Petition 22-03 In the Matter of the amendment to SCR 72.01(8), 72.01(9), and 72.01(10), relating to retention of records in eviction cases
On March 29, 2022, Legal. Action of Wisconsin, by Attorney Korey C.
Lundin, filed a rule petition asking the court to amend Supreme Court
Rules 72.01(8), 72.01(9), and 72.01(10) to shorten the record retention
period for eviction cases in which no money judgment is entered to one
year.
Order Issued: March 20, 2024
Disposition: Public hearing scheduled for Tuesday, April 16, 2024, at 10:30 a.m.
On March 29, 2022, Legal. Action of Wisconsin, by Attorney Korey C.
Lundin, filed a rule petition asking the court to amend Supreme Court
Rules 72.01(8), 72.01(9), and 72.01(10) to shorten the record retention
period for eviction cases in which no money judgment is entered to one
year.
Following a public comment period, the court held a public hearing
on the matter on September 7, 2023. The court discussed the petition
at an open administrative conference on October 9, 2023, and a majority
voted to adopt a modified version of the petition. Shortly thereafter,
the court was made aware-of a potential conflict between the approved
rule revisions and Wis. Stat. § 758.20(2) (a). On October 30, 2023, the
court' solicited supplemental public comments concerning the potential
conflict. The court received- supplemental comments concerning this
issue from: the Hon. Audrey K. Skwierawski, then-interim Director of
State Courts; Richard A. Van Der Leest on behalf of VDL & Associates,
et al.; Attorney Heiner Giese on behalf of the Rental Property
Association of Wisconsin, Inc., et al.; and Legal Action of Wisconsin.
No. 22-03
At a later closed administrative conference, the court voted to
schedule a second open administrative conference to further discuss the
petition.
Therefore,
IT IS ORDERED that a second open administrative conference on the
petition shall be held in the Supreme Court Hearing Room in the State
Capitol, Madison, Wisconsin, on Tuesday, April 16, 2024, at 10:30 a.m.
REBECCA GRASSL BRADLEY, J., dissents.
Dated at Madison, Wisconsin, this 20th day of March, 2024.
Petition 23-05: In the Matter of Proposed Rules Relating to Appellate Court Proceedings From Orders Entered Pursuant to Wis. Stat. § 971.14 Regarding Pretrial Competency Rulings in Criminal Cases
On October 12, 2023, the Wisconsin Judicial Council, by Attorney William C. Gleisner, III, Chair, and its Appellate Procedure Committee, by the Honorable Thomas M. Hruz, Chair, filed this rule petition to create Wis. Stat. § (Rule) 809.109 and amend Wis. Stat. §§ (Rules) 809.10(1)(d) and 809.801(5)(c) to establish an expedited appeals procedure from orders entered pursuant to Wis. Stat. § 971.14, which governs competency proceedings in criminal cases.
Order Issued: December 21, 2023
Disposition: Hearing order scheduled for Thursday, January 25, 2024, at 9:30 a.m.
On October 12, 2023, the Wisconsin Judicial Council, by Attorney William C. Gleisner, III, Chair, and its Appellate Procedure Committee, by the Honorable Thomas M. Hruz, Chair, filed this rule petition to create Wis. Stat. § (Rule) 809.109 and amend Wis. Stat. §§ (Rules) 809.10(1)(d) and 809.801(5)(c) to establish an expedited appeals procedure from orders entered pursuant to Wis. Stat. § 971.14, which governs competency proceedings in criminal cases.
IT IS ORDERED that a public hearing on the petition shall be held in the Supreme Court Hearing Room in the State Capitol, Madison, Wisconsin, on Thursday, January 25, 2024, at 9:30 a.m.
IT IS FURTHER ORDERED that the court's open administrative conference for the matter shall be held following the public hearing.
IT IS FURTHER ORDERED that notice of the hearing be given by a publication of a copy of this order and of the petition in the official state newspaper once each week for three consecutive weeks, and in an official publication of the State Bar of Wisconsin not more than 60 days nor less than 30 days before the date of the hearing.
IT IS FURTHER ORDERED that the full text of the proposed rules, including changes, if any, in existing rules, shall be placed on the Internet site maintained by the director of state courts for the supreme court. See www.wicourts.gov/scrules/pending.htm.
Dated at Madison, Wisconsin, this 21st day of December, 2023.
BY THE COURT:
Samuel A. Christensen
Clerk of Supreme Court
Petition 23-04: In the Matter of Modification of SCR Chap. 10, Regulation of the State Bar
On June 27, 2023, the State Bar of Wisconsin, by then-president Attorney Margaret W. Hickey, filed a rule petition asking the court to amend Supreme Court Rule (SCR) 10.05(1) to add a designated voting representative from the Section Leaders Council to the State Bar of Wisconsin Board of Governors.
Order Issued: December 21, 2023
Disposition: Public hearing scheduled for Thursday, January 25, 2024, at 9:30 a.m.
On June 27, 2023, the State Bar of Wisconsin, by then-president
Attorney Margaret W. Hickey, filed a rule petition asking the court to
amend Supreme Court Rule (SCR) 10.05(1) to add a designated voting
representative from the Section Leaders Council to the State Bar of
Wisconsin Board of Governors.
IT IS ORDERED that a public hearing on the petition shall be held
in the Supreme Court Hearing Room in the State Capitol, Madison,
Wisconsin, on Thursday, January 25, 2024, at 9:30 a.m.
IT IS FURTHER ORDERED that the court's open administrative
conference for the matter shall be held following the public hearing.
IT IS FURTHER ORDERED that notice of the hearing be given by a
publication of a copy of this order and of the petition in the official
state newspaper once each week for three consecutive weeks, and in an
official publication of the State Bar of Wisconsin not more than 60
days nor less than 30 days before the date of the hearing.
IT IS FURTHER ORDERED that the full text of the proposed rules,
including changes, if any, in existing rules, shall be placed on the
No. 23-04
2
Internet site maintained by the director of state courts for the supreme
court. See www.wicourts.gov/scrules/pending.htm.
Dated at Madison, Wisconsin, this 21st day of December, 2023.
BY THE COURT:
Samuel A. Christensen
Clerk of Supreme Court
Petition 23-01: In the Matter of Amending Wis. Stat. § 809.12, Relating to Appellate Review of Motions for Relief Pending Appeal
On January 23, 2023, Attorney Caleb R. Gerbitz and Attorney James
M. Sosnoski filed a rule petition asking the court to amend Wis. Stat.
§ (Rule) 809.12 to clarify the standard of review for a decision on a
motion for a stay pending appeal.
Order Issued: October 18, 2023
Disposition: Public hearing scheduled on Monday, December 11, 2023, at 1:30 p.m.
On January 23, 2023, Attorney Caleb R. Gerbitz and Attorney James
M. Sosnoski filed a rule petition asking the court to amend Wis. Stat.
§ (Rule) 809.12 to clarify the standard of review for a decision on a
motion for a stay pending appeal.
IT IS ORDERED that a public hearing on the petition shall be held
in the Supreme Court Hearing Room in the State Capitol, Madison,
Wisconsin, on Monday, December 11, 2023, at 1:30 p.m.
IT IS FURTHER ORDERED that the court's open administrative
conference for the matter shall be held immediately following the public
hearing.
IT IS FURTHER ORDERED that notice of the hearing be given by a
publication of a copy of this order and of the petition in the official
state newspaper once each week for three consecutive weeks, and in an
official publication of the State Bar of Wisconsin not more than 60
days nor less than 30 days before the date of the hearing.
IT IS FURTHER ORDERED that the full text of the proposed rules,
including changes, if any, in existing rules, shall be placed on the
No. 23-01
2
Internet site maintained by the director of state courts for the supreme
court. See www.wicourts.gov/scrules/pending.htm.
Dated at Madison, Wisconsin, this 18th day of October, 2023.
BY THE COURT:
Samuel A. Christensen
Clerk of Supreme Court
Petition 22-03 In the Matter of the amendment to SCR 72.01(8), 72.01(9), and 72.01(10), relating to retention of records in eviction cases
On March 29, 2022, Legal Action of Wisconsin, by Attorney Korey C. Lundin, filed a rule petition asking the court to amend Supreme Court Rule (SCR) 72.01(8), 72.01(9), and 72.01(10) to shorten the record retention period for eviction cases in which no money judgment is entered to one year.
Order Issued: July 21, 2023
Disposition: Hearing order scheduled for Thursday, September 7, 2023, at 9:30 a.m.
On March 29, 2022, Legal Action of Wisconsin, by Attorney Korey C. Lundin, filed a rule petition asking the court to amend Supreme Court Rule (SCR) 72.01(8), 72.01(9), and 72.01(10) to shorten the record retention period for eviction cases in which no money judgment is entered to one year.
IT IS ORDERED that a public hearing on the petition shall be held in the Supreme Court Hearing Room in the State Capitol, Madison, Wisconsin, on Thursday, September 7, 2023, at 9:30 a.m.
IT IS FURTHER ORDERED that notice of the hearing be given by a publication of a copy of this order and of the petition in the official state newspaper once each week for three consecutive weeks, and in an official publication of the State Bar of Wisconsin not more than 60 days nor less than 30 days before the date of the hearing.
IT IS FURTHER ORDERED that the full text of the proposed rules, including changes, if any, in existing rules, shall be placed on the Internet site maintained by the director of state courts for the supreme court. See www.wicourts.gov/scrules/pending.htm.
Dated at Madison, Wisconsin, this 21st day of July, 2023.
BY THE COURT:
Samuel A. Christensen
Clerk of Supreme Court
Petition 22-01 In the Matter of Diversity, Equity, Inclusion, and Access Training for Continuing Legal Education
On March 22, 2022, the State Bar of Wisconsin, by Cheryl Furstace Daniels, then-President, and on behalf of the State Bar's Board of Governors, filed a rule petition asking the court to amend Supreme Court Rule 31.02(5) & (6) to create a new specialty continuing legal education (CLE) credit that would be called the "Diversity, Equity, Inclusion, and Access" (DEIA) credit. DEIA courses would address “the subject of diversity, equity, inclusion, access, or recognition of bias, which includes topics addressing diversity and inclusion in the legal system of all persons regardless of age, race, ethnicity, religion, national origin, gender, sexual orientation, gender identity, or disabilities and topics designed to educate attorneys on the recognition and reduction of bias.” Under the proposal, lawyers could use DEIA CLE credit-hours to fulfill their 30 hours of required CLE credits under Supreme Court Rule 31.02 (1).
Order Issued: July 13, 2023
Disposition: Petition Denied
On March 22, 2022, the State Bar of Wisconsin, by Cheryl Furstace Daniels, then-President, and on behalf of the State Bar's Board of Governors, filed a rule petition asking the court to amend Supreme Court Rule 31.02(5) & (6) to create a new specialty continuing legal education (CLE) credit that would be called the "Diversity, Equity, Inclusion, and Access" (DEIA) credit. DEIA courses would address “the subject of diversity, equity, inclusion, access, or recognition of bias, which includes topics addressing diversity and inclusion in the legal system of all persons regardless of age, race, ethnicity, religion, national origin, gender, sexual orientation, gender identity, or disabilities and topics designed to educate attorneys on the recognition and reduction of bias.” Under the proposal, lawyers could use DEIA CLE credit-hours to fulfill their 30 hours of required CLE credits under Supreme Court Rule 31.02 (1).
At a closed administrative conference on May 19, 2022, the court voted to solicit written comments. The court sent letters to interested persons on July 11, 2022. It also requested that the Board of Bar Examiners (BBE) comment on the rule petition.
On August 5, 2022, BBE Director Jacquelynn B. Rothstein filed a letter with the court, stating that the BBE reviewed the rule petition at its regularly scheduled meeting on July 29, 2022. The BBE recommended an alternative proposal to the court, which limited DEIA credits to courses related to subjects within the legal system and limited the number of DEIA credit hours attorneys could use to satisfy their CLE requirements to six credits per reporting cycle.
Legal Action of Wisconsin, by Jennifer L. Johnson, Director of Diversity & Inclusion, and Monica Cail, Director of Racial Justice Advocacy & Litigation, filed a comment in support of the petition on August 9, 2022. Legal Action requested that the court mandate that all attorneys in Wisconsin take at least one DEIA credit each reporting cycle.
The State Bar, by Margaret W. Hickey, President, Dean R. Dietrich, President-Elect, and Cheryl Furstace Daniels, Past President, filed a response to the comments on August 17, 2022. The BBE filed an additional comment with an amended alternative proposal on November 2, 2022. The State Bar responded to the BBE’s additional comment on December 8, 2022. Attorney Kevin M. Connelly filed a comment in opposition to the petition on December 12, 2022.
The court discussed the petition at a closed administrative conference on February 21, 2023, and voted to deny the petition. Therefore,
IT IS ORDERED that the petition is denied.
Dated at Madison, Wisconsin, this 13th day of July, 2023.
BY THE COURT:
Samuel A. Christensen
Clerk of Supreme Court
¶1 REBECCA GRASSL BRADLEY, J. (concurring).
Many feel that our society is fragmenting as strident voices seek to divide us along racial, ethnic, cultural, religious, and gender lines. . . . Courts should conserve and preserve what has been bequeathed and entrusted to us; they should not bow to every fad or whim of the moment.
In re Rev. of the Code of Jud. Ethics, SCR Chapter 60, 169 Wis. 2d xv, xxvi (1992) (Day, J., concurring, joined by a majority).
¶2 The State Bar petitions this court to allow lawyers to attend courses for continuing legal education credit (CLE) "on the subject of diversity, equity, inclusion, access, or recognition of bias[.]" Because lawyers already are receiving credit for such courses (see Appendix 1) the petition is unnecessary and the court rightly rejects it without holding a public hearing. I therefore respectfully concur but write separately to highlight how DEIA courses damage human dignity, undermine equality, and violate the law:
1. Collectively, the buzzwords "diversity, equity, inclusion, and access" (DEIA) represent a smoke screen for a divisive political agenda that perniciously reduces people to racial categories and strips them of their unique individuality;
2. This petition originated in partisan controversy and is a well-documented step toward mandatory DEIA CLE;
3. The Bar's one-and-a-half page memorandum in support of its petition presents a pretextual and underdeveloped argument for attorney freedom of choice but all along the Bar has planned to seek compulsory DEIA CLE; and
4. The proposed rule raises serious moral and constitutional concerns.
¶3 If the Bar's end game were simply CLE credit, the petition would be easily dismissed as virtue signaling given the liberality with which the Board of Bar Examiners (BBE) already awards credit for such courses. But the Bar ultimately seeks to mandate DEIA training, impose group think on attorneys, and condition bar admission and continuing licensure on subscribing to an illiberal political ideology. Real diversity means welcoming dissenting voices, not coercing them into an echo chamber using the force of the State:
Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.
. . . [T]he First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings. There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority.
W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 641 (1943).
I. DEIA IS A DISGUISE FOR DANGEROUS IDENTITY POLITICS.
¶4 Regrettably, our society is in the midst of "revert[ing] to being tribal and genetically determined." See Charles Love, Race Crazy: BLM, 1619, and the Progressive Racism Movement XII (2021). We live in an increasingly "race-obsessed" society——and one ever more obsessed with other immutable characteristics. See id. Various institutions promote a lie designed to divide:
human beings are defined by their skin color, sex, and sexual preferences; that discrimination based on those characteristics has been the driving force in Western civilization; and that America remains a profoundly bigoted place, where heterosexual white males continue to deny opportunity to everyone else.
Heather Mac Donald, The Diversity Delusion: How Race and Gender Pandering Corrupt the University and Undermine Our Culture 2 (2018). Under this distorted viewpoint, Black Americans "are all inexorably trapped in a fundamentally racist society, with the original sin of slavery and the historical subjugation of black Americans still determining our lives today." Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U. S. __, __ S. Ct. __, Nos. 20-1199 & 21-707, slip op. at 49 (June 29, 2023) (Thomas, J., concurring).
¶5 Facially benign verbiage under the umbrella of DEIA shrouds this regression toward a freshly fractured society. Nice-sounding euphemisms aside, DEIA initiatives often presuppose the existence of certain "universal values," which are not actually universally shared, in an effort to stifle debate. See Ben Shapiro, How to Debate Leftists and Destroy Them: 11 Rules for Winning the Argument 22 (2014). The vast majority of Americans value diversity, inclusion, and access in their fullest senses, but DEIA discriminates against and excludes categories of people it deems "privileged." "Equity" sounds benevolent but insidiously "calls for institutions to treat people unequally purportedly to achieve an equal outcome." See Unequal Protection: The Push to Replace "Equality" with "Equity" is Unconstitutional, Heritage Foundation, at 1:30 (Sept. 23, 2021).
[E]quity . . . is far from equality. In fact, equity is equality's demonstrable opposite. Rather than providing all individuals with equal opportunities to succeed, equity segregates individuals by race or sex while simultaneously driving the narrative of oppressor and victim. . . . Its fixation on individual identity serves to deepen longstanding American philosophical divides. Equity recklessly embraces the consideration of legally prohibited classifications as a way to eliminate perceived bias or differences in outcome, but in so doing, it violates both equal protection and federal law.
