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  • Board Discusses Potential OLR Rule Changes, Proposed State Bar Budget

    The State Bar of Wisconsin's governing body recently discussed the Office of Lawyer Regulation's proposed changes to rules that regulate Wisconsin lawyers, discussed the proposed State Bar budget for fiscal year 2020, approved the Keller rebate amount, and approved a petition that would allow electronic voting in State Bar elections.
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    Michael Yang and Christine Plum

    Michael Yang, Asian American Bar Association Liaison to the State Bar of Wisconsin Board of Governors, chats with Christine Plum, a State Bar delegate to the ABA House of Delegates, before the start of the board meeting Feb. 15 at the State Bar Center in Madison.

    Feb. 18, 2019 – The State Bar of Wisconsin’s Board of Governors (board) engaged in a robust discussion last Friday on potential changes to rules that regulate Wisconsin lawyers, as recommended by a committee for the Office of Lawyer Regulation (OLR).

    The Wisconsin Supreme Court, in 2016, appointed an OLR committee to review OLR procedures and structure, and to report back to the supreme court “recommendations that would increase efficiency, effectiveness, and fairness of the OLR process.”

    The OLR Procedures Committee, chaired by Racine County Circuit Court Judge Gerald Ptacek, completed its final report with recommendations in October 2018. Ultimately, final recommendations will go the supreme court in the form of rule change petitions.

    The State Bar’s Policy Committee and the Professional Ethics Committee reviewed the OLR committee’s final report and recommendations and raised various comments for consideration by the State Bar board, which could support or oppose any OLR petitions.

    At the Feb. 15 board meeting, Dist. 10 Governor and Policy Committee Chair Chuck Stertz highlighted the considerations raised by the policy and ethics committees regarding the final recommendations, and the board discussed them at length.

    Specifically, the board discussed six proposed changes to rules that govern the lawyer regulation system and procedures, at SCR Chapters 21 and 22. The OLR committee’s final report makes other recommendations that the board did not discuss.

    1) Notice to Employer. The OLR committee recommends a rule, under SCR 22.03 (investigations), requiring an attorney who receives a notice that an OLR investigation is underway regarding an allegation that the attorney engaged in misconduct to provide a copy of the notice to a supervisor, partner, or shareholder in the attorney’s law firm or the law firm where the lawyer worked at the time of the alleged misconduct.

    Under the proposal, the OLR may directly transmit a copy of the notice of investigation to the attorney’s supervisor, or a shareholder or partner in the attorney’s firm.

    Dist. 6 Gov. Jesse Blocher said he opposed the proposed change. “Whether or not lawyers are required to report to their firms can be left to the firm’s themselves,” said Blocher, noting the change could turn a private reprimand into a public one.

    Blocher said the proposed rule would require the employer to be informed before any determination of whether the lawyer did anything wrong. “I think it’s a bad rule,” he said.

    Public board member and supreme court appointee Jim Marshall said requiring the employer to be informed could minimize risk to other attorneys in the firm. “I see another side, but I can’t give weight to what’s more important,” he said.

    Dist. 9 Gov. Patricia Putney said a lot of misconduct claims are meritless, more so in certain practice areas, and notice at the investigation stage seems premature. “Notice would seem important if in fact the lawyer is reprimanded,” Putney said.

    Chuck Stertz gave a report on the Office of Lawyer Regulation.

    Chuck Stertz, chair of the board's Policy Committee, led discussion on proposed changes to rules that impact the lawyer regulation system. A committee for the Office of Lawyer Regulation (OLR) released a report with recommendations for changes in October 2018.

    2) Reporting Misconduct of Another Lawyer. The OLR committee recommends amending SCR 20:8.3, which currently requires a lawyer “who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects” to inform the appropriate professional authority, such as OLR.

    The proposed amendment would require a lawyer to report another lawyer to a professional authority if the lawyer “reasonably believes” – instead of “knows” – that another lawyer committed a violation of the ethics rules.

    “You have to read this one very carefully,” said Senior Lawyer Division (SLD) Rep. Steven Sorenson, former State Bar president. “What this says is that I violate the rules if I don’t report an attorney that I reasonably believe has committed a violation.”

    Sorenson says it puts all attorneys in the role of being an OLR investigator, in the sense that the lawyer has to make a determination based on a reasonable belief standard. “This opens up a Pandora’s box,” said Sorenson. “I don’t think this was the intent.”

    Blocher of Dist. 6 in Waukesha said the proposed amendment departs from the ABA Model Rules and would create confusion. “A bright-line standard is much better.”

    3) Suspensions by Referees. The OLR committee recommends amending SCR 21.08 (Referees) to allow referees to impose discipline in attorney misconduct cases if the referee imposes a suspension for a period not exceeding three months.

    Currently, referees do not impose discipline. They make findings, conclusions, and recommendations and submit them to the supreme court for appropriate action.

    Stertz said this amendment is likely an attempt to unclog the supreme court’s docket, by giving referees more authority in cases alleging more minor violations.

    Dist. 2 Gov. Amy Wochos said she favored the change, noting that the OLR process can be slow, and allowing referees to make these decisions could create efficiency.

    But State Bar President-elect Jill Kastner said that allowing the referee to unilaterally impose discipline, even for three months or less, would violate due process if there is no opportunity to appeal. Blocher said there is a right to appeal, but it’s unclear what the standard of review might be on appeal, and any appeal should be reviewed de novo.

    Dist. 2 Gov. Krista LaFave Rosolino noted that a three-month suspension is not a short period of time. “For those in solo or small firms, that could really impact your business.”

    Steve Sorenson raises a point during a discussion.

    Steve Sorenson, the Senior Lawyer Division representative on the board and former State Bar president, weighs in on proposed changes to rules that regulate lawyer misconduct.

    4) Permanent Revocation. The OLR committee recommends amending SCR 21.16 and SCR 22.29 to allow the supreme court to permanently revoke an attorney’s license with no opportunity for the license to be reinstated.

    Currently, the supreme court may revoke an attorney’s license to practice law, but the attorney may petition for reinstatement any time after five years. The supreme court can decline reinstatement, but the attorney still has the right to seek reinstatement.

    Sorenson said that is “capital punishment” for a lawyer. “I don’t think we should ever encourage permanent revocation. We should always keep open the possibility that someone can redeem themselves. That should be our position as lawyers,” he said.

    Nonresident Lawyer Division Rep. Kathryn Bullon agreed. “To revoke someone’s license and never, ever give them a chance at penance or rehabilitation and to regain their profession and livelihood, seems unduly harsh,” said Bullon.

    Dist. 9 Gov. Truscenialyn Brooks said serious criminals can be sent to prison forever, with no possibility of parole. She suggested the public may raise eyebrows if a different standard applies to lawyers who commit egregious misconduct.

    Dist. 2 Gov. Gregg Herman suggested the terms should change, to be more transparent. In other words, we should not use the term “revocation” if it really means “suspension” with the possibility of reinstatement after five years, since that’s confusing for the public.

    5) Elimination of District Committees. The OLR committee recommends eliminating district committees. Under SCR 21.06, lawyers and public members are appointed in each state bar district to assist OLR investigations and provide other support.

    The OLR report says “the work performed by District Committee may be redundant and the [OLR] Director has available resources that fulfill the role historically assumed by the District Committee.” But various board members raised concerns with eliminating district committees, which allow lawyers and the public to participate at the local level.

    “The problem is, we have that system that gives local insight. You lose all that when you have a group of people who are making the decisions from Madison,” said Sorenson.

    Sorenson said the State Bar should help OLR make district committees more effective and efficient, rather than eliminating them. He said the number of complaints have not decreased, but OLR is referring fewer cases to the district committees.

    Dist. 4 Gov. Mary Lynne Donohue generally agreed. She said local lawyers and public members have a base of knowledge and a local perspective to determine what went wrong. “I think the solution is to reinvest in district committees,” she said.

    Dist. 9 Gov. 9 Gov. Kathy Chung said the district committees system isn’t functioning properly because many seats on district committees are vacant. “We have ceded the responsibility by failing to staff our own committees,” she said.

    6) Agreements Against Grievances. The OLR committee recommends amending SCR 201.8(3)(h)(3), which prohibits lawyers from making agreements with clients that limit the client’s right to report the lawyer’s conduct to disciplinary authorities.

    Under the proposal, the rule would prohibit such agreements with any “person.” Sorenson said this is a technical correction, and an appropriate change, because a lawyer’s client is not the only person who can report alleged lawyer misconduct to OLR.

    State Bar President Chris Rogers gave his report.

    State Bar President Christopher Rogers (left) and President-elect Jill Kastner.

    Board Discusses Proposed FY 2020 Budget

    The board discussed, but took no action on, the proposed State Bar budget for FY 2020 (July 1, 2019 to June 30, 2020), which includes a proposed $2 dues increase. The board will likely vote on the budget at its April meeting.

    The proposed budget request of $11.77 million, fairly equivalent to the last two approved budgets, closely aligns resources with the State Bar’s strategic priorities and goals.

    The State Bar’s strategic goals advance the organization’s efforts to prioritize and realign activities to improve efficiency and delivery. The board’s Strategic Planning Committee led those efforts in the last year, including a rigorous cost-benefit analysis.

    “We gained clarity about the need to focus on the core functions of the organization that really add value, focusing less on those that don’t,” said Susan Miller, chair of the board’s Strategic Planning Committee.

    The proposed budget reflects more than $400,000 in expense cuts, through the elimination or reduction of numerous programs, services, and other costs.

    For instance, a decision to reassign some critical functions among existing staff and leave various vacant positions unfilled will result in significant savings on personnel costs in FY 2020.

    After several rounds of budget adjustments, the State Bar’s Finance Committee determined that using $30,000 from the dues stabilization reserve fund and a $2 per member dues increase, from $258 to $260 for full dues paying members, was necessary to balance the budget. Operations are thus breakeven under the proposed 2020 budget.

    However, the proposed budget does show a bottom-line surplus of $154,000, which equates to the non-operating revenue anticipated from market growth of investments during the year.

    The State Bar dues have increased by $34 in the last 14 years. Dues increased by $30 in 2015, the first dues increase in a decade. In FY 2018, the dues increased by $4.

    About 45 percent of the proposed 2020 budget relies on membership dues. The remainder is funded by other revenue sources, including sales and registrations.

    “I think we are running as lean as we can be,” said State Bar Treasurer John Danner, a member of the Finance Committee. “Under the philosophy that we are going to do less and do it better, we need to budget for the process. This is a sound budget.”

    Finance Committee Chair Sherry Coley noted that the budget process involved looking at each and every State Bar activity with a critical eye to make funding decisions. “We are at a point where all the low-hanging fruit is gone,” said Coley.

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    Dist. 2 Gov. Krista LaFave Rosolino, Milwaukee, joins the discussion.

    Dist. 15 Gov. Gretchen Rosenke, a government lawyer, said any dues increase, however small, is still a hard sell to government attorneys, who may not view the State Bar’s offerings as relevant or useful to them.

    State Bar President Christopher Rogers said it’s a valid concern that should be raised outside the context of the budget. “We have to answer that question regardless of a dues increase," said Rogers, who said the State Bar must continue to drive value for all segments of the membership.

    At the same time, Rogers noted that there was no dues increase last year while the cost of living rose by around 3.5 percent, and is set to rise by a similar percentage this year.

    Coley noted the State Bar’s lobbying efforts directly impact government lawyers, including efforts to increase pay for public defenders and prosecutors. Others mentioned programs like WisLAP and the Ethics hotline, which are accessed by a wide spectrum of lawyers, including government lawyers.

    Jim Marshall, the court-appointed public member on the board, said “there are many things the bar is doing that our members don’t realize we are doing.” He said better communication with constituent groups could help members understand what they are getting for their membership, and help the State Bar better understand their needs.

    Dist. 9 Gov. Kathleen Chung noted that budgeting is increasingly difficult as more lawyers retire or take emeritus status, available at age 70. Emeritus lawyers are exempt from paying dues (and taking CLE) even if they continue to practice law full time.

    “Fewer new lawyers are coming in to replace them,” Chung said. “It’s a numerical problem." She noted that more creative ideas will be needed to fund future budgets.

    State Bar of Wisconsin’s Strategic Goals

    The State Bar of Wisconsin’s strategic goals, as approved by the board, relate to:

    1. Professionalism
      a) Foster the development of a regulated legal community through the Ethics program.
      b) Promote a high-functioning justice system so the Wisconsin legal community can better serve the public.
      c) Promote a high-functioning justice system through a representative legal profession so the Wisconsin legal community can better serve the public.
      d) Foster development of a representative Wisconsin legal community of leaders through its Leadership Program.

    2. Provide resources for lawyers to optimize their potential for professional and personal growth.

    3. Foster the development of a Wisconsin legal community that is engaged for advocacy.

    4. Make sustainable gains in efforts to increase equal access to justice for all Wisconsin residents so that more people can obtain the legal assistance they need to meet their basic legal needs.

    Board Approves Keller Dues Rebate Amount

    The board approved a Keller dues rebate amount of $15.45 for FY 2020, which is the amount that full dues paying members can opt to withhold from their dues.  

    Under Keller v. State Bar of California, 496 U.S. 1 (1990), and subsequent rulings, mandatory bar associations can use compulsory dues to fund activities “necessarily or reasonably related to the purposes of regulating the legal profession or improving the quality of legal services.” Keller is codified in Wisconsin SCR 10.03(5)(b)1.

    Under Keller, the State Bar is permitted to fund lobbying and other activities related to these purposes with mandatory dues. But lobbying and other activities not germane to those purposes cannot be funded with the compulsory dues of objecting members.

    Thus, the State Bar annually calculates the Keller dues rebate amount – the amount used for activities that cannot be funded with mandatory dues – and objecting members can choose to withhold the rebate amount on their annual dues statements.

    Last year, the board adopted a policy to include all direct state and federal lobbying activity within the Keller rebate calculation, even lobbying activity deemed germane to regulating the legal profession or improving the quality of legal services.

    In the past, members have challenged the State Bar’s use of mandatory dues for any direct lobbying activity on First Amendment and other grounds. Those challenges have consistently failed because of Keller and subsequent rulings.

    The board’s decision to include all direct lobbying activity in the rebate amount, as a State Bar policy, recognizes the concerns of members who object to the use of mandatory dues for any direct lobbying activity, regardless of what Keller permits.

    The Keller rebate amount now includes activities that constitute direct lobbying on policy matters before the Wisconsin Legislature and U.S Congress, “regardless of whether they would otherwise qualify as chargeable under a Wisconsin Keller dues analysis.”

    Craig Steger

    Dist. 5 Gov. Craig Steger, La Crosse, provides his perspective at the board meeting.

    Board Approves Proposal for Electronic Voting

    The board approved the filing of a petition to the Wisconsin Supreme Court to amend court rules and State Bar bylaws to allow electronic balloting for annual elections to State Bar officer positions and for the Board of Governors, as well as voting on State Bar referendums. Currently, only section and division boards use electronic balloting.

