State Bar of Wisconsin President Jill Kastner (right) testifies before an Assembly committee regarding a bill that impacts attorney ghostwriting for self-represented litigants. State Bar Pro Bono Coordinator Jeff Brown (left) also testified.
Jan. 23, 2020 – The State Bar of Wisconsin’s leadership recently registered its stance on a legislative bill that impacts attorney “ghostwriting,” a practice that allows attorneys to provide brief pro bono assistance to low-income individuals and families by helping them fill out forms and other legal papers.
Access to Justice and removing barriers to legal representation are paramount goals of the State Bar of Wisconsin, which supports policies which encourage or enhance the quality and availability of legal services to the public, including ghostwriting.
The Wisconsin Supreme Court unanimously adopted a ghostwriting rule in 2014, which allowed attorneys to help self-represented litigants without disclosing their identities.
The ghostwriting rule was recommended by the supreme court’s Planning and Policy Advisory Committee (PPAC) after studying, for approximately three years, how to encourage and promote better access to justice in Wisconsin, especially for people with limited means.
However, an omnibus landlord-tenant bill enacted in 2018 modified the ghostwriting rule (codified at Wis. Stat. § 802.05(2m)) by requiring attorneys to disclose their names and bar numbers on forms or documents they helped pro se litigants draft for submission to the court.
The legislative change created a number of unanticipated consequences including less attorneys being willing to provide important pro bono services if their names are tied to the limited advice given in the case.
AB 705/SB 698
Early this month, Senator Luther Olsen (R-Ripon) and Representative Robert Brooks (R-Saukville) introduced Assembly Bill 705. The bill was introduced as a possible solution to attorney “ghostwriting.”
The State Bar of Wisconsin is opposed to legislative proposals as currently drafted and expressed those concerns Jan. 7, 2020, during a public hearing in the Assembly Committee on Housing and Real Estate.
AB 705 and companion bill SB 698 would not automatically require an attorney to list his or her name and bar number on any and every document.
Instead, the legislation would require an attorney to list his or her name and bar number “only if it is requested by an opposing party in a contested matter.” In such a case, “the clerk of the court must then enter the name and state bar number on the document and enter it in the clerk's minutes.”
On Jan. 7, State Bar President Jill Kastner and State Bar Pro Bono Program Manager Jeff Brown testified in opposition to AB 705. They told the committee that the 2018 amendments to the ghostwriting rule created a problem, and that Assembly Bill 705 would make it worse.
Testimony on AB 705
President Kastner explained that ghostwriting is used in pro bono legal advice clinics around Wisconsin, enabling lawyers to serve clients in need without concerns about unknown potential conflicts or future complications arising from a brief interaction with a self-represented litigant.
Brown explained how the former rule encouraged and enhanced the quality and availability of pro bono services to the public, benefitting parties by helping them understand their rights and how to properly present their case. This helped to make courts more efficient, reduced delays from inadequate paperwork, and helped focus proceedings, Kastner and Brown testified.
State Bar President Kastner went on to identify several problems created when Wis. Stat. 802.05(2m) was modified by the legislature, stating that it:
- creates conflicts between the Rules of Procedure and Rules of Professional Conduct for Attorneys;
- creates confusion in courts when attorneys are identified by name on documents but are not actually representing the pro se party;
- creates concerns among volunteer attorneys that pro bono work could trigger conflicts with their names associated with court filings they do not control;
- engenders attorney concerns about pro se parties modifying documents after they leave the pro bono attorney’s control;
- creates the potential for confusion about the scope of the attorney’s involvement.
Kastner and Brown also drew attention to the overall chilling effect on pro bono participation in limited scope legal work across the State. Quoting the Milwaukee Justice Center, Kastner said “some lawyers stopped drafting anything for clients. Others, more than we anticipated, stopped volunteering altogether.” They noted that the Supreme Court spent two years studying limited scope representation and considered alternatives before unanimously adopting a package of changes in 2014 that created the original ghostwriting rule.