See id. at 1:09. "The solution to our Nation's racial problems thus cannot come from policies grounded in affirmative action or some other conception of equity. Racialism simply cannot be undone by different or more racialism. Instead, the solution announced in the second founding is incorporated in our Constitution: that we are all equal, and should be treated equally before the law without regard to our race. Only that promise can allow us to look past our differing skin colors and identities and see each other for what we truly are: individuals with unique thoughts, perspectives, and goals, but with equal dignity and equal rights under the law." Students for Fair Admissions, Inc., slip op. at 48–49.
¶6 At times, the soothing oratory is unmasked and the quiet part said out loud. Ibram X. Kendi's 2019 book, How to Be an Antiracist, has become DEIA canon. He rejects Martin Luther King Jr.'s wisdom, declaring, "[t]he language of color-blindness . . . is a mask to hide racism. . . . The only remedy to past discrimination is present discrimination. The only remedy to present discrimination is future discrimination." Ibram X. Kendi, How to Be an Antiracist 10, 19 (2019). This philosophy perpetuates an ugly cycle of race-based retribution. If it becomes universally accepted, contemporary victims of discrimination will seek the "only remedy" of "future discrimination" against their oppressors. "This vision of meeting social racism with government-imposed racism is thus self-defeating, resulting in a never-ending cycle of victimization. There is no reason to continue down that path. In the wake of the Civil War, the Framers of the Fourteenth Amendment charted a way out: a colorblind Constitution that re-quires the government to, at long last, put aside its citizens' skin color and focus on their individual achievements." Students for Fair Admissions, Inc., slip op. at 55. "[T]he Constitution continues to embody a simple truth: Two discriminatory wrongs cannot make a right." Id. at 2.
¶7 Many Americans have begun to see the "smooth-sounding siren of racial classification" for what it is: a tool for discrimination. See Johnson v. WEC, 2022 WI 19, ¶148, 401 Wis. 2d 198, 972 N.W.2d 559 (Rebecca Grassl Bradley, J., concurring); see also Janie Har, Politically Liberal California Rejects Affirmative Action, AP (Nov. 4, 2020) ("The campaign to reinstate affirmative action in overwhelmingly Democratic California had money, momentum and big-name backers, including Black celebrities . . . , but voters in the most populated state rejected the measure."). Illiberal elites see the issue differently. They craft student bodies, corporate boards, and even voting districts to have just the "right" racial makeup. See Johnson, 401 Wis. 2d 198, ¶74. While decrying discrimination, they unabashedly discriminate on the basis of race, sex, and other immutable characteristics. They silence dissenters with the threat of being shunned as "bigots."
¶8 The United States Supreme Court recently ended race-based discrimination in higher education, restoring the original meaning of the Equal Protection Clause and reinforcing the founding principle pronounced in our Declaration of Independence "that all men are created equal[.]" See The Declaration of Independence para. 2 (U.S. 1776). The Court ruled that "[e]liminating racial discrimination means eliminating all of it. And the Equal Protection Clause, we have accordingly held, applies 'without regard to any differences of race, of color, or of nationality'——it is 'universal in [its] application.' For '[t]he guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color.' 'If both are not accorded the same protection, then it is not equal.'" Students for Fair Admissions, Inc., slip op. at 15 (majority opinion) (quoted sources omitted) (modifications in the original).
¶9 In tension with the principles embodied in the Equal Protection Clause, illiberal elites have long pushed DEIA ideology on the legal profession using now-familiar tactics. In 2016, the American Bar Association (ABA) adopted a formal "Diversity and Inclusion CLE Policy[.]" ABA Diversity & Inclusion CLE Policy (2016). It stated:
The ABA expects all CLE programs sponsored or co-sponsored by the ABA to meet the aspirations of Goal III by having the faculty include members of diverse groups as defined by Goal III (race, ethnicity, gender, sexual orientation, gender identity, and disability). This policy applies to individual CLE programs whose faculty consists of three or more panel participants, including the moderator. Individual programs with faculty of three or four panel participants, including the moderator, will require at least 1 diverse member; individual programs with faculty of five to eight panel participants, including the moderator, will require at least 2 diverse members; and individual programs with faculty of nine or more panel participants, including the moderator, will require at least 3 diverse members. The ABA will not sponsor, co-sponsor, or seek CLE accreditation for any program failing to comply with this policy unless an exception or appeal is granted. . . .
Id. The policy continued:
If for some rare or extraordinary reason a panel does not comply and [can]not be granted an exception for one time only on behalf of that panel the entity can opt to pay a fine of $2500 to the diversity center rather than lose CLE credit for that panel. This exception can only be granted one time.
Id.
¶10 The Business Law Section of the Florida Bar adopted a policy modeled on the ABA's. See In re Amendment to Rule Regulating the Florida Bar 6-10:3 (Amendment I), 315 So. 3d 637, 637 (2021) (per curiam); In re Amendment to Rule Regulating the Florida Bar 6-10:3 (Amendment II), 335 So. 3d 77, 79 (2021) (per curiam). The Florida Supreme Court, on its own motion, amended a rule regulating the Florida Bar to prohibit quotas. Amendment I, 315 So. 3d at 637. The rule currently reads, in relevant part: "The board of legal specialization and education may not approve any course with a sponsor, including a section of The Florida Bar, that uses quotas based on race, ethnicity, gender, religion, national origin, disability, or sexual orientation in the selection of course faculty or participants." Fla. State Bar Rule 6-10.3(d).
¶11 In responding to the Business Law Section's policy, the Florida Supreme Court highlighted its unlawfulness: "[q]uotas based on characteristics like the ones in this policy are antithetical to basic American principles of nondiscrimination." Amendment I, 315 So. 3d at 637 (citing Grutter v. Bollinger, 539 U.S. 306, 334 (2003)). The policy "treats people differently (i.e., discriminates) based on their membership in groups defined by 'race, ethnicity, gender identity, disability and multiculturalism.' Our laws consider it presumptively wrong to discriminate on these grounds——especially when government does the discriminating, but also in many contexts involving discrimination by private entities." Amendment II, 335 So. 3d at 80. "Quotas depart from the American ideal of treating individual people as unique individuals, rather than as members of groups." Id.
¶12 Recently, the ABA amended its policy to read, in relevant part, as follows: "Program organizers will invite and include prospective moderators and faculty members to create CLE panels that meet the objectives of Goal III. This includes, among others, moderators and faculty members from historically underrepresented communities e.g., racial and ethnic demographic groups/people of color, women, persons with disabilities, and LGBTQ+ individuals." ABA Diversity Equity and Inclusion CLE Policy (2022).
¶13 Although the amended policy eliminates quotas, it retains the dehumanizing notion that an individual's immutable characteristics define his value: a person with the right characteristics must be invited, regardless of what he has to say. See Amendment II, 335 So. 3d at 81 ("The ABA's submission to the [c]ourt indicates that it administers its diversity requirement this way: 'Program planners ask potential speakers to voluntarily answer the following question: Do you identify yourself as diverse?' . . . . A person's answer to this question is then used to determine how to categorize a person (nondiverse or diverse) for purposes of compliance with the diversity policy. This approach smacks of stereotyping or naked balancing; it does not invite a 'holistic' assessment of whatever unique perspective an individual might bring to a panel."). Such policies are morally wrong because each individual possesses inherent dignity; we are much more than our immutable characteristics. Johnson, 401 Wis. 2d 198, ¶125. Exclusion and inclusion based on such categories harm human dignity and impede the enduring American goal of "achieving a more pluralistic society." Id., ¶82. "Ultimately, identity politics should be rejected . . . because it poses a threat to republican self-government by corroding patriotic ties, fostering hatred, promoting cultural separatism, and demanding special treatment rather than equality under the law." David Azerrad, The Promises and Perils of Identity Politics, First Principles, Jan. 23, 2019, at 1.
¶14 The United States Supreme Court recently invalidated initiatives based on "'stereotypes that treat individuals as the product of their race, evaluating their thoughts and efforts——their very worth as citizens——according to a criterion barred to the Government by history and the Constitution.' Such stereotyping can only 'cause[] continued hurt and injury,' contrary as it is to the 'core purpose' of the Equal Protection Clause." Students for Fair Admissions, Inc., slip op. at 30 (quoted sources omitted) (modification in the original). Although that decision considered affirmative action programs in higher education, the principles apply with equal force to the legal profession. Given its ultimate responsibility for the CLE approval process overseen by the BBE, the Wisconsin Supreme Court cannot condone programming that violates equal protection.
¶15 The ideology underlying the ABA's quota system is already preached at approved CLE courses in Wisconsin. As just one example, the Bar sells a CLE course titled "Allyship – The Power of Diversity & Inclusion in Your Practice AMC 2022." The course was not taught by an attorney——let alone one who has run a legal practice——but rather a corporate consultant. No handouts or other materials were provided except for one briefly overviewing the consultant's credentials. The consultant titled his presentation "Creating Spaces Where Everyone Feels They Belong"——a different title than the Bar advertised. The BBE has extended the Bar "General Program Approval"; consequently, the BBE never reviewed any course material——not even a syllabus——before approving this course.
¶16 Nothing about the presentation may be characterized as "legal education." Attendees are told that "23andMe" and "ancestry.com"——websites that help people learn about their ancestry——are "a white people thing." According to the consultant, conversations about the websites make Black people uncomfortable, fostering an "unsafe" environment. In the consultant's words:
In zip code 48213 [Detroit], ain't no way we voluntarily mailing our DNA into a for[-profit] company. I don't want to know that bad. But here's the thing. That conversation starts coming up. . . . Now if it's safe, I'll say to you, "I have no idea." If it's not safe, I'm gonna to say to you, "listen, I have no idea, I'm not doing 23andMe, so the best I can assume is somebody who owned somebody's last name was Kelly." My last name is Kelly. Of course, there's black people everywhere, but I don't automatically assume I'm Irish either. You with me? Sometimes, we do have to pay attention to the conversations we're having, you do have to make it safe for everyone around you to participate.
The consultant conveys the point of diversity is not to ensure the sharing of various viewpoints but rather to suppress the spaces in which ordinary conversation can occur——all in the name of "safety."
¶17 Next, lawyers learned the definition of "nigrescence": "to return to the state of black." The consultant held up a clear cup of water and told the audience to imagine someone put "pure black paint" in it. He then asked the audience to imagine someone walked by the cup and put white paint in it. He asked the audience to accept that the cup no longer contained "pure black" paint. He then stated:
So in a chemistry lab, I would seal this and put it in one of those machines, and it would spin it super fast. . . . The process of pulling the white out is called nigresing. I would be returning this to the state of black. . . . Can people do that? . . . . I'm going to ask you, can I nigrese?
The consultant explained his childhood made him "no longer pure black." He "present[s]" as a "Black male born in Detroit, MI and raised in Rural Wisconsin" by mostly white foster families. He explained how various experiences in his life were like adding white paint to the cup. "I've got about 16 cups of white in here," he stated as he again held up the cup. While his personal background was compelling, his rhetoric promotes an "us verse them" mindset pervading DEIA. The chemistry metaphor paints a stark line between Black and White——hardly a "safe" lecture for an individual who is both. DEIA upends the founding principle of e pluribus unum, dividing the American people into racial categories and silencing defenders of pluralism. "An individual has value because he has value to God. Whenever this is recognized, 'whiteness' and 'blackness' pass away as determinants in a relationship and 'son' and 'brother' are substituted." Martin Luther King, Jr., Where Do We Go from Here: Chaos or Community? 102–03 (Beacon Press 1968).
¶18 At no point did the consultant discuss how to run a legal practice or relate his lessons to law. The lecture parroted standard woke corporate nonsense forced upon many in-house counsel by their employers. According to one Bar publication, the proposed rule is necessary because "many attorneys are required to take this type of training as part of their work, . . . [but the BBE] does not recognize most of the programs for CLE credit." Jill M. Kastner, Starlyn Rose Tourtillott Miller & Alexander M. Lodge, Creating a More Diverse and Equitable Legal System, Wis. Law. (June 9, 2022). Not so; see Appendix 1.
¶19 Publicly available information shows the prevalence of similar courses nationwide. In some states with mandatory DEIA CLE, attorneys can purchase a course titled "The Rittenhouse Trial: Implicit Bias in Plain View." The course description reads:
The Rittenhouse case, was . . . more than just politics. Hidden in plain view was an example of the implicit bias that plagues much of the criminal justice system. This panel will take an in-depth look at how implicit bias played a role in the outcome of the case, as well as how implicit bias is present in many aspects of routine courtroom process. Attendees will be challenged to take a critical view of their own courtroom practices in an effort to overcome their own implicit biases.
One wonders if attendees learn that after a lengthy trial, a jury of Kyle Rittenhouse's peers unanimously found him not guilty. In Minnesota, attorneys can take a class on avoiding "microaggressions" ——i.e., how to be so boring no one can possibly take offense. Perhaps attorneys should have the freedom to take courses like these for credit, but mandating them would only force attorneys to subject themselves to political indoctrination.
¶20 Consider whether the proponents of mandatory DEIA CLE would agree courses presenting a conservative perspective qualify. In May 2018, the Minnesota Lavender Bar Association (MLBA)——a voluntary professional association of lesbian, gay, bisexual, transgender, gender queer, and allies——objected to an accredited "elimination of bias" CLE presentation titled "Understanding and Responding to the Transgender Moment/St. Paul." A Roman Catholic law school co-sponsored the CLE, which addressed transgender issues from a Roman Catholic perspective. The speaker discussed, among other things, a medical expert deposition given in a federal case about the "North Carolina bathroom bill." The speaker also discussed a lawsuit challenging an "Obamacare mandate that would have required every health care plan in the United States to cover sex reassignment therapies and every relevant physician to perform them." He explained the mandate lacked an exemption for religious liberty. An MLBA board member claimed the content was "transphobic" and asserted the speaker "never named a case or referred to the law[.]" Evidently, she did not actually watch the presentation. Among other arguments, MLBA maintained:
[S]uch programming failed to (i) meet CLE general standards; (ii) meet criteria that would qualify such programming for any of the special categories, including elimination of bias, that may qualify for CLE credit; and (iii) support both MBCLE and Minnesota State Bar Association's efforts to advance diversity and inclusion.
As a result of MLBA's objection, the CLE accrediting body revoked CLE credit for the presentation——retroactively——reportedly for the first time in Minnesota's history. Barbara L. Jones, CLE Credit Revoked, Minn. Law. (May 28, 2018).
¶21 Unquestionably, that program addressed DEIA subject matter but not from the politically correct vantage point. Contrary to MLBA's claims, the program did not contain "discriminatory and transphobic rhetoric"; rather, the program's obvious goal was to teach viewers about gender dysphoria so they could better serve people suffering from it. This sort of extreme reaction to diverse viewpoints creates legitimate fear that mandatory DEIA CLE will become "a means to harass and drive from the profession all dissenters, by requiring many participants to sit through what they will undoubtedly consider hostile propaganda. Petty harassment and timewasting can serve effectively as an ideological screen." David Randall, Wokeness Is Creeping into Continuing Legal Education, James G. Martin Ctr. Academic Renewal (Feb. 17, 2023). Adding insult to injury, attorneys will be forced to pay for their indoctrination. Id. ("This indoctrination program is partly a grift: Providers of diversity CLE will now get a guaranteed revenue stream.").
¶22 As illustrated by these course offerings, the very language of DEIA is at odds with our "national ethos." Johnson, 401 Wis. 2d 198, ¶125. The great abolitionist Fredrick Douglass observed that "[t]he Constitution makes no distinction on account of race or color[.]" Frederick Douglass, Blessings of Liberty and Education (Sept. 3, 1894). By modern notions of political correctness, his famous speech advocating colorblindness would be deemed racist:
I have a word now upon another subject, and what I have to say may be more useful than palatable. That subject is the talk now so generally prevailing about races and race lines. . . . I do now and always have attached more importance to manhood than to mere kinship or identity with any variety of the human family. . . . Man is broad enough and high enough as a platform for you and me and all of us. . . .
. . . . In all this talk of race, the motive may be good, but the method is bad. It is an effort to cast out Satan by Beelzebub. The evils which are now crushing the negro to earth have their root and sap, their force and mainspring, in this narrow spirit of race and color, and the negro has no more right to excuse and foster it than have men of any other race. . . . I would place myself . . . upon grounds vastly higher and broader than any founded upon race or color. Neither law, learning, nor religion, is addressed to any man's color or race. Science, education, the Word of God, and all the virtues known among men, are recommended to us, not as races, but as men. We are not recommended to love or hate any particular variety of the human family more than any other. . . . God and nature speak to our manhood, and to our manhood alone. Here all ideas of duty and moral obligation are predicated. We are accountable only as men. . . . That great battle was won, not because the victim of slavery was a negro, mulatto, or an Afro-American, but because the victim of slavery was a man and a brother to all other men, a child of God, and could claim with all mankind a common Father, and therefore should be recognized as an accountable being, a subject of government, and entitled to justice, liberty and equality before the law, and every where else. Man saw that he had a right to liberty, to education, and to an equal chance with all other men in the common race of life and in the pursuit of happiness.
