June 15, 2016 – A number of Wisconsin Supreme Court-approved rule changes will take effect July 1, including a rule that mandates electronic filing in circuit courts, in phases by county, and another that permits electronic banking to and from lawyer trust accounts through new procedures and record-keeping requirements.
Other rules give the Wisconsin Office of Lawyer Regulation (OLR) more discretion in lawyer disciplinary cases involving allegations of de minimus violations; facilitate the electronic transfer of courts records to appellate courts; and prohibit the disclosure of personal and financial information in court filings.
In an open conference last month, the court also took action on a number of other petitions, approving one in principle (modernization of ethics rules) and dismissing two others (relating to duties to former clients and expunction of court records).
The court also indicated that it will hold a public hearing on two petitions filed by the Wisconsin Judicial Council, one to change provisions of the Wisconsin Rules of Evidence and another to repeal Wisconsin’s so-called “Deadman’s Statutes.”
This article will first discuss rule changes effective July 1, followed by petitions on which the court took action at its open administrative conference in May.
Electronic Banking and Trust Account Rules (Effective July 1)
Filed by the OLR in 2014 and adopted by the Wisconsin Supreme Court in a final order in April 2016, new rules will permit lawyers to handle fees and trust property through electronic banking procedures and record-keeping requirements.
Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.
Rest easy. Lawyers who are currently in compliance with fee and trust account rules don’t need to do anything differently by the July 1 effective date.
The new rules, which the State Bar supported, merely permit lawyers to engage in e-banking transactions that were previously prohibited, recognizing the diminished use of paper checks.
That said, lawyers will need to understand the new rules to implement e-banking practices.
According to the final rule, the most significant changes proposed include:
procedures providing for the use of electronic transactions for trust and fiduciary account deposits and disbursements;
revision of the record-keeping requirements to provide general standards in the disciplinary rule and to transfer the detailed procedures from the rule to guidelines published by the OLR;
a rebuttable presumption that shifts the burden of proof to the respondent upon a showing by the OLR that the respondent failed to promptly deliver trust or fiduciary property or failed to provide records accounting for trust or fiduciary property; and
transfer of the fee provisions of the trust account rule to the fee rule.
OLR Director Keith Sellen said the trust account rules have not been updated for seven years and modernization of fee and trust account regulations will allow lawyers to use modern e-banking procedures with requirements in place to safeguard the public.
Learning Opportunities on New E-banking Rules
Check out State Bar Ethics Counsel Tim Pierce’s comprehensive article on the new e-banking rules, forthcoming in the July/August issue of Wisconsin Lawyer™ magazine.
Register for the webcast seminar, “E-Banking Under the Wisconsin Trust Account Rule,” produced by State Bar of Wisconsin PINNACLE®. The next webcast seminar is June 30 (noon to 1:30 p.m.). Other webcasts are scheduled for July and August.
Mandatory E-filing Under Way (Effective July 1)
The new mandatory e-filing rules – which require the electronic filing of circuit court documents in civil, family, small claims, and paternity cases – has already started in Dodge County, which was selected as a pilot county for mandatory e-filing.
Starting July 1, e-filing will be required in Ozaukee County, followed by Jefferson and Columbia counties on Aug. 1. Six other counties will be mandatory by Sept. 15.
Wisconsin’s Committee of Chief Judges originally filed the e-filing petition in 2014 and the State Bar of Wisconsin supported original and amended versions.
The court approved it in principle in February, and issued a final order in April. The e-filing fee will start at $20 per case, per party – the amount required to fund the program.
The e-filing fee will be waived for indigent parties and governmental units represented by state, district, county, and municipal attorneys, including public defenders and child support agency attorneys. E-filing will still be voluntary for pro se litigants.
The June issue of Wisconsin Lawyer™ magazine includes a feature article, “Are You Ready? Mandatory E-filing in Effect July 1.” In it, Jean Bousquet and Marcia Vandercook will tell you all you need to know.
Protection of Information in Circuit Court Records (Effective July 1)
Under a final order issued in August 2015, the court created a new rule of civil procedure (Wis. Stat. section 801.19), which is “intended to protect certain personal information found in circuit court records, and to establish procedures for submission of confidential information and sealing and redaction of documents.”
The new statute applies to “protected information,” including social security numbers, employer or taxpayer identification numbers, financial account numbers, drivers’ license numbers, and passport numbers. Attorneys will need to omit or redact that information.
The Consolidated Court Automation Programs (CCAP) Steering Committee, a committee of the Director of State Courts Office, filed the petition in 2014.
More OLR Discretion in De Minimus Cases (Effective July 1)
The State Bar also supported an OLR petition that gives the OLR more discretion in lawyer disciplinary cases involving allegations of de minimus violations of the Rules of Professional Conduct for Attorneys. The court approved it in a final order in April.
