Wisconsin Lawyer
Vol. 79, No. 6, June
2006
Supreme Court Orders
The Wisconsin Supreme Court has amended supreme court rules
relating to cost assessments in the lawyer regulation system and to
record retention, and amended statutes relating to appeal procedures in
termination of parental right cases.
Lawyer Regulation System
Costs
In the matter of the Petition for Amendment to Supreme Court
Rules relating to Cost Assessments in the Lawyer Regulation
System
Order 05-01
On Jan. 18, 2005, Keith Sellen, Director of the Office of Lawyer
Regulation (OLR), filed a petition to amend Supreme Court Rule 22.001
(3) relating to cost assessments in the lawyer regulation system. The
State Bar of Wisconsin's Board of Governors (Board) opposed the OLR's
petition and offered an alternate approach, developed with the
assistance of Director Sellen. The Board proposed an approach by which
the referee reviewing the disciplinary proceeding would make
recommendations to the court regarding the assessment of costs.
A public hearing on the matter was conducted on Nov. 14, 2005.
Several individuals participated. The court took the matter under
advisement pending the receipt of further information, including the
results of a Bench and Bar Survey conducted by the State Bar of
Wisconsin, which included questions regarding the allocation of fees and
costs in lawyer disciplinary proceedings.
At its open administrative conference on March 7, 2006, the majority
of the court voted to amend the rules relating to the assessment of
costs in lawyer disciplinary proceedings as set forth herein.
Therefore,
IT IS ORDERED that the petition to amend SCR 22.001 (3) is
denied;
IT IS FURTHER ORDERED that a modified version of the proposal
advanced by the Board is adopted effective July 1, 2006, whereby the
supreme court will exercise discretion with respect to the assessment of
costs using criteria proposed by the Board as set forth herein;
Section 1. 22.24 (1m) is created to read:
22.24 (1m) The court's general policy is that upon a finding of
misconduct it is appropriate to impose all costs, including the expenses
of counsel for the office of lawyer regulation, upon the respondent. In
cases involving extraordinary circumstances the court may, in the
exercise of its discretion, reduce the amount of costs imposed upon a
respondent. In exercising its discretion regarding the assessment of
costs, the court will consider the submissions of the parties and all of
the following factors:
(a) The number of counts charged, contested, and proven.
(b) The nature of the misconduct.
(c) The level of discipline sought by the parties and recommended by
the referee.
(d) The respondent's cooperation with the disciplinary process.
(e) Prior discipline, if any.
(f) Other relevant circumstances.
Section 2. SCR 22.24 (2) is amended as follows:
22.24 (2) In seeking the assessment of costs by the supreme court,
the director shall file in the court a statement of costs within 20 days
after the filing of the referee's report, or a SCR
22.12 or 22.34(10) stipulation, together with a recommendation to the
court regarding the costs to be assessed against the respondent.
provided that if If an appeal of the referee's
report is filed or the supreme court orders briefs to be filed in
response to the referee's report, the a
supplemental statement of costs and recommendation regarding the
assessment of costs shall be filed within 14 days after the appeal
is assigned for submission to the court or the briefs ordered by the
court are filed. The recommendation should explain why the particular
amount of costs is being sought. Objection to the
a statement of costs [which may include relevant supporting
documentation] shall be filed by motion within 10
21 days after service of the statement of costs. The
director has the burden of establishing costs to be assessed.
A respondent who objects to a statement of costs must explain, with
specificity, the reasons for the objection and must state what he or she
considers to be a reasonable amount of costs. The office of lawyer
regulation may reply within 11 days of receiving the objection.
IT IS FURTHER ORDERED that this order shall apply prospectively to
disciplinary proceedings, medical incapacity proceedings, or
reinstatement proceedings filed on or after July 1, 2006;
IT IS FURTHER ORDERED that unless this order is amended, these
amendments to Supreme Court Rule 22.24 shall expire on Dec. 31,
2008;
IT IS FURTHER ORDERED that notice of this amendment to the supreme
court rules be given by a single publication of a copy of this order in
the official state newspaper and in an official publication of the State
Bar of Wisconsin.