Id. Many Americans throughout history have endorsed this transcendent truth. Justice John Marshall Harlan wrote, "[o]ur Constitution is color-blind," in his famous dissent opposing the codification of racial segregation. See Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting), overruled by Brown v. Bd. of Ed., 347 U.S. 483 (1954). More recently, Chief Justice John Roberts, writing for the United States Supreme Court, suggested that "[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race." Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 748 (2007); see also Brief for Appellants, Brown v. Bd. of Ed., 347 U.S. 483 (1954), 1952 WL 82041, *6–7 (No. 1) (authored in part by Thurgood Marshall) ("When the distinctions imposed are based upon race and color alone, the state's action is patently the epitome of that arbitrariness and capriciousness constitutionally impermissive under our system of government." (citations omitted)). DEIA proponents not only reject these enduring principles but seek to eradicate them from America.
¶23 This court's "proper role"——whatever else it may be——is not to "[f]oster[] division[.]" In re Rev. of the Code of Jud. Ethics, SCR Chapter 60, 169 Wis. 2d at xxvi. Judges swear an oath to administer justice without respect to persons; we are to treat people equally. DEIA sorts people into arbitrary boxes and then treats them differently on the basis of race, sex, sexual identity, or disability. That alone justifies rejecting this petition. "Eschewing the complexity that comes with individuality may make for an uncomplicated narrative, but lumping people together and judging them based on assumed inherited or ancestral traits is nothing but stereotyping." Students for Fair Admissions, Inc., slip op. at 53 (Thomas, J., concurring).
II. THIS PETITION ORIGINATED IN PARTISAN CONTROVERSY AND IS A WELL-DOCUMENTED STEP TOWARD MANDATORY DEIA CLE.
¶24 An overview of this petition's origins illustrates both DEIA's troubling ideology and the Bar's strategic plan to make DEIA CLE mandatory. In late May 2020, a police officer in Minneapolis, Minnesota killed a Black man. Tim Arango et al., Derek Chauvin Is Found Guilty of Murdering George Floyd, N.Y. Times (Apr. 4, 2021). The officer was later convicted of second-degree murder among other crimes. Id.
¶25 That summer, protests and riots broke out across the nation. In Kenosha, Wisconsin, a police officer shot an armed Black man who was resisting arrest. The officer was not charged. See Lindsay Kornick, Flashback: Media Pushed False Jacob Blake Narrative that He Was 'Unarmed,' Fox News (Oct. 13, 2021). During the ensuing riots, much of Kenosha was razed. Brendan McDermid & Stephen Maturen, Wisconsin Unrest Flares for Third Night over Police Shooting of Black Man, Reuters (Aug. 25, 2020). The governor declared a state of emergency and activated the National Guard. Briana Reilly, Gov. Tony Evers Declares State of emergency in Wake of Unrest after Kenosha Police Shooting, Cap Times (Aug. 25, 2020).
¶26 A political movement known as Black Lives Matter began about a decade earlier but acquired prominence following the Minneapolis murder. See Love, Race Crazy, at 3. The movement advocates a radical political agenda and is proudly anti-law enforcement. It makes outrageous and unsupported claims on its official website, including "[t]he police were born out of slave patrols." BLM Demands, Black Lives Matter. See generally Jonah Goldberg, Op. Ed., The Problem with Claiming that Policing Evolved from Slave Patrols, AEI (June 19, 2020) ("Policing——enforcing the law, preventing crime, apprehending criminals——has a very long tradition of existence. I don't know where it started, but for our purposes we can note that Augustus Caesar, born in 27 B.C., created the cohortes urbanae near the end of his reign, to police Ancient Rome."). Currently, the website lists several "demands," many of which are wholly unrelated to racial justice. BLM Demands, Black Lives Matter. The list states, in full:
• "Convict and ban Trump from future political office";
• "Expel Republican members of Congress who attempted to overturn the election and incited a white supremacist attack";
• "Launch a full investigation into the ties between white supremacy and the Capitol Police, law enforcement, and the military";
• "Permanently ban Trump from all digital media platforms";
• "Defund the police";
• "Don't let the coup be used as an excuse to crack down on our movement";
• "Pass the BREATHE Act[, which is closely related to defunding the police.]"
Id.
¶27 Understandably, the Black Lives Matter movement is the subject of much criticism. As one scholar explained:
[T]he Black Lives Matter movement holds that racist police officers are the greatest threat facing young black men today. This belief has triggered riots, "die-ins," the murder and attempted murder of police officers, a campaign to eliminate traditional grand jury proceedings when police use lethal force, and a presidential task force on policing.
Heather Mac Donald, The Danger of the "Black Lives Matter" Movement, 45 Imprimis, Apr. 2016. Another notes the movement has both greatly exaggerated "the issue of police brutality," thereby contributing to a "racist cop" narrative, and fostered a bias of "cop bad, suspect good[.]" Love, Race Crazy, at XV–XVII. According to one recent poll, more people oppose the movement than support it. Do You Support or Oppose the Black Lives Matter Movement?, civiqs (June 1, 2023).
¶28 In June 2020, the Bar issued an official statement endorsing the Black Lives Matter movement and repeating the slander that our justice system is irredeemably racist. Jill M. Kastner et al., Racial Equity of Black Americans: It's Time to Step Up | A Statement, State Bar Wis. (June 17, 2020). It reads:
Systemic racism and discrimination is an inescapable reality for Black Americans and other marginalized people in our communities——despite Congress passing the Civil Rights Act nearly 60 years ago. In recent weeks, millions of people across our communities have come together in a historic movement calling for fundamental change.
Black Americans suffer from police brutality and crippling fear caused by systemic racism and implicit bias that is ingrained in our legal system, law enforcement institutions, and countless other facets of American life. This is unacceptable. Black Lives Matter.
Many of us cannot fathom the pain that the Black community experiences daily. Many of us don't know the agony of losing a father, a mother, a sister or brother, a son, or daughter to police violence. Many of us don't know what it's like to live in fear for our lives due to the color of our skin.
We Have a Responsibility to Act
Whether we realize it or not, all of us are negatively impacted by the long history and sustained legacy of oppression of Black Americans. As lawyers, we have a duty to act. We have a responsibility to our communities.
As lawyers, we take an oath to support the U.S. and Wisconsin constitutions. These documents speak of individual freedom and equal protection of the laws.
The State Bar of Wisconsin, with more than 25,000 attorneys, must play a stronger role in this national awakening. Lawyers are an important part of the justice system, stewards of the rule of law, and must take collective action to help right wrongs. We cannot be silent.
"Equal Justice Under Law" is engraved on the U.S. Supreme Court building. We hear "equal justice" but continue to see unequal justice, justice denied. Aspirational pronouncements mean nothing without collective efforts to achieve them.
As members of the legal profession and as citizens striving to create a more just society, we stand with Black Lives Matter protesters demanding change in our justice system and in the other institutions inflicted by systemic racism and implicit bias.
You will hear from us shortly about what the State Bar of Wisconsin will do to step up its efforts to combat racial injustice and disparities, advance equal justice, and promote diversity and Inclusion.
We know this is not easy work. It will be uncomfortable. We must insist on real change. And, we need your help. Don't sit on the sidelines.
It is time for real change.
Id. (first and second emphasis added). Under a link to this statement on the Bar's website appears a list of actions the Bar is taking to "step[] up[.]" Racial Equity: It's Time to Step Up, State Bar Wis. The list includes "advancing a proposal that requires Wisconsin lawyers receive elimination of bias/diversity and inclusion training[.]" Id. (emphasis added).
¶29 As her first official act, the President of the Bar formed the Racial Justice Task Force in June 2020. Racial Justice Task Force Report and Recommendations: Creating a More Diverse and Equitable Legal System 2 (2021). The Task Force's report opens by explaining, it "was formed following the high profile officer involved murder" in Minneapolis. Id. The Task Force was charged with "examining how the strategic planning process can be used to ensure that the . . . Bar . . . can work toward the goal of racial justice and/or increasing diversity, equity and inclusion in Wisconsin's legal profession." Id. A stated goal was to "advanc[e] a proposal that allows . . . Bar members to earn CLE credit for attending programs or training related to bias and DEIA and [to] encourag[e] all members to take such training, including by advancing a petition to make such CLE mandatory[.]" Id. at 4. Two recommendations included:
• "Petition the Wisconsin Supreme Court to make DEIA/Elimination of Bias training eligible for CLE Credit";
• "Petition the Wisconsin Supreme Court to make DEIA/Elimination of Bias mandatory CLE for all attorneys."
Id. at 7 (emphasis added).
¶30 The Bar's Board of Governors acted on the Task Force's recommendations at its June 2021 meeting. The minutes document the following:
Past President Kastner moved to amend the agenda to add as a discussion item the topic of mandatory diversity, equity and inclusion (DEI) CLE and place it on the agenda . . . .
She said she added this discussion item to the agenda to give leadership an opportunity to discuss the various things that the Bar plans to do to make sure that we garner support for a proposal for mandatory DEI CLE as well as explain the strategy behind the decisions being made.
. . . .
Mandatory CLE on Diversity, Inclusion and Bias Discussion. Past President Kastner prefaced the discussion by saying the State Bar leadership was committed to figuring out the best way to make sure that all diversity, equity and inclusion (DEI) training was approved for CLE first and then figure out the best way to make it mandatory. She asked governors to consider the importance of laying sufficient groundwork before submitting a proposal for mandatory DEI CLE, because without doing the groundwork, the petition would fail. She felt there was sufficient groundwork and support for DEI to be included as CLE and with that victory, work could continue toward mandatory DEI CLE. She indicated that while it was important to keep this issue moving forward, it was also important that the State Bar be united on this issue and create a proposal that would be accepted by the Supreme Court.
President-elect Daniels stated that she made the motion at the Executive Committee meeting to move forward with a petition requesting that members attending DEI courses receive credits that would be counted as credits towards their CLE requirement because she believed this needed to be the first step in the process of making DEI mandatory CLE and could be accomplished rather quickly. She stated she felt the Bar was split on the issue of mandatory DEI CLE and would appoint a task force that would include a diverse range of opinions to collect information and further study whether diversity, equity, inclusion and accessibility should be mandatory CLE.
. . . .
Atty. Yang . . . said . . . he was asking that a governor consider making an amendment to the main motion that would ensure that a vote on DEI CLE was only a strategic step toward the main goal of mandatory DEI CLE and that there would be a report related to this issue at every Board meeting.
President-elect Daniels moved to amend the main motion to add that the president-elect be directed to form a task force that will study and collect data and information in support and draft language for diversity, equity and inclusion credits to be mandatory for all members of the . . . Bar . . . and the task force shall report quarterly to the Board. Governor Tourtillott Miller seconded the motion. The motion to amend the main motion passed unanimously.
The main motion as amended read as follows: Direct the State Bar CLE Committee to prepare a petition to the Supreme Court to come back to the Board of Governors for approval that will allow DEI CLE to be approved for credit and that such definition for credit will include age. Further, the president-elect be directed to form a task force that will study and collect data and information in support and draft language for diversity, equity and inclusion credits to be mandatory for all members of the . . . Bar . . . and the task force shall report quarterly to the Board.
The main motion as amended passed unanimously.
Minutes: Board of Governors Virtual Meeting (Minutes), at 2, 6–7 (June 9, 2021) (second and third emphasis added). The Bar's President-elect was not directed to merely form a task force to consider the pros and cons of mandatory DEIA CLE. The main motion as amended states the task force shall "study and collect data and information in support [but apparently not in opposition] and draft language for diversity, equity and inclusion credits to be mandatory for all members of the . . . Bar[.]" Id. at 7. The purpose of the amendment, as documented in the minutes, was to "ensure" voluntary DEIA CLE is merely "a strategic step toward the main goal of mandatory DEI CLE[.]" Id. at 6.
III. THE BAR'S ARGUMENTS ARE PRETEXTUAL AND UNPERSUASIVE AGAINST THIS BACKDROP.
¶31 The Bar omitted its end goal of mandatory DEIA CLE from the petition presently before this court, presenting an incompatible argument about giving attorneys freedom: if attorneys want to take DEIA courses, they should be allowed to do so for credit. As an alternative to the proposed rule, the BBE suggests capping the hours of DEIA CLE an attorney could receive during a reporting period. In arguing against this alternative, the Bar advances the astonishing recommendation that this court should allow attorneys to satisfy all or nearly all 30 credits of CLE by attending DEIA courses even if those courses have no content about the law. See generally Randall T. Shepard, The "L" in "CLE" Stands for "Legal", 40 Val. U. L. Rev. 311 (2006). After all, the Bar maintains, attorneys are in the best position to decide what CLE will aid them in their practice. On the other hand, the Bar plans to use the proposed rule as a "strategic step" toward mandatory DEIA CLE. Minutes, at 6. So much for trusting attorneys to make their own choices.
¶32 Attorneys already enjoy considerable freedom to choose from a wide range of CLE incorporating DEIA concepts. As the adage goes, "if it ain't broke, don't fix it." Because this court acts as a rulemaking body, we should be mindful that "[n]o alteration should be made in a law without sufficient reason." See Montesquieu, The Spirit of the Laws ch. XVI (1748). If nothing else, "useless laws debilitate such as are necessary[.]" Id.
¶33 DEIA is a rather vague category, but apparently the BBE has approved hundreds of courses on DEIA topics during the current reporting period. A large swath of approved courses seem to border on pure DEIA training and bear only a tenuous connection to law. Approved courses include "Right the (Ally)Ship: How to Empower and Utilize Male Allies" and "POWER UP: Flip the Script on Gender Bias." Another course, approved for seven credits, was titled "Diversity, Equity and Inclusion Summit."
¶34 Appendix 1 supplies a table of approved courses that likely covered DEIA topics during the current reporting period. Its sheer length (nearly 90 pages) demonstrates attorneys already have a wide range of such courses from which to choose and for which they can receive credit. The table is probably both over-inclusive and under-inclusive——a reflection of a problematic absence of objective criteria by which to define DEIA's contours. United States Supreme Court Justice Clarence Thomas observed, "I've heard the word 'diversity' quite a few times, and I don't have a clue what it means. It seems to mean everything for everyone." Transcript of Oral Argument at 71, Students for Fair Admissions, Inc. v. Univ. of N.C., 600 U.S. __, __ S. Ct. __ (2023) (No. 21-707). Under the BBE's alternative, the classification of courses would matter a great deal. Would the "Diversity, Equity and Inclusion Summit" qualify as a DEIA course subject to a cap, or not? Perhaps the BBE is comfortable deciding whether a course contains too much discussion of race to be eligible for general CLE credit, but the exercise raises serious constitutional concerns.
¶35 Only exacerbating the petition's deficiencies, the Bar presents "facts" with no evidence. For example, the petition states, without support, "[r]ecent and repeated events have shined a spotlight on the systemic injustices and inequities that are present in our institutions, including the legal system." The Bar does not explain what these problems are or how they are connected to bias. Instead, the Bar simply assumes bigotry is at hand. As one commenter responds, the Bar "fails to offer any empirical research or evidence one would expect to see, if it existed, such as survey results, observational studies, increased discrimination lawsuits or . . . [Office of Lawyer Regulation] complaints, that would expose some statewide racial injustice being caused by Wisconsin lawyers." The conclusory nature of the Bar's argument is problematic in and of itself, but it also illustrates a broader issue: DEIA CLE is not so much about seriously studying the causes of injustices as it is about simplistically presuming the cause is inescapable bias.
¶36 Even if the Bar supplied some support for its premise, it has not submitted evidence about the effectiveness of DEIA CLE in remedying deficient behavior. Existing evidence suggests DEIA training can have negative consequences, at least when the training is mandated. See generally Frank Dobbin & Alexandra Kalev, Why Diversity Programs Fail, Harv. Bus. Rev. (July-Aug. 2016) ("As social scientists have found, people often rebel against rules to assert their autonomy. Try to coerce me to do X, Y, or Z, and I'll do the opposite just to prove that I'm my own person. In analyzing three decades' worth of data from more than 800 U.S. firms and interviewing hundreds of line managers and executives at length, we've seen that companies get better results when they ease up on the control tactics."). The dissent notes, "twenty-one states . . . either require DEIA training or allow those trainings to count toward CLE requirements." Dissent, ¶1. As a preliminary matter, Wisconsin already readily "allow[s] those trainings to count." With so many laboratories of democracy experimenting, the absence of data documenting the results is especially troubling. In an era of evidence-based decision making, the petitioner urges us to make this decision in a vacuum.
