being successful at difficult tasks.
Relatedness is how a person connects or relates to other people and whether the person feels a sense of belonging.
Here are some suggestions for building these pathways, for yourself or your coworkers.
- Work with people who actively support autonomy.
- Get feedback and coaching frequently.
- Observe others.
- Be nice to other people, and seek out people who are nice to you.
- Give lawyers more responsibility for pro bono and other volunteer work.
- Ask associates to develop hiring and training activities.
- Give lawyers opportunities to engage in business development such as writing and speaking.
1 Lawrence S. Krieger & Kennon M. Sheldon, What Makes Lawyers Happy? A Data-Driven Prescription to Redefine Professional Success, 83 Geo. Wash. L. Rev. (2015). See also Dianne Molvig, What Makes Lawyers Happy? 87 Wis. Law. (July 2014).
4 Paul P. Baard, Edward L. Deci & Richard M. Ryan, The Relation of Intrinsic Need Satisfaction to Performance and Well-Being in Two Work Settings, 34(10) J. Applied Soc. Psychol. 2045-68 (2004).
5 Christine Porath, How Rudeness Stops People from Working Together, Harvard Bus. Rev. (Jan. 20, 2017).
6 Shawn Achor et al., American’s Loneliest Workers, According to Research, Harvard Bus. Rev. (March 19, 2018).
7 Scott A. Westfahl & David B. Wilkins, The Leadership Imperative: A Collaborative Approach to Professional Development in the Global Age of More for Less, 69 Stanford L. Rev. (June 2017).
8 Avery Blank & Scott Westfahl, Leveraging the Strengths of Millennials: Finding Common Ground and Hidden Opportunities, PD Quarterly (a NALP publication) (May 2017).
Third-party Visitation: A Historical Perspective
When crafting an approach to third-party visitation, Wisconsin appellate courts should keep in mind the harm to children's interests created by litigation itself.
Mark R. Fremgen & Gregg M. Herman
“Ours is by no means a tradition limited to respect for the bonds uniting the members of the nuclear family. The tradition of uncles, aunts, cousins, and especially grandparents sharing a household along with parents and children has roots equally venerable and equally deserving of constitutional recognition.”1
The ideal of the nuclear family – a mother, a father, and two children – has never truly been an accurate portrayal of the family. From generation to generation, in one culture to the next, family structures have never been so limited. Many families are defined by multiple generations within one household, especially including grandparents. Grandparents have historically been involved in, if not entrusted with, raising the grandchildren.
But third-party laws, sometimes colloquially referred to as “grandparents’ rights” statutes, although present in some degree or another in every state, are very limited. From the perspective that the position of a third party, for example a grandparent, should not be equal to or greater than that of a parent, except in unique circumstances, the limitations in these statutes is understandable. From a historical perspective, these statutory limitations are unusually dismissive of the importance of third parties, grandparents in particular.
gov mark.fremgen wicourts Mark R. Fremgen, John Marshall 1990, is a Dane County Circuit Court commissioner, Madison.
com gherman loebherman Gregg M. Herman, U.W. 1977, is a family law attorney with Loeb & Herman S.C., Milwaukee.
On the other hand, allowing expansive (or perhaps, any) rights to third parties to litigate over children runs the danger of a cure being worse than the disease. Litigation is inimically harmful to children. The danger is not only because of the initial litigation; once the door is open, the children could easily be the center of ongoing battles to modify court orders for years in the future.
And worse, the fighting would occur not only with the initial motion to force parents to share children, but over and over given that motions to modify are inevitably litigated over the years. As stated by the Texas Supreme Court: “For the children themselves, the conflict associated with the litigation itself is often much greater than the conflict that led to a divorce or custody dispute … because children suffer needlessly from traditional litigation, the amicable resolution of child-related disputes should be promoted forcefully.”2
Regardless of the dynamics of the individual personalities, the crux of most disputes involving a fit parent’s determination to deny a grandparent (or other third party) any period of visitation with their minor children is the perceived presumption that fit parents have an unquestionable right to raise their children in any reasonable manner of their choosing. This includes the determination as to whether grandparents should be allowed any contact, let alone significant periods of visitation.
Unfortunately, there is little (or perhaps more accurately, no) authority in Wisconsin that recognizes the detrimental effect of litigation on children. On issues such as prohibiting contingent-placement orders and refusing to honor stipulations freezing child support, Wisconsin courts consistently ignore the harm to children created by litigation itself. That is unfortunate, as frequently the best interests of children are best served not by money, but by peace.
The potential disruption to families is important as well. It is not far-fetched to imagine both sets of grandparents being alive and all four having remarried. If each “new” set gets one weekend per month, there are not a lot of weekends left over for the intact family to have together. And this does not even account for other weekends for third parties other than grandparents, who also might have formed a parent-child relationship with the children.
U.S. Supreme Court Precedent
Although a number of older cases have addressed the rights of parents in directing the care, custody, and management of their children,3 the issue of third-party visitation, and in particular, grandparent visitation, was addressed primarily in a U.S. Supreme Court case, Troxel v. Granville. In Troxel, the plurality opinion noted that parents have a constitutionally protected right to raise their children without governmental interference. This right is based in the privacy protections of the U.S. Constitution, derived from the 14th Amendment, which generally prohibits governmental interference with a person’s liberty without due process. To award visitation to a third party over a parent’s objection is to interfere with the parent’s constitutionally protected right to make decisions regarding the “care, custody, and control” of his or her children.4
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In the plurality opinion by Justice O’Connor, joined by Justice Ginsburg, Justice Breyer, and Chief Justice Rehnquist, the Court held that the Washington state law pertaining to grandparent visitation violated the “fundamental right” of parents to make decisions about their children. Six opinions in all were written by nine justices.
