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  • WisBar News
    May 28, 2014

    Supreme Court Confirms that Judges Can Assist Pro Se Litigants, Rules on Other Petitions

    A supreme court majority (4-3) also denied a petition that would have authorized the Wisconsin Office of Lawyer Regulation (OLR) to publicize on the OLR’s website when a lawyer is being formally investigated, but not formally charged, for alleged misconduct.

    May 28, 2014 – State court judges and court commissioners are authorized to use techniques to help level the playing field for self-represented and other litigants under the judicial code of conduct, under a petition tentatively approved by the state supreme court.

    At its open administrative conference May 27, the supreme court voted 6-1 to approve in principle petition 13-14, submitted by the Wisconsin Access to Justice Commission.

    The petition, likely to take effect July 1, 2014, would amend and create Wisconsin Code of Judicial Conduct rules to make clear that judges can take “reasonable efforts” to facilitate the ability of all litigants, including self-represented litigants, to be fairly heard.

    That is, judges can use certain techniques that facilitate the proceedings without the risk of being charged with ethics violations that ensure judges remain impartial.

    The petition recognizes the increased number of pro se litigants and the court system’s challenge in helping those litigants receive fair hearings while remaining neutral. The petition gives courts the discretion to use certain techniques that help litigants.

    The techniques that Wisconsin judges and court commissioners may use to facilitate efficient and fair proceedings include, but are not limited to:

    • construing pleadings to facilitate consideration of the issues raised;

    • providing information or explanations about the proceedings;

    • explaining legal concepts in everyday language;

    • asking neutral questions to elicit or clarify information;

    • modifying the traditional order of taking evidence;

    • permitting narrative testimony;

    • allowing litigants to adopt their pleadings as their sworn testimony; referring litigants to any resources available to assist in the preparation of the case or enforcement and compliance with any order; and

    • informing litigants what will be happening next in the case and what is expected of them.

    In February, numerous judges and attorneys appeared to testify in support of the petition, submitted in 2013. Many said the petition codifies what judges already do under their discretionary authority, but provides assurances under the judicial code.

    Judges – including municipal court judges, court commissioners, circuit court judges, appeals court judges, and justices of the Wisconsin Supreme Court – could invoke their discretionary authority to use techniques that assist or guide pro se litigants, but judges don’t have to employ those techniques. The rule is permissive, not mandatory.

    In addition, the rule is not limited to self-represented litigants. Judges could potentially facilitate the proceedings to assist litigants with inexperienced or struggling lawyers.

    The court has tentatively agreed to an effective date of July 1, 2014, and the final petition will likely include a provision, suggested by Justice Patience Roggensack, that makes clear that judges are not required to employ the techniques permitted by the rule.

    Roggensack said she was undecided about the petition, but made clear in the open administrative conference that she thought the rule was a bad idea.

    “This puts the judge’s foot in the advocacy box,” Roggensack told the other justices. “I think it’s a huge mistake. For the court to do this is a huge mistake.”

    “I fully support a person’s right to appear in court pro se,” she said. “What I do not support is having the judge assist those people in ways that deviate from the judge as an independent, neutral in the courtroom. I think this rule is way too overbroad.”

    Others noted that the petition received support from judges and lawyers across the state, including the Wisconsin Trial Judges Association, the Committee of Chief Judges, the Family Court Commissioner’s Association, and the Wisconsin Court of Appeals.

    Court Denies OLR Petition

    A supreme court majority (4-3) denied a petition that would have authorized the Wisconsin Office of Lawyer Regulation (OLR) to publicize on the OLR’s website when a lawyer is being formally investigated, but not formally charged, for alleged misconduct.

    Currently, allegations of misconduct remain confidential during the OLR’s investigation phase and don’t become public until the OLR has completed its investigation and determines that it should file a formal complaint to the Wisconsin Supreme Court.

    OLR Director Keith Sellen had said the petition tried to balance the lawyer’s interest in maintaining their reputations amidst frivolous claims with the public interest in knowing whether potential misconduct could harm them physically, financially, or legally.

    “If an attorney is engaged in a pattern of serious misconduct, there should be a mechanism to protect the lawyer’s current or prospective clients,” Sellen said in a State Bar article that appeared in February. “We are trying to protect an unsuspecting public.”

    But the majority – Justices Patrick Crooks, Michael Gableman, Patience Roggensack and Annette Ziegler voted down the petition, suggesting the change is unnecessary.

    Justice Gableman said the court already has the power to summarily suspend attorneys during investigations if the facts and circumstances of the case warrant the suspension.

    Justice Ann Walsh Bradley said the petition lacked specific standards to determine what constitutes an allegation warranting public disclosure at the investigation phase.

    Chief Justice Shirley Abrahamson suggested a vote that would not deny the petition outright, but would send the petition back to OLR with directions to fine-tune based on the court’s discussions. But the majority of justices voted to outright deny the petition.

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