¶37 Against this backdrop, the Bar effectively seeks a virtue signal from this court, asking us to demonstrate "awareness of and attentiveness to" preferred "political issues, matters of social and racial justice, etc." without "taking effective action." virtue signaling, Merriam-Webster (last updated Mar. 30, 2023). The Bar explains it "sees this [proposed rule] as necessary to acknowledge DEIA as a real and important . . . [CLE] topic for study." The Bar, however, failed to provide evidence of any problem solvable by DEIA CLE. Instead, the Bar presumes the propriety of a controversial worldview, perhaps confident that any dissent would be squelched by the predictable and petty slanders of the cancel culture crowd. Adopting the proposed rule might make its proponents feel like they made a difference, but sowing racial division is "real change" the court rightly rejects.
IV. THE PROPOSED RULE WOULD VIOLATE THE CONSTITUTION.
¶38 At stake here is the interest of the individual lawyers of Wisconsin in having full freedom to think their own thoughts, speak their own minds, support their own causes and wholeheartedly fight whatever they are against, as well as the interest of the people of Wisconsin and, to a lesser extent, the people of the entire country in maintaining the political independence of Wisconsin lawyers.
Lathrop v. Donohue, 367 U.S. 820, 874 (1961) (Black, J., dissenting).
¶39 The First Amendment protects the freedom of association; this amendment is incorporated against the states by the Fourteenth Amendment. As the United States Supreme Court has explained, "[f]reedom of association . . . plainly presupposes a freedom not to associate[.]" Janus v. American Fed. of State, Cnty., and Mun. Emps., Council 11, 585 U.S. __, 138 S. Ct. 2448, 2463 (2018) (quoting Roberts v. United States Jaycees, 468 U.S. 609, 623 (1984)) (ellipsis in the original). The First Amendment also prohibits viewpoint discrimination. The United States Supreme Court said, "[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." Id. (quoting Barnette, 319 U.S. at 642).
¶40 The very point of mandating DEIA CLE would be to create a "goose-stepping brigade[]" of attorneys, but "the First Amendment applies strictures designed to keep our society from becoming moulded into patterns of conformity[.]" Lathrop, 367 U.S. at 884–85 (Douglas, J., dissenting). On its face, the proposed rule might seem viewpoint neutral, but anyone with even nominal exposure to its underlying illiberal political ideology knows the intent is to force a particular view on an entire profession. The DEIA movement's contempt for the First Amendment erodes the freedom of attorneys to advocate in their clients' best interests lest they run afoul of prevailing sensitivities:
The legal profession, with responsibilities as great as those placed upon any group in our society, must have that independence. If it is denied them, they are likely to become nothing more than parrots of the views of whatever group weilds [sic] governmental power at the moment. Wherever that has happened in the world, the lawyer, as properly so called and respected, has ceased to perform the highest duty of his calling and has lost the affection and even the respect of the people.
Lathrop, 367 U.S. at 876–77 (Black, J., dissenting) (quoting Cohen v. Hurley, 366 U.S. 117, 138–39 (Black, J., dissenting)). Simply put, "America will not remain free if the only remaining lawyers are DEI advocates, as well as those mild dissenters who would rather accommodate themselves to injustice than forthrightly oppose it. Law will not continue to support liberty if lawyers must take required diversity CLE." Randall, Wokeness Is Creeping into Continuing Legal Education.
¶41 On this record, mandatory DEIA CLE would also violate Article I, Section 1 of the Wisconsin Constitution by infringing economic liberty without cause. See Porter v. State, 2018 WI 79, ¶¶61–75, 382 Wis. 2d 697, 913 N.W.2d 842 (Rebecca Grassl Bradley & Kelly, JJ., dissenting). Excluding attorneys from the profession because they refuse to embrace a political ideology would infect the entire legal system with injustice the constitution does not permit: "[t]hat is not a just government, nor is property secure under it, where arbitrary restrictions, exemptions, and monopolies deny to part of its citizens . . . free choice of their occupation[.]" James Madison, Property, Nat'l Gazette, Mar. 29, 1792, reprinted in The Founders' Constitution 598 (Philip B. Kurland & Ralph Lerner eds., 1987). This court lacks any authority to condition a license to practice law on the attorney's professed allegiance to a particular orthodoxy. "I do not believe that the practice of law is a 'privilege' which empowers Government to deny lawyers their constitutional rights." Lathrop, 367 U.S. at 876.
¶42 With an imminent change in supreme court personnel, the Bar will likely resubmit this petition, or more likely a version requesting mandatory DEIA CLE (hence the brevity of the dissent). Sworn to support our constitutions, the court must carefully consider the First Amendment implications of mandating DEIA CLE lest the court suffer another summary reversal by a federal court. Wis. Legislature v. WEC, 595 U.S. __, 142 S. Ct. 1245 (2022) (per curiam) (reversing summarily the court's racial gerrymander of the state's legislative districts).
V. CONCLUSION
¶43 Tellingly, not a single member of the Bar's Board of Governors (a large body) opposed the petition; additionally, only one attorney wrote to this court in opposition to it. Although some may interpret the dearth of critical commentary as evidence of the petition's widespread support, "the absence of such voices" represents "a symptom of grave illness in our society." See Sweezy v. New Hampshire, 354 U.S. 234, 251 (1957) (plurality). For our society to heal, DEIA proponents must stop demonizing dissenters. In writing to this court, that courageous attorney summarized concerns shared by many others too fearful of repercussions to speak out:
Though ineffective, implicit bias courses remain popular because the concept offers a simplified worldview of complex social problems and relieves its adherents from investigating all possible causes of disparities. Embracing a single politically appealing variable animates activism and moral righteousness ('There's the enemy!') whereas tedious multivariate investigation might reveal other causes that would dilute the call to action.
. . . .
This is the thin edge of the wedge for DEIA trainers to expand beyond bias issues to spread the tenets of the popular identity-group ideology that grew out of writings by legal scholars . . . . (No cognitive scientists among them.) Their cynical worldview sees culture and history through a dehumanizing lens that judges everyone based on the color of their skin, and other immutable characteristics, and divides us into a privileged oppressor group or a marginalized group, all engaged in a zero-sum power struggle (tribalism)——a complete rejection of Martin Luther King's dream of a colorblind society (pluralism).
The principles reinforcing rejection of prescribing orthodoxy predate contemporary political fads. "If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought——not free thought for those who agree with us but freedom for the thought that we hate." United States v. Schwimmer, 279 U.S 644, 654–55 (1929) (Homes, J., dissenting), overruled by Girouard v. United States, 328 U.S. 61 (1946). Although moral principles support our rejection of the Bar's petition, our constitutions command it. I respectfully concur with the court's order denying the petition.
¶44 I am authorized to state that Chief Justice ANNETTE KINGSLAND ZIEGLER joins ¶¶31-34 of this concurrence.
¶45 I am further authorized to state that Justice PATIENCE DRAKE ROGGENSACK joins this concurrence in full.
Appendix 1: DEIA-Related CLE Classes Approved During the 2022–23 Reporting Period as of April 26, 2023
Sponsor /
Co-sponsor Course Title Location CLE /
EPR / GALm / GALa / GALf /
LAU /
LPM Hours Course Dates
American Bankers Association Diversity Leads - DEI in Hiring, Recruting [sic], and Retention - Best Practices and Legal Rules of the Road Live Webcast, --, -- 1.0
/
0.0
/
0.0
/
0.0
/
0.0
/
0.0
/
0.0 2022-03-
30-
2022-03-30
American Bankruptcy Institute Be In the Room Where it Happens: Diversity, Inclusion and Belonging (On Demand) On Demand Internet, --, -- 0.0
/
0.0
/
0.0
/
0.0
/
0.0
/
0.0
/
1.5 2022-01-
01-
2022-12-31
American Bankruptcy Institute Diversity in Insolvency: Putting Inclusive Ideas into Practice (On Demand) On Demand Internet, --, -- 0.0
/
0.0
/
0.0
/
0.0
/
0.0
/
0.0
/
1.0 2022-01-01-
2022-12-31
American Bankruptcy Institute VFTB21: Ethics: The Game-Changing Benefits of Diversity & Elimination of Bias On Demand Internet, --, -- 0.0
/
0.0
/
0.0
/
0.0
/
0.0
/
0.0
/
1.0 2022-01-01-
2022-12-31
American Bar Association Diversity, Equity and Inclusion: A Matter of Professional Ethics Live Webcast, --, -- 1.0
/
1.0
/
0.0
/
0.0
/
0.0
/
0.0
/
0.0 2023-04-17-
2023-04-17
American Law Institute CLE Diversity, Equity, and Inclusion: What Attorneys Need to Know and Tips to Improve Their Practice Live Webcast, --, -- 0.0
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1.0 2022-12-12-
2022-12-12
Chicago-Kent College of Law Chicago Kent: Closing Plenary: Diversity, Equity, and Inclusion in the Public Sector Live Webcast, --, -- 1.5
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0.0
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0.0
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0.0 2022-12-02-
2022-12-02
Chicago-Kent College of Law Chicago Kent: Closing Plenary: Diversity, Equity, and Inclusion in the Public Sector (On Demand) On Demand Internet, --, -- 1.5
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0.0 2022-12-03-
2022-12-31
Chicago-Kent College of Law Chicago Kent: Closing Plenary: Diversity, Equity, and Inclusion in the Public Sector (On Demand) On Demand Internet, --, -- 1.5
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0.0
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0.0
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0.0
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0.0
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0.0 2023-01-01-
2023-12-31
Clifford Law Office 15th Annual Continuing Education: Wellness Program/Diversity and Inclusion Program Live Webcast, --, -- 0.0
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0.0
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0.0
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0.0
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0.0
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1.0
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1.0 2022-02-17-
2022-02-17
Davis Wright Tremaine LLP Diversity, Equity and Inclusion Roadmap for In-House Legal Departments Live Webcast, --, -- 0.0
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1.0 2023-01-17-
2023-01-17
Defense Research Institute 2022 Diversity for Success Seminar Denver, CO 0.0
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0.0
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3.5 2022-05-11-
2022-05-13
Defense Research Institute Invisible or Mixed-Visible Diversity - Combatting Bias Live Webcast, --, -- 0.0
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1.0 2023-01-30-
2023-01-30
Defense Research Institute Invisible or Mixed-Visible Diversity - Combatting Bias (On Demand) On Demand Internet, --, -- 0.0
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1.0 2023-01-31-
2023-12-31
District of Columbia Bar Association Beyond Diversity: Putting Inclusion into Action Live Webcast, --, -- 1.0
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0.0
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0.0
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0.0 2022-06-10-
2022-06-10
District of Columbia Bar Association Beyond Diversity: Putting Inclusion into Action (on-demand) On Demand Internet, --, -- 1.0
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0.0
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0.0
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0.0 2022-07-10-
2022-12-31
District of Columbia Bar Association Beyond Diversity: Putting Inclusion into Action (on-demand) On Demand Internet, --, -- 1.0
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0.0
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0.0
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0.0 2023-01-01-
2023-12-31
District of Columbia Bar Association Ethics of Diversity and Inclusion Live Webcast, --, -- 1.0
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1.0
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0.0
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0.0 2022-06-10-
2022-06-10
District of Columbia Bar Association Ethics of Diversity and Inclusion (on-demand) On Demand Internet, --, -- 1.0
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0.0
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0.0 2022-07-10-
2022-12-31
District of Columbia Bar Association Ethics of Diversity and Inclusion (on-demand) On Demand Internet, --, -- 1.0
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0.0
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0.0
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0.0 2023-01-01-
2023-12-31
Eversheds LLP Diversity, Equity and Inclusion in Financial Services: Perspectives on Driving Change Live Webcast, --, -- 1.0
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0.0
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0.0 2022-02-24-
2022-02-24
Federal Bar Association Diversity and Inclusion in the Legal Profession: What attorneys should know Live Webcast, --, -- 1.0
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1.0
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0.0
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0.0
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0.0
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0.0 2022-11-23-
2022-11-23
Federal Bar Association Diversity and Inclusion in the Legal Profession: What attorneys should know (On Demand) On Demand Internet, --, -- 1.0
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0.0
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0.0 2022-11-24-
2022-12-31
Federal Bar Association Diversity and Inclusion in the Legal Profession: What attorneys should know (On Demand) On Demand Internet, --, -- 1.0
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0.0
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0.0 2023-01-01-
2023-12-31
Federal Bar Association Navigating diversity certifications for women, minority, disabled, veteran, and LGBTQ+ -owned business clients, what attorneys should know (On Demand) On Demand Internet, --, -- 2.0
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0.0
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0.0 2022-01-01-
2022-12-31
Husch, Blackwell, Sanders LLP Affirmative Action in Employment: Legal Considerations and Best Practices for Diversity Hiring Initiatives in Higher Education Live Webcast, --, -- 1.0
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0.0
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0.0 2022-03-22-
2022-03-22
Husch, Blackwell, Sanders LLP WAICU Compliance Summit - Legal Considerations and Best Practices for Diversity Hiring Initiatives in Higher Education Waukesha, WI 1.0
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0.0 2022-07-26-
2022-07-26
In-House Connect Diversity and inclusion for in house counsel Achieving enduring social change and legal perspectives on inclusion Live Webcast, --, -- 0.0
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1.5 2022-11-01-
2022-11-01
In-House Connect Diversity and inclusion for in house counsel Achieving enduring social change and legal perspectives on inclusion (On Demand) On Demand Internet, --, -- 0.0
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1.5 2022-11-02-
2022-12-31
In-House Connect Diversity and inclusion for in house counsel Achieving enduring social change and legal perspectives on inclusion (On Demand) On Demand Internet, --, -- 0.0
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1.5 2023-01-01-
2023-12-31
In-House Connect How to Measure Outside Counsel Diversity, Equity and Inclusion for In-House Counsel Live Webcast, --, -- 0.0
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1.0 2022-12-20-
2022-12-20
In-House Connect How to Measure Outside Counsel Diversity, Equity and Inclusion for In-House Counsel (On Demand) On Demand Internet, --, -- 0.0
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1.0 2022-12-21-
2022-12-31
In-House Connect How to Measure Outside Counsel Diversity, Equity and Inclusion for In-House Counsel (On Demand) On Demand Internet, --, -- 0.0
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1.0 2023-01-01-
2023-12-31
Jackson Lewis P.C. Diversity, Equity and Inclusion Summit Indianapolis, IN 7.0
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0.0
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0.0 2022-10-04-
2022-10-04
Jenner & Block CLE Relay: Balancing Diversity (DEI) Imperatives and Legal Risks Live Webcast, --, -- 1.0
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0.0 2022-06-17-
2022-06-17
Jenner & Block CLE Relay: Balancing Diversity (DEI) Imperatives and Legal Risks (On Demand) On Demand Internet, --, -- 1.0
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0.0 2022-06-18-
2022-12-31
Jenner & Block CLE Relay: Balancing Diversity (DEI) Imperatives and Legal Risks (On Demand) On Demand Internet, --, -- 1.0
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0.0
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0.0
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0.0
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0.0 2023-01-01-
2023-12-31
Kelly IP, LLP Beyond Diversity: Putting Inclusion into Action Live Webcast, --, -- 1.0
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0.0
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0.0 2022-06-10-
2022-06-10
Kelly IP, LLP Beyond Diversity: Putting Inclusion into Action (on-demand) On Demand Internet, --, -- 1.0
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0.0
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0.0 2022-07-10-
2022-12-31
Kelly IP, LLP Beyond Diversity: Putting Inclusion into Action (on-demand) On Demand Internet, --, -- 1.0
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0.0 2023-01-01-
2023-12-31
Kelly IP, LLP Ethics of Diversity and Inclusion Live Webcast, --, -- 1.0
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1.0
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0.0
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0.0
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0.0 2022-06-10-
2022-06-10
Kelly IP, LLP Ethics of Diversity and Inclusion (on-demand) On Demand Internet, --, -- 1.0
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0.0
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0.0
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0.0 2022-07-10-
2022-12-31
Kelly IP, LLP Ethics of Diversity and Inclusion (on-demand) On Demand Internet, --, -- 1.0
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0.0
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0.0
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0.0 2023-01-01-
2023-12-31
Law Pay Raising the BAR on Diversity, Equity, and Inclusion Live Webcast, --, -- 1.0
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1.0
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0.0
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0.0
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0.0 2022-11-17-
2022-11-17
Law Pay Raising the BAR on Diversity, Equity, and Inclusion (On Demand) On Demand Internet, --, -- 1.0
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0.0 2022-11-18-
2022-12-31
Law Pay Raising the BAR on Diversity, Equity, and Inclusion (On Demand) On Demand Internet, --, -- 1.0
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0.0 2023-01-01-
2023-12-31
Liebler Gonzalez & Portuondo Diversity and Inclusion: What Does Inclusive Leadership in the Legal Profession Look Like Live Webcast, --, -- 0.0
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1.0 2022-11-30-
2022-11-30
Lorman Business Center, LLC Fundamentals of Diversity and Inclusion and Elimination of Bias in the Legal Profession Live Webcast, --, -- 1.0
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0.0
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0.0
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0.0 2022-10-04-
2022-10-04
Lorman Business Center, LLC Fundamentals of Diversity and Inclusion and Elimination of Bias in the Legal Profession National Teleconference, --, -- 1.0
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0.0
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0.0
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0.0
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0.0
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0.0 2022-10-04-
2022-10-04
Milwaukee Bar Association Reverse Discrimination Issues in the Era of Diversity and Inclusion Live Webcast, --, -- 1.0
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0.0
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0.0 2022-04-27-
2022-04-27
Milwaukee Bar Association Reverse Discrimination Issues in the Era of Diversity and Inclusion (On Demand) On Demand Internet, --, -- 1.0
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0.0
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0.0
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0.0
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0.0 2022-04-28-
2022-12-31
Milwaukee Bar Association Reverse Discrimination Issues in the Era of Diversity and Inclusion (On Demand) On Demand Internet, --, -- 1.0
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0.0
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0.0