Although this state law was found unconstitutional, the Court indicated that more limited laws aimed at preserving grandparents’ rights might be valid. The plurality opinion reaffirmed the parents’ freedom to provide for the custody and care of their children under the Due Process Clause of the 14th Amendment, noting that the state courts must afford a parent’s decision “special weight.”5 In doing so, the Troxel Court noted that it is not the “fit custodial parent’s” burden to disprove “that visitation would be in the best interest” of their child.6
Wisconsin Visitation-related Statutes
In Wisconsin, three statutes address visitation with third parties. One is in Wis. Stat. chapter 54, which addresses guardianships; one is in Wis. Stat. chapter 48, the Children’s Code; and one is in Wis. Stat. chapter 767, the Family Code. Terminology is important to note. In each of these statutes, but in particular the Family Code that will be discussed, time with a third party, including a grandparent, is referred to as “visitation,” compared to periods of “placement” attributed to time with a parent. By definition, the time that a grandparent may be awarded to spend with a grandchild is not the same as that with a parent, regardless of the historical relationship between the grandparent and the child.7
Although limited, and different from parental placement, Wis. Stat. section 767.43 provides grandparents and other third parties the opportunity to pursue some form of visitation. However, there is no per se “right” to visitation. “The statute’s stated conditions do not guarantee that a visitation order will issue where the statutory elements are satisfied. To the contrary, the decision clearly remains within the court’s discretion even where the statutory elements are met.”8 The third-party visitation statute – Wis. Stat. section 767.43 – includes not only grandparents but also a “great-grandparent, stepparent or person who has maintained a relationship similar to a parent-child relationship with the child.”9
As noted, third-party visitation statutes are generally quite limited, and the terms specifically differentiate between nonparental relative placement and primary parent placement, yet the Wisconsin statute may be considered more advanced in that it expands the opportunities for visitation not only to grandparents and great-grandparents but also to step-parents and other potentially unrelated third parties who have had a “parent-child relationship with the child.” In theory this could be a long-time friend of the family or an individual from a dissolved long-term significant relationship. This nontraditional provision has been the basis of standing in cases involving same-sex relationships, in which Wisconsin appellate courts have held that a same-sex, non-adoptive partner is not a “parent” as it is defined in Wisconsin.10
Join authors Mark Fremgen and Gregg Herman as they present, “Grandparent Visitation – and the Legal Standard Is …,” during the State Bar of Wisconsin 2019 Annual Meeting & Conference in Green Bay, Friday, June 11, 8-9:15 a.m.
Michels v. Lyons is a significant Wisconsin case affecting the fundamental liberty interest in parenting the child. A panel of attorneys, family court commissioners, and judges will discuss the case, its importance, and the standards for grandparent visitation going forward. From this session, you will:
- Understand the evolution of parental rights and grandparent visitation in Wisconsin
- Recognize key points to granting grandparent visitation as determined in Troxel v. Granville
- Comprehend the changes to granting grandparent visitation in the wake of Michels v. Lyons
To register, go to www.wisbar.org/AMC/2019/.
<iframe src="//www.youtube.com/embed/n3UIn7VX3TQ" width="525" height="295" frameborder="0" allowfullscreen></iframe>
Wisconsin Third-party Visitation Case Law
Unlike a grandparent, great-grandparent, or step-parent, whom the court has determined need not meet the criteria of a “parent-child-like” relationship,11 a non-adoptive individual from a significant relationship must meet a higher level of scrutiny before the court is likely to entertain a petition for third-party visitation. Such parties must prove four elements: 1) the biological or adoptive parent consented to, and fostered, the petitioner’s formation and establishment of a parent-like relationship with the child; 2) the petitioner and the child lived together in the same household; 3) the petitioner assumed obligations of parenthood by taking significant responsibility for the child’s care, education, and development, including contributing toward the child’s support, without expectation of financial compensation; and 4) the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.12
Yet, no different than any other visitation petition under Wis. Stat. section 767.43, there is no guarantee that were one to meet the above criteria that the court would grant the petitioner any visitation.13 Equally accurate is the fact that the biological parent does not have an absolute right to deny the petitioner visitation.14
Although the biological parents do not have an absolute right as to issues affecting their children, as noted in Troxel, the positions of parents are to be afforded “special weight.” Although the Supreme Court failed to specify what amounts to “special weight,” the Troxel Court clearly was concerned with the Washington state trial court’s findings in which the trial court substituted its own views about the benefits of visiting a grandparent for the parent’s reasons for denying grandparental visits.15
There is little (or perhaps more accurately, no) authority in Wisconsin that recognizes the detrimental effect of litigation on children.
One Wisconsin court has referred to this standard as creating a “rebuttable presumption” that a fit parent’s decision is in the best interests of the child.16 In an effort to define “rebuttable presumption,” that court held that once a parent has granted or acquiesced to some form of visitation with a third party, even if later withdrawn by that same parent, the parent has established the minimum level of visitation for the third party absent other evidence contrary to the best interests of the child.17
Arguably, however, this presumption has not been applied consistently by Wisconsin courts. In Rogers v. Rogers,18 for example, the court of appeals applied the Troxel analysis to affirm denying grandparents court-ordered visitation. Three years later, in Rick v. Opichka,19 the court of appeals affirmed an order granting grandparent visitation pursuant to Wis. Stat. section 54.56, rejecting claims that it is unconstitutional and violates the Equal Protection Clause of the U.S. Constitution. The Rick decision does not distinguish, nor even cite, Rogers.
