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  • WisBar News
    June 24, 2015

    State Bar Board Supports Cy Pres Petition to Fund Civil Legal Services for the Indigent, Takes Other Actions

    Joe Forward

    Board of Governors

    David Harth, a member of the Wisconsin Access to Justice Commission, urges board support for a petition to direct "residual" class action settlement funds to the Wisconsin Trust Account Foundation. The board voted to support the petition.

    June 24, 2015 – At its meeting today in Lake Geneva, the State Bar of Wisconsin’s Board of Governors unanimously voted to support a petition requiring 50 percent of “residual” class action settlement funds to be directed to the Wisconsin Trust Account Foundation to fund civil legal services for low-income individuals.

    The 52-member board approved the so-called cy pres petition at its final meeting of the fiscal year, a precursor to the State Bar’s two-day Annual Meeting and Conference (AMC) at the Grand Geneva Resort & Spa.

    Under the draft cy pres petition, which will be submitted to the Wisconsin Supreme Court by the Wisconsin Access to Justice (ATJ) Commission, “residual” funds are funds that remain after payment of all approved class member claims, expenses, litigation costs, attorneys’ fees, and other disbursements. The ATJ Commission was created in 2009 to aid courts and support civil legal services for those who cannot afford them.

    However, the commission’s proposed petition to amend Wis. Stat. section 803.08 would not prohibit courts from approving settlements that do not create residual funds.

    In supporting documents, the commission notes that Wisconsin is currently one of just three states providing no state funding for civil legal services, while hundreds of thousands of individuals cannot afford attorneys to pay for serious civil legal problems.

    David Harth, a member of the ATJ Commission, appeared at the board meeting to urge support for the petition, saying the proposal is a “painless way to replace some of the funding that has been reduced in recent years” to pay for civil legal services.

    At least 14 states have made similar amendments to divert residual class action funds to low-income legal service providers, in some cases resulting in substantial payments to designated beneficiaries, the ATJ Commission noted in its draft petition.

    Board of Governors

    The board elected Deanne Koll, Menomonie, to serve as the State Bar's Young Lawyer Delegate in the ABA House of Delegates.

    Board Approves State Bar Redistricting Map

    The board unanimously approved a redistricting map that transfers Polk County from District 11 to District 8, noting that Polk County is part of a multi-county bar association.

    The State Bar’s 52-member Board of Governors includes representative “governors” from 16 districts throughout the state, and the number of governors in each district must be proportionate to the number of active voting members residing in that district.

    Under Wisconsin Supreme Court (SCR) Rule 10.05, the board must submit a redistricting map to the Wisconsin Supreme Court for approval every 10 years. Among the criteria in setting districts, the board must consider multi-county bar associations.

    Polk County is part of the St. Croix Valley Bar Association with Dunn, Pierce, and St. Croix counties. Those other three counties are part of District 8. The State Bar Board’s Reapportionment Committee did not recommend any other reapportionment changes.

    Board Reallocates of Funds for Potential Legal Expenses

    The board unanimously voted (one abstention) to reallocate $75,000 from a budgeted net surplus for fiscal year 2016 (July 1, 2015 to June 30, 2016) to pay for expected legal expenses that relate to the State Bar dues assessment and the “Keller dues rebate amount.”

    Earlier this month, three State Bar members – former State Bar President Steven Levine (Madison), and attorneys Jon Kingstad (Oakdale, Minn.), and John Sobotik (Madison) – requested arbitration to challenge the amount of dues assessed.

    State Bar dues are $254 for FY 2016. However, under Wisconsin Supreme Court (SCR) Rule 10.03(5)(b)1, the State Bar may not use the compulsory dues of objecting members for activities that are “not necessarily or reasonably related to the purposes of regulating the legal profession or improving the quality of legal services.”

    Board of Governors

    OLR Director Keith Sellen urges board support for a OLR petition  that would give the OLR more discretion in cases alleging in de minimus disciplinary violations. The board voted to support the petition.

    The State Bar must annually publish notice setting forth each member’s pro rata portion of dues that are not necessarily or reasonably related to these dual purposes. Members may elect to withhold the pro rata portion of nonchargeable dues, this year set at $5.25.