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0.0
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0.0
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0.0
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0.0 2023-01-01-
2023-12-31
Minority Corporate Counsel Association 2022 Creating Pathways to Diversity Conference New York, NY 6.0
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1.5
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0.0
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0.0
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0.0
/ 14.5 /
0.0 2022-10-17-
2022-10-19
Morgan Lewis How to Talk About Diversity New York, NY 1.0
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1.0
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0.0
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0.0
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0.0
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0.0
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0.0 2022-10-27-
2022-10-27
MyCase Raising the BAR on Diversity, Equity, and Inclusion Live Webcast, --, -- 1.0
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1.0
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0.0
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0.0
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0.0 2022-11-17-
2022-11-17
MyCase Raising the BAR on Diversity, Equity, and Inclusion (On Demand) On Demand Internet, --, -- 1.0
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0.0
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0.0 2022-11-18-
2022-12-31
MyCase Raising the BAR on Diversity, Equity, and Inclusion (On Demand) On Demand Internet, --, -- 1.0
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0.0
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0.0
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0.0
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0.0
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0.0 2023-01-01-
2023-12-31
myLawCLE Diversity and Inclusion in the Legal Profession: What attorneys should know Live Webcast, --, -- 1.0
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1.0
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0.0
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0.0
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0.0
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0.0
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0.0 2022-11-23-
2022-11-23
myLawCLE Diversity and Inclusion in the Legal Profession: What attorneys should know (On Demand) On Demand Internet, --, -- 1.0
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0.0
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0.0
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0.0
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0.0
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0.0 2022-11-24-
2022-12-31
myLawCLE Diversity and Inclusion in the Legal Profession: What attorneys should know (On Demand) On Demand Internet, --, -- 1.0
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0.0
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0.0
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0.0
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0.0
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0.0 2023-01-01-
2023-12-31
myLawCLE Navigating diversity certifications for women, minority, disabled, veteran, and LGBTQ+ -owned business clients, what attorneys should know (On Demand) On Demand Internet, --, -- 2.0
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0.0
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0.0
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0.0
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0.0
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0.0 2022-01-01-
2022-12-31
NAMWOLF 2023 Driving Diversity & Leadership Conference San Diego, CA 4.0
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2.0
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1.0
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0.0 2023-03-11-
2023-03-14
National Academy of Continuing Legal Education Changing the Landscape of Diversity, Inclusion & the Elimination of Bias in the Legal Profession (On Demand) On Demand Internet, --, -- 0.0
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1.0 2022-01-01-
2022-12-31
National Academy of Continuing Legal Education Understanding Diversity, Equity and Inclusion: How the Law Created Inequity Live Webcast, --, -- 0.0
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1.0 2023-04-12-
2023-04-12
National Academy of Continuing Legal Education Understanding Diversity, Equity and Inclusion: How the Law Created Inequity (On Demand) On Demand Internet, --, -- 0.0
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0.0
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1.0 2023-04-13-
2023-12-31
National Association of Administrative Law Judges NAALJ Annual Conference: Improving Diversity, Equity, and Inclusion in Administrative Law Albuquerque, NM 4.5
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0.0
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3.0 2022-10-23-
2022-10-26
National Association of Estate Planners & Councils Estate Planning for Modern families: Planning for Diversity and Flexibility Live Webcast, --, -- 1.0
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0.0
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0.0
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0.0
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0.0
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0.0
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0.0 2022-12-08-
2022-12-08
National Association of Minority & Women Owned Law Firm 2022 Driving Diversity & Leadership Conference San Antonio, TX 3.5
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0.0
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0.0
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0.0
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0.0
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0.0
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0.0 2022-03-07-
2022-03-07
National Association of Minority & Women Owned Law Firm Diversity in the Legal Profession: A Moral Imperative and Professional Live Webcast, --, -- 1.5
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1.5
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0.0
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0.0
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0.0
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0.0 2022-11-08-
2022-11-08
National Association of Minority & Women Owned Law Firm Diversity in the Legal Profession: A Moral Imperative and Professional Live Webcast, --, -- 1.5
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1.5
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0.0
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0.0
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0.0
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0.0 2023-02-09-
2023-02-09
National Association of Minority & Women Owned Law Firm Diversity in the Legal Profession: A Moral Imperative and Professional Obligation 2022 Live Webcast, --, -- 1.0
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1.0
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0.0
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0.0
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0.0 2022-10-03-
2022-10-03
National Association of Minority & Women Owned Law Firms Diversity in the Legal Profession: A Moral Imperative and Professional Obligation Live Webcast, --, -- 1.5
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1.5
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0.0
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0.0
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0.0
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0.0
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0.0 2022-02-24-
2022-02-24
National Association of Minority & Women Owned Law Firms Diversity in the Legal Profession: A Moral Imperative and Professional Obligation Live Webcast, --, -- 1.5
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1.5
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0.0
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0.0
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0.0
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0.0
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0.0 2022-06-15-
2022-06-15
National Business Institute (Division of NBI, Inc.) Autism and Neurodiversity in the Legal Profession Live Webcast, --, -- 1.0
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0.0
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0.0
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0.0
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0.0 2023-04-11-
2023-04-11
National Business Institute (Division of NBI, Inc.) Diversity, Inclusion, and Elimination of Bias in the Legal Profession: New Rules and Trends Live Webcast, --, -- 1.0
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0.0
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0.0
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0.0
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0.0
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0.0 2022-11-07-
2022-11-07
National Business Institute (Division of NBI, Inc.) Diversity, Inclusion, and Elimination of Bias: What Attorneys Need to Know Live Webcast, --, -- 1.0
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0.0
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0.0
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0.0
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0.0
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0.0 2022-05-11-
2022-05-11
National Business Institute (Division of NBI, Inc.) Strategies for Strengthening Diversity, Equity, and Inclusion in Legal Settings Live Webcast, --, -- 1.0
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0.0
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0.0
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0.0
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0.0
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0.0 2023-03-02-
2023-03-02
National Employment Law Institute Diversity, Inclusion and Implicit Bias (on demand) On Demand Internet, --, -- 2.0
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0.0
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0.0
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0.0
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0.0
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0.0
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0.0 2022-01-01-
2022-12-31
Perkins Coie LLP Diversity, Inclusion and Interrupting Implicit Bias Live Webcast, --, -- 0.0
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1.0 2022-06-13-
2022-06-13
Quarles & Brady Neurodiversity in the Legal Industry Live Webcast, --, -- 0.0
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0.0
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1.0
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0.0 2022-10-20-
2022-10-20
Quarles & Brady Neurodiversity in the Legal Industry (On Demand) On Demand Internet, --, -- 0.0
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1.0
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0.0 2022-10-21-
2022-12-31
Quarles & Brady Neurodiversity in the Legal Industry (On Demand) On Demand Internet, --, -- 0.0
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1.0
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0.0 2023-01-01-
2023-12-31
Quarles & Brady Pathways to Success: Corporate Counsel Partner with Milwaukee Law Firms on Law Diversity (On Demand) On Demand Internet, --, -- 0.0
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1.5 2022-01-01-
2022-12-31
Seyfarth Shaw NRF Retail Law Summit: 2023 Shopping the New DEI: Diversity, Employment & Immigration Live Webcast, --, -- 1.5
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0.0
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0.0
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0.0
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0.0
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0.0 2023-03-07-
2023-03-07
State Bar of Wisconsin - CLE Seminars/PINNACLE Allyship - The Power of Diversity & Inclusion in Your Practice AMC 2022 Live Webcast, --, -- 0.0
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0.0
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1.0 2022-07-14-
2022-07-14
State Bar of Wisconsin - CLE Seminars/PINNACLE Allyship - The Power of Diversity & Inclusion in Your Practice AMC 2022 Live Webcast, --, -- 0.0
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0.0
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1.0 2022-08-25-
2022-08-25
State Bar of Wisconsin - CLE Seminars/PINNACLE Allyship - The Power of Diversity & Inclusion in Your Practice AMC 2022 Live Webcast, --, -- 0.0
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0.0
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1.0 2022-09-22-
2022-09-22
State Bar of Wisconsin - CLE Seminars/PINNACLE Allyship - The Power of Diversity & Inclusion in Your Practice AMC 2022 Live Webcast, --, -- 0.0
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0.0
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¶46 REBECCA FRANK DALLET, J. (dissenting). The Court dismisses this rule petition without so much as a hearing, implying that it lacks even "arguable merit." See IOP.IV.A. (stating that the court should hold a public hearing on a rule petition when it has "arguable merit."). But twenty-one states, including our neighboring states, either require DEIA training or allow those trainings to count toward CLE requirements. And the American Bar Association (ABA) similarly recommends that states require one credit hour of such training every three years. Collectively, these states and the ABA, like our State Bar, recognize that DEIA training "is vital for attorneys to gain knowledge of individual and cultural differences and turn this knowledge into usable skills for serving a diverse community, thereby improving the quality of legal services." In short, the arguable merit of this rule petition is obvious and I would follow our internal operating procedures and hold a hearing. Accordingly, I respectfully dissent.
¶47 I am authorized to state that Justices ANN WALSH BRADLEY and JILL J. KAROFSKY join this dissent.
Petition 22-02 In the matter of the Amendment of Supreme Court Rule SCR 20:8.4
On March 23, 2022, the State Bar Standing Committee on Professional Ethics ("Committee"), by Distinguished Clinical Professor Emeritus Ben Kempinen, Chair of the Committee, filed a rule petition asking the court to amend Supreme Court Rule ("SCR") 20:8.4(i) and replace the existing language with American Bar Association ("ABA") Model Rule 8.4(g) to state:
Order Issued: July 11, 2023
Disposition: Petition Denied
On March 23, 2022, the State Bar Standing Committee on Professional Ethics ("Committee"), by Distinguished Clinical Professor Emeritus Ben Kempinen, Chair of the Committee, filed a rule petition asking the court to amend Supreme Court Rule ("SCR") 20:8.4(i) and replace the existing language with American Bar Association ("ABA") Model Rule 8.4(g) to state:
It is professional misconduct for a lawyer to . . . (g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.
The petition included an extensive appendix containing feedback the Committee received, mostly in opposition to the petition.
At a closed administrative conference on May 19, 2022, the court voted to solicit written comments. The court sent letters to interested persons on July 11, 2022. Attorney Dean R. Dietrich, writing in his personal capacity, filed a comment in support of the petition on August 10, 2022. Attorney Donald Cayen filed a comment in opposition on February 23, 2023.
The court discussed the petition at a closed administrative conference on April 18, 2023, and voted to deny the petition.
Therefore,
IT IS ORDERED that rule petition 22-02, In the Matter of the Amendment of Supreme Court Rule SCR 20:8.4, is denied.
Dated at Madison, Wisconsin, this 11th day of July, 2023.
BY THE COURT:
Samuel A. Christensen
Clerk of Supreme Court
Certificate of Bylaw Amendment Pertaining to the Establishment, Consolidation and Discontinuance of Sections and the Establishment of the Section Leaders Council
On June 9, 2021, the State Bar Board of Governors approved bylaw amendments to Article VI Section Organization and Activities.
Order Issued: June 30, 2023
Disposition:
Petition 23-03: In re Interim Rule Governing Filing in the Wisconsin Supreme Court For Judicial/Attorney Proceedings.
This matter comes before the Wisconsin Supreme Court upon the court's own motion as part of the phased transition to mandatory electronic filing in Wisconsin's appellate courts. This order addresses the requirements for the filing and service of documents in "judicial/attorney proceedings," defined infra, before the Wisconsin
Supreme Court, following the implementation of mandatory eFiling for all other cases, as set forth in S. Ct. Order 19-02C & 20-07C, 2023 WI 10 (issued Feb. 21, 2023, eff. Apr. 1, 2023), and the corresponding Second Amended Revised Interim Rule.
Order Issued: June 12, 2023
Disposition: Modifications to efiling implemented with this order.
This matter comes before the Wisconsin Supreme Court upon the
court's own motion as part of the phased transition to mandatory
electronic filing in Wisconsin's appellate courts. This order addresses
the requirements for the filing and service of documents in
"judicial/attorney proceedings," defined infra, before the Wisconsin
Supreme Court, following the implementation of mandatory eFiling for
all other cases, as set forth in S. Ct. Order 19-02C & 20-07C, 2023 WI
10 (issued Feb. 21, 2023, eff. Apr. 1, 2023), and the corresponding
Second Amended Revised Interim Rule.
That order, among other things, made eFiling mandatory for all
Wisconsin Supreme Court proceedings, other than judicial/attorney
proceedings, as of July 1, 2023. That order also indicated that "[t]he
court will adopt a new interim rule, effective July 1, 2023, that will
govern filings in, and the transition to eFiling in, a limited number
No. 23-03
2
of categories of proceedings, some of which are not otherwise subject
to the provisions of Wis. Stat. ch. 809." Judicial/attorney proceedings
were defined as follows:
[J]udicial disciplinary proceedings initiated under Wis.
Stat. § 757.85; attorney regulatory proceedings initiated
under SCR ch. 22 and SCR ch. 40; petitions for readmission to
the practice of law; petitions for reactivation of an
attorney's license to practice law; and petitions for
reinstatement following an administrative suspension for
failure to pay bar dues and assessments, for failure to comply
with mandatory reporting of continuing legal education/ethics
and professional responsibility credits, for failure to file
a trust account certificate, and for failure to enroll in the
State Bar of Wisconsin.
As explained in Order 19-02C & 20-07C, "[b]ecause of the unique
character of these categories of proceedings and the need for the
development of eFiling systems that will accommodate them, these
categories of proceedings will not transition to mandatory eFiling as
of July 1, 2023." In particular, several of these categories consist
of proceedings presided over by the Wisconsin Supreme Court that, at
least in part, do not involve filings subject to the Wisconsin Rules of
Appellate Procedure, Wis. Stat. ch. 809. Many of these filings are in
the form of documents commonly submitted at the circuit court level.
Currently, the Wisconsin Supreme Court and Court of Appeals Case Access
("WSCCA") system is not configured to handle electronic filings for
such proceedings.
This court therefore adopts the Interim Rule Governing Filing in
the Wisconsin Supreme Court For Judicial/Attorney Proceedings, attached
as Appendix A, to govern the filing and service of documents in
judicial/attorney proceedings as of July 1, 2023. The interim rule
No. 23-03
3
shall remain in effect until the WSCCA system has been updated to allow
eFiling in such cases and until further order of this court.
Therefore,
IT IS ORDERED that the Clerk of the Supreme Court, in collaboration
with the Consolidated Court Automation Programs ("CCAP") and the supreme
court, shall develop processes and procedures to expand the capability
of the WSCCA system to allow for eFiling of all documents in the
categories of judicial/attorney proceedings described above, including
filings not subject to Wis. Stat. Ch. 809;
IT IS FURTHER ORDERED that the Clerk of the Supreme Court shall
provide updates to this court, beginning September 1, 2023, and every
six months thereafter, as to the status of updating the WSCCA system to
allow eFiling in such cases;
IT IS FURTHER ORDERED that the Interim Rule Governing Filing in
the Wisconsin Supreme Court For Judicial/Attorney Proceedings, attached
as Appendix A, is adopted, effective July 1, 2023, governing filing and
service requirements of documents in judicial/attorney proceedings;
IT IS FURTHER ORDERED that the Interim Rule Governing Filing in
the Wisconsin Supreme Court For Judicial/Attorney Proceedings shall
remain in effect until such time as the WSCCA system has been updated
to allow eFiling in such cases and until further order of this court;
and
IT IS FURTHER ORDERED that notice of this order and attached
Appendix A shall be given by a single publication of a copy of this
order in the official publications designated in SCR 80.01, including
the official publishers' online databases and on the Wisconsin court
No. 23-03
4
system's web site. The State Bar of Wisconsin shall provide notice of
this order and the attached Appendix A.
Dated at Madison, Wisconsin, this 12th day of June, 2023.