    State Bar Executive Director Larry J. Martin said electronic voting would save the State Bar about $30,000 and hopefully will increase voter participation rates in State Bar elections.

    Upon request, interested members may obtain a copy of the minutes of each meeting of the Board of Governors. For more information, contact State Bar Executive Coordinator Jan Marks by org jmarks wisbar email or by phone at (608) 250-6106.




  • State Bar Response to Criminal Justice Budget Initiative

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    February 18, 2019 – Today Wisconsin Assembly Republicans unveiled comprehensive criminal justice budget initiatives​ at multiple press conferences held around the state.

    In response, the State Bar of Wisconsin issued the following statement:

    The State Bar of Wisconsin strongly supports pay progression for assistant district attorneys and public defenders, an increase in the rate paid to private attorneys who take public defender cases, a rate that has remained stagnant since 1995, and additional financial resources for our court system.  It’s encouraging to see support for and recognition that funding for the criminal justice system has to increase.  We have a crisis within our system that must be addressed within this budget cycle and we look forward to working with all parties during the upcoming legislative session. – Christopher Rogers, President




  • Supreme Court Says City Must Resolve Farmland Fencing Dispute

    Joe Forward

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    WI Supreme Court

    Feb. 13, 2019 – The City of Watertown must determine and allocate the cost of maintaining or constructing a large partition fence that separates property between adjoining farmland owners within the city, the Wisconsin Supreme Court has ruled.

    The city argued that statutory provisions imposing an obligation to resolve such partition fencing disputes did not apply to cities, only towns. But the state supreme court, in White v. City of Watertown, 2019 WI 9 (Jan. 31, 2019), unanimously ruled that it did.

    Justice Daniel Kelly, in a unanimous opinion, said “the legislature never eliminated a city’s authority to enforce landowners’ partition fence-related obligations, it merely restructured the manner in which it expressed the authorization.”

    Wis. Stat. chapter 90 allows agricultural landowners to file complaints with “fence viewers” to help collect fence repair costs. “Fence viewers” are town supervisors, city alderpersons, and village trustees. But remaining provisions of Chapter 90’s partition procedures refer only to “towns.” They do not say anything about cities or villages.

    So when Stuart and Janet White filed a Chapter 90 complaint to recover fence repair costs from adjoining landowners, the City of Watertown refused to get involved, claiming Chapter 90 did not apply to cities. Not satisfied, the Whites sued the city.

    The circuit court in Jefferson County ruled that Chapter 90 applies to cities. And a three-judge appeals court panel affirmed, concluding inconsistent language made the statute ambiguous, but a review of the legislative history showed an intent to include cities.

    “Although we affirm the court of appeals, we have traveled a different analytical route,” wrote Justice Kelly, noting that the plain language of the statutes provides the answer.

    “Out of all the Chapter 90 provisions cited by the parties, only one mentions municipalities other than towns,” Kelly wrote. “But it is a provision without which neither of the partition statutes nor any of the Enforcement Procedure statutes could operate.”

    Kelly was referring to Wis. Stat. section 90.11, which requires a complaint to “fence viewers of the town,” which triggers other procedures authorities must follow.

    The city argued that this provision clearly applies only to towns, even though fence viewers, under the statute, can also be city alderpersons and village trustees.

    But the supreme court looked beyond Chapter 90, to Wis. Stat. section 990.01 to resolve the ambiguity in using the term “town” in most of Chapter 90.

    Section 990.01 says: “In the construction of Wisconsin laws the words and phrases which follow shall be construed as indicated unless such construction would produce a result inconsistent with the manifest intent of the legislature. …”

    Section 990.01(42) says “towns” may be construed to include “cities, villages, wards or districts.” Neither the parties nor the lower courts drew attention to the section 990.01 provisions, but the supreme court relied on it to reach its conclusion in the case.

    “Applying this rule to the question before us entirely eliminates the ambiguity that the parties, the circuit court, and the court of appeals all saw,” Kelly wrote. “Each of the statutes we have construed makes perfect sense when we read ‘town’ to include ‘city.’”

    The supreme court concluded that Chapter 90’s plain language, “when read in light of § 990.01(42), unambiguously authorizes the City to administer the Enforcement Procedures” relating to the allocation and maintenance costs of partition fencing.




  • Rise of the Machines: Wearable Technology in the Workplace

    Assistive technology is becoming more prevalent and accepted in the workplace. Eric Meier discusses some of the latest technology and legal considerations surrounding the employee data that is captured by wearable technology.

    Eric J. Meier

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    In 2017, a River Falls company made news when it offered employees the chance to have an RFID chip injected into their hand.

    More than 40 employees of Three Square Market, a technology company that provides self-service mini-markets to hospitals, hotels, and company break rooms, took the leap and had chips around the size of a large grain of rice implanted in their hands.

    The RFID chips are passive – without batteries, they get their power from an RFID reader when it requests data from the chip – and store certain personally identifying information, allowing employees to wave their chip-implanted hand (instead of using a pass or security code) to do things such as get into their office, log on to computers, and make purchases at the company cafeteria.

    Three Square paid for the chips (installed by a local tattoo artist), had a party for the event (serving chips and salsa of course), and made the entire process voluntary.

    Thousands in Sweden

    While the use of implanted RFID technology is prevalent in pets in the United States, it is not the norm with employees – at least not yet. Countries such as Sweden, however, have seen more widespread use of this technology: according to an Oct. 22, 2018, NPR article, thousands of people have microchips inserted into their hands.

    In 2006, Wisconsin was actually the first state to institute legislation making it illegal for anyone –including employers and government agencies – to implant RFID microchips in people without their consent. According to Wis. Stat. section 146.25, anyone who does will face fines of up to $10,000. Each day of continued violation constitutes a separate offense.

    Wearables in the Workplace

    As people become more and more comfortable with voluntarily using data tracking and collecting technology (check your wrist as you are reading this to see how many apps you have on your smartwatch), it is only a matter of time before everyone is intersecting with wearable technology in the workplace in some form or fashion.

    Eric Meier com eric.meier huschblackwell Eric Meier, U.W. 2002, is a partner in Husch Blackwell’s real estate, design, and construction industry team, where he concentrates his practice on construction and business litigation, risk management, and planning.

    Luckily, there are much less physically intrusive ways for employers to incorporate wearable technology into the workplace than RFID chips. On one end of the spectrum are things like heating jackets and cooling vests – not necessarily new technologies, but these devices have improved leaps and bounds over the years as batteries have become smaller and more powerful.

    On the other end of the spectrum are products like smart hard hats (which use brain waves to measure fatigue) and sophisticated protective eyewear that can allow users to overlay 3D building plans over a job site.

    While the new technology is meant to make workplaces and employees safer and more efficient, the technology also creates a tremendous influx of data. The data are likely to mean different things to different parties, and it is entirely possible that a variety of departments in a company (operations, finance, safety, risk, legal, human resources, etc.) will find benefits from analysis of the data.

    Regardless of who is using the data, companies must keep in mind certain legal and business considerations associated with the equipment, as well as the collected information.

    OSHA’s Considerations

    Occupational Safety and Health Administration (OSHA) is clearly invested in the increased use of wearable technology in the workplace. In addition to software recording employee jobsite safety information that previously was not available, it is also creating guidance as to proper usage and risks associated with wearable devices.

    For example, OSHA issued a bulletin on Jan. 18, 2019, on how to prevent fire and/or explosion injury from small and wearable lithium battery powered devices. The bulletin lists various guidelines to incorporate lithium battery safety and training into an employer’s safety and health program.

    For safety purposes, it is wise to have employee training relative to the technology. As an example, some employers use a device that warns employees of exposure to toxic fumes. Employees should be trained how to respond to warnings to ensure the safety benefits from the technology are achieved.

    Use of Data

    On the data side, companies must understand what type of information is being collected, who is able to access the data and for what purposes. Companies should engage in training of the authorized employees on how to properly use and protect the information.

    Another important consideration is notice to the employees about the information that will be collected about them, how the information will be used, and how it may be disclosed.

    Finally, companies must understand what data privacy laws and requirements might be impacted, depending on the nature and type of personal, health, or other data that is collected.

    Wearables in Litigation

    From a litigation perspective, information from wearable technology could be instrumental in establishing location and activities at or around the time of an incident.

    Companies should update their data retention and destruction policies to encompass the data obtained from any new technology, and make sure those entrusted with preserving records are aware of the new information available.

    Further, if a lawsuit commences, parties will want to request the wearable technology data and company policies and procedures related thereto.

    More to Come

    According to Forbes, the number of wearable technology devices is set to double by 2021. Whether a smartwatch, hat, boots, clothing, or an implanted RFID chip, odds are that companies will expand their use of wearable technology in the workplace.

    It is important that, beyond just selecting devices that provide some sort of safety and/or business benefits, companies are mindful of the business practices that must be updated to protect themselves from the lurking legal risks associated with the new information channels and with additional monitoring and control of their employees.

    ​​​



  • Members Only

    If you have moved, become a partner or an associate, or received a promotion or an award, let us know.
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    New Hires, Promotions, Partners

    Andrew P. Baker, U.W. 2018, has joined the Law Offices of Michael J. Anderson LLC, Lake Mills, as an associate, focusing on business law, commercial and consumer collections, commercial real estate, and insurance coverage.

    Rachel B. BeauchampRachel B. Beauchamp, William Mitchell 2008, has become a shareholder with Cousineau, Van Bergen, McNee & Malone P.A., Minnetonka, Minn. She practices in Minnesota and Wisconsin in transportation law (including commercial trucking, FELA, and admiralty), appellate law, insurance coverage, personal injury defense, premises liability, subrogation, dram shop, construction defect litigation, and general liability.

    Patricia E. DavisPatricia E. Davis, William Mitchell 2011, has been promoted to shareholder at Kendricks, Bordeau, Keefe, Seavoy & Larsen P.C., Marquette, Mich. Her areas of practice include estate planning, corporate law, and nonprofit corporations.

    Chase HorneRaluca Vais-OttosenTwo attorneys have been promoted to partner at DeWitt LLP, Madison. Chase Horne, U.W. 2011, practices in litigation and environmental law, representing clients in business and shareholder disputes, construction disputes, personal injury matters, and employment issues. Raluca Vais-Ottosen, Louisiana State 2004, focuses on employment and U.S. immigration and nationality law, including family-based and individual immigration applications, employment-based visas, permanent residence (green card), and U.S. citizenship.

    Nathan O. HadsellNathan O. Hadsell, U.W. 2005, is a founding member of Masini, Vickers, Ruksakiati & Hadsell P.C., Chicago. He continues to focus on construction law and commercial litigation.

    Jaclyn C. KallieJaclyn C. Kallie, Marquette 2012, has joined the civil litigation section at Gimbel, Reilly, Guerin & Brown LLP, Milwaukee. She previously worked in private practice concentrating in complex civil litigation and insurance defense.

    Terrence M. PolichBethesda ZewdieTwo attorneys have joined the Madison office of Lawton & Cates S.C. as associates. Terrence M. Polich, U.W. 1998, concentrates in personal injury, professional negligence, business disputes, lemon law, and consumer warranty issues. Bethesda Zewdie, U.W. 2018, focuses on civil litigation and immigration matters.

    Jessica A. LiebauJessica A. Liebau, Marquette 2011 cum laude, has been named partner with Wessels Law Office LLC, Mequon, where she focuses on elder law, guardianships, special needs planning, public benefits such as Medicaid, estate planning, and trust and probate administration.

    Steven L. Miracle, Marquette 2013 cum laude, has joined Milwaukee-based Meissner Tierney Fisher & Nichols S.C. as an associate. He focuses on commercial litigation, primarily insurance defense and coverage issues. Previously, he was an associate with Borgelt, Powell, Peterson & Frauen S.C., Milwaukee.

    Four attorneys have been promoted to shareholder at Reinhart Boerner Van Deuren s.c.

    Milwaukee office: Bryant E. Ferguson, Marquette 2010 magna cum laude, is with the employee benefits practice and focuses on advising large institutional investors. He reviews partnership agreements, private placement memoranda, and other offering and disclosure documents; negotiates investment terms; and represents buyers and sellers of private fund interests in the secondary market.

    Brittany Lopez Naleid, U.W. 2010 cum laude, is with the labor and employment practice and focuses on representing employers in employment discrimination, wrongful termination, harassment cases, shareholder disputes, employment-related immigration matters, and nonemigrant visa petitions. She also represents low-income clients as part of Reinhart’s pro bono program.

    John K. Tokarz, U.W. 2011 summa cum laude, is with the corporate law, food and beverage, and institutional investor services practices and focuses on mergers and acquisitions, joint ventures, divestures, and securities offerings and closely held and family-owned businesses. He is also a certified public accountant.

    Madison office: Joshua D. Taggatz, Minnesota 2010 magna cum laude, is with the litigation practice in the Madison office and handles real estate disputes, condominium issues, business transactions, and foreclosure matters. He also represents hospices in Medicare and Medicaid audits.

    Two attorneys have joined Reinhart. Matthew J. Ackmann, Marquette 2016, is with the trust and estates practice in the Waukesha office. Heidi M. Gabriel, Marquette 2013 cum laude, is with the corporate law practice in the Madison and Milwaukee offices and focuses on corporate and tax matters. Gabriel, also a certified public accountant, previously worked in the state and local tax group for a Big Four accounting firm.

    The Hon. Richard J. Sankovitz, Harvard 1983, has joined Milwaukee-based Resolute Systems, a national mediation and arbitration firm. He left the Milwaukee County Circuit Court in December 2018. Judge Sankovitz presided in four of the five divisions of the court, including the civil and family divisions, and in almost 300 jury trials. He is one of the principal authors of the Local Rules of the First Judicial District.

    Tricia L. Schulz, U.W. 2006, has been elected partner at Foley & Lardner, Madison. She continues to focus in intellectual property law.

    Mergers, Relocations, New Offices

    Victoria Davis Dávila, Marquette 2011, has moved her practice, the Law Office of Victoria L. Davis Dávila LLC, to 1433 N. Water Street, Suite 400, Milwaukee. She focuses on the legal needs of individuals with special needs and their families.

    The Wisconsin-based law firm DeWitt Ross & Stevens S.C., and its Minnesota affiliate DeWitt Mackall Crounse & Moore S.C., have reorganized to DeWitt LLP.

    The lawyers and staff formerly with Hesson & Birtch LLC, Neenah, have joined von Briesen & Roper s.c. The Neenah office is located at 244 East Doty Avenue. Grant E. Birtch, U.W. 1990, and Jeffrey L. Hesson, Marquette 1983, are shareholders in the Neenah office. Birtch focuses on estate planning, probate, real estate, and corporate matters. Hesson focuses on general business planning; organizing, acquiring, and selling businesses; contract review and drafting; risk analysis and planning; nonprofit and foundation matters; and director issues. Gerald H. Rammer, U.W. 1970, is counsel in the Neenah office and focuses in estate planning, estate administration, trust administration, and tax.