Dated at Madison, Wis., this 1st day of May, 2006.
By the court:
Cornelia G. Clark, Clerk of Supreme Court
¶1 DAVID T. PROSSER, J. (dissenting). For many years
Supreme Court rules have authorized the assessment of costs against
attorneys in disciplinary proceedings. See In re Disciplinary
Proceedings Against Konnor, 2005 WI 37, ¶45 n.5, 279 Wis. 2d
284, 694 N.W.2d 376 (Abrahamson, C.J., concurring). The court's
authority is presently embodied in SCR 22.24(1), which provides that the
court "may assess against the respondent [attorney] all or a portion of
the costs of a disciplinary proceeding in which misconduct is
found."
¶2 The court's practice in recent years has been to impose
all costs against the respondent if any misconduct is found. As
a general rule, the court has been unwilling to exercise its discretion
to apportion costs, even when the respondent prevails in disputes about
some charges, the level of discipline to be imposed, or some contested
procedural matter. See Konnor, ¶¶93-114 (Prosser, J.,
concurring in part, dissenting in part).
¶3 The court's unwillingness to apportion costs in these
circumstances has generated controversy. The creation of SCR 22.24(1m)
and the amendment to SCR 22.24(2) are the court's half-hearted response
to this controversy. These changes give the court specific factors to
consider when it receives a request for apportionment of costs, but
their application is limited to "extraordinary circumstances."
¶4 I dissent from the changes for two reasons. First, I believe
that recommendations for apportionment should be made by our referees.
In short, I support the plan proposed by the State Bar of Wisconsin.
Second, the introduction of "extraordinary circumstances" into the rule
amounts to nothing less than the rationing of fairness.
¶5 I hope I am wrong and the experience under the new rules will
produce a transparent, fair attorney discipline system. Time will
tell.
¶6 I am authorized to state that Justices PATIENCE DRAKE
ROGGENSACK and LOUIS B. BUTLER join this dissent.
¶7 LOUIS B. BUTLER, JR., J. (dissenting). The court now
formally adopts a general policy that upon a finding of misconduct, it
is appropriate to impose all costs, including the expenses of counsel
for the Office of Lawyer Regulation (OLR), upon the respondent. SCR
22.24(1m). This policy merely implements what has been the past practice
of this court. See, e.g., In re Disciplinary Proceedings Against
Pangman, 216 Wis. 2d 440, 460, 574 N.W.2d 232 (1998). See also,
In re Disciplinary Proceedings Against Kalal, 2002 WI 45, ¶33,
252 Wis. 2d 261, 278, 643 N.W.2d 466; and In re Disciplinary
Proceedings Against Johnson, 165 Wis. 2d 14, 20, 477 N.W.2d 54
(1991). While the court may, in its discretion, reduce the amount of
costs imposed upon the respondent when "extraordinary circumstances" are
present, and indeed has set forth criteria to be considered in that
regard,1 I fear that this rule goes too far
in memorializing a policy that unnecessarily limits our discretion to
fairly and justly decide the matter before us. I therefore respectfully
dissent from the implementation of this rule.
¶8 To me, it is perfectly reasonable, and indeed appropriate, to
assess full costs against an attorney who has committed the misconduct
that led to the imposition of those costs. When one does wrong, one
should be held accountable.
¶9 On the other hand, it is fundamentally unfair to assess the
costs of the proceedings against one who has done no wrong. We certainly
would not hold a criminal defendant accountable for offenses he or she
did not commit. Nor should we expect an attorney, who has every right to
clear his or her name, to be responsible for a prosecution that yields
no fruit. Our system of justice presumes innocence until guilt is
proven. We should adhere to that principle when imposing attorney
discipline.
¶10 As is often the case, the devil is in the details. Attorneys
frequently face multiple violations in an OLR proceeding. Many times,
all counts are established, so that no issue is presented as to how
costs should be apportioned. At times, an attorney is cleared of all
counts, leaving no issue regarding costs the court should impose. The
problem arises where the OLR proves some, but not all, of the charges
facing an attorney. The question becomes one of how costs should be
apportioned.