Pending Grandparent Visitation Case
The pending Wisconsin Supreme Court case, Michels v. Lyon,20 may potentially address, with more specificity, the parameters of grandparent visitation petitions, and in particular what constitutes special weight. The court of appeals certified the issue of what “standard of proof [is] required” to overcome the special weight afforded to parents under Troxel for a court to award visitation rights under the Wisconsin third-party visitation statute.
In Michels, the grandmother filed a petition to compel her son (the child’s father) and the child’s mother to provide her with additional visitation time with her granddaughter. The grandmother had been allowed visitation with the granddaughter but, over time, it had been reduced. The circuit court granted the grandmother some extended visitation despite the opposition from presumably fit parents. The parents argue that before a court can overrule the parents’ determination as to grandparent visitation, the court must find that the child would be harmed.
The supreme court’s ruling is likely to offer courts a better understanding of how the presumption applies in third-party visitation petitions and what evidence may be necessary to overcome such presumptions. However, based on the realities of family court, and in this case, grandparent visitation petitions, it seems likely that the court’s ruling will fail to properly address the issue of “harm” to children; the harm that children have faced before, face currently, and will likely continue to face from being placed in the middle of parental and grandparental family disputes is unlikely to be eliminated in its entirety.
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How do you overcome challenges and obstacles?
The number one problem facing our profession is the lack of a proper work-life balance. Studies suggest a higher than average alcohol and drug dependency rate, suicide rate, and burnout for members of the legal profession compared to other professions.
I do not believe that this is the case because the legal profession is any more dangerous than law enforcement, firefighting, or the medical profession. I think lawyers tend to become too entangled in clients’ matters, work beyond a normal schedule (including weekends and holidays), and fail to "let go" at the end of the day.
For me, at the end of the day, I leave my work at the office. I know it will be there again in the morning. When I leave for the day, I relax at home by reading, playing with our dog, or watching a movie (we are late to the game, but have started binge-watching “Game of Thrones”). In the summer, my wife and I like to get out around Madison on our bikes and spend weekends visiting our kids in Chicago.
Maintaining a good balance keeps me centered, and for the most part even-keeled, which is important when interacting with individuals in court who are dealing with difficult problems.
gov mark.fremgen wicourts Mark R. Fremgen, Dane County Circuit Court, Madison.
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1 Moore v. City of East Cleveland, 431 U.S. 494, 504 (1977).
2 In re Lee, 411 S.W.3d 445 (Tex. 2013).
3 Myers v. Nebraska, 262 U.S. 390, 399-400 (1923) (holding that 14th Amendment’s liberty guarantee included right to “bring up children,” which includes “natural duty of the parent to give his children education suitable to their station in life”); Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925) (invalidating Oregon law that required compulsory public school attendance, finding “it unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control”); Wisconsin v. Yoder, 406 U.S. 205 (1972) (reaffirming parental liberty interest in education of children); Santosky v. Kramer, 455 U.S. 745, 753, 760 (1982) (holding that natural parents’ fundamental liberty interest in care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the state; “until the State proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship”).
The Supreme Court has ruled in numerous cases that although parents have a fundamental right to parent their children, it is weighed against the state’s “compelling interests.” Palmore v. Sidoti, 466 U.S. 429 (1984) (holding that state had compelling interest against basing custody decisions on racial classification); Lassiter v. DSS, 452 U.S. 18, 27 (1981) (stating that a parent’s right to custody and care of his or her children “undeniably warrants deference…, absent a powerful countervailing interest protection”); Barstad v. Frazier, 118 Wis. 2d 549, 569, 348 N.W.2d 749 (1984) (in regard to custody disputes between parents and third parties, recognizing that parents have preeminent right to custody of their children absent finding of unfitness, inability, or compelling reasons due to dissolution of parent-child relationship or dereliction of parental responsibilities; compelling reasons include abandonment, persistent neglect of parental responsibilities, extended disruption of parental custody, or other similar extraordinary circumstances that would drastically affect child’s welfare). See also Ford v. Ford, 371 U.S. 187 (1962) (“Unfortunately, experience has shown that the question of custody, so vital to a child’s happiness and wellbeing, frequently cannot be left to the discretion of parents. This is particularly true where, as here, the estrangement of husband and wife beclouds parental judgment with emotion and prejudice.”).
4 Troxel v. Granville, 530 U.S. 57, 67 (2000).
5 Id. at 68-70.
6 Id. at 69.
7 Rick v. Opichka, 2010 WI App 23, 323 Wis. 2d 510, 780 N.W.2d 159. The times the children stay with a grandparent are “visits” and not “placement,” even when the visitation is more expansive than simply a few hours or one overnight on an infrequent basis.
8 Rogers v. Rogers, 2007 WI App 50, 300 Wis. 2d 532, 731 N.W.2d 347 (“the court may grant reasonable visitation rights” to the petitioner).