Currently, the OLR must investigate and pursue discipline even for minor infractions. OLR Director Sellen said the change would allow OLR to prioritize resources and dispose of cases more quickly but still protect the public from harm.
Electronic Appellate Records (Effective July 1)
Current rules allow court clerks to store court records electronically, but a paper record must be forwarded to the reviewing appellate court. The supreme court issued a final rule in 2015 allowing clerks to transfer court records electronically to appellate courts.
The clerk of the Wisconsin Supreme Court and Court of Appeals, who filed the petition in June 2015, said approval would save preparation time and copy and mailing expenses, and the record would then be accessible electronically to authorized users.
Photographs, video and audio recordings, and other computer media are to be included, but documents of physical evidence, models, charts, diagrams, and photographs exceeding 8.5 by 11 inches are not, unless requested by a party.
Attorney Professional Conduct – Ethics 20/20 (Approved in Principle)
The court approved (in principle) petition 15-03 filed by the State Bar in 2015 to address lawyers’ use of technology, outsourcing, and other changes affecting a modern-day law practice. It’s a modernization of ethics rules. The effective date will be Jan. 1, 2017.
State Bar Ethics Counsel Tim Pierce said the State Bar’s Professional Ethics Committee recommended amendments to reflect recent approved changes to the ABA Model Rules of Professional Conduct, as recommended by the ABA’s Ethics 20/20 Commission. The court also approved recommendations unique to Wisconsin.
Modification of SCR 20:1.9(c): Duty to Former Clients (Dismissed)
The court dismissed petition 15-04, which challenged interpretation of Supreme Court Rule (SCR) 20: 1.9(c). That rule sets forth the attorney’s duties to former clients when dealing with information related to the representation.
Petitioners had argued that current interpretations of the rule, which generally prohibits lawyers from using or revealing information about former clients, violate the free speech rights of attorneys who want to discuss cases that are publicly available.
The State Bar’s Professional Ethics Committee and the OLR opposed the petition, arguing the rules don’t and should not allow attorneys to “use” or “reveal” information relating to a representation, without consent, merely because it is publicly available.
Expunction: Online Court Records (Dismissed)
The court reconsidered and dismissed Petition 09-07, related to expunction and record retention, which the State Bar of Wisconsin filed in 2009. The petition would have required court records on the Wisconsin Circuit Court Access website, also known as CCAP, to be removed if an individual was arrested but never convicted.
The petition lingered for years as the court had hoped for a legislative solution. But the legislature never acted. In April, a motion to dismiss the petition failed, keeping it alive for discussion. On reconsideration in May, though, the court voted 4-3 to dismiss it, noting that it addresses substantive issues the court has no authority to change.
The State Bar intends to file a new petition, addressing issues raised by the court during discussions, and the court suggested that it would consider a new petition.
Rules of Evidence (Public Hearing Will Be Scheduled)
The court indicated that it will hold a public hearing on a Wisconsin Judicial Council petition (16-02) to change Wisconsin’s Rules of Evidence and codify Wisconsin case law, correct deficient rules, and fill gaps.
The petition would amend the following: Wis. Stat. section 901.07 (remainder of or related writings or recorded statements); Wis. Stat. section 906.08(2) (evidence of character and conduct of witness); and Wis. Stat. section 906.09 (impeachment by evidence of conviction of crime or adjudication of delinquency).
The petition would also create Wis. Stat. section 906.16 (bias of witness), stating that “[f]or the purpose of attacking the credibility of a witness, evidence of bias, prejudice, or interest of the witness for or against any party to the case is admissible.”
Witness Competency (Public Hearing Will Be Scheduled)
The court also indicated that it will hold a public hearing on another Judicial Council petition (16-01) that seeks to repeal “Deadman’s Statutes,” which generally disqualify a witness to a transaction or communication with a decedent from testifying about the transaction or communication if the witness has a personal interest in the outcome of the case, or if a named party derives a personal interest through that witness.
Discretionary Transfers to Tribal Court (Adjourned)
The court voted (6-1) to adjourn (to a later date) discussion of two petitions that deal with a court-created statute (Wis. Stat. section 801.54), which grants circuit courts discretionary authority to transfer civil actions to tribal courts in cases where the circuit and tribal courts have concurrent jurisdiction, including child support cases.
The court created the statute in 2008. In 2010, a majority of the supreme court concurred that the rule was operating as expected, but voted to review it in five years.
In 2014, members of the Oneida Tribe of Indians of Wisconsin filed a petition (14-02), asking the court to repeal the statute, stating broad objections. However, the court voted to consider the petition when it conducted the scheduled review of the statute.
The State Bar’s Board of Governors and the State Bar’s Indian Law Section support continued operation of section 801.54.