¶11 This court has adhered to the general practice that it
rejects objections to full assessments of costs based on an
apportionment of the number of misconduct allegations established. I do
not entirely disagree with that practice. I have previously stated that
when one has committed rules violations that are substantially related
to unproven allegations, it is the attorney's misconduct that forces the
need for further investigation. Thus, the attorney should be responsible
for all costs associated with the investigation, whether proven or not.
See In re Disciplinary Proceedings Against Polich, 2005 WI 36,
279 Wis. 2d 266, 694 N.W.2d 367 (Butler, J. concurring in part,
dissenting in part), and In re Disciplinary Proceedings Against
Backes, 2005 WI 59, 281 Wis. 2d 1, 697 N.W.2d 49 (Butler, J.
concurring in part, dissenting in part).
¶12 I strongly disagree that an attorney should be held
accountable and responsible for full costs when the attorney is absolved
of any misconduct that is wholly unrelated to other misconduct that was
found. For example, if an attorney is charged with 15 counts of
misconduct relating to five clients, three counts per client, but OLR
proves only one count relating to one client, it is now court policy
under the new rule that the attorney pay full costs for all 15 counts.
While I recognize and appreciate the fact that the rule now has
established criteria for the exercise of our discretion regarding the
assessment of costs, our exercise of discretion is limited to cases
involving "extraordinary circumstances." SCR 22.24(1m). This policy is
backwards, and presumes fault instead of innocence.
¶13 I fully understand why this court does not want to pass the
costs of OLR proceedings on to the full bar. In most cases, I agree with
that sentiment. Attorneys who have done no wrong should not have to pay
for those who commit misconduct. Yet, some attorneys who appear before
us in disciplinary proceedings have similarly done no wrong with respect
to some of their clients, and that same sentiment should apply to
them.2 A policy that would seem to make
more sense, assuming a policy is needed at all, is one that would impose
full costs for all charges established, with this court having the
discretion to charge additional costs for charges that were not
established but that were substantially related to misconduct that was
proven. Requiring attorneys to pay for the costs of all of the
proceedings, when their conduct does not violate any rule or relate to
misconduct that has been established, is simply wrong.
¶14 For the foregoing reasons, I respectfully dissent. I am
authorized to state that Justice DAVID T. PROSSER and Justice PATIENCE
DRAKE ROGGENSACK join this opinion.
1SCR 22.24(1m).
2When this occurs, it makes more
sense to spread the costs of the OLR prosecutions among the
approximately 22,000 members of the state bar, resulting in a miniscule
increase in the assessment for each attorney, than to impose literally
thousands of dollars upon a single attorney.
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Rules of Appellate Procedure
In the matter of Proposed Amendments to Wis. Stat. ss.
809.107 and 809.14
Order 05-07
On June 22, 2005, the Judicial Council filed a petition proposing
certain amendments to Wis. Stat. ss. 809.107 and 809.14 of the Rules of
Appellate Procedure relating to appeal procedures in termination of
parental right (TPR) cases. A public hearing on the matter was conducted
on Nov. 14, 2005. The State Bar of Wisconsin supported the petition. At
the hearing, the petitioner advised the court of pending legislation,
2005 A.B. 521, generally consistent with the petition, and withdrew
certain language from the petition to ensure consistency with the
pending legislation. See also Comments of Wisconsin District
Attorneys Association filed Oct. 26, 2005.
At the ensuing open administrative conference the court voted
unanimously to adopt the petition with the changes proffered by the
petitioner, but held the matter in abeyance pending resolution of the
pending legislation. On April 10, 2006, the governor signed 2005 A.B.