9 Wis. Stat. § 767.43(1).
10 In Wendy M v. Helen E.K. (In re Guardianship of O.G.M-K), 2010 WI App 90, 327 Wis. 2d 749, 787 N.W.2d 848, in the context of a guardianship case, filed after the dissolution of a long-term same-sex relationship, the appellate court held that a same-sex significant other (non-adoptive partner) is not a “parent” as it is defined by statute. In Dustardy H. v. Bethany H. (In re Paternity of Christian R.H.), 2011 WI App 2, 331 Wis. 2d 158, 794 N.W.2d 230, the court noted, though not the focus of the appeal, that a same-sex partner is not a parent under Wis. Stat. section 891.40 (artificial-insemination statute), because that statute applies only to the “husband” of the artificially inseminated woman.
11 Meister v. Meister, 2016 WI 22, 367 Wis. 2d 447, 876 N.W.2d 746.
12 Holtzman v. Knott (In re Custody of H.S.H.-K), 193 Wis. 2d 649, 694-95, 533 N.W.2d 419 (1995).
13 Due process requires courts to presume that a fit parent’s decision regarding nonparental visitation is in the child’s best interest, Roger D.H. v. Virginia O. (In re Paternity of Roger D.H.), 2002 WI App 35, 250 Wis. 2d 747, 641 N.W.2d 440, although this is only a presumption and the trial court must make its own assessment of the child’s best interests.
14 In re Custody of H.S.H.-K, 193 Wis. 2d at 692. The law directs the court to respect and protect parental autonomy, serve the best interest of the child, and recognize the important role of a nonparent who has a parent-like relationship with a child when the child’s life is disrupted by the dissolution of a marriage. Id. at 693.
15 It is not enough for a trial court to think that, absent evidence that the grandparent’s lifestyle is going to negatively affect the child, any visit with a grandparent is beneficial. See Troxel, 530 U.S. at 69, 72-73 (noting with disapproval the verbatim ruling from the Washington trial court: “the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a ‘better’ decision could be made”). Nor is it proper for a court to ignore the determination of a fit parent and to base its opinion on a “mere disagreement” with the parents, Roger D.H., 2002 WI App 35, ¶ 19, 250 Wis. 2d 747.
16 Martin L. v. Julie R.L. (In Interest of Nicholas L.), 2007 WI App 37, 299 Wis.2d 768, 731 N.W.2d 288.
17 Id. ¶¶ 12-15.
18 Rogers, 2007 WI App 50, 300 Wis. 2d 532.
19 Rick, 2010 WI App 23, 323 Wis. 2d 510.
20 Michels v. Lyons, No. 2017AP1142.
Decision: Courts Don’t Have Inherent Authority to Terminate Probation Early
May 16, 2019 – The Wisconsin Supreme Court has rejected a probationer’s argument that circuit courts have inherent authority to reduce the length of a probation term despite a statute that allows modification only under certain circumstances.
Dennis Schwind argued the circuit court’s statutory ability to modify probation, under Wis. Stat. section 973.09(3)(d), does not limit the court’s inherent authority to do so.
But in State v. Schwind, 2019 WI 48 (May 3, 2019), a majority (4-2) concluded that inherent authority of courts “consists of only those powers that are necessary for the judiciary to accomplish its constitutionally mandated functions” and the circuit court “does not have inherent authority to reduce or terminate a period of probation.”
Schwind pled guilty to numerous child sexual assault charges that subjected him to a 100-year prison sentence. Under the plea agreement, though, the court stayed a 10-year prison term so that he served one year in jail with 25 years of probation.
In 2002, Schwind violated the terms of probation by having physical contact with the victim and unsupervised contact with other children. He also failed a sex offender treatment program. The court imposed an additional year of jail time.
In 2014, 13 years into his 25-year probation period, Schwind filed a motion for early termination of probation, which is allowed under section 973.09(3)(d).
Schwind did not meet the requirements for early termination, but he argued that the circuit court could use its inherent authority to order early termination of his probation.
At first, the circuit court judge did not rule on whether circuit courts could use inherent authority in this type of case. Instead, the court said a request for early probation would be denied, even if the court had inherent authority to reduce probation periods.
In a motion for reconsideration, the circuit court ruled that circuit courts don’t have inherent authority to reduce probationary periods, since the statute applies.
A state appeals court relied on a 2010 appeals court ruling, which the supreme court affirmed. That decision did not decide whether courts have inherent authority.
Even if it did have inherent authority, the appeals court said, it could be only used under the same factors that circuit courts use to reduce a sentence.
There would need to be a clear mistake, a new sentencing factor, or undue harshness or unconscionability. The appeals court said none of those factors were present in Schwind’s case, so the appeals court affirmed the circuit court’s ruling.
On appeal, the Wisconsin Supreme Court affirmed the appeals court, examining the boundaries of the circuit court’s inherent authority while cautioning that “issues regarding the scope of inherent authority carry separation of powers concerns.”
“Recognizing the need for caution in this area, we are careful to invoke inherent authority if, but only if, invocation is necessary ‘to maintain [the court’s] dignity, transact their business, [and] accomplish the purposes of their existence,’” wrote Chief Justice Patience Roggensack, noting Wisconsin courts generally exercise inherent authority in three areas: 1) “to guard against actions that would impair the powers or efficacy of the courts or judicial system”; 2) “to regulate the bench and bar;” and 3) “to ensure the efficient and effective functioning of the court, and to fairly administer justice.”
Unlike the court’s sentencing powers, which derive from the state constitution, the chief justice noted that probation is a statutory creation of the Wisconsin Legislature.
“[P]robation is a shared power not because it is a common-law judicial power that was incorporated into the Wisconsin Constitution, but only because the legislature chose to permit it,” Chief Justice Roggensack wrote. “[C]ourts have never the power to impose probation without statutory authorization.”
