June 7, 2017 – A number of changes to Wisconsin Supreme Court rules will take effect on July 1, including one repealing Wisconsin’s “Deadman’s statute” and another allowing lawyer-mediators to draft settlement documents in family law cases.
A business court pilot project and a rule allowing lawyers to obtain continuing legal education (CLE) credit for programs addressing practice management, substance abuse awareness, mental illness, and stress management will also take effect July 1, as will changes to a rule on conditional admissions. This article provides an overview of the changes.
Deadman’s Statute Repeal
In February 2017, the supreme court ordered repeal of Wisconsin’s Deadman’s statute, a longstanding witness competency rule that bars “interested witnesses” from testifying about communications or transactions with a person who has since died or is no longer competent to testify about it. The Deadman’s statute, which is actually two statutes at Wis. Stat. section 885.16 and section 885.17, was codified in 1858.
Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.
But a unanimous court concluded that the statute has run its course and is no longer useful in protecting a decedent’s estate from fraudulent claims by living witnesses.
The Wisconsin Judicial Council petitioned for repeal, noting that Wisconsin was among a minority of states that still recognized some version of the rule.
“Today, many believe that archaic rule supports injustice by preventing honest claimants from proving their case, so most states have rejected the Deadman’s Statute,” Judicial Council attorney April Southwick wrote in a supporting memo.
Other practitioners appeared at a public hearing to voice support of the repeal. Thomas Shriner, a partner at Foley & Lardner LLP and Marquette University Law School’s appointee on the Judicial Counsel, called the Deadman’s statute a “malpractice trap.”
Jonathan Ingrisano, of Godfrey & Kahn S.C., noted that repealing the statute would likely reduce appeals and promote efficiencies at a time when probate and trust litigation is expected to surge, as great transfers of wealth begin to occur.
The court’s order says the repeal applies to proceedings “commenced after the effective date of this rule and to any proceedings within a court proceeding then pending, except insofar as, in the opinion of the circuit court, application of the rule change would not be feasible or would work injustice, in which event the former rule applies.”
Lawyer-mediators Can Draft Agreements
Starting July 1, lawyers who mediate family law cases will be able to draft, modify, complete, and file the settlement documents. Currently, parties to a mediation are required to obtain different legal counsel to perform those tasks after mediation.
More frequently, parties attempt to navigate the legal system with no help at all. An estimated 70 percent of family law cases involve self-represented parties, and 95 percent of those are settled without a trial. Mediations can assist in the settlement of disputes without expensive litigation.
But because divorce settlements involve the preparation and submission of legal documents, the process after mediation can be problematic for pro se litigants.
For instance, parties must complete financial disclosures, marital settlement agreements, findings of fact, conclusions of law, judgments, and ancillary implementation documents, such as title transfer documents, beneficiary designations, instructions to child support agencies, and qualified domestic relations orders.
The Rules of Professional Conduct for Lawyers are viewed as prohibiting lawyer-mediators from drafting and filing these documents, since lawyers are not allowed to “represent” a party to a mediation the lawyer conducted.
The change is intended to give parties more affordable options when they mediate, adding another layer to the limited scope representation rules that took effect two years ago.
The Director of State Courts petitioned the court on the recommendation of the Wisconsin Supreme Court’s Planning and Policy Advisory Committee (PPAC).
CLE Credit for Practice Management and Lawyer Wellness
Effective July 1, lawyers can obtain CLE for programs on practice management or that enhance awareness about substance abuse, mental illness, and stress management.
Specifically, the rules will allow attorneys to obtain up to six hours of CLE credit for courses on law practice management, “which may include topics such as client communications, trust accounting, record keeping, applications of technology, and other subjects essential to the practice of law,” not including marketing or profit enhancement.
Lawyers can obtain another six hours of CLE credit for programs “on subjects designed to enhance a lawyer’s awareness and understanding of substance abuse/dependence disorders, mental illness, stress management, and work/life balance relating to the practice of law.” The Board of Bar Examiners (BBE) petitioned for the changes.
The court’s order also allows attorneys to obtain an increased number of “on-demand” credits per CLE reporting cycle, from 10 hours to 15 hours. On-demand programs can be accessed via the internet at any time, rather than at scheduled times or in-person.
Business Court Pilot Project
Starting July 1, circuit courts in Brown, Door, Kewaunee, Marinette, Oconto, Outagamie, Waukesha, and Waupaca counties can proceed with dedicated dockets for large claim business and commercial cases under a three-year pilot project.
The supreme court approved the business court pilot project through an order in April. Chief Justice Patience Roggensack selects the circuit court judges who will be assigned to the business court docket, which is intended to resolve cases more efficiently.
The rule sets out the qualifying cases for the business/commercial docket. For instance, cases involving business organizations, intellectual property rights, and cases where the amount in controversy exceeds $100,000 in damages would go to business court.
Attorney John Rothstein petitioned the supreme court for the pilot project on behalf of the Business Court Advisory Committee appointed by Chief Justice Roggensack.
Conditional Bar Admission
On July 1, amendments to the “conditional admission” rule will take effect. The conditional admission rule allows applicants with a record of conduct or behavior that would have otherwise rendered the applicant unfit to practice law an opportunity to gain conditional admission. The BBE petitioned for amendments to clarify procedure.
Specifically, the current rule does not provide clear guidance on procedures for handling cases in which a conditionally admitted lawyer has become substantially noncompliant with conditions under a conditional admission agreement.
Amendments, approved by supreme court order, clarify that the BBE can modify, extend, or revoke conditional admission agreements or take other appropriate actions, such as notification to the Office of Lawyer Regulation.
The order generally codifies current practice when the BBE revokes a conditional agreement. The BBE is required to file a motion and order to show cause, and the subject lawyer has 20 days to file a response. The supreme court may decide the matter on written submissions without a hearing or refer the matter to a referee.
If the court issues an order of license suspension or revocation, the fact that the individual was conditionally admitted is no longer confidential. However, the suspended or revoked attorney may petition for reinstatement under current reinstatement rules.
As of December 2016, 33 individuals were conditionally admitted since 2011, when the conditional admission rule took effect. Of those, 17 had successfully completed the conditional admission process and are now admitted with no conditions attached.
Ten pending petitions await action from the Wisconsin Supreme Court. None have been scheduled for a public hearing, and the court’s term ends at the end of June. Any outstanding petitions will be carried over to the supreme court’s 2017-18 term.