521 into law, thereby enacting 2005 Wisconsin Act 293 (the Act), which
generally became effective April 21, 2006, except as noted in s. 71 of
the Act. Accordingly, effective July 1, 2006, Wis. Stat. ss. 809.107 and
809.14 of the Rules of Appellate Procedure are amended as follows:
Section 1. 809.107 (1m) of the statutes is created
to read:
809.107 (1m) Definition. In this section,
"appellant" means a person who files a notice of intent to pursue
postdisposition or appellate relief.
Section 2. 809.107 (2) (title) of the statutes is
repealed and recreated to read:
809.107 (2) Appeal or Postdisposition Motion.
Section 3. 809.107 (2) (am) of the statutes is
created to read:
809.107 (2) (am) Appeal procedure; counsel to
continue. A person seeking postdisposition or appellate relief
shall comply with this section. If the person desires to pursue
postdisposition or appellate relief, counsel representing the person
during circuit court proceedings under s. 48.427 shall continue
representation by filing a notice under par. (bm), unless sooner
discharged by the person or by the circuit court.
Judicial Council Note 2006 to Rule 809.107 (2) (am): The
creation of s. 809.107 (2) (am) requires counsel representing a parent
who wants to appeal the TPR disposition to file a notice of intent to
pursue postdisposition or appellate relief. Trial counsel's
representation continues until the notice of intent is filed.
Section 4. 809.107 (2) of the statutes is renumbered
809.107 (2) (bm) and amended to read:
809.107 (2) (bm) Initiating the
Appeal. Notice of intent to pursue postdisposition or
appellate relief. A person shall initiate an appeal under this
section by filing, within the time 30 days after the
date of entry of the judgment or order appealed from, as specified
in s. 808.04 (7m), a notice of intent to appeal
pursue postdisposition or appellate relief with the clerk of the
trial circuit court in which the judgment or
order appealed from was entered. Also within that time period, the
person appellant shall serve a copy of the
notice of intent on the person representing the interests of the
public, opposing counsel, the guardian ad litem appointed under s.
48.235 (1) (c) for the child who is the subject of the proceeding, the
child's parent and any guardian and any custodian appointed under s.
48.427 (3) or 48.428 (2). The notice of intent shall include
all of the following:
(a) 1. The circuit court case name,
number, and court caption.
(b) 2. An identification of the judgment or
order from which the person filing the notice intends to
appeal appellant intends to seek postdisposition or
appellate relief and the date on which it the
judgment or order was granted or entered.
(c) 3. The name and address of the
person filing the notice of intent to appeal and the
person's appellant and the appellant's trial
counsel.
(d) 4. For a person an
appellant other than the state, whether the trial counsel for the
person filing the notice of intent to appeal
appellant was appointed by the state public defender and, if so,
whether the person's appellant's financial
circumstances have materially improved since the date on which the
person's appellant's indigency was
determined.
(e) 5. For a person an
appellant other than the state, whether the person filing
the notice of intent to appeal who does not request
representation by the state public defender, whether the appellant
will represent himself or herself or will be represented by retained
counsel or requests the state public defender to appoint counsel
for the appeal . If the person
appellant has retained counsel to pursue postdisposition or
appellate relief, the counsel's name and address
shall be included.
Section 5. 809.107 (2) (bm) 4m. of the statutes is
created to read:
809.107 (2) (bm) 4m. Whether the appellant requests
representation by the state public defender for purposes of
postdisposition or appellate relief.
Judicial Council Note 2006 to Rule 809.107 (2) (bm):
Subsection 809.107 (2) (bm) contains the substance of former sub. (2).
The amendment adds the case number to the content requirements for the
notice of intent. Subsection (2) (bm) 2. deletes a reference to the date
on which the judgment or order was granted because the time limits in s.
808.04 (7m) commence on the date the judgment or order was entered.
Section 6. 809.107 (2) (c) of the statutes is
created to read:
809.107 (2) (c) Early notice of intent to pursue
postdisposition or appellate relief. If the record discloses that
the judgment or order appealed from was entered after the notice of
intent to pursue postdisposition or appellate relief was filed, the
notice of intent shall be treated as filed after that entry and on the
date of the entry.
