Supreme court will set public hearing on petition regarding State Bar dues, takes other administrative action 

Jan. 18, 2011 – The Wisconsin Supreme Court will hold a public hearing on amended petition 09-08, filed by Wisconsin attorney Steven Levine and 42 other State Bar members who are seeking to limit the use of State Bar dues through amendment Supreme Court Rule (SCR) 10.03(5)(b)(1).

Amended petition 09-08 attempts to strike the current language of 10.03(5)(b)(1) that requires State Bar members to prove activities are “political or ideological” before they can object to using mandatory dues to fund such activities.

In addition, the petition attempts to place a burden on the State Bar to prove, by clear and convincing evidence, that an activity is “directly, primarily, and substantially intended for the purposes of regulating the legal profession or improving the quality of legal services” in order to overcome an objectioner’s challenge to the use of mandatory State Bar dues.

At its Jan. 12 administrative conference, the supreme court voted to hold a public hearing on the issue and is expected to release an order that specifies the date for public hearing in the next couple weeks. It is anticipated that such hearing will take place in April. 

In 2009, petitioners filed petition 09-08. The Wisconsin Supreme Court held the petition in abeyance pending the outcome of federal litigation in Kingstad v. State Bar of Wisconsin.

In September 2010, the U.S. Court of Appeals for the Seventh Circuit ruled in favor of the State Bar and affirmed an arbitrator’s decision to overrule the objections of three State Bar members, including Levine, who objected to the use of mandatory State Bar dues to fund an attorney public image campaign. A petition for rehearing en banc was denied.

In November 2010, the Wisconsin Supreme Court again issued an order to hold petition 09-08 in abeyance awaiting a decision on whether a petition for writ of certiorari would be filed with the U.S. Supreme Court in the Kingstad case.

Levine, James Thiel, and John Kingstad – petitioners in the Kingstad case – have since indicated that they will not file a writ of certiorari with the U.S. Supreme Court. 

Last month, Levine filed amended petition 09-08, which further attempts to restrict the State Bar’s use of mandatory dues to fund certain activities.

Other administrative actions 

At its Jan. 12, 2011 administrative conference, the supreme court also took action on a number of other petitions, including the following:

• Adverse determination of character and fitness. After a public hearing, the supreme court voted to approve (in principal) second amended petition 08-11, submitted by the Wisconsin Board of Bar Examiners (BBE) with minor changes.The petition seeks to repeal and recreate Supreme Court Rule 40.08 relating to adverse determinations of a bar applicant’s character and fitness.  

According to a memo issued by BBE Director Jacqueline Rothstein, the BBE seeks to repeal and recreate SCR 40.08 “to improve both the manner in which the Board of Bar Examiners communicates adverse determinations to applicants and the process by which applicants can appeal those determinations.”

• Conditional admission to the bar. The supreme court has voted to accept a future supreme court rule that allows conditional admission to the bar, pending the redrafting of amended petition 08-13.

The amended petition, submitted by the BBE, seeks to create SCR 40.075. Originally submitted by the BBE in May 2008, the rule would allow applicants facing substance-related disorders or mental illness to be conditionally admitted to the bar if certain requirements are met.

Under the current version, those individuals would take part in a monitoring program through WisLAP until conditional admission status ends.

The State Bar Board of Governors had opposed the petition without inclusion of a confidentiality provision, which is included in the amended petition. However, some supreme court justices expressed concern over inclusion of a confidentiality provision, which would protect an applicant’s record from public view.

• Wisconsin Lawyers’ Fund for Client Protection. The supreme court voted to hold a public hearing on amended petition 10-10, which asks the supreme court to amend SCR 12.07 relating to the annual assessment of attorneys for the operation of the Wisconsin Lawyers’ Fund for Client Protection. The petition was submitted by the fund’s chairperson, Deborah Smith.

The fund reimburses clients who suffer financial losses due to lawyer misconduct. Currently, SCR 12.07 sets a sufficiency level of $250,000. The sufficiency level has not changed since 1981, the year the fund was established by the supreme court.

In prior years, assessment amounts fluctuated based on the fund’s sufficiency level, but never exceeded $25 per year. Smith stated the amended rule would “provide a more reliable and predictable source of income for payment of eligible claims.”

The petition seeks to eliminate the Fund’s $250,000 sufficiency level and provide for a $20 annual assessment, regardless of whether the fund’s value on the valuation date equals or exceeds $250,000. Excess funds would flow to a reserve account, which would be reviewed periodically. The State Bar’s Board of Governors approved the petition. The supreme court is expected to issue an order in the coming weeks to specify the public hearing date. 

• Petition relating to administration of municipal courts. The supreme court voted to hold a public hearing on petition 10-11 – filed in December 2010 – by A. John Voelker, director of state courts. The petition attempts to amend certain provisions of SCR Chapters 70 and 33 relating to administration of municipal courts. The supreme court is expected to issue an order in the coming weeks to specify the public hearing date. 

Joe Forward, Legal Writer, State Bar of Wisconsin