The majority said “reducing a term of probation does not fit within any of the three areas in which courts have traditionally exercised inherent authority.”
“[W]e conclude that courts do not have the inherent authority to reduce a term of probation,” Chief Justice Roggensack wrote.
Justice Rebecca Dallet wrote a separate opinion, concurring in part and dissenting in part. Justice Ann Walsh Bradley joined Justice Dallet’s opinion.
Justice Dallet concluded that a circuit court “may reduce a term of probation as an exercise of its inherent authority to efficiently and effectively function and to administer justice fairly.” She said a statute “cannot limit the court’s inherent authority.”
“Because sentencing and probation serve different purposes, constraining a circuit court’s authority to reduce a term of probation in the same way that it modifies a sentence is an attempt to put a square peg in a round hole,” Justice Dallet wrote.
Although Dallet disagreed with the majority’s opinion on inherent authority, she agreed that it could not be used to reduce Schwind’s probation term in this case:
“The circuit court stated that even if it had the inherent authority to reduce Schwind’s term of probation, early termination of probation was not warranted in this case. In making this determination, the circuit court did not erroneously exercise its discretion.”
Justice Shirley Abrahamson did not participate in the case.
Remembering Wisconsin's Black Lawyers
The Wisconsin Association of African-American Lawyers is compiling a history of Black lawyers in Wisconsin and needs your help in recounting that story. Perhaps my memories may spur some of your own.
Celia M. Jackson
Vel Phillips was a trailblazer in law and politics in Wisconsin, breaking many barriers for women and African Americans. She was the first Black woman to graduate from the U.W. Law School.
Attending the Wisconsin Association of African-American Lawyers (WAAL) annual scholarship dinner in 2018 brought back many memories. A video tribute to Vel Phillips recognized her many accomplishments. I was involved in the very first scholarship dinner, named in honor of Vel’s late husband, W. Dale Phillips, who had recently passed away. He was one of Milwaukee’s unsung heroes who quietly made an impact on our community. Vel was thrilled with this recognition and gladly supported the idea and participated in the project. Dennis Archer, then a justice on the Michigan Supreme Court and later mayor of Detroit, was our first keynote speaker. He gave a rousing speech to a full house. The dinner celebration was a tremendous success.
Several of my colleagues were instrumental in making this happen. Deborah Ford, Michael Morgan, Sherman Mitchell, Vincent Lyles, James Hall, and Carl Ashley were in leadership positions in the Wisconsin Association of Minority Attorneys, formerly the Wisconsin Black Lawyers Association. All of them went on to do important work in the legal field. We all worked hard over the years striving to make contributions to the community.
In particular, I recall Felmers Cheney, a former Milwaukee police officer, who served as president of the Milwaukee chapter of the NAACP. The Milwaukee chapter received numerous requests for legal assistance and, because the organization did not have a legal staff, asked local lawyers to review cases. We had a revolving roster of attorneys who would volunteer on Saturday mornings and provide guidance to community members on potential civil rights violations.
James Jones was the first Black law professor at the U.W. Law School. He was a labor scholar and a source of inspiration for many students with his unyielding persistence for excellence.
So Many Memories
I remember helping to organize mock trial tournaments for African-American high school students who did not have access to the State Bar of Wisconsin’s competition. Lawyers volunteered their time as coaches, role played as judges, and were fully engaged in the experience. Watching the young people rise to the occasion to appear and argue their cases, dressed in their Sunday best, was priceless. For me, these were defining moments filled with appreciation and joy, witnessing our young people full of self-confidence and tenacity in their court presentations. It was also fun for the lawyers, who loved the competition and the chance to contribute to the development of young people in our community. These were noteworthy moments that provided opportunities to give back, to promote dignity, and to experience Black pride.
com celiamcjackson yahoo Celia M. Jackson, U.W. 1980, has been in private practice and served as a Milwaukee County ADA, assistant dean at Marquette University Law School, and Secretary of the Department of Regulation and Licensing in the Gov. Doyle administration. She is currently retired.
I remember being actively involved in the State Bar of Wisconsin. I was one of the original members of the Minority Placement Committee. This was a group tasked with increasing the number of clerkship opportunities for attorneys of color in the major law firms. This group made a significant impact on Black attorney representation in corporate settings and preceded today’s Diversity Clerkship program.
I remember being sworn into the State Bar of Wisconsin along with some of my classmates, including Danae Davis, Fred Gordon, Paul Brady, Felix Mantilla, Yvonne Huggins, Beverly Njuguna, and Lelia Harmon. It was a proud moment after a journey laced with challenges and rewards. I later married Donald Jackson before joining the Milwaukee County District Attorney’s office, and he and Ken Cummings helped mentor me as a new trial attorney. I was the second African-American woman in that office.
When I worked at Marquette University Law School as an assistant dean, I witnessed several milestones. A group of seven Black students graduated in 1987. It was the first time in the history of the law school that more than two Black students completed the curriculum and graduated at one time. I also witnessed the first African-American woman professor in the law school, Phoebe Williams, who taught and had a long and distinguished career. She mentored many students during her tenure.
Mabel Raimey is believed to be the first Black woman to graduate from Marquette University Law School in 1927. Photo: Department of Special Collections and University archive - Marquette University Library.
