At its March 3 meeting, the Board of Governors discussed at length the Wisconsin Supreme Court's March 2005 rule imposing a $50 annual assessment on all active-licensed Wisconsin lawyers to provide funding for civil legal services to the poor.
The board unanimously voted, with one abstention, to provide the membership an historical report on what has happened since the assessment was passed and to seek member feedback. The board also approved a motion that President Michael Guerin talk to the supreme court and report back to the board at its May meeting when the board will take up the issue again.
At its March meeting, the board considered various responses to the assessment, including waiting for the State Bar's Access to Justice Study Committee's final report in December 2006 before taking any action, seeking a declaratory judgment in federal court on the constitutionality of the assessment, or taking no action.
Background. The supreme court formed the Wisconsin Trust Account Foundation (WisTAF), which is the only state-mandated program to raise dollars to meet the need for legal services for low-income persons, in 1986 to manage and grant the monies generated by the Interest on Lawyers Trust Accounts (IOLTA).
In June 2004 WisTAF filed the petition seeking the mandatory assessment. Interest earned on IOLTA funds was vulnerable to the rise and fall of interest rates, impacting monies available to fund civil legal services for the poor.
In early September 2004, then President Michelle Behnke appointed the WisTAF Petition Study Committee. The committee was charged with addressing: 1) the effects of the assessment on Bar membership; 2) alternatives to funding civil legal services; and 3) the precedential value of such an assessment on future assessments for legal-related needs such as guardians ad litem, public defenders, and interpreters.
The committee presented its final report in November 2004. After lengthy analysis and discussion, the board adopted the position that, "The State Bar of Wisconsin acknowledges the societal problems of access to justice. While the State Bar opposes the petition as filed by WisTAF and a mandatory assessment, we support a two-year $50 opt-out contribution to WisTAF and a study by the State Bar to address these needs and their future funding."
In January 2005 the court voted 5-2 to impose the assessment and encouraged the Bar to undertake the two-year study on the delivery of civil legal services in Wisconsin that it proposed to the court. The court issued its final order on March 24, 2005.
Following the court's March 2005 decision, the board approved a motion to direct "[t]he State Bar of Wisconsin officers to obtain counsel and to obtain a legal opinion from said counsel as to the legality of the Supreme Court Order approving the WisTAF Petition (Petition 04-05) to impose a $50 mandatory assessment annually against every active State Bar member and its potential impact on the status of the Bar."
In June 2005 Guerin appointed a committee, chaired by Milwaukee Judge Richard Sankovitz, to prepare a legal needs study that would provide policymakers with better information about the scope and impact of the problem of access to justice in Wisconsin and make recommendations about how all of the stakeholders in the justice system could do a better job of funding services. Low- and moderate-income Wisconsin households will be the focus of the study. The committee expects to produce its final report in December 2006.
The issue has been debated both publicly and privately at meetings since September 2004. Behnke addressed the issue at local and specialty bar meetings statewide during her term. Articles educating the membership, and soliciting member feedback, about this issue were published in the Wisconsin Lawyer and Inside the Bar, and section, division, and specialty Bar publications, and on WisBar, the State Bar Web site. Members are invited to send comments to the Bar by April 26.