Petition 22-05 In the Matter of Amendment of Supreme Court Rules 20:1.15 and 20:1.0, Relating to Electronic Banking
On July 15, 2022, the Office of Lawyer Regulation (OLR), by its Director Timothy Samuelson, and Trust Account Program Administrator Travis J. Stieren, filed a rule petition asking the court to amend Supreme Court Rule (SCR) 20:1.0 and 20:1.15 to permit electronic transactions in lawyer trust accounts. The OLR explains that Wisconsin is the only state that prohibits electronic transactions in lawyer trust accounts. The OLR asserts that the revisions will permit electronic transactions with sufficient procedural safeguards to protect the public.
Order Issued: March 14, 2023
Disposition: Petition granted with modifications
On July 15, 2022, the Office of Lawyer Regulation (OLR), by its Director Timothy Samuelson, and Trust Account Program Administrator Travis J. Stieren, filed a rule petition asking the court to amend Supreme Court Rule (SCR) 20:1.0 and 20:1.15 to permit electronic transactions in lawyer trust accounts. The OLR explains that Wisconsin is the only state that prohibits electronic transactions in lawyer trust accounts. The OLR asserts that the revisions will permit electronic transactions with sufficient procedural safeguards to protect the public.
Prior to filing the petition, the OLR consulted with: Attorney Dean R. Dietrich, President-Elect of the State Bar of Wisconsin; Attorney Diane S. Diel, Past-President of the State Bar of Wisconsin; Michele Barlow, Mid-Atlantic ACH Association; Attorney Tim Pierce and Attorney Aviva Kaiser, State Bar Ethics Counsel; and Rebecca Murray and Tehmina Islam, Wisconsin Trust Account Foundation. In addition, the OLR presented these proposals to: the Lawyer Regulation System Board of Administrative Oversight; the Board of the Wisconsin Trust Account Foundation; the State Bar of Wisconsin Professional Ethics Committee; Attorney J. David Krekeler, Chairperson of the Solo, Small Firm and General Practice Section of the State Bar of Wisconsin; Attorney Helen Ludwig, Chairperson of the Bankruptcy, Insolvency and Creditors Rights Section of the State Bar of Wisconsin; and Attorney Michael O'Hear, Chairperson of the Criminal Law Section of the State Bar of Wisconsin.
The court voted to seek written comments and schedule a public hearing. A letter soliciting comments was sent to interested persons on December 1, 2022. The court received comments from the State Bar of Wisconsin, the State Bar Professional Ethics Committee, Attorney Dean R. Dietrich, and the Wisconsin Trust Account Foundation. By letter dated December 1, 2022, the court asked certain questions of the OLR, which the OLR responded to by letter dated December 28, 2022. The OLR filed a supplemental response on January 13, 2023, requesting certain additional amendments to the comment to SCR 20:1.5(g) to ensure consistency with the other requested amendments.
A public hearing notice issued on January 6, 2023, and the court conducted a public hearing on February 24, 2023. OLR Director Timothy Samuelson and Trust Account Program Administrator Travis J. Stieren presented the petition to the court. Attorney Tim Pierce from the State Bar Professional Ethics Committee spoke in favor of the petition. Following the public hearing, and in response to questions for the court, the OLR submitted an additional revision to one of the proposed changes.
At the ensuing closed administrative rules conference, the court voted to grant the petition, as amended, and to revise the rules as requested.
Therefore,
IT IS ORDERED that effective July 1, 2023:
SECTION 1. Supreme Court Rule 20:1.0 (ag) is amended to read:
(ag) "Advanced fee" denotes an amount paid to a lawyer in contemplation of future services, which will be earned at an agreed-upon basis, whether hourly, flat, or another basis. Any amount paid to a lawyer in contemplation of future services whether on an hourly, flat, or other basis, is an advanced fee regardless of whether that fee is characterized as an "advanced fee," "minimum fee," "nonrefundable fee," or any other characterization. Advanced fees are subject to the requirements of SCR 20:1.5, including SCR 20:1.5(f) or (g) and SCR 20:1.5(h), SCR 20:1.15(f) (3) b.4, and SCR 20:1.16(d).
SECTION 2. Supreme Court Rule 20:1.0 (dm) is amended to read:
(dm) "Flat fee" denotes a fixed amount paid to a lawyer for specific, agreed-upon services, or for a fixed, agreed-upon stage in a representation, regardless of the time required of the lawyer to perform the service or reach the agreed-upon stage in the representation. A flat fee, sometimes referred to as "unit billing," is not an advance against the lawyer's hourly rate and may not be billed against at an hourly rate. Flat fees become the property of the lawyer upon receipt and are subject to the requirements of SCR 20:1.5, including SCR 20:1.5(f) or (g) and SCR 20:1.5(h), SCR 20:1.15(f) (3) b.4., and SCR 20:1.16(d). Notwithstanding that lawyers have a property interest upon receipt of flat fees, such fees can be earned only by the provision of legal services.
SECTION 3. The Comment to Supreme Court Rule SCR 20:1.5 (g) is amended to read:
SCR 20:1.5 (g) Alternative protection for advanced fees.
SCR 20:1.5 (g) allows lawyers to deposit advanced fees into the lawyer's business account, as an alternative to SCR 20:1.5(f). The provision regarding court review applies to a lawyer's fees in proceedings in which the lawyer's fee is subject to review at the request of the parties or the court, such as bankruptcy, formal probate, and proceedings in which a guardian ad litem's fee may be subject to judicial review. In any proceeding in which the lawyer's fee must be challenged in a separate action, the lawyer must either deposit advanced fees in trust or use the alternative protections for advanced fees in this subsection. The lawyer's fee remains subject to the requirement of reasonableness under SCR 20:1.5(a) as well as the requirement that unearned fees be refunded upon termination of the representation under SCR 20:1.16(d). A lawyer must comply either with SCR 20:1.5(f) or SCR 20:1.5(g), and a lawyer's failure to do so is professional misconduct and grounds for discipline. The writing required under SCR 20:1.5(g)(1) must contain language informing the client that the lawyer is obligated to refund any unearned advanced fee at the end of the representation, that the lawyer will submit any dispute regarding a refund to binding arbitration, such as the programs run by the State Bar of Wisconsin and the Milwaukee Bar Association, within 30 days of receiving a request for refund, and that the lawyer is obligated to comply with an arbitration award within 30 days of the award. The client is not obligated to arbitrate the fee dispute and may elect another forum in which to resolve the dispute. The writing must also inform the client of the opportunity to file a claim in the event an unearned advanced fee is not refunded, and should provide the address of the Wisconsin Lawyers' Fund for Client Protection.
If the client's fees have been paid by one other than the client, then the lawyer's responsibilities are governed by SCR 20:1.8(f). If there is a dispute as to the ownership of any refund of unearned advanced fees paid by one other than the client, the unearned fees should be treated as trust property pursuant to SCR 20:1.15(e)(3).
SCR 20:1.5(g) applies only to advanced fees for legal services. Cost advances must be deposited into held in the lawyer's trust account pursuant to SCR 20:1.15(b)(1) and SCR 20:1.15(b)(6).
Advanced fees deposited into the lawyer's business account pursuant to this subsection may be paid by credit card, debit card, prepaid or other types of payment cards, or an electronic transfer of funds. A cost advance cannot be paid by credit card, debit card, prepaid or other types of payment cards, or an electronic transfer of funds under this section. Cost advances are subject to SCR 20:1.15(b)(1) or SCR 20:1.15(f)(3)b and SCR 20:1.15(b)(6).
SECTION 4. Supreme Court Rule 20:1.15 (b) (1) is amended to read:
(b) (1) Separate account. A lawyer shall hold in trust, separate from the lawyer's own property, that property of clients and 3rd parties that is in the lawyer's possession in connection with a representation. All funds of clients and 3rd parties paid to a lawyer or law firm in connection with a representation shall be deposited in one or more identifiable trust accounts. Except as provided by sub. (b)(3), a lawyer shall not hold any funds in a trust account that are unrelated to a representation.
SECTION 5. Supreme Court Rule 20:1.15 (b) (5) is amended to read:
(b) (5) Insurance and safekeeping requirements. Each trust account shall be maintained at a financial institution that is insured by the Federal Deposit Insurance Corporation (FDIC), the National Credit Union Share Insurance Fund (NCUSIF), the Securities Investor Protection Corporation (SIPC), or any other investment institution financial guaranty insurance. IOLTA accounts shall also comply with the requirements of sub. (d)(3). Lawyers using the alternative to the E-Banking Trust Account shall comply with the requirements of sub. (f)(3)c. Except as provided in subs. (b)(4) and (d)(3)b. and c., trust property shall be held in an account in which each individual owner's funds are eligible for insurance.
SECTION 6. Supreme Court Rule 20:1.15 (b) (6) (title), (6) a., and b. are created to read:
(b) (6) Advanced legal fees and costs. A lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred, except as follows:
a. The lawyer complies with the requirements of SCR 20:1.5(g).
b. The lawyer may accept credit card payments or electronic funds transfer payments of advanced legal fees and expenses as temporary deposits in a non-trust account, so long as such funds are transferred promptly, and no later than two business days following receipt, into a client trust account. However, except as provided by SCR 20:1.5(g), a lawyer shall not accept any advance payment into a non-trust account if the lawyer has any reason to suspect that the funds will not be successfully transferred into the client trust account within two business days of receipt.
SECTION 7. A Comment to Supreme Court Rule 20:1.15 (b) (6) is created to read:
COMMENT
SCR 20:1.15 (b) (6) Advanced legal fee and costs. While the general rule is that a lawyer must hold trust property separate from the lawyer's own property, SCR 20:1.15(b)(6) allows very limited short-term temporary commingling when accepting an electronic payment for advanced fees or costs. Considering the expense of electronic payment processing providers, this allows a lawyer to maintain only one electronic payment processing provider service and to have it connected to just one bank account, e.g. the law firm's operating account. The lawyer may accept electronic payments for advanced fees or costs to that account without violating SCR 20:1.15(a), so long as any payments for advanced fees or costs are promptly transferred to the lawyer's trust account within two business days.
SECTION 8. Supreme Court Rule 20:1.15 (f) (1) is amended to read:
(f) (1) Security of transactions. A lawyer is responsible for the security of each transaction in the lawyer's trust account and shall not conduct or authorize transactions for which the lawyer does not have commercially reasonable security measures in place. A lawyer shall establish and maintain safeguards to assure that each disbursement from a trust account has been authorized by the lawyer and that each disbursement is made to the appropriate payee. Only a lawyer admitted to practice law in this jurisdiction or a person under the supervision of a lawyer having responsibility under SCR 20:5.3 shall have signatory and transfer authority for a trust account. Every check, draft, electronic transfer, or other withdrawal instrument or authorization shall be personally signed or, in the case of electronic, telephone, or wire transfer, directed by one or more lawyers authorized by the law firm or a person under the supervision of a lawyer having responsibility under SCR 20:5.3. A lawyer shall reimburse the trust account for any shortfall or negative balance caused by a chargeback, surcharge, or ACH reversal by a financial institution or card issuer within three business days of receiving actual notice that a chargeback, surcharge, or ACH reversal has been made against the trust account; and the lawyer shall reimburse the trust account for any shortfall or negative balance caused by a chargeback, surcharge, or ACH reversal prior to disbursing funds from the trust account.
SECTION 9. A Comment to Supreme Court Rule 20:1.15 (f) (1) is created to read:
COMMENT
SCR 20:1.15 (f) (1) Security of transactions.
SCR 20:1.15(f)(1) takes into account the modern banking and payments industry, allowing for electronic transfers to and from the trust account, so long as such transfers are authorized in advance by a lawyer in the law firm or a person under a lawyer's direct supervision. Should there be any shortfall or negative balance caused by a chargeback, surcharge, or ACH reversal of an electronic payment to the trust account, the lawyer is responsible for replacing any and all such funds within three business days of actual notice of the chargeback, surcharge, or ACH reversal, and the lawyer must reimburse the account prior to disbursing funds from the trust account.
Approval of disbursements
This rule requires the signature of a lawyer, or a person under the lawyer's direct supervision, on all checks issued from a firm trust account and also requires a lawyer's authorization for all electronic disbursements from a firm trust account. Written confirmation of authorization for electronic disbursements should be maintained as part of complete trust account records.
Costs associated with electronic payments
Electronic payment systems, such as credit cards, routinely impose charges on vendors when a customer pays for goods or services. That charge may be deducted directly from the customer's payment. Vendors who accept credit cards routinely credit the customer with the full amount of the payment and absorb the charges. Before holding a client responsible for these charges, a lawyer should disclose this practice to the client in advance, and assure that the client understands and consents to the charges. This disclosure should be in writing if necessary to comply with SCR 20:1.5(b). In addition, the lawyer should ensure that holding the client responsible for transaction costs does not violate the terms of service of the payment system provider or other law.
SECTION 10. Supreme Court Rule 20:1.15 (f) (2) c. is repealed.
SECTION 11. The Comment to Supreme Court Rule 20:1.15 (f) (2) c. is repealed.
SECTION 12. Supreme Court Rule 20:1.15 (f) (3) is repealed.
SECTION 13. The Comments to Supreme Court Rule 20:1.15 (f) (3) are repealed.
SECTION 14. A Comment to Supreme Court Rule 20:1.15 (j) is created to read:
SCR 20:1.15 (j) Multi-jurisdictional practice.
This rule does not prohibit a lawyer whose principal office is in another jurisdiction and who permissibly represents clients in Wisconsin matters from using a trust account for Wisconsin matters that is compliant with the rules of the other jurisdiction.
SECTION 15. Supreme Court Rule 20:1.15 (k) (5) (title) and (5) a. are amended to read:
(5) Prohibited transactions Cash transactions prohibited.
a. Cash. No withdrawal of cash shall be made from a fiduciary account or from a deposit to a fiduciary account. No check shall be made payable to "Cash." No withdrawal shall be made from a fiduciary account by automated teller or cash dispensing machine.
Section 16. Supreme Court Rule 20:1.15 (k) (5) b. is repealed.
IT IS FURTHER ORDERED that the Comments to Supreme Court Rules 20:1.5(g), 20:1.15 (b) (6), 20:1.15 (f) (1), and 20:1.15 (j) are not adopted, but will be published and may be consulted for guidance in interpreting and applying the rules.
IT IS FURTHER ORDERED that the amendments to Supreme Court Rules 20:1.0 and 20:1.15, adopted pursuant to this order shall apply to proceedings commenced after the effective date of this rule [and, insofar as is just and practicable, to proceedings pending on the effective date].
IT IS FURTHER ORDERED that notice of the above amendments be given by a single publication of a copy of this order in the official publications designated in SCR 80.01, including the official publishers' online databases, and on the Wisconsin court system's website. The State Bar of Wisconsin shall provide notice of this order.
Dated at Madison, Wisconsin, this 30th day of March, 2023.
BY THE COURT:
Sheila T. Reiff
Clerk of Supreme Court
Petition 20-09A In re Amendment of Wis. Stats. §§ 885.50, 885.52, 885.54, 885.56, 885.58, 885.60, Relating to the Use of Videoconferencing Technology
On January 21, 2022, the Honorable John P. Anderson, Chair, Planning and Policy Advisory Committee (PPAC) Videoconferencing Subcommittee (Subcommittee), filed this amended rule petition asking the court to amend Wis. Stat. §§ 885.50, 885.52, 885.54, 885.56, 885.58, 885.60, relating to the Use of Videoconferencing Technology. At a closed administrative conference, the court voted to solicit written comments and to ask the Subcommittee to address the effect, if any, of 2021 Wis. Act 141 on the pending petition. Letters were sent to interested persons and the Subcommittee on March 14, 2022.
Order Issued: February 28, 2023
Disposition: Petition Denied
On January 21, 2022, the Honorable John P. Anderson, Chair, Planning and Policy Advisory Committee (PPAC) Videoconferencing Subcommittee (Subcommittee), filed this amended rule petition asking the court to amend Wis. Stat. §§ 885.50, 885.52, 885.54, 885.56, 885.58, 885.60, relating to the Use of Videoconferencing Technology. At a closed administrative conference, the court voted to solicit written comments and to ask the Subcommittee to address the effect, if any, of 2021 Wis. Act 141 on the pending petition. Letters were sent to interested persons and the Subcommittee on March 14, 2022.
The Honorable John Anderson filed a response to the court's question on April 7, 2022. The court received comments from: Steven Roux, President, Wisconsin Chiefs of Police Association; Kelli S. Thompson, State Public Defender; Sarah M. Schmeiser, Vice President, Wisconsin Association of Criminal Defense Lawyers; and Attorneys Jonas B. Bednarek, Marcus B. Berghahn, Patrick J. Fiedler, Stephen P. Hurley, David E. Saperstein, and Catherine E. White, Hurley Burish, S.C. The Honorable John Anderson filed a response to the comments on April 25, 2022.
The court discussed the petition at a closed administrative conference on September 29, 2022, and voted to invite the Subcommittee to file an amended petition that was consistent with 2021 Wis. Act 141. The Subcommittee subsequently informed the court that it would be taking no further action on the petition. The court met again in closed administrative conference on February 21, 2023, and voted to deny the petition.
Therefore,
IT IS ORDERED, that the petition is denied.