    Richard A. Westley, U.W. 1975, Bridgette M. Blitch, Denver 2008, and Joseph E. Blitch, Florida 1994, have formed Blitch Westley S.C., with offices in Madison and Windemere, Fla. Lauren E. Rosenbaum, Marquette 2015, is an associate. The firm represents business clients throughout the United States in litigation, corporate structuring, and transactional and administrative matters, with special emphasis on the transportation industry.

    Appointments, Elections

    Ellen Nowak, Marquette 1998, has been reappointed to the Wisconsin Public Service Commission. She previously served on the commission from 2011 to February 2018.

    Michael Rust, Marquette 2006, has been elected president of the Association for Conflict Resolution. His term begins September 2019. He is executive director of the Winnebago Conflict Resolution Center Inc., Oshkosh.

    Ron TuslerRon Tusler, Marquette 2010, a Wisconsin state representative and a personal injury attorney, has been appointed chair of the Committee on Campaigns and Elections for the 2019-20 Wisconsin Assembly session.

    Authors, Speakers

    Alex Flynn, Marquette 1984, lectured on criminal law and trial practice and procedure at Matej Bel University Faculty of Law in Banska Bystrica, Slovakia, in November 2018, under the auspices of the Center for International Studies Senior Lawyer Program. He practices in Milwaukee.

    Carlton D. Stansbury, Iowa 1990 with distinction, presented “Deceptively Simple to Unnecessarily Complicated: Lessons from Real Life UCCJEA Cases,” at the National CLE Conference in Snowmass, Colo. He is a shareholder with Burbach & Stansbury S.C., Milwaukee, and focuses in family law.

    James Casey, Dayton 1988, was a featured speaker at the inaugural Frank P. Zeidler Legacy Breakfast held in Milwaukee in November. He spoke about the legacy of the late Milwaukee mayor and the importance of civil discussions between people who often significantly disagree. The Frank P. Zeidler Center for Public Discussion exists to further such civil dialog, and Casey noted the important role that lawyers, and the State Bar of Wisconsin, have in furthering that civil discussion. He practices in antitrust law in Washington, D.C., and is an adjunct associate professor at the City University of New York.

    Awards, Degrees, Honors

    James M. Burrows, Marquette 2011, has been named 2018 Pro Bono Attorney of the Year at Reinhart Boerner Van Deuren s.c. Burrows is with the litigation practice in the Milwaukee office and focuses on intellectual property litigation. He is a senior member of the firm’s Domestic Abuse Injunction Program, which provides free representation to low-income domestic abuse victims, and a volunteer at the Marquette Legal Aid Clinic and the Milwaukee Justice Center, and he has been both a lead attorney and a mentor to younger lawyers with Reinhart’s Prisoner Civil Rights Program.

    Emery K. HarlanEmery K. Harlan, U.W. 1989, a partner at MWH Law Group, Milwaukee, has been named one of Wisconsin’s most influential black leaders by Madison 365. He focuses on defending companies and governmental entities in high-profile, aggravated discrimination matters. Harlan has served as a board member for the Blood Center of Wisconsin, Milwaukee Health Services, and Sharon Lynne Wilson Center for the Arts. He is the State Bar of Wisconsin’s 2018 Lifetime Legal Innovator andhas been a leader in promoting greater diversity and inclusion in the legal profession. He co-founded the National Association of Minority & Women Owned Law Firms and has served as an advisor to the Minority In-House Counsel Association.

    Paul A. Sturgul, U.W. 1973, was named Volunteer Attorney of the Year for 2018 by the Elder Law and Disability Rights Section (ELDRS) of the Michigan State Bar. Sturgul is past chair of the ELDRS and has also been chair of the State Bar of Wisconsin Elder Law and Special Needs Section and president of the National Elder Law Foundation. He practices with Sturgul & Long, Hurley.

    Pat Sullivan, Marquette 1984 cum laude, has been elected to the American Board of Trial Advocates and as a Fellow of the International Society of Barristers. His practice at Siesennop & Sullivan LLC, Milwaukee, focuses on the defense of long-term care facilities and other health-care professionals in civil litigation.

    Eric J. Haag, U.W. 1996, a partner at Atterbury, Kammer & Haag S.C., Middleton, received the 2018 President’s Award from the Wisconsin Association for Justice (WAJ). The award honors the work of members who help improve the U.S. civil justice system or ensure access to the courts for all and the right of trial by jury. Haag focuses in plaintiffs’ personal injury litigation and also handles civil rights claims, medical malpractice, class actions, and fire loss cases. He is a former member of the WAJ board. Eric M. Knobloch, Marquette 2007, with Gruber Law Offices LLC, Milwaukee, received the WAJ’s Outstanding Young Trial Lawyer Award for 2018. He has spent his entire career dedicated to helping injured clients hold wrongdoers responsible. He is a member of the WAJ board.

    In Memoriam

    Joseph C. Crawford, William Mitchell 1989, Inver Grove Heights, Minn., Aug. 20, 1944 – March 12, 2018.

    Hon. James P. Fiedler, Marquette 1952, Madison, Dec. 23, 1928 – Jan. 15, 2019.

    Lynn Ellen Hackbarth, Marquette 1983, Milwaukee, Dec. 27, 1956 – Dec. 30, 2018.

    Troy Michael Hellenbrand, Fordham 1987, Waunakee, Aug. 16, 1962 – Jan. 2, 2019.

    Robert W. Kohn, U.W. 1960, Santa Barbara, Cal., Feb. 13, 1934 – Nov. 9, 2018.

    Jan Leslie Meese, Washburn 1995, Rice Lake, May 8, 1955 – Nov. 2, 2018.

    Karen R. Olson, Vermont 1985, Amery, April 28, 1959 – Jan. 2, 2019.

    Sherin Schapiro, Marquette 1964, Milwaukee, Oct. 25, 1937 – Dec. 21, 2018.

    John W. Tessner, Gonzaga 1984, Saint Paul, Minn., March 14, 1945 – Nov. 27, 2018.

    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. Talks, speeches (unless they are of national stature), honors from other publications, and political announcements are not accepted. Notices about State Bar members in good standing are printed as space is available, and at no cost, must be submitted in writing, and may be edited. Questions: (608) 250-6139.

    Photo placement: Submit a professional-quality photo. If the photo is used, the State Bar will issue an invoice ($30 each). Group photos are not accepted. High-resolution electronic photos are preferred.

    Deadline: The first of the month preceding publication. For example, to place an announcement in the May issue, it must be received before April 1. Email to: org MembersOnly wisbar wisbar MembersOnly org. Include your State Bar membership number.




  • Lawyer Discipline

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    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.

    Disciplinary Proceedings Against Gerald P. Boyle

    On Nov. 30, 2018, the Wisconsin Supreme Court indefinitely suspended the law license of Gerald P. Boyle, Milwaukee, due to his medical incapacity. The court concurrently abated an underlying disciplinary proceeding. Disciplinary Proceedings Against Boyle, 2018 WI 108.

    In March 2017, the Office of Lawyer Regulation (OLR) filed a complaint against Boyle alleging that he committed professional misconduct in two client matters, including failing to cooperate with the OLR’s investigation into those matters. Boyle alleged that he suffered from a medical incapacity that made the defense of the disciplinary proceedings impossible. After reviewing medical records, Boyle and the OLR stipulated to the medical incapacity, and the referee concluded that Boyle suffered from a medical incapacity.

    The court accepted the referee’s findings, as well as the referee’s recommendations that Boyle’s license to practice law should be suspended indefinitely and that the disciplinary proceedings should be abated pursuant to SCR 22.16(4)(d).

    Boyle received private reprimands in 2002, 2009, and 2012 and was suspended for 60 days in 2015.

    Public Reprimand of Sharon Riek

    The OLR and Sharon Riek, Racine, entered into an agreement for imposition of a public reprimand, pursuant to SCR 22.09(1). A supreme court-appointed referee approved the agreement, and issued the public reprimand on Dec. 10, 2018, in accordance with SCR 22.09(3).

    In October 2015, Riek served as the prosecutor in two related criminal matters. Law enforcement officers, relying on information provided by confidential informants, set up a drug interdiction effort to stop and search a particular vehicle believed to be transporting cocaine from Illinois into Wisconsin. Riek was aware that police officers used confidential informants to identify the suspected vehicle and support the charges against the defendants. Riek was also aware of a purported nonrecorded oral statement by one of the codefendants that implicated the other defendant. The statement was made to the lead investigator in the case, who relied on the statement during his testimony at the preliminary hearing.

    During discovery, defense counsel specifically sought from Riek information regarding the use of informants as well as the existence of any oral statements by any defendant. Riek failed to disclose to defense counsel the use of confidential informants by law enforcement. Similarly, Riek failed to disclose to defense counsel the purported nonrecorded statement by one codefendant implicating the other defendant.

    By failing to respond to discovery requests by counsel for both defendants for information provided by confidential informants and failing to respond to discovery requests for the nonrecorded statement by one defendant to the lead investigator, Riek violated SCR 20:3.4(d).

    In 1999, Riek was privately reprimanded for misconduct while acting as a prosecutor.

    Disciplinary Proceedings Against Daniel Parks

    On Dec. 13, 2018, the supreme court suspended the law license of Daniel Parks, Fond du Lac, for 14 months, effective Jan. 24, 2019. The court also ordered Parks to pay the $42,226.26 cost of the disciplinary proceeding. Disciplinary Proceedings Against Parks, 2018 WI 110.

    In April 2013, Parks announced that he was leaving his law firm. After Parks’ departure, the firm discovered that Parks had engaged in “non-firm work” while employed by the firm, including legal work for approximately 30 firm clients. Parks collected the fees himself and did not share the fees with the firm. In some instances, Parks made unauthorized fee reductions and accepted client services that benefited him personally, such as auto work or home improvements. In another client matter, Parks unilaterally reduced the firm’s contingent fee and thereafter asked the clients to give him $5,000.

    By engaging in multiple acts of self-dealing with firm clients and misappropriating fees belonging to the firm, Parks violated SCR 20:8.4(c), which provides, “It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” In addition, Parks breached his fiduciary duties owed to his firm and his duty of honesty in his professional dealings with the firm, in violation of SCR 20:8.4(f), which provides, “It is professional misconduct for a lawyer to: … (f) violate a … supreme court decision … regulating the conduct of lawyers …” as it relates to Disciplinary Proceedings Against Shea, 190 Wis. 2d 560, 527 N.W.2d 314 (1995).

    Moreover, Parks engaged in additional acts of self-dealing with respect to the handling of an estate matter. A long-time client of Parks died, leaving Parks as one of the beneficiaries of her will. Before the client’s death, Parks had accepted much of her property. After the client’s death, Parks induced other beneficiaries of the client’s will to sign a release that absolved Parks of any liability and allowed Parks to keep much of the client’s property. In addition, Parks included in the release a provision that excused Parks from repaying a loan owed to the client. Parks’ self-dealing with respect to the client’s estate also violated SCR 20:8.4(c).

    Moreover, the deceased client, who apparently did secretarial work for Parks, owned a computer that contained files associated with Parks’ former law firm. The files had no password protection. By failing to protect the confidentiality of those files, Parks violated SCR 20:1.6(a), which provides, in relevant part, “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent….”

    Parks had no prior discipline.

    Public Reprimand of Michael Mack

    The OLR and Michael Mack, Brookfield, entered into an agreement for imposition of a public reprimand, pursuant to SCR 22.09(1). A supreme court-appointed referee approved the agreement, and issued the public reprimand on Dec. 21, 2018, in accordance with SCR 22.09(3).

    Mack filed a Chapter 13 bankruptcy petition for himself. Mack prepared his own petition, schedules, and statement of financial affairs (as well as amended schedules) and signed them under penalty of perjury. In multiple respects, Mack’s schedules and statements were false, misleading, and inaccurate, including failing to accurately disclose assets, loans, transfers, bank accounts, and business income. In addition, Mack testified falsely at multiple section 341 meetings of creditors that the schedules he filed were true, correct, and complete. Ultimately, Mack converted his Chapter 13 bankruptcy petition to a Chapter 7 petition and received a full discharge.

    The trustee sought to reopen and revoke Mack’s Chapter 7 bankruptcy discharge based on evidence that Mack had filed inaccurate schedules. Mack ultimately stipulated to the waiver of the discharge. By knowingly making false statements (or statements in reckless disregard for the truth) in the petition and schedules and swearing under oath that the information contained in the petition and schedules was true and accurate, Mack violated SCR 20:3.3(a)(1). By testifying falsely at multiple meetings of creditors that the information provided in the schedules was true and accurate and engaging in a course of conduct designed to obtain a bankruptcy discharge by fraudulent means, Mack violated SCR 20:8.4(c). By providing multiple false statements or omissions of material fact to the trustee, Mack violated, in each instance, SCR 20:4.1(a)(1).

    Mack had no prior discipline.




  • Supreme Court Digest

    In this column, Prof. Daniel Blinka and Prof. Thomas Hammer summarize all decisions of the Wisconsin Supreme Court (except those involving lawyer or judicial discipline).

    Daniel D. Blinka & Thomas J. Hammer

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    Criminal Procedure

    Restitution – Crime Considered at Sentencing

    State v. Wiskerchen, 2019 WI 1 (filed 4 Jan. 2019)

    HOLDING: The circuit court had the authority to order restitution in this case and did not misuse its discretion when calculating restitution.

    SUMMARY: This appeal concerns restitution the circuit court ordered after the defendant was found guilty of committing a burglary at the victim’s residence on May 8, 2018. In an unpublished decision, the Wisconsin Court of Appeals affirmed the restitution order. In an opinion authored by Chief Justice Roggensack, the Wisconsin Supreme Court affirmed the court of appeals.

    The first issue before the supreme court was whether the restitution statute (Wis. Stat. § 973.20) authorized the circuit court to order restitution to the victim in this case. The court held that it did. Section 973.20(1r) requires that the sentencing court order the defendant to pay restitution to any victim of a “crime considered at sentencing.” A “crime considered at sentencing” means the crime of conviction and any read-in crime. Wisconsin courts have interpreted “crime considered at sentencing” quite broadly.

    “The crime encompasses ‘all facts and reasonable inferences concerning the defendant's activity related to the “crime” for which the defendant was convicted, not just those facts necessary to support the elements of the specific charge of which the defendant was convicted.’ The victim needs to show that there is a ‘causal nexus’ between the crime and the victim’s losses, such that the defendant’s criminal activity was a ‘substantial factor’ in causing the losses. The court considers the defendant’s ‘entire course of conduct’ in committing the crime of conviction, not merely the facts necessary to support the conviction” (¶ 25) (internal citations omitted).

    In this case the defendant was convicted of burglarizing the victim’s home on May 8. The burglary was a “crime considered at sentencing” because it was a crime for which the defendant was convicted. Section 973.20 thus authorized the circuit court to order the defendant to pay restitution to the victim (see ¶ 27).

    The supreme court also concluded that the victim of the burglary met her burden of proving her losses as a result of a crime considered at sentencing. Although the circuit court did not itemize which stolen items were included in the restitution award, the finding of fact that the victim proved her loss was not clearly erroneous (see ¶ 29). There was no evidence that the defendant or anyone else had stolen the victim’s property on any other date; only the defendant’s mother’s hearsay statement (as relayed by the victim) implied that there could have been other thefts. The circuit court therefore did not misuse its discretion in calculating restitution (see ¶ 46).