    Nonchargeable dues are known as the “Keller dues rebate amount,” based on a case – Keller v. State Bar of California, 496 U.S. 1 (1990) – in which the U.S. Supreme Court ruled that the mandatory State Bar of California could not use compulsory dues to fund political or ideological activities unless those activities are germane to regulating the legal profession or improving the quality of legal services.

    In light of Keller, the Wisconsin Supreme Court adopted a rule, SCR 10.03(5)(b)3., allowing any State Bar member who challenges bar dues on Keller grounds to request arbitration. Levine, Kingstad, and Sobotik have requested Keller-based arbitration, and the board has approved a $75,000 legal expense reallocation to defend this challenge.

    Levine and Kingstad challenge any direct and indirect expenditures for legislative advocacy activities that were not included in the Keller rebate calculation for FY 2016.

    They say the State Bar’s lobbying efforts are not necessarily or reasonably related to the purposes of regulating the legal profession or improving the quality of legal services.

    Levine and Kingstad were also plaintiffs in the 2010 case of Kingstad v. State Bar of Wisconsin, 622 F.3d 708 (7th Cir.), in which a three-judge panel held that the State Bar may use mandatory dues to fund “activities that are reasonably related to the State Bar’s dual purposes,” regardless of whether those activities are political or ideological.

    Sobotik challenges the entire $254 dues assessment for FY 2016 “on the grounds that the funds are not allocated to education or regulation of the bar.”

    Board of Governors

    Board member Margaret Hickey, Milwaukee, offers some final thoughts before her term ends. Hickey, a former board chair and treasurer, has served four straight years on the board, in addition to serving other terms in previous years.

    Board Supports OLR Petition on De Minimus Violations

    The board unanimously supports a petition (14-06) that would give the Wisconsin Office of Lawyer Regulation (OLR) more discretion in lawyer disciplinary cases involving allegations of de minimus violations of the Rules of Professional Conduct for Attorneys.

    Currently, the OLR must investigate and pursue discipline even for minor infractions. OLR Director Keith Sellen says giving OLR more discretion will still protect the public from harm but allow the OLR to prioritize resources and dispose of cases more quickly.

    Board Supports ABA Resolution on Confidentiality for Lawyer Referral Services

    At the request of the State Bar’s Lawyer Referral and Information Service (LRIS) Committee, the board voted to support an ABA resolution that encourages states to adopt rules that establish a privilege for confidential communications between a client and Lawyer Referral Service.

    Other Business

    • Board elects chairperson of the board. The board unanimously elected Jill Kastner (Milwaukee) as the next board chairperson for FY 2016 (July 1, 2015 to June 30, 2016). Kastner is an attorney with Legal Action of Wisconsin Inc.

    • Board elects members to the Executive Committee. The board elected the following six members to the State Bar’s Executive Committee for FY 2016: Andrew Chevrez (Milwaukee), John Danner (Minocqua), Kim Haines (Waukesha), Daniel Rinzel (Mt. Vernon, Va.), Chris Rogers (Madison), and Paul Swanson (Oshkosh). The Executive Committee consists of the State Bar president, president-elect, immediate past-president, chairperson of the board, representatives from each of the State Bar’s four divisions, and six additional members elected annually by the board.

    • Board elects two new State Bar ABA Delegates. The board elected Deanne Koll (Menomonie) and Jessica King (Oshkosh) as State Bar representatives to the ABA House of Delegates. Koll will serve as the State Bar’s Young Lawyer Delegate. The State Bar has five delegates to the ABA House of Delegates, and ABA members from Wisconsin elect one state delegate to the ABA House.

    • Board approves appointments to Wisconsin Trust Account Foundation Board. The board approved three reappointments and two new appointments to the Wisconsin Trust Account Foundation Board. The Hon. Edward Leineweber (Lone Rock), Kevin Palmersheim (Madison), and Denes Tobie (Madison) were reappointed. Lawrence Burnett (Milwaukee) and Meghan McAllister (Madison) are new appointments.

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

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