I remember the courageous Black lawyers who came before me and helped to break barriers and pave the way for future Black attorneys. They include pioneers such as Lloyd Barbee and Vel Phillips; brothers Terrance Pitts, a county supervisor, and Orville Pitts, a noted lawyer in the Milwaukee City Attorney’s office; the Black-owned law firms of Roy Wilson, John Broadnax, and Clifton Owens; and the firm of W. Dale Phillips, Emmet Gambrell, LeRoy Jones, and Russell Stamper.
I remember the Black lawyers who were trailblazers in the large law firms: Richard Porter, John Daniels, Debra Lathen, James Hall, Walter White, Ulice Payne, Emile Banks, and others.
I remember the Black lawyers who went on to serve in a judicial capacity. They include family court commissioner Andrew Reneau and circuit court judges Vel Phillips, Clarence Parrish, Fred St. Clair, Harold Jackson, Russell Stamper, Stanley Miller, and Louis Butler. I was actively involved with a group working to increase the number of Black lawyers in the judiciary when Maxine White was appointed. She is now the Chief Judge in Milwaukee County. Judge Charles Clevert was the first African-American judge on the U.S. Bankruptcy Court and was later appointed as a federal judge, in the U.S. District Court for the Eastern District of Wisconsin. Paul Higgenbotham was the first and so far only African American to serve on the Wisconsin Court of Appeals.
I remember Louis Butler, who, as an attorney in the appellate division of the State Public Defender’s office, wanted more than anything to become a justice on the Wisconsin Supreme Court. He realized that dream and served for several years as the first African American in that capacity. That was an especially proud moment for many Black lawyers.
Clarence Parrish was an esteemed jurist and the first Black person to successfully win a contested election for Milwaukee Circuit Court judge.
Jim Jones, a labor lawyer and professor at the U.W. Law School, vigorously encouraged us all to work hard and be successful. He made an incredible difference by being instrumental in the Legal Education Opportunities (LEO) Program, which was designed to address the persistent problem of underrepresentation of lawyers from historically disadvantaged groups. He was the architect of the Hastie fellow program, named after William Hastie, an African-American lawyer, educator, and advocate for civil rights.
The first Hastie fellows were Dan and Nancy Bernstine, from Washington, D.C., who provided support to students in the LEO program while working on their advanced legal degrees. Dan Bernstine later returned to lead the U.W. Law School as its first African-American dean. Winnie Taylor, the Hastie fellow when I started law school, was a welcome support and inspiration during that challenging first year. A host of other attorneys served with distinction in that capacity and were an invaluable resource to LEO program participants. Professor Jones’ contributions to the law school, the legal community, and Black lawyers were invaluable and will always be remembered.
Lloyd Barbee was a tireless advocate in the Wisconsin Legislature and legal community, championing the issues of underrepresented people.
Challenging the Status Quo
I remember hearing the stories of attorneys who were actively engaged in civil rights and who challenged the status quo, among them Lloyd Barbee, James Dorsey, Vel Phillips, Theodore (Ted) Coggs, and Mabel Raimey. Attorney Raimey has the distinction of being the first African-American woman to graduate from Marquette Law School in 1927.
James Dorsey came to Wisconsin in 1928 and started a law practice. He was often referred to as the “Mayor of Bronzeville,” the Black section of Milwaukee. He built a strong political base and ran for alderman in the sixth ward in Milwaukee in 1936. Although he did not win the election, he was a force in the community and was instrumental in successfully addressing discrimination against Black workers in the five largest companies in Milwaukee during the 1940s.1
And I remember the Black women lawyers who were practicing when I graduated from law school: Vel Phillips, Mildred Harpole, Debra Lathen, Lela Davison, Sheila Parrish, and Joan Hicks. Our numbers have multiplied exponentially since then, and we now have successive Black women leaders in WAAL.
Daniel Bernstine was the first Hastie fellow in the U.W. Law School’s program designed to prepare underrepresented lawyers for teaching positions and support students in the Legal Education Opportunities Program. He later became the Dean and led the fundraising project to renovate the law school in 1996. Photo: Portland State University.
I have many memories about practicing in Wisconsin and the Black lawyers from whom I learned and those I have encouraged and helped over the years. We have an important history in this state.
WAAL is embarking on a task to identify all the Black lawyers who have practiced in Wisconsin or graduated from a Wisconsin law school. Some names have been lost. We are asking you to share with us the names of any Black lawyers you know that can be included in this count.2 We want to make sure everyone is noted.
And, for all of the Black lawyers that are able to come to the WAAL scholarship dinner in September, please put the date on your calendar when it is released. We are earmarking this year as a reunion. We are preparing a video and a booklet to commemorate this event.
As stated by my colleague, Roy Evans, reunions are important times that give people the opportunity to reunite our humanity and renew our spirits.3 It will be a wonderful celebration.
Meet Our Contributors
What is the best career advice you ever received?
The best advice that has served me in my career is based on lessons I have used in life provided by my mother. She told me a long time ago, “Stand up for yourself and regardless of your education and accomplishments, you are no more or less than anyone else.” This insight has instilled in me the balance of challenging the status quo and exercising compassion.
One of the difficult lessons I have learned about the practice of law is that there is always a struggle between your head and your heart. It’s invaluable to know which one you are. I have learned that at my core I am a heart person. That has made all the difference in the world for who I am and how I nurture others.
com celiamcjackson yahoo Celia M. Jackson, Cudahy.
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 Jack Dougherty, More Than One Struggle: The Evolution of Black School Reform in Milwaukee 33 (Chapel Hill, NC & London: University of North Carolina Press, 2004).