    Justice A.W. Bradley, joined by Justice Abrahamson, concurred. They believe the record demonstrates that some of the property for which restitution was ordered was actually taken by the defendant during earlier entries into the victim’s home.

    In their view restitution is nevertheless appropriate in this case based on prior case law: “[W]here a circuit court makes specific factual findings regarding uncharged conduct that is ‘related to’ the crime of conviction, and there is a causal nexus between the conduct and the loss, restitution is permissible for uncharged conduct” (¶ 63). They noted that the circuit court had found a “nexus” between the defendant’s conduct and the victim’s loss.

    Justice R.G. Bradley filed a separate concurrence.

    Dispute Resolution

    Arbitration – Superseding Contract – Arbitrability

    Midwest Neurosciences Assocs. LLC v. Great Lakes Neurosurgical Assocs. LLC, 2018 WI 112 (filed 19 Dec. 2018)

    HOLDINGS: Courts have the duty to determine whether a contract calls for arbitration; when a dispute exists as to whether a second contract without an arbitration clause supersedes a first contract with such a clause, the determination of arbitrability must be decided in the first instance by the circuit court rather than the arbitrator.

    Daniel D. Blinkaedu daniel.blinka marquette Prof. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.

    Thomas J. Hammeredu 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: This litigation arose from the breakup of a neurosurgery practice and the implications of two contracts. The first contract, the operating agreement, provided that all disputes were to be arbitrated, including any issues of “substantive arbitrability.” The second contract, the redemption agreement, released various parties from all obligations under the operating agreement, including any agreement to arbitrate disputes. The parties disputed the effect of the redemption agreement on the operating agreement, including whether the former was a valid contract (see ¶¶ 92-93).

    The circuit court ruled that the redemption agreement was valid and the dispute was not subject to arbitration. The court of appeals reversed in an unpublished decision and remanded with instructions that the circuit court compel arbitration of the disputed issues.

    The supreme court reversed the court of appeals in an opinion authored by Justice Ziegler. “[I]t is a court’s duty to determine whether a contract calls for arbitration and when a dispute exists as to whether a second contract without an arbitration clause supersedes a first contract with such a clause, the determination of arbitrability must be decided in the first instance by the circuit court rather than the arbitrator” (¶ 5).

    As to the second contract, “[f]undamental principles clearly militate in favor of the ability to freely contract, even if that changes the forum of dispute resolution” (¶ 50). The opinion clarified that prior case law does not provide “that once arbitration is contracted as the forum for dispute resolution, parties can never later contract for an alternative forum for dispute resolution” (¶ 67).

    Finally, the record manifests a disputed issue of material fact regarding the validity of the redemption agreement. The supreme court remanded the case for a determination of its validity (see ¶ 83).

    Justice Dallet withdrew from participation. Justice Abrahamson concurred but wrote separately to provide a “clear analytic framework” for disputes such as this while also clarifying federal case law (¶ 94). Justice R.G. Bradley dissented on grounds that the majority “nullifies” the parties’ arbitration agreement (¶ 129).

    Motor Vehicle Law

    Second-offense Operation While Intoxicated – Proof of Prior Conviction – Use of Expunged Conviction to Enhance Penalty

    State v. Braunschweig, 2018 WI 113 (filed 21 Dec. 2018)

    HOLDINGS: 1) Expunged operating while intoxicated (OWI)-related convictions can be used to enhance the penalties in later OWI-related prosecutions. 2) In a prosecution for second-offense OWI, the existence of a prior OWI-related conviction is not an element of the crime that must be proved to the trier of fact beyond a reasonable doubt; rather, the burden of proof is by a preponderance of the evidence, which may be satisfied with a certified Wisconsin Department of Transportation (DOT) record.

    SUMMARY: The defendant was charged with OWI and operating with a prohibited alcohol concentration (PAC) based on an incident that occurred in 2016. The state prosecuted him as a repeat offender (second offense); the defendant’s 2011 conviction for injuring another person by operation of a vehicle while intoxicated was the predicate offense for enhancing the penalties for the current offenses. Because that prior conviction had been expunged, the defendant argued in a pretrial motion that the 2011 conviction could not be used as the basis to prosecute him as a second offender for the 2016 offenses.

    The circuit court denied the motion. It also denied a pretrial motion in which the defendant argued that the existence of a prior conviction is a status element in a second-offense OWI case and, absent a stipulation, must be proved beyond a reasonable doubt to the trier of fact.

    After his conviction on the 2016 offenses, the defendant appealed and, in an unpublished decision, the court of appeals affirmed. In a unanimous opinion authored by Justice Ziegler, the supreme court affirmed the court of appeals.

    The court first considered whether an expunged OWI-related conviction constitutes a prior conviction under Wis. Stat. section 343.307(1) for purposes of determining the penalty for later OWI-related offenses. It concluded that a prior expunged conviction must be counted under section 343.307(1) (see ¶ 2). Wisconsin Statutes section 340.01(9r) defines conviction for purposes of the Motor Vehicle Code as an “unvacated adjudication of guilt.”

    “Vacatur invalidates the conviction itself, whereas expunction of a conviction merely deletes the evidence of the underlying conviction from court records. Expunction, unlike vacatur, does not invalidate the conviction” (¶ 22). Thus, a conviction – even though expunged – “remains ‘an unvacated adjudication of guilt’ and thus, must be counted for purposes of supporting a prior conviction in OWI-related offenses” (¶ 25).

    The court next considered the question of the burden of proof the state must meet in proving a prior conviction in second-offense OWI-related cases. It held that the state must prove the prior conviction by a preponderance of the evidence and that this burden can be satisfied with a certified DOT record. The prior conviction is not an element in a second-offense OWI prosecution and need not be proved beyond a reasonable doubt (see ¶¶ 39-40).

    The court was careful to note that in some PAC cases the predicate prior conviction will be an element of the crime, which the state must prove beyond a reasonable doubt (see ¶ 36). “The holding that preponderance of the evidence is the burden of proof applies only when the prior convictions are not an element of the offense, such as in second offense OWI cases, but not so when the prior convictions become an element of the offense as in some PAC cases where the prior convictions lower the ‘[p]rohibited alcohol concentration’” (¶ 32 n. 14).

    Municipal Law

    Cemeteries – Transfer to Town for Management by Town

    DeWitt v. Ferries, 2018 WI 117 (filed 27 Dec. 2018)

    HOLDING: The plaintiffs failed to establish that a particular parcel of land is a “cemetery” and thus subject to transfer to the local town for management.

    SUMMARY: Pursuant to Wis. Stat. section 157.115(1)(c), the plaintiffs (hereinafter the DeWitts) sought to transfer a one-acre parcel of property to the town of Forest for management by the town as a town cemetery. They claimed that the parcel is a cemetery where they believe their relatives are buried and that the parcel is neglected or abandoned. There are references to a “cemetery” in various conveyances of the property that took place in the 1890s; however, there are no headstones or grave markers anywhere on the parcel.

    The circuit court ordered transfer of the parcel to the town. The court of appeals reversed this decision in an unpublished decision. In a unanimous opinion authored by Justice A.W. Bradley, the supreme court affirmed the court of appeals.

    The dispositive issue on this appeal was whether the one-acre parcel was actually a “cemetery” and thus subject to transfer to the town under Wis. Stat. section 157.115(1)(c). The supreme court concluded that it was not. It held that “the parcel does not satisfy the statutory definition of a ‘cemetery.’ The detailed statutes and regulations governing cemeteries indicate that a certain degree of formality is required to form a cemetery. The record does not support a determination that any such formalities were met here. Absent the formation of a cemetery, the cemetery transfer statute, Wis. Stat. § 157.115(1)(c), cannot be invoked” (¶ 38).

    In particular, the court noted that “there is no evidence in the record that a cemetery authority was ever formed, or that it platted land or filed a plat or map with the register of deeds” (¶ 37). Even in the late 19th century there were certain formalities required to form a cemetery (see ¶ 48).

    In prior case law the supreme court has concluded that various formalities have long been required to form and manage a cemetery. The decision in Town of Blooming Grove v. Roselawn Memorial Park Co., 231 Wis. 492, 286 N.W. 43 (1939), “supports the proposition that formality beyond [interment] of bodies – namely the forming and incorporating of a cemetery authority, recording plats, dividing those plats into lots, and conveying those lots – is required to establish a cemetery” (¶ 52).

    Torts

    Governmental Immunity – “Known-danger” Exception

    Engelhardt v. City of New Berlin, 2019 WI 2 (filed 4 Jan. 2019)

    HOLDING: The “known-danger exception” stripped the city of its governmental immunity in a lawsuit brought after the drowning of a minor in a municipal swimming pool.

    SUMMARY: While visiting a city swimming pool on a field trip sponsored by the municipal recreation department, eight-year-old Lily, who did not know how to swim, drowned in the pool. She was alone near the pool while staff members and other children were in the locker rooms. Lily’s parents sued the city. The circuit court refused to dismiss the city on grounds of governmental immunity, but the court of appeals reversed in an unpublished decision.

    The supreme court reversed the court of appeals in an opinion authored by Justice Abrahamson. Governmental immunity did not apply because the city breached a nondiscretionary (ministerial) duty, thereby triggering the known-danger exception. The danger to the child was “compelling and self-evident.” Lily’s mother had advised staff members that Lily could not swim, she was not tested, no one watched over her near the pool, she was not in a lifejacket, and so on (¶¶ 6, 55-60).

    The majority carefully reviewed the existing case law on the known-danger exception and its application to the facts before it. The court declined an invitation to “reverse course on the past 40 years” of case law by interpreting Wis. Stat. section 893.80(4) in a way that would expose municipalities to “liability in a far greater number of circumstances” (¶ 23).

    Justice Dallet concurred, joined by Justice R.G. Bradley and Justice Kelly. She lamented the “artificial distinction” between ministerial and discretionary acts, a distinction that is “impracticable” and results in “jurisprudential chaos” (¶ 69). The concurrence argued that the known-danger exception is inapplicable on these facts but that the city is nonetheless liable because the text (“plain language”) of Wis. Stat. section 893.80(4) does not confer immunity based on the city’s conduct (¶ 81).




  • Shelf Life

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    Weed, Inc.

    VERDICT: Touchdown!

    Weed, Inc.: The Truth About THC, the Pot Lobby, and the Commercial Marijuana Industry

    By Ben Cort (Deerfield Beach, FL: Health Communications Inc., 2017). 250 pgs. $15.95. Order, www.amazon.com.

    Reviewed by Thomas J. McClure

    Societal changes create new laws, with which lawyers must become conversant. The desire for legalization of marijuana for recreational and medicinal use has spurred recent debate nationwide. Weed, Inc.: The Truth About THC, the Pot Lobby, and the Commercial Marijuana Industry has a wealth of historical and scientific information about legalizing marijuana. It stresses the importance of additional national conversation, and particularly, scientific and medical studies, of marijuana, as a result of Colorado’s constitutional amendment legalizing marijuana use in 2012, known as AG 64. That state’s recent five-year experience in legalization of recreational pot use forms the raw data of the book. No matter the practice area or interests, this is a valuable and timely book every lawyer would benefit from.

    The author wrote this book as an “overview and a conversation starter” (p. 12). Regardless of the reader’s view on decriminalization of marijuana use, this book provides a thorough education on the topic. Ben Cort, a former drug addict and recovered alcoholic in his 30s, is associated with the University of Colorado substance abuse treatment program.

    Cort’s passion for addiction prevention and treatment is evident in the impassioned manner in which he demonstrates that marijuana sold today is no longer the low-grade level of Woodstock nostalgia. Most readers are probably unaware that “cannabis withdrawal” has now been added, for the first time, as a category of “substance abuse disorder” in the latest edition of the American Psychiatric Association’s (2013) Diagnostic and Statistical Manual of Mental Disorders (DSM-5). Marijuana can be addictive and lead to dangerous psychosis.

    Cort, personally, is not an opponent of recreational use of weed. But he has seen it quickly becoming a hazard in Colorado, primarily due to commercialization and the development of myriad products, in almost unlimited forms, to encourage increasing purchases and consumption, by people of all ages.

    The two most significant chemicals naturally occurring in the cannabis plant are THC and CBD. THC causes the physiological response in the brain known as “getting high.” CBD, in contrast, has been found to relieve some pain or neurological symptoms in persons with certain medical afflictions; it is therefore the basis for the initiative of “legalizing marijuana for medicinal purposes.”

    Cort points out neither THC nor CBD is inherently valuable for a person’s health. In the unenhanced natural cannabis plant, THC and CBD are only at about a 1 percent level (and essentially neutralize each other). It is only with special breeding of the plant today that THC levels are enhanced up to 10, 20, or 40 percent, so sellers can advertise a “better, faster high.” CBD, although anecdotally promising for medicinal symptom relief, has yet to be found to cure any disease. And with the ramp up of THC “concentrated” products, with ever-increasing THC levels for weed smoking, vaping inhalation, and “edibles” eating, Cort argues society needs to take a big second look at Colorado’s five-year marijuana experiment.

    As the title indicates, the book is an exposé of the dark side of what happened with Colorado AG 64, namely the explosive commercialization of legalized marijuana and the outrageous drive to enhance its potency and increase its consumption. Because marijuana is still illegal in most states, there is no federal ability to regulate it; therefore, Colorado is the perfect incubator to judge how the AG 64 law panned out. Cort argues that it has not, and that the rest of the states should take action accordingly.

    Thomas J. McClure, Marquette 1980, is a solo general practice trial attorney in Delafield.


    The RecoveringVERDICT: It’s a Keeper

    The Recovering: Intoxication and Its Aftermath

    By Leslie Jamison (New York, NY: Hatchette Book Group, 2018). 534 pgs. $12.69. Order, www.amazon.com.

    Reviewed by Nancy Barasch

    Individuals’ struggle with alcoholism is a frequent artistic topic. Leslie Jamison is concerned that she is retelling a story, but she is a professional writer and her writing is excellent.

    Her story begins with earning an M.F.A. in creative writing from the University of Iowa’s Writers’ Workshop and returning to Iowa City to teach. At every point in her life, she struggles with a daily obsession with alcohol. She writes about her attendance at AA meetings and her relapses.

    Jamison thinks “platitude” when she hears people say “one day at a time,” until, as she puts it, “one day it wasn’t.” She analyzes the plot of AA members’ stories but knows that the desire to drink is never far from her mind.

    Interspersed with her story is the colorful story of famous writers who have had substance abuse problems. Some, such as John Berryman, committed suicide after being unable to come to grips with their addiction. A few recovered and did their best writing while sober. Jamison views addiction as a stumbling block that is not helpful to writing, but this isn’t a simple conclusion.

    In addition, Jamison makes a researched argument that the difference between an addiction being viewed as an illness or as a crime is race and that an appeal to racism is the origin of the escalating incarceration of users.

