Board discusses 'Civil Gideon,' votes on client protection fund, and takes other actions

From left, Govs. Carmen Ortiz-Babilonia, Athenee Lucas, W.D. Calvert, and Elizabeth Wochos discuss the issues during a brief break.

John Ebbott, executive director of Legal Action of Wisconsin, addresses the Board about a petition that would give indigent clients a right to counsel in certain civil cases.

Gov. Robert Swain asked whether civil appointments should be mandatory for all lawyers with an option to contribute money versus representation.

Deborah Smith, chair of the Wisconsin Lawyers' Fund for Client Protection Committee, answers questions about sufficiency levels and the need to make changes that are consistent with good financial planning.

James Godlewski, past president of the Government Lawyers Division, asks the Board to authorize a GLD amicus brief in the case of City of Menasha v. Wisconsin Employment Relations Commission, et al. The Board voted against it.

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Dec. 3, 2010 – The State Bar Board of Governors met today in Madison to discuss whether indigent clients should have a right to counsel in civil cases and took action on a number of other issues, including a proposal for amendments to the Wisconsin Lawyers’ Fund for Client Protection rules.

Board briefed on proposed petition to give indigent clients right to counsel in civil cases

John Ebbott, executive director of Legal Action of Wisconsin, discussed a petition that would establish a right to counsel for indigent clients in certain civil cases. The board took up a lengthy discussion on the issue, and President James Boll expressed his intent to refer the matter to the Wisconsin Access to Justice Commission board for further review.

The petition, developed by the Wisconsin Right to Counsel Task Force, was filed with the Wisconsin Supreme Court on Sept. 30 with 1,320 signatures. It would require judges to appoint attorneys to represent low-income self-represented litigants in circumstances where, in a court’s judgment, legal representation is needed to safeguard certain basic rights.

The task force is an informal association of lawyers, judges, and others with an interest in advancing the “Civil Gideon” cause.

Ebbott summarized the petitioners’ goals and reported that the target group for such assistance is litigants with incomes below 200 percent of federal poverty guidelines, but that trial judges would also be expected to consider other factors, including the personal characteristics of the individual (e.g., age, mental capacity, education, and knowledge of the law and of legal proceedings), the personal rights at stake (e.g., shelter, sustenance, safety, health, or child custody), and the complexity of the case.

Ebbott stressed that the petition is intended to address equal protection, and the workload and workflow challenges created by pro se litigants.

Ebbott acknowledged that establishing even a limited right to counsel in civil cases would be costly (the task force estimates annual costs in the $58 million range), but he likened the current practice of relying on pro se representation in a legal proceeding to self-surgery for an acute medical problem.

Board members expressed concerns about the potential scope of coverage under the proposal, the probable cost, and how attorneys in various practice areas may be differentially impacted.

The task force asked the State Bar to endorse the petition. State Bar President Jim Boll told the group that the task force’s request is pending before the Executive Committee and that he intends to request that it be referred to the Wisconsin Access to Justice Commission board for further review. 

Board approves language for proposed rule change regarding fund for client protection

Through a petition to the Wisconsin Supreme Court, the Wisconsin Lawyers Fund for Client Protection Committee will seek to amend Supreme Court Rule 12.07 regarding the Wisconsin Lawyers Fund for Client Protection. By a 37-8 vote, the Board of Governors approved the committee’s proposal to eliminate the fund’s sufficiency level.

The fund reimburses clients who suffer financial losses due to lawyer misconduct. Currently, SCR 12.07 sets a sufficiency level of $250,000. The sufficiency level has not been changed since 1981, the year the fund was established by the supreme court.

SCR 12.07 currently requires every attorney to pay a variable annual assessment as is necessary to maintain a $250,000 balance, but in no event does the annual assessment exceed $25. However, whenever the fund’s annual value equals or exceeds $250,000 on the specified valuation date, there is no assessment for the following fiscal year.