2 Please send names to https://goo.gl/forms/tzMLYb3Pe1egk5Hd2.
3 Roy Evans, The Importance of Reunion, Wis. Law., Oct. 2018.
Client Selection: It's Okay to Refuse Cases
Wanting to help people with troublesome legal matters is good; allowing potential clients' distress to become your stress is not.
Thomas J. Watson
Client selection is a topic that arises at many CLE programs. Some lawyers, especially newer ones, are hesitant to turn away business and don’t always recognize some of the warning signs associated with a client or case. Others like the idea of taking on a challenging case, even with the risk of difficulties down the road. However, accepting every client who approaches you with a legal issue doesn’t necessarily guarantee “success,” however you define that term.
Practicing law requires many skills, and if you are running your own firm, that certainly includes bringing business in the door. Developing or expanding your practice isn’t easy, especially for sole practitioners competing with larger firms. Given all these pressures to attract new clients, when should meticulous client selection come into play when determining whether to accept a case? Taking almost any case that comes along and practicing in areas of law that are somewhat unfamiliar to you are dangerous business approaches that you may ultimately regret.
Brian Anderson, senior claims attorney at Wisconsin Lawyers Mutual Insurance Co. (WILMIC), preaches caution when taking on cases. “One of the most common phrases I hear when an insured reports a legal malpractice claim to WILMIC is, ‘I knew I should not have agreed to take that case.’ Careful client selection should include close scrutiny of every potential client and case that come to your attention. You should always ask yourself, ‘Can I really help this client? Am I ready to handle this matter all the way to its conclusion? Do I have the time and temperament to best serve this potential client?’ Only if all of these questions can be answered in the affirmative should you agree to handle the case.”
For some lawyers, especially newer lawyers, passing up business is not easy. It’s tempting to take everything that comes in, especially during tough economic times. Perhaps when a client presented you with a real estate dispute, you saw it as an opportunity to make some money and expand your practice at the same time, even though you had never done any litigation. Too many lawyers can be tempted to take a case outside their areas of expertise, thinking they need the case for financial reasons or even for survival.
For example, bankruptcy may be an area that will attract new clients, but are you really suited for that kind of work? Do you know enough about it to serve your clients well? Although it may be tempting to diversify, “dabbling” in an unfamiliar practice area may bring you more trouble than it’s worth.
Anderson says it’s not that you shouldn’t take on new areas of practice, but that if you do, make sure you can devote enough time to learn them. “Using a mentor or consulting with a more experienced attorney in that particular area of the law is a good idea. This may be the opportunity you need to learn and develop new expertise.”
Even for experienced lawyers, the seduction of a big payday can lead one to take a case outside of one’s competence, because of its size, its subject matter, or both.
Family law attorney Marta Meyers, of Boardman & Clark, Madison, says, “I was less selective when first starting out. I am sure most lawyers are the same in that respect. The comfort and confidence to be true to yourself is hard to get to in those first few years of practice when you are learning the ropes. It took me several years to be more assertive in reflecting my own personal style when representing clients. I have had fewer headaches and moments of angst as the years go on.”
Meyers says screening potential clients carefully is extremely important. “We allow up to 1.5 hours for initial conferences, and there is a reason for that. We have a lot to talk about. Sometimes it is part interview, part consultation. Both the client and the attorney get a pretty good feel regarding the ‘fit.’ It tends to work out as a mutual selection process.
“I have had potential clients often ask me questions like: ‘Can you be a bulldog?’ or ‘Will you be an advocate for me?’ or ‘Will you be aggressive?’ I have learned over the years to be myself. I tell clients that I am always their advocate, assertive when necessary, and that I am always professional. I also tell them that I believe in the necessity of being respectful to all parties, counsel, and the court. This is a key component of my philosophy. They can interpret these statements – they are not sympatico with the adjective ‘bulldog’ but I will let the client draw his or her own conclusion. But I do try to let them know that I am always trying to protect and promote their best interests.”
Anderson says a high number of malpractice claims are directly related to dabbling. According to WILMIC statistics, approximately 60 percent of the claims involve lawyers who practice less than 20 percent of the time in the area for which malpractice is alleged. Conversely, lawyers who practice almost exclusively in an area of law account for less than 8 percent of claims. Anderson says, “Don’t be afraid to refer a case if you do not have the required expertise. There are times when you simply have to turn away business – times when you just are not the right lawyer to handle a client’s matter.”
Client Selection: 7 Warning Signs
Think hard and fast about accepting a client if any of the following warning signs are present:
- The client’s matter is outside your areas of expertise and competence. Avoid dabbling.
- You do not know all the facts. Do the research first, take the case second.
- The client has attempted to hire another lawyer before coming to you.
- The client has unreasonable expectations about the outcome. Don’t overpromise.
- The client doesn’t want to listen, acts like they know everything, or blames other people for their problems.
- The client comes to you very late in the case.
- The client has been “fired” by a lawyer on the case before retaining you.
Often, cases can turn out well even if you took on a client about whom you knew very little. But sometimes, poor client selection can blow up on you. Too often, lawyers take a case before they know all the facts or have elicited as much information from the client as is really needed. Always do the research first and take the case second.
There are some general warning signs that all lawyers should keep in mind. First, if the client has attempted to hire another lawyer before coming to you, it may be an indication that the client will never be satisfied no matter who is representing them.
If the client has unreasonable expectations, there could be trouble ahead. Anderson says every case sounds the best it will ever be when the lawyer and the client first meet. “You only hear the client’s side and what the client wants you to know. Only later, after you take the case and begin investigating the facts do you learn the downside.”