Judicial Council Note 2006 to Rule 809.107 (2) (c): The
amendment to s. 809.107 (2) (c) addresses the practical concern that
arises when a notice of intent is filed before the final judgment or
order is entered. Similar to § 808.04(8), the amendment allows the
filing date of the notice of intent to be deemed the date that the
judgment or order was entered, and thereby preserves appellate
jurisdiction.
Section 7. 809.107 (3) of the statutes is amended to
read:
809.107 (3) Duties of Clerk of Trial
Court. Clerk to Send Materials. Within 5 days after a
notice under sub. (2) (bm) is filed, the clerk of the circuit
court shall do all of the following:
(a) If the person filing the notice of intent to appeal under
sub. (2) appellant requests representation by the state
public defender for purposes of the appeal,
postdisposition or appellate relief, the clerk shall send to the
state public defender's appellate intake office a copy of the notice
of intent that shows the date on which the notice was filed, a
copy of the judgment or order specified in the notice
and that shows the date on which the judgment or
order was entered, a list of the court reporters for each proceeding
in the action in which the judgment or order was entered, and a list
of those proceedings for which a transcript already has been filed with
the clerk of circuit court.
(b) If the person filing the notice of intent to
appeal appellant does not request representation by the
state public defender, for purposes of the
appeal, the clerk shall send or furnish to the
person appellant, if the person
appellant is appearing without counsel, or to the
person's appellant's attorney, if one has been
retained, a copy of the judgment or order specified in the notice
and that shows the date on which the judgment or
order was entered, a list of the court reporters for each proceeding
in the action in which the judgment or order was entered, and a list
of those proceedings in which a transcript already has been filed with
the clerk of circuit court.
Judicial Council Note 2006 to Rule 809.107(3): To facilitate
compliance with the time limits in this section, the amendment requires
the clerk to send a copy of the judgment or order that shows the date on
which it was entered and a list of transcripts already on file to the
state public defender's intake office, or to the person if appearing
without counsel, or to retained counsel.
Section 8. 809.107(4) (title) of the statutes is
amended to read:
809.107 (4) Transcript Request
for Transcript and Circuit Court Case Record.
Section 9. 809.107 (4) is renumbered 809.107 (4) (b)
and amended to read:
809.107 (4) (b) Person not represented by
public defender. A person filing a
notice of intent to appeal under sub. (2) An appellant who
does not request representation by the state public defender for
purposes of postdisposition or appellate relief shall request a
transcript of the reporter's notes, and may request a copy
of the circuit court case record within 15 days after filing the notice
of intent under sub. (2) (bm). An appellant who is denied
representation by the state public defender for purposes of
postdisposition or appellate relief shall request a transcript of the
reporter's notes, and may request a copy of the circuit court case
record, within 30 days after filing a notice of intent under sub. (2)
(bm).
(4m) Filing and Service of Transcript and
Circuit Court Case Record. The court reporter shall file the
transcript with the circuit court and serve a copy of the transcript on
the person filing the notice of intent to appeal
appellant within 30 days after the transcript is requested. The
clerk of circuit court shall serve a copy of the circuit court case
record on the person filing the notice of intent to
appeal appellant within 30 days after the
court case record is requested, and shall
indicate in the case record the date and manner of service.
Section 10. Section 809.107 (4) (a) of the statutes
is created to read:
809.107 (4) (a) State public defender
appointment of counsel. Within 15 days after the state public
defender appellate intake office receives the materials from the clerk
of circuit court under sub. (3) (a), the state public defender shall
appoint counsel for the appellant and request a transcript of the
reporter's notes and a copy of the circuit court case record.
Judicial Council Note 2006 to Rule 809.107(4) and (4m): New
s. 809.107 (4) (a) codifies existing practice and establishes a time
limit for the state public defender to appoint counsel and request
transcripts and circuit court case records. The public defender's time
limit commences on the date that the public defender's office receives
the materials from the circuit court clerk, rather than on the date the
notice of intent is filed, so as to reduce the number of extension
motions that must be filed when the clerk does not timely send the
materials under sub. (3) (a).