    Billie Holiday was black. She died in a hospital bed shackled and handcuffed. On the day Jamison was welcomed at her first AA meeting another addicted woman in Arizona was placed in a steel cage and died from exposure to heat (the temperature was 104 degrees).

    Readers who enjoy literary analysis and a description of writers’ lives will like this book.

    Those who must consider what we should do with our broken criminal justice system might find this book essential.

    Nancy Barasch, John Marshall 1985, resides in Kenosha.


    Reading the CommentsVERDICT: Touchdown!

    Reading the Comments: Likers, Haters, and Manipulators at the Bottom of the Web

    By Joseph M. Reagle Jr. (Cambridge, MA: The MIT Press, 2015). 272 pgs. $27.95. Order, edu mitpress-orders mit mit mitpress-orders edu.

    Reviewed by Suzanne Edwards

    As a television, computer, and audiobook fanatic, I rarely read a real paperbound book anymore. But I read most of Reading the Comments: Likers, Haters, and Manipulators at the Bottom of the Web during a satellite internet outage at my rural Iowa County house, and I am very glad I did.

    This book is only 272 pages, but it is filled with history, humor, and perspectives on what today’s user comments tell us about human nature and culture. Reagle’s writing style is easygoing yet thought provoking. Beginning with the earliest forms of criticism and review found in the mid-1700s, Reagle quickly moves into the present-day forms found on the internet.

    Reagle teaches us about what is found in “the bottom half of the internet,” meaning, the comments below articles, social media posts, products for sale, and other types of web content. His exploration of modern digital criticism via comments, likes, and emojis is divided into chapters titled, “Informed,” “Manipulated,” “Improved,” “Alienated,” “Shaped,” and “Bemused.” Each chapter illustrates how what we read online shapes what we like, what we buy, and how we feel about ourselves and each other. Reagle also writes about the profusion of internet fakers and scammers and how they operate.

    I recommend this book to anyone who uses the internet, which today is everyone.

    Suzanne Edwards, Chicago-Kent 1998, is a solo practitioner in Dodgeville and proud member of the Wisconsin Association of Criminal Defense Lawyers. Her interest in computers began with her first PC in 1986. She strives to stay current with computer technology, internet, and social trends.


    Bourbon JusticeVERDICT: Touchdown!

    Bourbon Justice: How Whiskey Law Shaped America

    By Brian F. Haara (Lincoln, Neb.: Potomac Books, 2018). 192 pages. $26.95. Order, www.amazon.com.

    Reviewed by Chris Liro

    The bourbon business is built on legend and lore. What better way to unearth the facts than court and legal records? Louisville, Ky., attorney Brian Haara, who writes about legal history and bourbon at his Sipp’n Corn blog, uses these sources to explore the colorful history of the bourbon industry and the effect of the business, its legal disputes, and its regulation on U.S. law. Haara presented his early research as a speaker at the 2016 Door County Intellectual Property Academy and now has published Bourbon Justice: How Whiskey Law Shaped America.

    Haara’s meticulously researched book cites cases and legislation back to the 1800s to show how the bourbon business reflected the transition to a consumer economy based on large producers and national brands and away from a localized economy and laissez faire regulation. The book focuses on bourbon’s role in the development of trademark and brand name rights, advertising and labeling law, federal consumer protection, and even criminal procedure. He shows how the history relates to contemporary cases in the bourbon and other industries. And if the reader wants a break along the way, Haara provides his tasting notes on current bourbons related to the brands or the now-famous individuals appearing in this history.

    Haara draws on many examples and stories to provide a narrative both educational and entertaining. Highlights include the Bottled-in-Bond Act of 1897 (the first instance of federal consumer protection legislation); the 1936 case of Churchill Downs Distilling Co v. Churchill Downs Inc., which established rights to protect trademarks against use by others in different industries; and more recent litigation involving the Maker’s Mark red-dripping-wax seal.

    The book is enjoyable and entertaining, yet with enough citations and detail to find a place on the syllabus of a trademark or advertising law class. If you are a fan of legal history (or a fan of bourbon), I recommend this book.

    Chris Liro, Michigan 2000, practices at Andrus Intellectual Property Law, Milwaukee, and is past chair of the State Bar of Wisconsin Intellectual Property and Technology Law Section.


    Safe Spaces, Brave SpacesVERDICT: Not For Me, Maybe For You

    Safe Spaces, Brave Spaces: Diversity and Free Expression in Education

    By John Palfrey (Cambridge, MA: MIT Press, 2017). 192 pgs. $19.95. Order, http://mitpress.mit.edu.

    Reviewed by Thomas J. McClure

    This is a book written for university faculty by one of their own. The author, John Palfrey, is a former professor and vice dean at Harvard Law School and currently is the head of school at Phillips Academy, Andover, Mass. Palfrey coauthored Born Digital: Understanding the First Generation of Digital Natives (2008). He has a keen eye for divisive cultural and political events that have riled society of late – and their effects on campus communities. The book is his answer about what higher education decision makers should do in response.

    The author cites the primary drivers of recent campus controversies as being concerns over racial injustice and social and general inequality. The book is a thoughtful and nuanced call to action to address such concerns. Palfrey implores universities to take seriously the dissatisfaction of campus members who are minorities, or who are, or identify as, marginalized individuals; and to take serious steps to address their unrest through engagement and constructive actions.

    Palfrey references how several social justice movements and campus incidents in 2014, 2015, and 2016 were highlighted by national media, and further publicized by proliferating social media, to create the current pressing problem. Various racial and inequity outrages spawned direct action by diverse groups to try to force universities to make radical institutional changes. These changes ranged from demanding more minority faculty and ridding the campuses of racist symbols to barring individuals from speaking on campuses. The 2016 presidential election further exacerbated concerns that free speech, with little empathy, was rank intolerance – and a harm that justified complete censorship. Some people argued that any support for the current president, or groups he appeared to support, should be purged from campuses.

    Palfrey recognizes a balance must be struck – so that universities can fulfill their important core values of respectful free expression, as well as meaningful social justice, among all students. He calls for academics to act decisively to carefully decide protest issues, rethink campus behavior policies, and create speech and assembly mechanisms to address students’ needs for safety, respect, and constructive First Amendment expression. As Palfrey puts it, “we learn when we are presented with viewpoints different from our own,” assuming a respectful and equitable environment.

    The actual title terms, “safe spaces” and “brave spaces,” are somewhat ethereal. “Safe spaces” refers to the concept of unique locations on campus where members of certain groups can be insulated from risk, insult, or conflict and be free to relax and express themselves (in a private, nonclassroom setting). “Brave spaces” is the term used to describe forums on campus where all students agree differing views may be publicly presented – in a sincere, respectful, and empathetic manner – “to confront the uncomfortable and unfamiliar and respond in ways to make them grow.”

    Palfrey also allows that private universities, and religiously affiliated ones, may craft their policies differently than public institutions, to best serve their particular educational community.

    Palfrey first reviews the social justice and political events that compelled him to write the book in his Introduction (chapter 1). Next, in chapter 2, Palfrey defines current “flashpoint” issues (typified by safe-space concerns, trigger warnings, micro aggressions, and calls to disinvite speakers on campus or change school heritage symbols or naming decisions on campus property). Chapter 3 makes the case for diversity. Chapter 4 covers the hard problem of hate speech. Chapter 5 makes the case for free expression. Chapter 6 discusses the enduring importance of free press and freedom of assembly. Chapter 7 concludes the book with Palfrey’s synthesis on why diversity and free speech matter.

    In evaluating the book for an audience, I have reservations. First, it is more “academic” and theoretical, than practical, in its analysis. Second, unless the reader is steeped in and embraces the current lexicon of “political correctness” and empathy initiatives advocated (in contrast to the reality of legitimate countervailing views in our national conversation), the book is a hard slog. Finally, for lawyers, although the book could be helpful for getting updated on “cultural sensitivity,” it appears to be of limited professional value, unless the attorney’s practice involves discrimination or education law.

    Thomas J. McClure, Marquette 1980, is a solo practice civil and criminal trial attorney in Delafield.


    Not EnoughVERDICT: It’s a Keeper

    Not Enough: Human Rights in an Unequal World

    By Samuel Moyn (Cambridge, MA: Harvard University Press, 2018). 296 pgs. $29.95. Order, edu mitpress-orders mit www.hup.harvard.edu.

    Reviewed by Lawrence G. Albrecht

    Human rights law is under intellectual stress on many fronts for being imperfect in design, limited, ineffective, and unwilling to confront the emergent neoliberal political and economic order that has exacerbated global economic inequality and even because it threatens state sovereignty and global stability. Samuel Moyn joins the fray, but his mission, despite the mostly dismal history of human rights law that he surveys, is actually constructive: to restore and expand human rights’ focus on economic inequality and social rights.

    Exercising his historian skills, Moyn details intertwined global developments in human rights law and economic theory. He particularly emphasizes the Western origins of egalitarianism, which have become subservient to neoliberal market faith that offers only economic “sufficiency” legal structures to address poverty while abandoning any economic equality agenda. Moyn brilliantly critiques a great paradox: particularly since the 1970s, global economic inequality has exploded simultaneously with the rise of human rights law. Why has this stark disconnect resulted, and what should be the reordered mission of human rights law, given its prior ineffectual efforts at redressing economic and social inequality?

    Moyn’s historical critique of human rights law is both devastating and provocative. However, his critique is narrowly cabined in the deep hull of economic injustice and does not explore the significant advances human rights law has made in the fields of political rights, minority and gender equality, and environmental protection.

    With respect to Moyn’s primary focus on economic inequality “in the neoliberalism maelstrom,” he does briefly address French economist Thomas Piketty’s recent groundbreaking work in analyzing the structural causes of inequality in “Croesus’s world,” as Moyn strikingly characterizes the contemporary global scenario, which also includes the reactive rise of populist political movements.

    Moyn has diagnosed the historical malaise of economic inequality and social repression. But it remains for domestic governments and the international community to fill the curative prescriptions. Human rights organizations and advocates must continue to serve as spokes in the wheels of governmental failures and injustice and contextually prioritize their respective missions.

    Lawrence G. Albrecht, Valparaiso 1973, is the president of First, Albrecht & Blondis s.c, Milwaukee.




  • Briefly

    Interesting facts, trends, tips, bits and bytes in the news.
    Share This:

    On the Radar

    Lawsuit Says State is Failing to Provide Legal Representation

    Wisconsin state flag and gavel

    Criminal defendants in Ashland and Bayfield counties have filed a federal class action against the state of Wisconsin, claiming excessive delay in appointing legal counsel to represent them violates their constitutional right to a speedy and public trial.

    The lawsuit, filed in the U.S. District Court for the Western District of Wisconsin in January, says “the system for indigent defense in Wisconsin has reached a state of crisis.”

    Aside from defendants allegedly sitting in jail for up to 74 days without a lawyer, the lawsuit also claims the low $40 per hour rate paid to private bar attorneys who take a large percentage of criminal cases from the State Public Defender’s Office is adding to this state of crisis. That rate is the lowest in the country.

    The State Bar of Wisconsin has worked for decades to get that $40 rate increased, including a petition to the Wisconsin Supreme Court in 2018, and will encourage the Wisconsin Legislature to address the issue through the upcoming budget process.

    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

    $1 Billion

    The amount of investment in legal technology companies in 2018, compared to $233 million in 2017.

    Half of the $1 billion invested went to LegalZoom, an online legal services provider that provides automated forms and other legal services to individuals and small businesses.

    About $362 million went to companies seeking legal solutions using artificial intelligence, such as LawGeex, a company engaged in providing contract review automation.

    Source: Lawsites, LawGeex

    From the Archives

    Black History Month: Charles Hamilton Houston

    Charles Hamilton Houston

    Called “one of the 20th century’s most important legal scholars,” Charles Hamilton Houston was an African-American lawyer who “engineered the multi-year legal strategy that led to the unanimous 1954 Supreme Court decision, Brown v. Board of Education, repudiating the doctrine of ‘separate but equal’ schools for black and white children.”

    Houston, a 1923 graduate of Harvard Law School, was special counsel to the NAACP and a central figure in the civil rights cases that led up to Brown, including Missouri ex rel. Gaines v. Canada. In that case, Houston argued that denying Lloyd Gaines’ admission to the University of Missouri Law School under state “separate but equal” laws violated the Equal Protection Clause since there was no law school for African-American students in Missouri. The U.S. Supreme Court agreed (7-2).

    “Houston designed a strategy of attacking segregation in law schools – forcing states to either create costly parallel law schools or integrate the existing ones,” according to the NAACP. “The strategy had hidden benefits: since law students were predominantly male, Houston sought to neutralize the age-old argument that allowing blacks to attend white institutions would lead to miscegenation, or ‘race-mixing.’ He also reasoned that judges deciding the cases might be more sympathetic to plaintiffs who were pursuing careers in law.”

    Houston mentored Thurgood Marshall, who helped argue the Brown case and became the first African-American justice on the U.S. Supreme Court.

    Source: NAACP; Charles Hamilton Houston Institute for Race & Justice.

    Good Ideas

    Legal Eagle: Explaining the Law Through YouTube

    Legal Eagle YouTube channel

    In this month’s feature article on National Practice Trends, one commentator notes that “lawyers should be using video for promotional endeavors, such as YouTube videos with basic how-to information.”

    Considering YouTube has more than one billion users, the social video platform is a great way to promote your law firm business. But how?

    Devin Stone, a trial attorney with a side business (LegalEagle) that helps law students, uses YouTube to explain the law by analyzing law-related TV shows and news events.

    In one video, Stone analyzes the first episode of Better Call Saul, whose main character is the lawyer who eventually represents Walter White in Breaking Bad, the Emmy-award winning show about a high school chemistry teacher turned methamphetamine manufacturer.

    Stone grades the episodes for “legal realism,” educating viewers about the differences between lawyers and law on TV versus the real world.

    He must be doing something right: his LegalEagle YouTube channel has more than 280,000 subscribers and his review of Better Call Saul (episode one) – which is one of many – has more than 1.2 million views.

    Out There

    The Bambi Sentence

    baby deer

    A Missouri judge recently ordered a man convicted of illegally poaching deer to watch the 1942 Disney Classic, Bambi, once per month while serving a one-year jail sentence. The prosecutor on the case against David Berry Jr. – convicted for spotlighting deer to make kills easier, then taking only their heads as trophies – said the judge was “hoping there will be some kind of emotional reaction.”

    Bambi, of course, follows the triumphs and tragedies of a fawn growing up in the forest. Along the way [spoiler alert], Bambi’s mother is killed by a hunter.

    Source: New York Times; Riverfront Times

    Tech Tip

    Are You Properly Redacting Your Court-Filed Documents?

    redacted document

    Failing to properly redact confidential information, even accidentally, in a court filing may subject attorneys to discipline, sanctions, loss of business, and malpractice claims. 

    Last month, lawyers for Paul Manafort – the embattled former campaign chairman for President Donald Trump – filed a court document with black bar redactions.

    Court watchers were quick to point out that some of the redacted text with black bars could be copied and pasted into another document, revealing the text of the redacted content.

    Here’s how to properly safeguard against improper filings.