To focus on the State Bar’s concerns with Assembly Bill 705, both Kastner and Brown pointed out that language in the bill did not address many of the concerns that attorneys have with the modified rule requiring name and bar number of specific concerns that the State Bar has with Assembly Bill 705. Here, they noted:
- All cases filed in court are “contested” until they are resolved, meaning the proposed bill will likely not restrict the scope of the current rule despite that being its intention.
- The bill requires for contested cases that “the clerk of the court must then enter the name and state bar number on the document and enter it in the clerk's minutes” but also states that “The recording of the attorney's name and state bar number does not make the attorney the attorney of record for the otherwise self-represented person.” This language creates the potential for judicial confusion.
- Courts already have the power to ask litigants about who provided assistance with a particular document if the court has concerns.
- There is no time limit on when an opposing party’s attorney can demand the name of the lawyer who assisted the self-represented litigant.
- If the opposing party’s attorney asks for the name of the lawyer, neither the self-represented litigant nor the clerk of court is likely to know the answer to that question and the bill does not address that issue.
- There is no clear benefit to the bill’s requirements for name and bar number, and open questions about the goal or effect of such a requirement.
- The bill does not support and encourage more volunteer lawyers, and would likely retain the same chilling requirements while adding confusing language and questionable procedures.
- While much of the discussion around the issue of ghostwriting has been centered on pro se litigants who have received help from the Wisconsin Eviction Defense Project, changes to ghostwriting rules will also affect family law litigants, small landlords, seniors, and low-wage workers across the state.
State Bar Position and Supreme Court Petition
In June 2019, Quarles & Brady attorneys James Goldschmidt, Sydney Vanberg, and Lauren Zenk filed Petition 19-16 with the Supreme Court of Wisconsin to ask the court to reinstate the original ghostwriting rule that didn’t require names or bar numbers. They noted the chilling effect of the legislation requiring disclosure of names and bar numbers, especially at larger firms providing free pro bono services at clinics.
The Wisconsin Supreme Court held a public hearing on Petition 19-06 on Jan. 17, 2020. Wausau attorney Dean Dietrich testified in support of the petition on behalf of the State Bar of Wisconsin, and many other attorneys representing other groups and organizations also testified in support.
The State Bar of Wisconsin supports the petition under its policy concerning ghostwriting, which the State Bar’s Board of Governors adopted in December 2019. That position reads:
The State Bar of Wisconsin supports policies which encourage or enhance the quality and availability of legal services to the public. This includes the use of “ghostwriting” that provides for the vital participation of legal counsel, without disclosure of the attorney’s name or bar number, in assisting pro se individuals in preparing documents for use within the legal system. This limited legal assistance can benefit parties and the court by focusing the legal issues and more clearly stating the facts and therefore promoting the effective administration of justice. Lawyers, as an essential component of the state’s justice system, have a responsibility to work for an efficient and effective justice system.
In the Feb. 5, 2020 issue of InsideTrack, State Bar Legal Writer Joe Forward will write about the status of Petition 19-16 and the Wisconsin Supreme Court’s hearing on January 17, 2020.
Other Legislative News
In other legislative news, the Wisconsin Senate passed Senate Bill 468, merit pay progression for Wisconsin state public defenders (SPD), in its January 21, 2020 floor session.
Public defender pay progression was a top legislative priority for the State Bar, as it helps to close a pay gap between defenders and prosecutors created in the most recent state budget, and allows the SPD to retain its most experienced and talented attorneys. The State Bar thanks Senator Jerry Petrowski (R-Marathon), Sen. Tim Carpenter (D-Milwaukee), Representative Ron Tusler (R-Harrison), Rep. Amy Loudenbeck (R-Clinton), Rep. Mark Born (R-Beaver Dam) and Rep. Tip McGuire (D-Kenosha) for their advocacy to pass this bill, and looks forward to its passage in the Wisconsin Assembly.