Dated at Madison, Wisconsin, this 28th day of February, 2023.
Petition 23-02: In the matter of the amendment of SCR 22.19 re: appointment of referees in consensual license revocation cases
The Court, on its own motion, has determined that it is appropriate to amend Supreme Court Rule 22.19, which governs petitions for consensual license revocation. The current rule is unclear as to whether a referee must be appointed when an attorney petitions for consensual license revocation in a pending disciplinary proceeding before the court may consider the petition. The following technical amendment to SCR 22.19 is intended to clarify that a referee need not be appointed in a consensual license revocation matter filed after a disciplinary proceeding is commenced, if a referee has not previously been appointed, before the court may consider the petition. Because this is a ministerial, non-substantive amendment, a public hearing is not required. See S. Ct. IOP IV. A. The court, by its Commissioners, has consulted with the Director of the Office of Lawyer Regulation, Timothy Samuelson, who supports this amendment.
Order Issued: February 22, 2023
Disposition: Petition granted with modifications
The Court, on its own motion, has determined that it is appropriate
to amend Supreme Court Rule 22.19, which governs petitions for
consensual license revocation. The current rule is unclear as to
whether a referee must be appointed when an attorney petitions for
consensual license revocation in a pending disciplinary proceeding
before the court may consider the petition. The following technical
amendment to SCR 22.19 is intended to clarify that a referee need not
be appointed in a consensual license revocation matter filed after a
disciplinary proceeding is commenced, if a referee has not previously
been appointed, before the court may consider the petition. Because
this is a ministerial, non-substantive amendment, a public hearing is
not required. See S. Ct. IOP IV. A. The court, by its Commissioners,
has consulted with the Director of the Office of Lawyer Regulation,
Timothy Samuelson, who supports this amendment.
Therefore,
No.
2
IT IS ORDERED that effective the date of this Order,
SECTION 1. SCR 22.19(3) is amended to read:
(3) If a complaint has not been filed or if a referee has not been
appointed in a pending disciplinary proceeding, the petition shall be
filed in the supreme court and shall include the director's summary of
the misconduct allegations being investigated. Within 20 days after
the date of filing of the petition, the director shall file in the
supreme court a recommendation on the petition. Upon a showing of good
cause, the supreme court may extend the time for filing a
recommendation.
SECTION 2. SCR 22.19(4) is amended to read:
(4) If a complaint has been filed and a referee has been appointed,
the petition shall be filed in the supreme court and served on the
director and on the referee to whom the proceeding has been assigned.
Within 20 days after the filing of the petition, the director shall
file in the supreme court a response in support of or in opposition to
the petition and serve a copy on the referee. Upon a showing of good
cause, the supreme court may extend the time for filing a response.
The referee shall file a report and recommendation on the petition in
the supreme court within 30 days after receipt of the director's
response.
IT IS FURTHER ORDERED that the rule adopted pursuant to this order
shall apply to proceedings commenced after the effective date of this
rule and, insofar as is just and practicable, to proceedings pending on
the effective date.
No.
3
IT IS FURTHER ORDERED that notice of the above amendments be given
by a single publication of a copy of this order in the official
publications designated in SCR 80.01, including the official
publishers' online databases, and on the Wisconsin court system's web
site. The State Bar of Wisconsin shall provide notice of this order.
Dated at Madison, Wisconsin, this 22nd day of February, 2023.
Petitions 19-02A and 20-07A In re Interim Court Rule Governing Electronic Filing in the Supreme Court
This matter comes before the Wisconsin Supreme Court upon the
court's own motion as part of the phased transition to mandatory
electronic filing in Wisconsin's appellate courts. This order expands
the eFiling pilot project for the Wisconsin Supreme Court and sets forth
a timeline for a phased transition to voluntary and then mandatory
eFiling for most cases and proceedings in the supreme court.
Order Issued: February 21, 2023
Disposition: Petition granted
This matter comes before the Wisconsin Supreme Court upon the
court's own motion as part of the phased transition to mandatory
electronic filing in Wisconsin's appellate courts. This order expands
the eFiling pilot project for the Wisconsin Supreme Court and sets forth
a timeline for a phased transition to voluntary and then mandatory
eFiling for most cases and proceedings in the supreme court.
On April 15, 2019, this court authorized a pilot project and
adopted an interim rule to facilitate the development and testing of
procedures to permit electronic filing of documents in the court of
appeals and supreme court. S. Ct. Order 19-02, 2019 WI 38 (issued Apr.
15, 2019, eff. Apr. 15, 2019). On April 23, 2021, this court granted
rule petition 20-07, expanding the electronic filing system to the
appellate courts, and amending the rules of appellate procedure. S. Ct.
Order 20-07, 2021 WI 37 (issued Apr. 23, 2021, eff. July 1, 2021). As
set forth in that order, implementation of mandatory eFiling in the
No. 19-02C and 20-07C
2
appellate courts is occurring in phases.1 The court of appeals'
participation in the pilot project ceased on June 30, 2021, and
electronic filing became mandatory for attorneys in matters before the
court of appeals, effective July 1, 2021. Id.
The Rules of Appellate Procedure, Wis. Stat. ch. 809, were
significantly revised, effective July 1, 2021, and many of the
requirements associated with filing multiple copies of paper documents
were eliminated. It was therefore necessary to establish interim rules
applicable to paper documents filed in the supreme court from July 1,
2021, until mandatory electronic filing commences in the supreme court.
Accordingly, this court adopted a revised interim rule by order dated
June 15, 2021. S. Ct. Order 19-02A and 20-07A, 2021 WI 62 (issued Jun.
15, 2021, eff. July 1, 2021), under which the supreme court continued
participation in the eFiling pilot project. On July 7, 2022, the court
amended the revised interim rule with respect to the filing of copies
of documents and to signature requirements on documents filed in the
supreme court. See S. Ct. Order 19-02B and 20-07B, 2022 WI 62 (issued
July 7, 2022).
This court has now determined that a final phased transition to
mandatory eFiling in this court should occur. The first step of this
transition will be a temporary expansion of the pilot project, beginning
on April 1, 2023, that will permit voluntary eFiling in eligible
matters, with the consent of all parties and upon receiving approval
from the Clerk of the Supreme Court (“Clerk”). The second step of the
1 See S. Ct. Order 20-07, 2021 WI 37, Section 238, stating "At the
direction of the supreme court, mandatory use of the electronic filing
system shall be phased in according to a schedule set by the director
until the system has been fully implemented."
No. 19-02C and 20-07C
3
transition, effective July 1, 2023, will terminate the interim rule
governing filings in the supreme court (as amended by this order), make
eFiling mandatory for attorneys in all cases and proceedings in the
supreme court, other than those identified in footnote 2 below
("judicial/attorney proceedings"), and will make the current Rules of
Appellate Procedure (including those governing eFiling), Wis. Stat. ch.
809 (2021-22), applicable to all cases and proceedings, other than
judicial/attorney proceedings.2 We now adopt the Second Amended Revised
Interim Rule, which is attached to this order as Exhibit A.
As set forth in the attached Second Amended Revised Interim Rule,
with the consent of all parties to a matter, any action or proceeding
filed in the supreme court on or after April 1, 2023, other than
judicial/attorney proceedings, may be included in the eFiling pilot
project. Any party to an eligible proceeding may request that it be
made part of the eFiling pilot project by sending an email to the Clerk
2 The court will adopt a new interim rule, effective July 1, 2023,
that will govern filings in, and the transition to eFiling in, a limited
number of categories of proceedings, some of which are not otherwise
subject to the provisions of Wis. Stat. ch. 809. The categories of
proceedings that will be governed by the new interim rule will be:
judicial disciplinary proceedings initiated under Wis. Stat. § 757.85;
attorney regulatory proceedings initiated under SCR ch. 22 and SCR ch.
40; petitions for readmission to the practice of law; petitions for
reactivation of an attorney's license to practice law; and petitions
for reinstatement following an administrative suspension for failure to
pay bar dues and assessments, for failure to comply with mandatory
reporting of continuing legal education/ethics and professional
responsibility credits, for failure to file a trust account certificate,
and for failure to enroll in the State Bar of Wisconsin. Because of
the unique character of these categories of proceedings and the need
for the development of eFiling systems that will accommodate them, these
categories of proceedings will not transition to mandatory eFiling as
of July 1, 2023.
No. 19-02C and 20-07C
4
(clerk@wicourts.gov), identifying the proceeding (whether existing or
anticipated) for which the party is requesting inclusion, and
representing that the party has obtained consent from all other parties
in the proceeding for the proceeding to be made part of the eFiling
pilot project. Unless there is a reason that makes participation in
the eFiling pilot project unwarranted, as determined by the Clerk in
consultation with the supreme court commissioners, the Clerk will
approve participation. Upon notification from the Clerk that the case
has been accepted into the eFiling pilot project, all parties to the
proceeding will be required to comply with the filing, formatting,
service, certification, and other requirements set forth in the current
Rules of Appellate Procedure, Wis. Stat. ch. 809 (2021-2022). Parties
in non-pilot proceedings, which include all cases for which approval to
participate in the eFiling pilot project has not been sought or given,
must continue to comply with the provisions in the former Rules of
Appellate Procedure, Wis. Stat. ch. 809 (2019-2020), in effect
immediately prior to July 1, 2021, except as set forth in the second
amended revised interim rule.
The supreme court interim rule governing the eFiling pilot project,
the current version of which is attached as Exhibit A, will terminate
at 11:59 p.m. on June 30, 2023. Thus, beginning July 1, 2023, eFiling
will become mandatory for all attorneys in supreme court proceedings
who are subject to Wis. Stat. § 809.801(3)(a) (2021-2022), other than
attorneys appearing in judicial/attorney proceedings. The supreme
court will continue to consult with the Clerk and the Consolidated Court
Automation Programs (CCAP) to investigate the feasibility of, and if
No. 19-02C and 20-07C
5
appropriate, to develop computer systems and procedures for
transitioning to eFiling for judicial/attorney proceedings.
A copy of the Second Amended Revised Interim Rule is attached to
this order as Appendix A.
Therefore,
IT IS ORDERED that the Clerk of the Supreme Court, in collaboration
with the Consolidated Court Automation Programs and the supreme court,
shall expand the existing eFiling pilot project to allow for voluntary
eFiling in the Wisconsin Supreme Court as set forth in this order; and
IT IS FURTHER ORDERED that the interim rule adopted April 15, 2019,
and as amended by orders dated June 15, 2021 and July 7, 2022, is
further amended as set forth in Appendix A, attached hereto as the
"Second Amended Revised Interim Rule", and is adopted, effective April
1, 2023; and
IT IS FURTHER ORDERED that the court’s Second Amended Revised
Interim Rule governing the eFiling pilot project in the supreme court
will expire at 11:59 p.m. on June 30, 2023; and
IT IS FURTHER ORDERED that notice of the above amendments be given
by a single publication of a copy of this order in the official
publications designated in SCR 80.01, including the official
publishers' online databases, and on the Wisconsin court system's web
site. The State Bar of Wisconsin shall provide notice of this order.
Dated at Madison, Wisconsin, this 21st day of February, 2023.
BY THE COURT:
No. 19-02C and 20-07C
6
Sheila T. Reiff
Clerk of Supreme Court
No. 19-02C and 20-07C
7
Appendix A
Wisconsin Supreme Court Electronic Filing Pilot Project:
Second Amended Revised Interim Rule Beginning April 1, 2023
(amended February 21, 2023)
1. Amendment. This second amended revised interim rule adopted February 21,
2023, supersedes the amended revised interim rule adopted by order dated July 7,
2022.
2. Statement of purpose; authority. The supreme court is in the process of
implementing a phased transition to mandatory electronic filing in the appellate
courts of Wisconsin. The court has adopted rules to implement electronic filing
and service and to eliminate the filing of paper documents by attorneys. See S. Ct.
Order 20-07, 2021 WI 37 (issued Apr. 23, 2021, effective July 1, 2021). On April
15, 2019, this court authorized an eFiling pilot project and adopted an interim rule
to facilitate the development and testing of procedures to permit electronic filing of
documents in the court of appeals and supreme court. S. Ct. Order 19-02, 2019 WI
38 (issued Apr. 15, 2019, eff. Apr. 15, 2019). On July 1, 2021, mandatory
electronic filing began in the court of appeals, and this court revised the interim rule
and continued the eFiling pilot project in the supreme court. S. Ct. Order 19-02A
and 20-07A, 2021 WI 62 (issued Jun. 15, 2021, eff. July 1, 2021). The interim rule
was further amended on July 7, 2022. See S. Ct. Order 19-02B and 20-07B, 2022
WI 62 (issued July 7, 2022).
This second amended revised interim rule:
A. Authorizes the Clerk of the Supreme Court (the "Clerk"), in
collaboration with the Consolidated Court Automation
Programs (CCAP) and the Wisconsin Supreme Court, to expand
the eFiling pilot project to allow for voluntary participation in
eligible proceedings before the supreme court.
B. Provides the rules applicable to requesting participation in the
eFiling pilot project and for the filing and service of electronic
and paper documents in the supreme court from April 1, 2023,
through June 30, 2023, for both eFiling pilot proceedings and
non-pilot proceedings.
C. Provides that the second amended revised interim rule governing
the eFiling pilot project in the supreme court will terminate at
11:59 p.m. on June 30, 2023, meaning that as of July 1, 2023,
electronic filing in the supreme court will become mandatory for
attorneys who are subject to Wis. Stat. § 809.801(3)(a) (2021-
22), and the provisions of Wis. Stat. ch. 809 (2021-2022) will
become applicable to all filings in the supreme court, except as
otherwise set forth in this order.
No. 19-02C and 20-07C
8
This second amended revised interim rule is adopted pursuant to the court's
superintending and administrative authority over all courts conferred by Article
VII, § 3 of the Wisconsin Constitution.
3. Effective dates; notice. Cases made part of the eFiling pilot project prior to April
1, 2023, will continue to be part of the pilot project. Voluntary eFiling in the
supreme court within the pilot project will begin April 1, 2023, for eligible
proceedings. This second amended revised interim rule will terminate at 11:59 p.m.
on June 30, 2023. Accordingly, mandatory eFiling for attorneys will begin on July
1, 2023, for filings in the supreme court in both existing and new matters governed
by Wis. Stat. ch. 809 (2021-22), except for "judicial/attorney proceedings"
identified in footnote 1.
1
4. Official record. The Clerk shall continue to keep the official court record in
electronic format, in both the court of appeals and the supreme court, for all
proceedings listed in Wis. Stat. § 809.801 (5).
5. Voluntary participation in the pilot project; rules.
A. Eligible proceedings. With the consent of all parties, any action or
proceeding filed in the supreme court on or after April 1, 2023, other than
judicial/attorney proceedings, may be included in the eFiling pilot project. Cases
that are already pending before the supreme court as of April 1, 2023, but that are
not already part of the eFiling pilot project, are not eligible for voluntary
participation in the eFiling pilot project.
B. Requesting participation. Any party to an eligible proceeding may request
that it be made part of the eFiling pilot project, whether prior to the filing of the
first document in the supreme court or when the proceeding is pending before the
supreme court, by sending an email to the Clerk at clerk@wicourts.gov, identifying
1 Pursuant to a new interim rule to be adopted by the court, the following
categories of proceedings ("judicial/attorney proceedings") will not be governed by the
eFiling provisions of Wis. Stat. ch. 809 (2021-22): judicial disciplinary proceedings
initiated under Wis. Stat. § 757.85; attorney regulatory proceedings initiated under SCR
ch. 22 and SCR ch. 40; petitions for readmission to the practice of law; petitions for
reactivation of an attorney's license to practice law; and petitions for reinstatement
following an administrative suspension for failure to pay bar dues and assessments, for
failure to comply with mandatory reporting of continuing legal education/ethics and
professional responsibility credits, for failure to file a trust account certificate, and for
failure to enroll in the State Bar of Wisconsin. Filing and service of documents in these
categories of proceedings shall continue to be accomplished via traditional means, as set
forth in paragraph 6 of this second amended revised interim rule and as set forth in the new
interim rule that will become effective on July 1, 2023.
No. 19-02C and 20-07C
9
the proceeding for which the party is requesting inclusion, and representing that the
party has obtained consent from all other parties in the proceeding for the
proceeding to be made part of the eFiling pilot project. Parties will be notified by
the Clerk when the case is accepted into the eFiling pilot project.2
Until notice of
acceptance is issued by the Clerk, the proceeding shall not be considered to be a
pilot proceeding and parties shall be subject to the provisions of paragraph 6.
C. Rules for eFiling pilot proceedings. Upon notification from the Clerk that
the case has been accepted into the eFiling pilot project, all parties to the proceeding
will be required to comply with the filing, formatting, service, certification, and
other requirements set forth in the current Rules of Appellate Procedure, Wis. Stat.
ch. 809 (2021-2022) (hereinafter the "current” rules). Those rules will, inter alia,
govern the time that a document is considered filed and the deadlines for the filing
of documents.