    First, ensure the PDF software you are using has reliable redaction capabilities.

    After applying redactions to a document, remove any remaining hidden content. Before filing, make sure redacted text and hidden content are not accessible.

    Out of an abundance of caution, you can “Print to PDF” your redacted document, and use that document, with redactions implemented and hidden content removed, for filing with the court.

    Source: Christopher C. Shattuck – Practice Management Advisor (Practice 411), State Bar of Wisconsin




  • Inbox

    We want to hear from you! Post a comment, find us on social media, or send us your thoughts.
    Share This:

    When People Find Out You’re a Lawyer

    An article in Above the Law, which was shared on the State Bar’s Facebook page, suggested that people treat you differently when they find out you’re a lawyer.  Here are a few examples the author provided: “The first change in my personal interactions that I noticed was that people were way more CYA (‘cover your ass’) around me after I became a lawyer than they were before I was an attorney.” And, “Another way that people treat you differently after you become a lawyer is that individuals will automatically assume that as an attorney, you are wealthy. This belief particularly infuriated me, since I paid for my college and law school expenses all by myself, and I was repaying a boatload of student debt for most of my legal career.”

    Readers posted comments:

    Reader: People regularly ask for free legal advice (or even for free legal services) in all sorts of matters! You wouldn’t ask a friend who happens to be an auto mechanic to fix your car for free.

    Dera Johnsen-Tracy
    Horn & Johnsen SC, Madison

    Reader: Unfortunately, the answer is often yes. Fortunately, most of the time I’m not working, no one suspects what I do for a living. I’m very unconventional.

    C.R. Krieger
    Law Office of C.R. Krieger LLC, Manitowoc

    We Want to Hear from You! Submit a Letter to the Editor

    Wisconsin Lawyer provides a forum for members to express ideas, concerns, and opinions on law-related subjects. Send comments to org wislawyer wisbar wisbar wislawyer org (include “Letters” in the subject line), or mail to Wisconsin Lawyer “Letters,” P.O. Box 7158, Madison, WI 53707-7158. Limit to 500 words. Writing guidelines available.

    Connect With Us Online. Post comments to articles online, and find us on Facebook, Twitter, LinkedIn, YouTube, and Instagram.

    Women Leaving Law

    woman walking out of office

    In “Women Leave Law Firms and the Legal Profession. Why?” (InsideTrack, Oct. 17, 2018), Joe Forward wrote that although women make up half of today’s law school graduates and law firm associates, only 20 percent of equity partners are women.  Forward talked to Wisconsin lawyers Margaret Hickey, Deanne Koll, and Tamara Packard.

    According to Forward, “Insufficient work-life balance may be one reason women leave law firms having never advanced to partnerships, but it’s not the only reason. Implicit bias, sexual harassment, law firm culture, and unequal access to opportunity are cited as other reasons.”

    Readers posted comments:

    Reader: Or they do [hire women.] .... Just to say they’re diverse ... which is good for business for the firm/shareholders ... not always proportionately good for women in positions of parity – on paper only.

    Lauren Avery Blumenthal
    Blumenthal Group LLC, Milwaukee

    Reader: Because the entities in a position to rein in the local good old boys’ clubs in places like Western Wisconsin allow them to flourish. Have to believe that if the State Bar and OLR started demanding better, things would get better.

    Sarah Yacoub
    Slice Law Inc., Hudson

    Reader: I’m curious what percentage of female lawyers desire to become equity partners. Personally, the thought has never even crossed my mind. My plan has always been to stay home with my kids and focus on my career later. What the article characterizes as the “burden of care-giving” is the “privilege of being a mom” to me. I enjoy practicing law, but my family will always be my top priority. That said, if any men at big firms want to encourage a solo practitioner, I’ll take all of the sports tickets your female attorneys supposedly don’t want ... preferably for Packer games, but I’m not fussy!

    Sarah Aue Palodichuk
    Sarah Palodichuk Law LLC, Prescott

    Reader: Well “today’s graduates” and “equity partners” are different groups entirely, right? My law school contracts professor went to school with one female law student. There were a majority of women in my graduation class. Obviously, it is going to take that change awhile to reach the top of the firms.

    Justin Singleton
    Singleton Law Firm LLC, Waukesha

    From the State Bar’s Archives

    State Bar member Fritz Wagner requested a photo of past president (1971-72) Clyde Cross. In thanks for the fulfilled request, Wagner shared the following story:

    When the State Bar met at Lake Lawn Lodge in Delavan in 1972, one of Clyde’s partners came up to me at a cocktail party and asked if I would be interested in joining the firm. I was then with the DNR. I said, “yes.” Later my wife said to Clyde that his offer was the second greatest compliment ever paid to me. “What was the greatest?” asked Clyde. “When I agreed to marry him,” replied my wife! 

    Indigent Defendants’ Plight Hits the Federal Courts

    Court and Gavel

    In “Federal Lawsuit: ‘Indigent Defense in Wisconsin Has Reached a State of Crisis’” (InsideTrack, Jan. 18, 2019), Joe Forward wrote abouta federal lawsuit filed in mid-January by individuals in Ashland and Bayfield counties that raises constitutional claims against Wisconsin’s criminal justice system, based on delays in providing legal representation while the plaintiffs languished in county jails.

    “The lawsuit says that state public defenders (SPDs) have significant caseloads, ‘in some cases staggering,’ which can preclude representation that is constitutionally required.

    “In addition, the rate paid to private bar attorneys to take overflow and conflict cases – the private bar handles about 40 percent of the nearly 140,000 cases per year ­– is so low that many attorneys have simply stopped taking them, especially in rural areas.

    “Private bar attorneys are paid $40 per hour to take SPD appointed cases, regardless of whether they are felony or misdemeanor cases. They get $25 per hour for travel time.

    “This hourly rate is the lowest in the country for states that use private bar attorneys to assist public defenders, and has remained largely unchanged since 1978, when the Wisconsin Legislature set the private bar rate for SPD appointments at $35 per hour.”

    Readers posted comments:

    Reader: $40 an hour is not enough to pay the cost of most lawyers’ services. There are enough staff public defenders but private lawyers need to be hired for cases the staff, full time public defenders can’t handle.

    Gary Getzin
    Wausau

    Reader: About 15 years ago I advocated for the private bar to boycott SPD appointments to try to get the hourly rate raised. It went nowhere. The current system is terrible for defendants and attorneys. I’d rather work for free than take an SPD appointment.

    Joseph Norby
    Ahrens Veternick & Norby LLP, Appleton




  • Final Thought
    Leap of Faith

    Quitting a job without having another to go to? This lawyer survived the jump into the unknown and landed safely and happier.

    Torrie R. Williams

    Share This:

    “If I didn’t define myself for myself, I would be crunched into other people’s fantasies for me and eaten alive.” – Audre Lorde

    T.R. Williamsorg trwilliams wphca T.R. Williams, U.W. 2013, graduated from Vassar College and worked in New York City’s educational nonprofit arena before becoming a lawyer. Williams is the advocacy and government relations specialist for the Wisconsin Primary Health Care Association. She considers advocacy an art form that allows one to bridge the gap between current reality and aspired reality.

    My after-school regimen from first through fifth grade was strict. It involved my grandmother’s house, homework, collard greens, cornbread, Punky Brewster, and Matlock. There was little to no deviation from these ingredients, which would make for some of my best childhood memories.

    It was within this strict regimen that my dreams of becoming a lawyer were birthed and nurtured – between my grandmother’s encouragement and Matlock’s gray suits.

    True to my Type A personality and anchored by narratives of sacrifice, determination, and strength retold to me growing up as the granddaughter of a Mississippi sharecropper, I set my goal, created a plan, and spent the rest of my educational career laser focused on becoming a lawyer.

    Nothing about law school went according to the plan. Becoming a lawyer is, of course, not easy. I expected the educational rigor. I had believed, with the naivete and luxury one is afforded having grown up when there were no longer “colored only” water bubbler signs to fight, that working hard would be enough.

    I was unprepared for the institutional and structural battles I would have to fight on this journey to becoming a lawyer – the microaggressions I would endure in the courtroom and during staff meetings. I developed a new perspective on James Baldwin’s 1961 commentary: “To be a Negro in this country and to be relatively conscious, is to be in a rage almost all the time. So that the first problem is how to control that rage so that it won’t destroy you.”

    In 2017 I found myself in a Bone Thugs N Harmony situation. Two years prior, I had decided to leave the formal practice of law for the world of education but found myself still unsteady. So, I did one of the most illogical things I have ever done: I quit my job without a job to go to.

    I was unprepared for the institutional and structural battles I would have to fight on this journey to becoming a lawyer – the microaggressions I would endure in the courtroom and during staff meetings.

    In my own version of Thoreau, I spent the next four months unemployed, living off savings (with my parents), having informational interviews with community leaders around the city, and asking myself lots of questions about my future. Easy to neatly and coolly summarize in a run-on sentence, in hindsight. Rest assured that in the moment there was a lot more chaos, doubt, fear, and anxiety.

    At the end of my Walden, I landed in the world of healthcare lobbying, representing the 17 federally qualified health centers in Wisconsin. It is work that thrives on productive disequilibrium and bridge building between current and aspired realities. I love it. Ultimately what I found was a confidence to reimagine my future, to see deviation from the plan as simply change and not failure, to create my own narrative of what being a lawyer looks like, and to have peace with it all.

    Meet Our Contributors

    Describe your most relaxing (or favorite) vacation.

    T.R. WilliamsIn this season of my life, work takes up a lot of my time – by choice and design. I choose my work based on my passions and convictions since I am at a point where I know I will spend a lot of time at work – not yet in the season of considering balancing that time with a family of my own.

    So, when it comes to vacations and relaxing, most times I have to seize the moment versus being able to plan a "proper" vacation. The best seized moments for me involve the following, in no particular order and not necessarily at the same time: my 6-year-old niece, brunch, red wine, pedicures, facials, full-body massages, two-plus hours’ trips to Target or Michael's, Oakland Gyros, and friends.

    org trwilliams wphca T.R. Williams, Wisconsin Primary Health Care Association, Madison.

    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.




  • Managing Risk
    Cybersecurity – Is Your Law Firm at Risk?

    There's no end in sight to hacking, phishing, ransomware, and other dangers to computer security. Here are some reasons to make sure you’re taking steps to protect your practice from the inevitable risks.

    Thomas J. Watson

    Share This:
    hacker in the data

    If you’re like most lawyers around the country, chances are you do not have cyber liability insurance. Recent surveys conducted by the ABA showed that less than 15 percent of lawyers said their firms had such insurance, though some firms had reported that they had fallen victim to computer viruses or hacking.

    Among the sessions at the State Bar of Wisconsin’s recent Solo & Small Firm Conference in Wisconsin Dells were a few on cybersecurity and what it means to law firms. The messages were clear: cyber risk is not going away, and lawyers must pay attention to securing their computer networks and the client information on them.

    Brent Hoeft, who presented a program at the conference, is a solo practitioner in Madison. He also is the founder of FirmLock Consulting LLC, which provides information security behavior consulting to solo and small law firms.

    Hoeft says, “I do think that risks will increase in the near future. I really think that it is a numbers game for hackers right now. The return on investment with social engineering, including phishing and ransomware, is much greater than with investing the time, skill, and knowledge to write malware or find software or hardware holes to exploit and infiltrate a network.

    Thomas J. Watsoncom Tom.Watson wilmic Thomas J. Watson, Marquette 2002, is senior vice president and director of communications at Wisconsin Lawyers Mutual Insurance Co., Madison.

    “As security software and hardware evolve and more and more artificial intelligence is implemented to analyze and assess threats to networks, the more hackers will look at the humans as the weak link. Until the mindset of law firms can be changed and a culture of security within the legal industry established through repeated education and training, the humans will remain the weak link. So long as the return on investment is there for the hackers to exploit human behavior as the biggest security hole, the risks will continue.”

    Tom Widman, president and CEO of Identity Fraud Inc., also spoke at the 2018 Solo & Small Firm Conference. His company administers cybersecurity insurance policies that are offered by Wisconsin Lawyers Mutual Insurance Co. (WILMIC) and the State Bar, and he agrees with Hoeft that the situation will only get worse.

    “I do believe the risks will continue to increase. We thought the environment was bad 20 years ago. It is exponentially worse today. The fact remains we are up against serious and motivated adversaries that are profiting greatly at our expense. They have countless attack vectors into our most precious assets.”

    According to Widman, “Cyber is unlike other risks. We are not up against mother nature, but rather human nature, and unfortunately, the evil side of human nature. As technology continues to evolve and artificial intelligence becomes more pervasive, attacks will increase. They are already automated and that will become more widespread in the future, further exposing even the smallest of firms.”

    Cybersecurity Risks

    Most law firms in Wisconsin have five or fewer lawyers. But even those firms can get hit by a hacker, a virus, or another kind of security breach. Hoeft says the biggest risk is the lack of a security culture within the legal industry.

    “This stems from a lack of education and training. If more attorneys and law firms understood the threats to law firm information security and the ramifications of those threats, I believe that they would focus more on education and training of the people in their law firm. As attorneys, we understand the risks of not being educated and not having a plan. We see clients who have gotten themselves into trouble due to a lack of planning and preparation.”

    Hoeft continues, “Yet it seems like many attorneys in solo or small firms approach cybersecurity with a kind of keep your head down and hope you don’t get hit philosophy. And with large firms the attorneys seem to have a false sense of security because they have an IT department so the attorneys think that they do not have to have security front of mind. Not only does this kind of thinking go against our training as attorneys but it also falls short of what is expected of us under the Rules of Professional Conduct for Attorneys.”

    When it comes to training your employees and yourself, security should not be a crash course.

    Widman says financial, reputational, and liability risks are all prevalent in the legal industry. “Even firms that run a tight ship and have good cybersecurity measures in place fall victim to new ‘zero day’ attacks and simple errors by vendors and employees. And, firms that do not have great defenses are truly low-hanging fruit for cyber criminals. It is just too fragile. A principal or employee can click on a link in an email and have their credentials stolen or suddenly experience data destruction, business interruption, and breach response costs that can each be very substantial.”

    Terry Dunst is a lawyer at Bakke Norman in New Richmond. He says, “There are two main categories of risk, in my opinion: technological and social engineering. Firms can harden their technology to prevent most technical hacking by maintaining up-to-date operating systems and software, virus protection, and firewalls. But hacking the human side, referred to as social engineering, is probably the greatest threat to most firms. The bad guys are clever and know tricks to fool people and gain trust. Most successful cyber attacks occur because someone opens the door and lets the bad guys in. Someone clicks on a link in an email or goes to an infected website.”

    Cyber Insurance: Know Your Member Benefits

    The State Bar of Wisconsin is partnering with 3M Insurance to offer coverage that can be specifically tailored to meet your cybersecurity needs. The BIZLock program provided by Identity Fraud includes third-party liability insurance coverage and defense, coverage for regulatory fines and penalties, cyber extortion, data reconstructions, media and website liability, the costs for forensic investigations, and identity monitoring for breaches.

