April 29, 2014 – The Board of Governors (BOG) held a discussion at its meeting in La Crosse this weekend related to the State Bar’s procedures when hiring outside counsel.
After a thoughtful conversation and review of the practice, BOG members did not express any opposition to the current practices, and also expressed that as the policy-setting body of the State Bar, they did not want to be overly involved in day-to-day operational decisions.
Prior to the meeting, some members had questioned whether the State Bar should have hired outside counsel to defend a bylaw the BOG passed in June 2013 by a vote of 38 to 2, which stated that the BOG could remove a governor by a vote of 75 percent of the entire board if he or she engaged in conduct “contrary to the best interest of the State Bar.”
State Bar President Patrick J. Fiedler, who participated in the discussion (which was held in closed session because it addressed matters related to litigation), said the Board stands firmly behind its actions.
“The issue of removal of an officer or member of the Board of Governors was brought forward by the Governance Committee, a subset of the board that researched and debated the issue for nearly a year. When the issue was brought before the Board of Governors for a final vote, it was vigorously debated, and addressed the issue of the First Amendment and dissenters’ concerns,” said Fiedler.
Fiedler said the issue was challenged by a BOG member who participated in the debate and continued to raise constitutional issues.
“Unlike previous petitions, the court issued a briefing order on a matter of Constitutional law. Since the State Bar does not employ on-staff litigation attorneys with expertise in Constitutional First Amendment and association law, leadership engaged outside legal counsel with 25 years of expertise and prior litigation experience to respond to the petition,” said Fiedler.
Fiedler said the decision to retain Attorney Bobbi Howell of Foley & Lardner LLP to represent the State Bar before the Wisconsin Supreme Court in the matter was well within the purview of the State Bar’s president and executive director.
Fiedler stood by the decision to hire Howell, who drafted the Bar’s petition, and was assisted by an associate attorney. Howell also participated in a mock hearing to prepare for the state supreme court appearance.
“If you’re going to appear before the Wisconsin Supreme Court, you have to be as prepared as possible,” said Fiedler.
The decision is consistent with past practices of the Board of Governors, and its annual budget includes provisions for the hiring of outside counsel at the discretion of Bar leadership.
In fact, using outside counsel is not a new practice for the State Bar. Prior to the mid-late 1990s, Wisconsin law firms provided free legal advice and counsel to the State Bar. Issues included law suit defense, including lawsuits over the mandatory bar; employment law issues; and business issues.
For more information contact Attorney Andrea Gage, public relations coordinator, State Bar of Wisconsin. She can be reached at org agage wisbar wisbar agage org, or by phone at (608) 250-6025.
Beginning in the late 1990s/early 2000s, law firms were still willing to provide free legal advice and counsel, but issues brought to them were increasingly delayed. In FY 2002, the State Bar addressed this issue by adding a legal budget line item to its annual budget.
Since 2002, the State Bar has spent $530,051 in legal fees. The State Bar of Wisconsin hires outside counsel on a plethora of matters, including litigation, employment, contract, trademark and copyright, and personnel issues.
“These professionals help us provide the best services possible to our 24,000 members,” said Fiedler. “These lawyers work in roles that are focused on serving members, and we do not divert their time away from members to handle litigation outside of their respective areas of expertise.”