It’s also important to not overpromise. This can only cause problems down the road. Then, the client’s high expectations will be tough to meet.
If the client doesn’t want to listen, acts like he or she knows everything, or attributes all problems to other people, you are in for a long, difficult case. Meyers says those are clients you may be better off declining. “A few warning signs I pay attention to include a black-and-white view of the world, especially where the client is 100 percent on the side of ‘right’ and his or her spouse is 100 percent on the side of ‘wrong’; an inability to see any other point of view; and having unrealistic expectations as to what the outcome may be. I will say that I think it is usually the client that will turn me down when I don’t accede to their point of view or wholeheartedly endorse their unrealistic expectations.”
I have learned over the years to be myself. I tell clients that I am always their advocate, assertive when necessary, and that I am always professional.
– Marta Meyers
Another major red flag, says Anderson, is a client who is hiring a lawyer very late in the case. “In hindsight, the lawyer’s initial concern ends up being valid and is supported by the fact that the attorney never had the time to adequately underwrite the potential client. A claim or grievance is more likely to arise out of a matter where the attorney was unable to make a knowledgeable determination that the client matter was one that the lawyer felt comfortable undertaking in the first place. A claim recipe for disaster is a lawyer who is retained at the 11th hour in a case with deadlines looming or with a trial date already scheduled.”
Anderson points out that another risk to consider, before agreeing to take on a case, is whether the potential client has fired or been fired by a lawyer on the case before your retention. “Requesting your potential client’s consent to speak with prior counsel is often a good idea and can help you better understand the nuances of the case that you are considering taking. If the prospective client has gone through a number of attorneys and has a history of suing lawyers, the reality is that the case is unlikely to turn out any better or differently for successor counsel.”
Meyers says, “I have handled these in a few different ways: 1) coaching the client on how to continue working with their original attorney and giving the client a second opinion; 2) co-counseling with their original attorney of record, who continues to act as the primary attorney but has some assistance toward the end in getting the case resolved; 3) getting the opposing counsel’s agreement to extend deadlines before agreeing to represent the client; 4) refusing to be an attorney of record at the 11th hour if the case is way too complex for my representation to be helpful; or 5) jumping in at the 11th hour if I am confident that the issues are not that complex and I can actually help them to get the case finalized, and my calendar allows it.”
If the client has attempted to hire another lawyer before coming to you, it may be an indication that the client will never be satisfied no matter who is representing them.
When taking on a case that previously involved a different lawyer, Anderson cautions that the law in Wisconsin governing legal malpractice claims is not forgiving to the lawyer who has the “last chance” to prevent the harm, even if an earlier lawyer was negligent and should have handled the matter differently before the successor lawyer’s involvement.
In Seltrecht v. Bremer, 214 Wis. 2d 110, 571 N.W. 2d 686 (Ct. App. 1997), the Wisconsin Court of Appeals ruled that when a client is represented sequentially by two lawyers, both of whom were arguably negligent with respect to the same matter, the second lawyer is responsible for any damages if he or she could have prevented the client’s harm. “Although an attorney may feel sorry for a client and want to help them,” Anderson says, “the court’s decision in Seltrecht creates a situation where the lawyer who decides to get involved late does so at his or her own peril.”
Some of the claim issues that WILMIC staff have observed affecting successor counsel include the following:
The attorney does not have the complete and accurate file materials needed to determine whether the underlying matter can be handled competently and is meritorious.
A misunderstanding developed between the prospective client and the lawyer at the outset regarding the scope of retention or whether an attorney-client relationship was ever established when the deadline is missed.
The lawyer did not properly vet the new matter to recognize a conflict of interest involving a former client, due to time constraints at the time of the initial intake.
The initial intake information is incomplete, or a proper investigation, that is, one that would enable new counsel to determine whether he or she has the time and overall competency to diligently prepare and handle the case, was not done.
Necessary experts were not retained or consulted with, or dates were missed on pending litigation matters, severely undermining the lawyer’s ability to successfully prosecute the client matter.
Interested witnesses were not interviewed or their statements not secured, creating difficulties in the evaluation and prosecution of the case.
The client’s expectations might have been improperly set at the outset and, as such, the client expected an outcome that the lawyer was not able to deliver.
If you think you need to take every client, you should think twice. It may look like a sure payday at the time, but further evaluation could prove otherwise.
As Anderson notes, “Helping clients in distress is a noble goal and likely why many lawyers decided to start practicing law in the first place. When a lawyer gets involved with a client matter that is already pending or has deadlines that are about to toll, it may quickly be the lawyer who is in distress. A legal malpractice claim or Office of Lawyer Regulation grievance can negatively impact your profitability, reputation, and stress level.
“Careful client selection should include increased scrutiny when you are getting involved, for the first time, late in the dispute. Consider the red flags noted above and the rule of law from the Seltrecht case, before agreeing to jump into a matter.”
Malpractice Claims Issues Affecting Successor Counsel
Be aware of the following claim issues that may arise if you are coming to a case as successor counsel:
- •You lack the complete and accurate file materials.
- •There is a misunderstanding at the outset regarding the scope of retention and whether an attorney-client relationship was ever established.
- You did not properly vet the matter to recognize a conflict of interest.
- The initial intake information is incomplete or lacks a proper investigation.
- Necessary experts were not retained or consulted.
- Dates were missed on pending litigation matters.
- Witnesses were not interviewed or their statements not secured.