    To learn more, visit Member Benefits on WisBar.

    Preventing Cyber Attacks

    Matt Beier is a claims attorney at WILMIC. He says, “Most of the lawyers I speak with on the subject of technology do not have the time to become experts in cybersecurity. So, rely on the experts. Use them. The best guidance I can offer is to develop a good relationship with an IT expert who will manage your office technology for you. Even if you are a computer ‘geek,’ setting up your equipment, establishing policies and procedures, and training your employees takes a substantial amount of time. Hiring a reliable IT expert to install and maintain your information systems will ensure it is done correctly, allowing the lawyer to spend his or her time on legal services.”

    Hoeft says as much as lawyers want to focus on their practice and their clients, it is vital to spend time on cybersecurity. “Security is ongoing and it must be approached from multiple angles. In order to have the best security a lawyer should pay attention to at least three areas: security hardware, security software, and security behavior and planning. The first two, what I consider the front-line security tools, are what are generally put in place first and often the attention to security stops there.”

    Hoeft has a caution. “However, if you stop there and do not address security behavior and planning then all of the time and expense invested into the front-line security items might be all for nothing. It would be like getting a brand-new security system for your home and the most secure safe to protect your valuables. But then you never lock the doors, close the windows, turn the alarm system on, or even take the time to lock your valuables away in that state-of-the-art safe. What’s the point of investing the time and money when your behavior is really your biggest issue?”

    If there is a breach, we want our clients to know that we were doing everything we could to protect them.

    Hoeft adds that even after you have taken the time to educate and train the people in your firm, the last part of this security step is to plan. “You need to have a written information security policy so that everyone in the firm understands what is expected of them in handling the firm’s information and the requisite behavior to do so securely. And finally, as nothing is 100 percent secure, as humans make mistakes and systems can be breached, a plan must be in place for the steps to take when disaster strikes and the firm suffers a data breach. Part of that disaster plan has to be cyber insurance and knowledge of what’s covered and what isn’t.”

    Beier says that when it comes to training your employees and yourself, security should not be a crash course. “Cybersecurity is a new way of thinking. It is necessary to create awareness of the information being generated, the manner in which it is produced, and the method used to communicate. Once your staff have that awareness, they also need to know and understand the tools they have at their disposal to protect sensitive information. Communicate what your firm is doing and how it helps protect clients, employees, and the business from attack.”

    Beier also says you should not skimp on hardware and software. “As frustrating as the ‘planned obsolescence’ of technology can be, investing in the most powerful current computer technology you can afford is definitely worthwhile. Also, as society becomes more mobile and clients’ communication expectations advance, it becomes more important than ever to be sure that your technology can keep digital content secure. Maintaining outdated, sluggish devices and computers can make a lawyer less competitive, while at the same time expose the lawyer to greater risk of data loss or inadvertent disclosure of confidential information.”

    Cyber Insurance

    Hoeft says the view of the information security industry is that it isn’t a matter of if you will suffer a breach but when. “Cyber insurance is important because it fills a hole in the coverage of the law firm’s insurance. Most malpractice or general liability policies do not cover loss of electronic data due to computer fraud or cyber breach. If a ransomware or other cyber breach occurs the monetary loss can be extensive as a firm will have to hire experts, there will be loss of business income during the time period the law firm is down, and [the firm might] have to pay a ransom to the cyber criminals. Cyber insurance can cover a firm in those instances.”

    According to Hoeft, “Another advantage of having cyber insurance is your provider becomes a valuable resource in the event of a cyber breach. The provider will be able to provide recommendations on steps to take and experts to contact to assist your firm in navigating the complexities of handling a breach.”

    WILMIC has made cyber liability insurance coverage accessible to lawyers since 2013. Many lawyers have inquired about it, but only a small percentage of them actually purchase it.

    Cyber hacking is something we are all aware of, but mostly because we see it in the news headlines; Target, the Pentagon, the credit agency Experian, NASA, Facebook, and the list goes on. It seems there is a cyber hacking story in the news once a week, if not more frequently.

    Milwaukee attorney Carlton Stansbury says his firm has cyber insurance because the protection is reassuring. “We get busy with our clients’ work and running a business, and we can’t also be ahead of the curve on technology-related issues. Also, incidents of data breaches are becoming more and more common, and we want our firm and clients to have protection. If there is a breach, we want our clients to know that we were doing everything we could to protect them.”

    Stansbury says the process of obtaining the insurance helped them identify risks. “It led to changes in our thinking about security, communication, online presence, storage, and back-up systems that resulted in more protection for our clients.”

    Dunst says Bakke Norman carries cybersecurity insurance because the cost of a data breach can be extremely high, for items including notifying clients whose personal identifiable information has been compromised and defending against potential lawsuits.

    “The bad guys are out there. The threat is real. As attorneys, most of our data is confidential, and attorneys are required to take reasonable steps to protect client data. In addition, almost all businesses fall under the statutorily required protection of personally identifiable information pursuant to Wisconsin’s breach notice law [Wis. Stat. section 134.98], which applies to almost all businesses.”

    Ransomware

    Most lawyers have heard of ransomware, a type of malicious software, or malware, designed to deny access to a computer system or data until a ransom is paid. Ransomware typically spreads through receipt of phishing emails or visits to infected websites. It can happen without warning. A lawyer or staff person may inadvertently click on a fraudulent email or attachment to what looks like a legitimate email. The consequences can be devastating and costly.

    Ransomware is a major issue for all businesses, including law firms. As Widman points out, the tools and scripts being used continue to outpace our defenses. “Right now, the two main attack vectors are simple or sophisticated phishing scams, whereby folks click on links in emails and malware is spread throughout the network; and hacking via remote desktop access either by brute force, stolen credentials, or weak credentials. Once inside, the criminal will take their time to understand the environment, like finding data backups, and then inflict maximum damage to the entire network.”

    Hoeft adds that the ransomware business model has, sadly, been very successful for hackers. “Ransomware is rampant. It is easy to infect a firm and extract funds in the form of Bitcoin. It is by far our most frequent type of incident and claim. Having said that, law firms are also being specifically targeted because of the nature of their business and the type of private information they maintain, and the types of transactions they are engaged in on a daily basis, whereby the severity of a claim is often quite high.”

    Conclusion

    Almost everyone sometimes takes technology for granted. We assume that it will work (most of the time) and we will remain safe. Unfortunately, that doesn’t always happen. As Widman points out, “The risks are real. Everyone needs to try their best at mitigating their exposures. Simple risk management steps and education on scams and tricks can go a long way. Similarly, deploying certain fundamental technologies like two-factor authentication and data backup are definitely worthwhile. Having good computer and network hygiene coupled with cyber insurance as your last layer of defense is simply prudent and might just save the day.”

    It is important to take the risk seriously. Dunst says it’s easy to ignore, as lawyers focus on their practice and their clients. “I think there is a general tendency among most computer users to think ‘it won’t happen to me.’ Lawyers are no different. Solo and small firms may think that the Russians or the Chinese or the rogue hackers are not interested in them and won’t spend the effort to try to hack their system. And that may be true. But that sort of hacking is fairly rare. The mass phishing emails don’t target anyone in particular, and fool enough people to keep that crime syndicate operating. And for larger firms, the threat of spear phishing, where hackers deliberately target specific higher ups in firms where there is some particularly valuable data, are occurring more and more.”

    Stansbury says he has seen what can happen. “I am aware of situations in which people thought it would never happen to them, and it did. It only takes one incident that can happen in a blink of an eye at the worst possible time for people to realize the immense vulnerability. Many law firms are smaller operations and are concerned with the day-to-day operations, but do not realize that they could be targets, directly or indirectly.”

    For Dunst and his firm, it’s a security “attitude.” “Be extremely wary of websites that you are not sure about. Treat every email as a possible threat, even if it’s from someone you think you know.”




  • Ethics
    Spare 'Cc' and 'Bcc' When Emailing Opposing Counsel

    Keeping clients informed of communications with other parties' lawyers is a good idea; automatically and routinely copying them in on such communications is not.

    Dean R. Dietrich

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    Question

    I often send a copy (cc) to my client when communicating with opposing counsel in a legal representation. Someone suggested that this is unethical. Should I be concerned?

    Answer

    You do not have to be concerned that sending a “cc” or a “bcc” to a client when you are communicating with opposing counsel is a per se violation of the ethics rules. You do need to be concerned, however, that each of those practices is very dangerous and could result in opposing counsel communicating directly with your client or your client communicating directly with opposing counsel. Because of the potential for problems, it is clearly not a best practice to use the “cc” or “bcc” function when communicating with opposing counsel.

    Dean R. Dietrichcom dietrich dvlawgroup Dean R. Dietrich, Marquette 1977, of law firm of Dietrich VanderWaal Law Group SC, Wausau, is chair of the State Bar Professional Ethics Committee.

    A recent opinion from the Alaska Bar Association (Ethics Op. No. 2018-1) addressed both of these considerations. The opinion acknowledged the duty of a lawyer to protect confidential information of the client and stated:

    “[I]t is not advisable for a lawyer to ‘cc’ their client in a message to opposing counsel concerning the subject of the representation, or any other matter that may give rise to a response that would reveal a client confidence or secret.”

    While the Alaska Rules of Professional Conduct refer to client secrets, and the Wisconsin Rules do not, the concern is still the same. If a client is “cc’d” on an email to opposing counsel, and then opposing counsel uses a “reply to all” function, a communication goes directly from opposing counsel to the client. If the client then uses a “reply to all” function, the client may be communicating directly with opposing counsel and disclosing confidential information.

    The same situation would arise if the lawyer sends an email to an opposing counsel and uses the “bcc” function to advise the client of the communication. The client might not understand that receiving a “bcc” communication is intended to protect the existence of that communication to opposing counsel, and the use of the “reply to all” function could again result in a direct communication from the client to opposing counsel.

    If a client is “cc’d” on email to opposing counsel, and then opposing counsel uses a “reply to all” function, a communication goes directly from opposing counsel to the client.

    The Alaska Bar Association Ethics Committee summarized its recommendation to lawyers with the following:

    “Consequently, we recommend that attorneys not ‘cc’ or ‘bcc’ their clients in correspondence with opposing counsel relating to the matter of the representation, or that may give rise to a response that could reveal client secrets or confidences. Care should be used if ‘cc’ or ‘bcc’ is used for scheduling or other administrative matters, and when permission appears to have been given for ongoing communication. Prudent lawyers will agree to a protocol for ‘reply all’ with opposing counsel.”

    The best practice for lawyers is to send copies of email communications to themselves and then use that communication to notify clients of the communication being transmitted to opposing counsel. By doing this, the lawyer avoids the potential of a “reply all” mistake that reveals client confidential information.

    Need Ethics Advice?

    As a State Bar member, you have access to informal guidance and help in resolving questions regarding Wisconsin’s Rules of Professional Conduct for Attorneys.

    Ethics Hotline: To informally discuss an ethics question, contact State Bar ethics counselors org tpierce wisbar Timothy Pierce or org akaiser wisbar Aviva Kaiser. They can be reached at (608) 229-2017 or (800) 254-9154, Monday through Friday, 9 a.m to 4 p.m.




  • Solutions
    Getting Paid: Trends You Need to Know

    Lawyers have nothing to lose and a lot of client satisfaction to gain by reducing friction in billing and payments processes. Here's how.

    Amy Mann

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    credit card on keyboard

    The legal industry has had to adapt to an increasingly digitized world, with software solutions for timekeeping, document organization, and practice management changing how lawyers conduct their daily practice.

    How people pay for things is changing, too. Just 30 years ago, it wasn’t uncommon to see “cash only” signs in storefront windows. Today, payment methods such as ApplePay, Android Pay, and Google Wallet have proliferated. Peer-to-peer payment apps like Venmo are gaining popularity, and Bitcoin and other cryptocurrencies are roiling markets and disrupting the financial sector. Still reigning supreme are the major credit card brands: Visa, MasterCard, and American Express.

    Many experts believe we’re on our way to a cashless, checkless society. With so many digital payment options and the convenience they bring, it’s no surprise online payments have become the norm and most people’s preferred payment method.

    Electronic Payments Continue to Dominate

    According to a recent survey by TSYS, a payment processing company, 75 percent of people now prefer to pay with a credit or debit card. Research from Fiserv found that 74 percent of households that have internet access report having paid bills online, 79 percent of consumers have switched to paperless billing, and 70 percent say having multiple ways to pay a bill increases their satisfaction with the biller. (See “How Consumers Prefer to Pay Bills.”)

    Amy MannAmy Mann is the communications director at LawPay and lives in Austin, Texas. She is a senior communications specialist and educator with more than a decade of experience working in the legal, accounting, and financial services industries.

    What it comes down to is people want more online payment options, and the businesses that deliver these make customers happy.

    Research also shows more people are giving up checks altogether. According to one survey, more than one-half – 55 percent – of consumers don’t use or rarely carry checkbooks. Most people never write a personal check or only do so a few times per year, and among the youngest cohorts, the data is even more stark: 61 percent of 18- to 24-year-olds never write checks. Another survey found 52 percent of millennials – who will turn 22-38 years old in 2019 – never use checks. And the number of bills paid by check fell 20 percent from 2010 to 2016.

    Expectations of businesses are shifting, too. Like it or not, all businesses are now being held to the higher customer experience standard that companies like Amazon are setting. TSYS found 65 percent of people expect to pay with a credit or debit card from a biller’s app or mobile website, and 79 percent expect local service providers (for example, lawyers) to offer the same payment options as large national companies.

    The bottom line? Your professional reputation is at stake. Clients expect lawyers to use the latest tools, processes, and technology available to handle their legal issues adeptly and efficiently. Furthermore, if a lawyer only offers traditional payment options like cash and check, clients might wonder whether the lawyer has kept up with the latest legal developments and processes. These days, running an old-fashioned office doesn’t instill confidence.

    You want to be seen as modern, technologically competent, and easy to work with. Modern online payment tools are one key aspect of that, allowing you to show clients and prospects that you embrace the innovations of the Digital Revolution.

    How Consumers Prefer to Pay Bills

    figure 1

    What Makes a Modern Client Experience

    In today’s tech-focused world of instant gratification, where we all have a computer in our pocket or purse, people have become accustomed to – and spoiled by – frictionless customer experiences. So what exactly does that mean?

    The term “frictionless” here refers to fewer steps, simpler interactions, and fewer barriers to completion for customers or clients. For example, Amazon eliminated the need to go to a store, reduced the research burden on consumers by using data to present them with products they’d like, and pioneered the “one-click ordering” process to nudge customers toward faster, more seamless checkouts.

    Netflix eliminated the need to go to the video rental store, provided instant gratification and 24-hour service, and completely streamlined and digitized the movie-ordering and payments process. Uber eliminated the traditional first step of ordering a ride – the phone call – along with the transactional physical-payment step where cash or card changes hands, resulting in optimizations for speed, efficiency, and service.