6. Non-pilot proceedings; interim rules. Parties to judicial/attorney proceedings and
any other proceeding not included in the eFiling pilot project (“non-pilot
proceedings”), will continue to be required to file paper documents and comply
with the traditional methods of service for proceedings in the supreme court,
including the filing of multiple bound copies of briefs, appendices, and petitions for
review, as specified in this section.
A. Applicability of former rules. The following provisions of the former Rules
of Appellate Procedure, Wis. Stat. ch. 809 (2019-2020),
3
in effect immediately
prior to July 1, 2021 (hereinafter the "former” rules), shall continue to apply to
documents filed in the supreme court in non-pilot proceedings:
1) Parties in non-pilot proceedings shall continue to file paper
documents with the Clerk and to serve paper copies by traditional
methods on other parties. See former §§ 809.80 (1), (2), (3), and
(4).
2) Unless the Supreme Court orders otherwise in a particular matter,
papers must be filed (i.e., physically received) in the Clerk's office
by the close of business at 5:00 pm in order to be considered filed
2 Parties requesting voluntary participation in the eFiling pilot project are
encouraged to do so in advance of any applicable deadline for the first document they
intend to file electronically as part of the pilot project. Unless there is a reason that makes
participation in the eFiling pilot project unwarranted, as determined by the Clerk in
consultation with the supreme court commissioners, the Clerk will approve participation.
3 Available at https://www.wicourts.gov/supreme/docs/wis_stat_ch809.pdf.
No. 19-02C and 20-07C
10
on that date. Filings by facsimile ("fax") must complete
transmission by 5:00 pm. See former § 809.80 (3), (4).4
3) All paper documents filed with the Clerk’s office must contain a
handwritten signature. Parties need not file the original document
so long as the copy filed with the Clerk’s office contains a
handwritten signature (not an electronic or stamped signature or a
digital image). It is not permissible, however, (1) to have someone
else sign the original document on behalf of the attorney, (2) to affix
the attorney’s signature using a signature stamp or a digital image
of the attorney’s signature, or (3) merely to indicate on the paper
original that the document was electronically signed. If a filing does
not contain a handwritten signature as required by this Revised
Interim Rule, the clerk’s office will still accept the filing, but will
notify the filing party that a handwritten signature must be affixed
to the filing within 14 days. If the handwritten signature is not
affixed or received within 14 days, the filing will be subject to being
stricken by the court.
4) Briefs, appendices, petitions for review, and responses to petitions
for review shall continue to be printed and bound, with color covers
if applicable. See former §§ 809.19 (6) (b) and (c), 809.19 (8) (b)
4., 809.19 (9), 809.62 (4) (a).
5) The number of copies to be filed and served shall be as provided by
former rules. See former §§ 809.19 (8)(a), 809.62 (4), 809.81 (2).
6) An attorney filing a brief, appendix, petition for review, or response
to a petition for review must file an electronic copy of the document
with the court in addition to the paper copies. An attorney filing an
appendix may file an electronic copy in addition to the paper copies.
The attorney must certify that the electronic copy is identical to the
4 Parties are reminded that a petition for review may not be filed by fax or email
under either the former or the current appellate rules. In addition, a petition for review
submitted by a party in a non-pilot proceeding is not considered filed until a paper copy
is physically received in the Clerk's office during normal business hours. St. John’s Home
of Milwaukee v. Continental Cas. Co., 150 Wis. 2d 37, 43, 441 N.W.2d 210 (1989)
(“Whatever method of delivery is used, a petition for review must be physically received
in the clerk’s office within 30 days of the filing of the court of appeals’ decision that is to
be reviewed.”). This rule, and the 30-day filing deadline, are strictly enforced. See Wis.
Stat. § 808.10 (1). In addition, there are restrictions on what other types of documents
may be filed in the Supreme Court by facsimile transmission. An individual wishing to
file a document by facsimile transmission should first contact the Clerk's office to clarify
that the particular filing will be accepted via facsimile transmission.
No. 19-02C and 20-07C
11
paper copy. See former §§ 809.19 (12) (f) and (13) (f) and
Comment, 809.32 (1) (fm), 809.62 (4).
7) Certifications of length, confidentiality, and client counseling shall
continue to use the wording provided in former rules. See former
§§ 809.19 (2) (b), (8) (d), 809.32 (1) (c).
B. Applicability of current rules. The following provisions of the current rules
apply to documents filed in the supreme court by parties to non-pilot proceedings.
Parties to non-pilot proceedings should consult S. Ct. Order 20-07 for specifics
applicable to these provisions.5
1) The formatting of documents, including form, pagination, and
length, shall be as provided in the current rules. See current § 809.19
(8) (b), (bm), and (c); 809.81.
2) The appendix shall be formatted in accordance with the current
rules. See current § 809.19 (2).
3) The confidentiality provisions of the current rules apply with respect
to protection of sealed and redacted information in the record and
identification of a petition seeking a protective order. See current
§§ 809.801 (14), 809.81 (9).
4) The Clerk will use the circuit court document number in numbering
the record on appeal. See current §§ 809.15 (2), 809.19 (2).
5) The Clerk will calculate the time for responsive pleadings using the
provisions of the current rules. See current §§ 809.19 (3), (4), and
(6). The date the paper copy of a document is physically received
in the clerk's office will be used as the date of filing for the purpose
of this calculation consistent with section 6.A (2) above.
6) The electronic copy of briefs and appendices submitted under
former §§ 809.19 (12) and (13) must meet the court's technical
standards for electronic documents. See current § 809.801 (8).
7. Termination of second amended revised interim rule; mandatory electronic filing.
This second amended revised interim rule governing the eFiling pilot project in the
supreme court will terminate at 11:59 p.m. on June 30, 2023. The effect of the
termination of the second amended revised interim rule is that for all proceedings
then pending or thereafter commenced in the supreme court, all attorneys who are
5 See S. Ct. Order 20-07, 2021 WI 37 (issued Apr. 23, 2021, eff. July 1, 2001),
available at https://www.wicourts.gov/
sc/rulhear/DisplayDocument.pdf?content=pdf&seqNo=360509.
No. 19-02C and 20-07C
12
subject to Wis. Stat. § 809.801(3)(a) (2021-2022), except those in judicial/attorney
proceedings, will be required to file all pleadings and papers electronically and
otherwise comply with the provisions of the current Rules of Appellate Procedure,
Wis. Stat. ch. 809 (2021-2022).
8. Filings in judicial/attorney proceedings after July 1, 2023. Filings in
judicial/attorney proceedings shall continue via traditional means of filing and
service, under the provisions in paragraph 6 through June 30, 2023, and thereafter
under a similar interim rule that will be adopted by the court at a future date.
9. Application; revision. Application of this and other rules should be consistent with
the understanding that the interim rule was written for a pilot project. This second
amended revised interim rule is temporary and is subject to change by CCAP and
the Clerk, upon notice to and approval by the court, as the needs of the pilot project
dictate.
Petition 22-05 In the Matter of Amendment of Supreme Court Rules 20:1.15 and 20:1.0, Relating to Electronic Banking
On July 15, 2022, the Office of Lawyer Regulation (OLR), by its
Director Timothy Samuelson and Trust Account Program Administrator
Travis J. Stieren, filed a rule petition asking the court to amend
Supreme Court Rule (SCR) 20:1.15 (Safekeeping property; trust accounts
and fiduciary accounts) and SCR 20:1.0 (Terminology) to permit
electronic transactions in lawyer trust accounts and to make other
related changes to the rules governing lawyer trust accounts.
Order Issued: January 6, 2023
Disposition: Public hearing scheduled on Friday, February 24, 2023, at 9:30 a.m.
On July 15, 2022, the Office of Lawyer Regulation (OLR), by its
Director Timothy Samuelson and Trust Account Program Administrator
Travis J. Stieren, filed a rule petition asking the court to amend
Supreme Court Rule (SCR) 20:1.15 (Safekeeping property; trust accounts
and fiduciary accounts) and SCR 20:1.0 (Terminology) to permit
electronic transactions in lawyer trust accounts and to make other
related changes to the rules governing lawyer trust accounts.
IT IS ORDERED that a public hearing on the petition shall be held
in the Supreme Court Hearing Room in the State Capitol, Madison,
Wisconsin, on Friday, February 24, 2023, at 9:30 a.m.
IT IS FURTHER ORDERED that notice of the hearing be given by a
publication of a copy of this order and of the petition in the official
state newspaper once each week for three consecutive weeks, and in an
official publication of the State Bar of Wisconsin not more than 60
days nor less than 30 days before the date of the hearing.
IT IS FURTHER ORDERED that the full text of the proposed rules,
including changes, if any, in existing rules, shall be placed on the
No. 22-05
2
Internet site maintained by the director of state courts for the supreme
court. See www.wicourts.gov/scrules/pending.htm.
Dated at Madison, Wisconsin, this 6th day of January, 2023.
IN THE MATTER OF THE TEMPORARY AMENDMENT OF SCRs 31.02 AND 31.05 RELATING TO THE CONTINUING LEGAL EDUCATION REQUIREMENTS: ON-DEMAND CLE PROGRAMMING IN RESPONSE TO COVID-19
On November 2, 2022, the Board of Bar Examiners requested an extension of the January 11, 2022 interim order to allow odd-year reporting attorneys (those whose reporting period ends on December 31, 2023) to claim repeated on-demand CLE credits up to 30 hours through January 31, 2024, due to ongoing concerns with in-person gatherings.
Order Issued: December 1, 2022
Disposition: Denied
You are hereby notified that the Court has issued the following administrative order
regarding a request to extend the court's interim administrative order of January 11, 2022, relating
to on-demand CLE programming:
On March 17, 2020, at the request of the State Bar of Wisconsin, this Court issued an order
pertaining to continuing legal education (CLE) during the COVID-19 pandemic, No. 20-01, In the
matter of the temporary amendment of SCRs 31.02 and 31.05 relating to the continuing legal
education requirements: On-demand CLE programming in response to COVID-19. S. Ct. Order
20-01, 2020 WI 30 (issued Mar. 17, 2020, eff. Mar. 17, 2020). In that order, the Court temporarily
increased the number of credits from repeated on-demand programs that lawyers may use to satisfy
the requirements of SCR 31.02. See SCR 31.12(2) (authorizing the board to waive attendance and
reporting requirements where to do otherwise would work an injustice).1 That order expired on
December 31, 2020.
On January 26, 2021, the Court extended the temporary amendment of SCRs 31.02 and
31.05,2 with minor modifications, relating to the continuing legal education requirements for the
2021 CLE reporting period, retroactive to January 1, 2021.
On January 11, 2022, the Court further extended the temporary amendment of SCRs 31.02
and 31.05, with minor modifications. That order expires on January 31, 2023 and, in part, permits
even-year reporting attorneys (attorneys whose continuing legal education reporting period ends
on December 31, 2022) to claim additional CLE credits from repeated on-demand programs up to
30 credits and specifies that “[r]epeated on-demand courses that will be claimed in excess of the
usual 15 credit hour limit must be completed on or before January 31, 2023.” That order further
specifies that “repeated on-demand programs may not be used to satisfy the mandatory 3 legal
1
"Repeated on-demand program" means “an on-line program delivered over the Internet,
consisting of a program previously approved by the board.” SCR 31.01(6m).
2 SCR 31.02 provides that a "lawyer shall attend a minimum of 30 hours of approved CLE
during each reporting period." SCR 31.02(1). The mandatory ethics requirement provides that "[a]
lawyer shall attend a minimum of 3 of the 30 hours required under sub. (1) on the subject of legal
ethics and professional responsibility in every reporting period." SCR 31.02(2). Generally, no
more than 15 credits may be claimed for repeated on-demand programs during a lawyer's CLE
reporting period. SCR 31.05(5)(b). For purposes of reinstatement, readmission, or reactivation,
no more than 50 percent of the lawyer's CLE may come from repeated on-demand programs. SCR
31.05(5)(d).
Page 2
December 1, 2022
In the matter of the temporary amendment of SCRs 31.02 and 31.05 relating to the continuing
legal education requirements: On-demand CLE programming in response to COVID-19
ethics and professional responsibility credit hours,” which must be completed with live on-line
programming or in-person courses.
On November 2, 2022, the Board of Bar Examiners requested an extension of the January
11, 2022 interim order to allow odd-year reporting attorneys (those whose reporting period ends
on December 31, 2023) to claim repeated on-demand CLE credits up to 30 hours through January
31, 2024, due to ongoing concerns with in-person gatherings.
Having considered the Board of Bar Examiners’ request,
IT IS ORDERED that the request to extend the court’s January 11, 2022 interim order to
allow attorneys to claim up to 30 hours of repeated on-demand CLE credits through January 31,
2024 is DENIED;
IT IS FURTHER ORDERED that for the continuing legal education reporting period
ending December 31, 2023 (odd-year reporters), attorneys who have obtained in excess of 15 hours
of repeated on-demand CLE programming prior to the expiration of this court’s January 11, 2022
interim order (i.e. through January 31, 2023) may use those credit-hours to satisfy their December
31, 2023 reporting obligations. Repeated on-demand programs may not be used to satisfy the
mandatory 3 legal ethics and professional responsibility credit hours;
IT IS FURTHER ORDERED that following the expiration of this court’s January 11, 2022
interim order on January 31, 2023, any lawyer whose license to practice law may be suspended
due to the lawyer being unable to complete CLE credits (including legal ethics and professional
responsibility credits), either through in-person courses or live on-line programming, may file a
request for a waiver with the Board of Bar Examiners under SCR 31.12; and
IT IS FURTHER ORDERED that the State Bar of Wisconsin shall take all reasonable steps
to notify its members of the contents of this order.
Petitions 19-02A and 20-07A In re Interim Court Rule Governing Electronic Filing in the Supreme Court
This matter comes before the Wisconsin Supreme Court upon the court's own motion as part of the phased transition to electronic filing in Wisconsin's appellate courts. This order sets forth the requirements applicable to filing documents in the supreme court, beginning July 1, 2021, and continuing until mandatory electronic filing begins in the supreme court.
Order Issued: June 15, 2021
Disposition: Court adopted modified an earlier order related to electronic filing in the Supreme Court.
This matter comes before the Wisconsin Supreme Court upon the court's own motion as part of the phased transition to electronic filing in Wisconsin's appellate courts. This order sets forth the requirements applicable to filing documents in the supreme court, beginning July 1, 2021, and continuing until mandatory electronic filing begins in the supreme court.
On April 23, 2021, this court granted rule petition 20-07, expanding the electronic filing system to the appellate courts, and amending the rules of appellate procedure in order to implement the system.
As set forth in our order, implementation of mandatory eFiling in the appellate courts will occur in phases:
Court of appeals: Effective July 1, 2021, electronic filing shall be required for all new actions and proceedings brought in the court of appeals and for all new documents submitted in previously filed cases, unless otherwise provided by rule or by court order. Therefore, the court of appeals' participation in the pilot project will cease on June 30, 2021.
Supreme court: The supreme court will continue its participation in the pilot project begun under S. Ct. Order 19-02 for the purpose of further refining and testing the electronic filing system. During this period, some proceedings will be included in the pilot project, while documents in other proceedings will continue to be filed on paper and served by traditional methods.
The appellate rules will be significantly revised, effective July 1, 2021, and many of the requirements associated with filing multiple copies of paper documents will be eliminated. It is therefore necessary to establish interim rules applicable to paper documents filed in the supreme court from July 1, 2021, until mandatory electronic filing commences in the supreme court. A copy of the Revised Interim Rule is attached to this order as Appendix A.
The Clerk of Supreme Court and Court of Appeals is directed to keep the court and the public informed about the progress of the pilot project in the supreme court, including any changes to the Revised Interim Rule. The adoption of mandatory electronic filing in the supreme court will require a separate order of this court. Therefore,
IT IS ORDERED that the Clerk of the Supreme Court and Court of Appeals, in collaboration with the Consolidated Court Automation Programs and the supreme court, shall continue the pilot project to facilitate the development and testing of procedures that will permit exclusive electronic filing of documents in the supreme court;
IT IS FURTHER ORDERED that the interim rule adopted April 15, 2019, is repealed and recreated as set forth in Appendix A, attached hereto as "Revised Interim Rule" and is adopted, effective July 1, 2021;
IT IS FURTHER ORDERED that on or before December 1, 2021, and at six-month intervals thereafter until the conclusion of the pilot project or further order of this court, the Clerk of Supreme Court and Court of Appeals shall submit a written progress report to this court that addresses the progress of the pilot project in the supreme court; modifications to the Revised Interim Rule, if any; and any other relevant matter that should be brought to the attention of the court; and
IT IS FURTHER ORDERED that notice of the above amendments be given by a single publication of a copy of this order in the official publications designated in SCR 80.01, including the official publishers' online databases, and on the Wisconsin court system's web site. The State Bar of Wisconsin shall provide notice of this order.
Dated at Madison, Wisconsin, this 15th day of June, 2021.
BY THE COURT:
Sheila T. Reiff
Clerk of Supreme Court