The committee believes the fund’s balance at the end of the fiscal year is not a reliable indicator of the funds necessary for the upcoming fiscal year. For instance, claims paid in 2009 were $181,853 and claims paid in 2010 were $501,697. Through its petition, the committee will seek to eliminate the $250,000 sufficiency level and provide for a $20 annual assessment, regardless of whether the fund’s value on the valuation date equals or exceeds $250,000. Excess funds would flow to a reserve account, which would be reviewed periodically.

According to committee chair Deborah Smith, the change will allow the fund to meet its obligations to claimants despite yearly variations in claims made.

Several members wondered whether increasing the sufficiency level was a better option. Smith responded that “standardizing an assessment is more in line with good financial planning” because of the uncertainty involved with projecting future claims from year to year.

Smith also stated that the proposal matches the ABA and National Client Protection Organization’s recommendations for having a “stable and reliable source of income to meet the needs of the claims.”  

Board does not authorize Government Lawyers Division request to file an amicus brief 

By vote of 22-21, the Board of Governors denied the Government Lawyer Division’s (GLD) request to authorize it to file an amicus curiae brief in the pending appeals case of City of Menasha v. Wisconsin Employment Relations Commission, et al., 2010AP1799.

GLD past president and Neenah city attorney James Godlewski presented in support of authorization. Bruce Ehlke, counsel for Menasha Professional Police Union, spoke in opposition.

The case concerns a collective bargaining agreement between the City of Menasha and the Menasha Professional Police Union, Local 603. The agreement contains provisions for resolving police discipline matters through an independent police and fire commission consistent with Wis. Stat. section 62.13(5) instead of a grievance arbitration process.

In the course of negotiating a new collective bargaining agreement, the union proposed using grievance arbitration in lieu of a police and fire commission to resolve discipline matters. The city proposed maintaining a police and fire commission process pursuant to section 62.13(5).

On May 11, 2009, the union filed a petition with the Wisconsin Employment Relations Commission (WERC) seeking a declaratory ruling as to whether the city’s bargaining proposal was a prohibited subject of bargaining under new statute Wis. Stat. section 111.70(4)(b). In response, the city filed a petition asserting the proposal was a mandatory subject of bargaining.

WERC concluded the city’s proposal was a prohibited subject of bargaining, and the Winnebago Circuit Court upheld WERC’s decision.

On appeal, the city argues that new statutes do not prohibit municipal employers from proposing the use of section 62.13(5) commissions in collective bargaining negotiations.

Board approves amendment to Board of Bar Examiners’ conditional admission petition 

The board unanimously approved a second amendment to pending petition 08-13, which was originally submitted to the Wisconsin Supreme Court in 2008 by the Board of Bar Examiners (BBE), regarding conditional admission to the bar.

Under the petition, applicants with a record of conduct or behavior that would have otherwise rendered the applicant unfit to practice law may gain conditional admission if they satisfy essential eligibility requirements for admission, possess the requisite good moral character, and demonstrate a record of rehabilitation from chemical dependency or successful treatment for mental or other illness, or for any other reason.

In August of 2010, the BBE filed an amended petition. The board supported conditional admission to the bar as long as confidentiality was provided. The WisLAP and BBE Review committees considered revisions for a second amended petition to reflect minor changes.

Deborah Smith, chair of the WisLAP Committee, addressed the board about the changes. Primarily, grievances that are filed against a conditionally admitted applicant “may” extend conditional admission status. The previous amendment provided that conditional admission status “must” be extended if a grievance is filed.

The change reflects the possibility that a grievance is frivolous or wholly unrelated to the reasons a lawyer was admitted conditionally. The second amended petition also provides for the possibility of early release.

The supreme court has tentatively scheduled a hearing for Jan. 12, 2011.

Other business 

The board approved a request by the Strategic Planning Committee to amend the effective dates of the strategic plan through fiscal year 2012.

The board also recognized new governor Rebecca Webster, the Native American Lawyers Association liaison, and candidates for treasurer (Kelly Nickel and Nicholas Vivian), Judicial Council (Joseph Cardamone III and Beth Ermatinger Hanan), and president-elect (James Carney and Kevin Klein).