    Getting Paid Faster

    figure 2

    Optimizing Customer Service for Law Clients

    How does this apply to lawyers? Professional services firms can also look at all of their client interactions and identify ways to remove friction at each step. One way to remove friction from billing and payment processes is with a modern online payment solution. Doing so will allow you to simplify billing and payment interactions and remove barriers to completion, so that clients pay your bills faster and more reliably. Here are some of the ways online payment tools reduce friction in your client experience.

    • Eliminate Paper Bills. If you’re still asking clients to wait for a paper invoice in the mail and then send in a paper check, you have a big opportunity to streamline those processes for the modern age. A digital solution is faster and simpler and even creates a cleaner, more manageable “paper trail” for clients, because it’s all online. Clients can search their email for past bills, rather than pawing through paper files. (See “Getting Paid Faster.”)

    • Stop Requiring Payment by Check. People have grown so accustomed to paying with plastic or clicking a button that they expect to be able to, which is why so many no longer carry cash or checks. For prospective clients who don’t use checks, a demand for payment by check may drive them to another lawyer. (See sidebar, “Credit Card Processing: How to Get Started.”)

      Christie Feyen, assistant director at the Zinda Law Group, loves the convenience an online payment solution provides to her clients. “We run our bills biweekly and so it’s the most convenient way for our clients to pay their bills on time. It’s quick, it’s easy, and there’s no hassle.”

    • Provide Instant Payment Confirmation. Immediate gratification has become a hallmark of the modern online buying experience, and an online payment solution lets you provide this perk to your clients. A great online payment platform will let you set up automatic payment receipts that are emailed to clients after they pay their bill, in the same way they’re used to getting a near-instantaneous order confirmation from other businesses.

    • Offer a 24-hour Virtual Service. Most people are accustomed to shopping online or paying bills on the weekend or in the evening. An online solution also lets lawyers effortlessly expand their hours of service. When clients can go to your website and pay online on their own schedule, they see that as another small, but cumulative way in which you’re making an effort to meet their needs.

    Lawyers who want to remain competitive in the fast-changing service industry landscape recognize the value in setting themselves apart with a stellar client experience. The vast majority of people say having multiple ways to pay their bill increases their satisfaction, so you have nothing to lose and a lot of client satisfaction to gain by reducing friction in your billing and payments processes.

    Conclusion

    It’s only a matter of time before online billing and payments processes come to dominate every industry – even the legal industry. This means adopting online payments is no longer a question of if, but when, as more prospective clients will choose lawyers who do offer these options.

    The good news is you have much more to gain from this technology shift than you stand to lose. Greater operational efficiency and significant time savings more than offset the cost of an online payment solution.

    Finally, providing exceptional service is one of the best ways for professional service firms to delight clients, increase repeat business, and win more referrals. In today’s world of instant gratification and lightning-fast technology, letting clients pay with just a click is an easy win.

    Credit Card Processing: How to Get Started

    Your State Bar membership entitles you to 25 percent off credit card processing fees through LawPay.

    LawPay, an affinity partner, is one vendor of payment processing plans. A LawPay merchant account, by processing credit card payments quickly and easily, streamlines accounting and reduces the time spent monitoring and managing trust and operating accounts. In addition, LawPay offers “Click to Pay,” a secure online payment link you can send by email, place on your website, or include on your invoices, that allows clients to pay their bills online. The payment link takes the client to a payment page.

    Payments flow separately into general and trust accounts according to the law firm's direction, and LawPay fees are debited from the general account only.

    To learn more about credit card processing and electronic billing or get your customized billing page, call LawPay at (866) 376-0950 or visit lawpay.com/member-programs/wisconsin-state-bar.

    Your State Bar membership entitles you to discounts on some payment processing plans. State Bar members save up to 25 percent off their credit card processing fees.

    <iframe src="//www.youtube.com/embed/7PoaphJj0Rs" width="525" height="295" frameborder="0" allowfullscreen></iframe>



  • On Balance
    Will 2019 Be the Year of Well-Being in Law?

    Given decades of research, we can no longer ignore that untreated mental health and substance abuse disorders ruin lives and careers.

    Paula M. Davis-Laack

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    bluejay bird in winter

    The lawyer well-being movement has been many years in the making, but as we all know, change can be slow. Initial studies and writings about lawyer and law student distress were first published in the 1980s and early 1990s. These studies revealed alarming rates of anxiety and depression in otherwise healthy individuals, with as many as 20-40 percent of law students being clinically depressed and lawyers suffering from a rate of depression 3.6 times higher than people in dozens of other professions.1

    Famed psychologist Martin Seligman wrote about low lawyer well-being in his book Authentic Happiness, explaining it as the confluence of three factors – pessimism, low decision latitude in high-stress situations, and that law is often a zero-sum game.2 The profession, he rightly pointed out, had become less about collegiality, fairness, and justice and more about big business, the bottom line, and billable hours.3

    Paula Davis-Laackcom 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, Addicted to Busy: Your Blueprint for Burnout Prevention.

    Law professors and researchers built upon these initial findings by looking to social science for clues to explain the cause of the distress, with a particular focus on the law school and law student experience.4 In 2004, Seligman launched a formal masters’ level program at the University of Pennsylvania to teach the science of positive psychology and well-being, and the first class graduated in 2005. Since then, a handful of lawyers, including myself, have completed the program, excited to bring research-based tools back into the profession.

    It is important to acknowledge the long-standing work of the Wisconsin Lawyers Assistance Program (WisLAP) and lawyer assistance program professionals nationwide. These dedicated individuals have sounded the message about lawyer well-being and the need for prevention, early intervention, and education for decades. Their work opened doors for those of us who would follow.

    My colleagues and I spent those early years teaching, talking, and writing about well-being topics, building on and working alongside WisLAP and lawyer assistance program professionals and volunteers. While many in the profession found our message interesting, it was the calm before the calm so to speak. We were missing a “spark.”

    That changed when a large-scale study, published in 2016, found much higher than average rates of problem drinking, depression, anxiety, and stress among current practicing attorneys in the United States.5 At the same time, a survey of more than 3,300 law students found that they were also experiencing higher than average rates of depression, anxiety, and binge drinking.6

    Given this data, lawyer well-being no longer can be ignored, and a movement is afoot. This is a summary of different initiatives currently taking place at both the state and the national levels.

    Incorporate Well-being Into Your Daily Life

    There are things lawyers and firm leaders can do right now to promote well-being in the profession. Here are some from the Task Force Report:

    • Build relationships with lawyer well-being experts.

    • Personally model a commitment to well-being. (This is especially important for firm leaders.)

    • Foster collegiality and respectful engagement in the profession by reducing incivility, promoting diversity and inclusion, and creating meaningful mentoring and sponsorship programs.

    • Offer high-quality educational programs about lawyer mental health and well-being.

    • Guide the support and transition of older lawyers.

    National Support for Lawyer Wellness

    A National Task Force on Lawyer Well-Being was convened after the 2016 studies were published. Since then, here is how the American Bar Association has expanded its work in this area.

    August 2017. The National Task Force on Lawyer Well-Being issued a report, “The Path to Lawyer Well-Being: Practical Recommendations for Positive Change” (the “Task Force Report”). The report’s recommendations focus on five themes:7

    • Identifying stakeholders and the role each of us can play to increase well-being in the profession;

    • Eliminating the stigma associated with help-seeking behaviors;

    • Emphasizing that well-being is a critical part of a lawyer’s duty of competence;

    • Educating all constituents within the profession about well-being issues; and

    • Taking small steps to change how law is practiced and how lawyers are regulated to create greater well-being in the profession.

    September 2017. ABA immediate past president Hilarie Bass created the Working Group to Advance Well-Being in the Legal Profession and it continues under the ABA’s current president, Bob Carlson.8

    August 2018. The “Well-Being Toolkit for Lawyers and Legal Employers” was published, along with a shorter version summarizing 80 of the toolkit’s key items.9 Individuals and firms can use the toolkit to find information and resources to get started on the path to well-being.

    While most lawyers won’t experience circumstances this severe, the stress, complexity, and pace of the profession often undercut lawyers’ ability to thrive.

    January/February 2018. At the ABA Midyear Meeting, the House of Delegates passed Resolution 105, which made it ABA policy to support the goal of reducing mental health disorders and substance use disorders.10

    September 2018. The Well-Being Pledge for Legal Employers was launched, and to date, more than 50 law firms and one corporate legal department have signed the pledge. The pledge requires that signatories adhere to the following seven points:11

    • Provide enhanced and robust educational opportunities to lawyers and staff on well-being, substance use disorders, and mental health distress;

    • Reduce the emphasis on drinking-based events;

    • Develop visible partnerships with outside entities committed to reducing problematic substance use disorders and mental health distress in the profession;

    • Provide confidential access to addiction and mental health experts and resources to all employees, including free, in-house self-assessment tools;

    • Create a proactive, written protocol and leave policy that covers the assessment and treatment of substance abuse and mental health problems;

    • Actively promote and encourage help-seeking and self-care as organizational core values; and

    • Highlight the adoption of this framework to attract and retain the best lawyers and staff.

    WisLAP: How to Give and Get Help

    Hundreds of State Bar of Wisconsin members have served as Wisconsin Lawyers Assistance Program (WisLAP) volunteers over the decades since the State Bar’s program first came into existence as Lawyers Concerned for Lawyers in the 1980s.

    According to Mary Spranger, WisLAP manager, “It is everyone’s responsibility to pay attention to their own well-being and the well-being of others.  This problem is so significant it requires all hands on deck.”

    Would you like to help? WisLAP, a peer-support program with about 150 trained volunteer lawyers and judges, always needs more volunteers. These volunteers provide peer assistance to lawyers and judges and speak about lawyer health and well-being topics at local bar meetings and conferences.

    Participation requires one full-day training, with follow-up training every other year. The commitment varies based on needs and volume of calls.

    You can also volunteer to be a part of the WisLAP Committee to help oversee the program. Committee members meet regularly throughout the year.

    Do you know someone who needs confidential help? Interested in a presentation on a wellness issue? Contact us at:

    • 24-hour helpline: (800) 543-2625
    • email: org callwislap wisbar wisbar callwislap org
    • Web: wisbar.org/wislap

    Wisconsin’s Experience

    To better understand well-being trends in Wisconsin, I talked to Mary Spranger, manager of the State Bar of Wisconsin’s Wisconsin Lawyers Assistance Program (WisLAP). She said that while attorneys are using WisLAP services more frequently, there are still misperceptions about the services WisLAP offers. Many in the legal profession think of it as a place of last resort for lawyers with serious substance abuse and mental health issues, but it’s much more than that. WisLAP offers resources for attorneys facing a variety of issues, including a serious health-related diagnosis, eating disorders, and marital or other family concerns. (See sidebar “WisLAP: How to Give and Get Help.”)

    In addition, lawyers in Wisconsin can earn continuing legal education credits (limited to six credits per reporting period) for workplace practice and well-being related topics. These are called, respectively, law practice management credits and lawyer awareness and understanding credits.12

    Both Wisconsin law schools are on the cutting edge of adopting well-being related concepts into segments of their curriculum. Several years ago, I worked with Sarah Davis, Mitch, and U.W. Law School clinic students in a day-long workshop to teach them burnout prevention and resilience tools.13 Spranger keeps periodic office hours at the U.W. Law School to assist students with mental health concerns. In addition, I teach stress management, burnout prevention, and resilience skills workshops every year in Peter Rofes’ class, “Lawyers and Life,” at Marquette University Law School.

    Lawyer well-being influences ethics and professionalism, and troubled lawyers can struggle with even minimum levels of competence.14 Spranger also noted that WisLAP fields an increasing number of calls directly from clients who report impairment concerns with their lawyers. She reports that there is a greater expectation from the general public to prioritize well-being, and the profession has a responsibility to take its ethical integrity with the utmost seriousness.

    Conclusion

    Untreated mental health and substance abuse disorders ruin lives and careers.15 While most lawyers won’t experience circumstances this severe, the stress, complexity, and pace of the profession often undercut lawyers’ ability to thrive. The Task Force Report states, “We all contribute to, and are affected by, the collective legal culture. Whether that culture is toxic or sustaining is up to us. Our interdependence creates a joint responsibility for solutions.”16

    Will you join us? The time is now.

    Endnotes

    1 G. Andrew H. Benjamin et al., The Role of Legal Education in Producing Psychological Distress among Law Students and Lawyers, 11(2) Law & Social Inquiry 225-52 (1986); William W. Eaton et al., Occupations and the Prevalence of Major Depressive Disorder, 32(11) J. Occupational Med. 1079-87 (1990).

    2 Martin E.P. Seligman, Authentic Happiness: Using the New Positive Psychology to Realize Your Potential for Lasting Fulfillment 177-84 (New York, NY: Free Press 2002).

    3 Id. at 180.

    4 Lawrence S. Krieger, Institutional Denial about the Dark Side of Law School, and Fresh Empirical Guidance for Constructively Breaking the Silence, 52 J. Legal Educ. 112-29 (2002); see also Kennon M. Sheldon & Lawrence S. Krieger, Does Legal Education Have Undermining Effects on Law Students? Evaluating Changes in Motivation, Values and Well-Being, 22 Behav. Sci. Law 261-86 (2004); Todd David Peterson & Elizabeth Waters Peterson, Stemming the Tide of Law Student Depression: What Law Schools Need to Learn from the Science of Positive Psychology, 9 Yale J. Health Pol’y L. & Ethics 357-434 (2009).

    5 Patrick R. Krill, Ryan Johnson & Linda Albert, The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys, 10 J. Addiction Med. 46 (2016); see also Joe Forward, Landmark Study: U.S. Lawyers Face Higher Rates of Problem Drinking and Mental Health Issues, 89 Wis. Law. 2 (Feb. 2016).

    6 Jerome M. Organ, David B. Jaffe & Katherine M. Bender, Suffering in Silence: The Survey of Law Student Well-Being and the Reluctance of Law Students to Seek Help for Substance Abuse and Mental Health Concerns, 66 J. Legal Educ. 116 (2016).

    7 You can download a copy of the Task Force Report here: https://tinyurl.com/ybno5kzs.

    8 The Working Group has its own dedicated page on the ABA website.

    9 You can download a copy of the full Toolkit; and a copy of the shorter “Nutshell.” I was honored to contribute to the Toolkit.

    10 Bob Carlson, It’s Time to Promote Our Health: ABA Mobilizes on Multiple Fronts to Address Well-Being in the Legal Profession, ABA J., Dec. 2018.

    11 Here is a downloadable copy of the Pledge form.

    12 See SCR 31.02 (3) and (4) for more information.

    13 Nicole Sweeney Etter, The Art of Bouncing Back, 38(1) Gargoyle (Spring 2015). The Gargoyle is the U.W. Law School’s alumni magazine.

    14 Supra note 7 at page 8.

    15 Eilene Zimmerman and Joanna Litt have each humanized the lawyer well-being movement, and they speak to the urgency with which we must work. Zimmerman wrote about her ex-husband’s struggle with drug addiction in a brilliant piece for the New York Times called “The Lawyer, The Addict.” Litt recently wrote about her husband, Gabe MacConaill, a law partner who committed suicide in October.

    16 Supra note 7 at page 9.




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