The amendment to s. 809.107 (4) (b) clarifies the procedure
applicable to persons who are not represented by the state public
defender and creates time limits applicable to a person who has applied
for and has been denied public defender representation. In the latter
case, the rule provides an additional 15 days for the person to obtain
private counsel and request a copy of the transcript and case record.
The time limit is set at 30 days because 15 days will have expired while
the public defender's office determines whether the person is eligible
for appointed counsel. This time limit commences on the date the notice
of intent was filed, rather than the date of the public defender's
determination because that determination does not appear in the case
record.
Subsection (4m) includes the last two sentences of former sub. (4).
Subsection (4m) also creates a new requirement for the circuit court
clerk to indicate the date and manner of service in the case record. The
new requirement is necessary because the notice of appeal time limit is
measured from the date of service of the case record or transcript,
whichever is later.
Section 11. 809.107 (5) (title), (a), (b) (title),
(c) (title), and (e) (title) of the statutes are amended to read:
809.107 (5) Notice of Appeal; Transmittal of
Record . (a) Filing; copy and
service of notice of appeal. Within 30 days after the later
of the service of the transcript or the circuit court case
record, unless extended under s. 809.82, the person
filing a notice of intent to appeal under sub. (2)
appellant shall file a notice of appeal as provided in s.
809.10(1) and serve a copy of the notice on the persons
required to be served under sub. (2) (bm).
(b) Transmittal of record by clerk.
(c) Requesting transcripts for other parties.
(e) Service of transcripton other parties.
Judicial Council Note 2006 to Rule 809.107 (5): The
amendment to s. 809.107 (5) (a) clarifies that the time limit for filing
a notice of appeal commences 30 days from the later of the
service of the transcript or case record. Persons contemplating filing a
notice of appeal are better able to assess grounds for relief after
reviewing both the transcripts and the circuit court case record.
Section 12. 809.14 (1) of the statutes is amended to
read:
809.14 (1) A party seeking an order or other relief
in a case shall file a motion for the order or other relief. The motion
must state the order or relief sought and the grounds on which the
motion is based and may include a statement of the position of other
parties as to the granting of the motion. A motion may be supported by a
memorandum. Any Except as provided in sub. (1m),
any other party may file a response to the motion within 11 days
after service of the motion.
Section 13. 809.14 (1m) of the statutes is created
to read:
809.14 (1m) If a motion is filed in an appeal under
s. 809.107, any other party may file a response to the motion within 5
days after service of the motion.
Judicial Council Note 2006 to Rule 809.14(1) and (1m): The
amendment to s. 809.14 (1) and the creation of s. 809.14 (1m) to
establish a shorter response time to appellate motions should advance
the ultimate resolution of TPR appeals.
IT IS ORDERED that the Judicial Council Notes to these rules are not
adopted but shall be printed for information purposes.
IT IS FURTHER ORDERED that notice of this amendment of 809.107 and
creation of 809.14 (1m) be given by a single publication of a copy of
this order in the official state newspaper and in an official
publication of the State Bar of Wisconsin.
Dated at Madison, Wis., this 1st day of May, 2006.
By the court:
Cornelia G. Clark, Clerk of Supreme Court
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Record Retention
In re amendment of SCR 72.01 Regarding Record
Retention
Order 06-01
On Jan. 30, 2006, the Director of State Courts filed a petition
seeking to amend Supreme Court Rule 72.01, regarding record retention. A
public hearing on the petition was held on April 25, 2006. The Honorable
James R. Kieffer presented the petition on behalf of the Records
Management Committee and offered testimony in support of the
petition.
At the ensuing open administrative conference, the court voted
unanimously to adopt the petition. Accordingly, effective July 1, 2006,
SCR 72.01 (8) is amended as follows:
Section 1. 72.01 (8) of the Supreme Court Rules is
amended to read:
72.01 (8) Small claims case files. All papers deposited with the
clerk of courts in every proceeding commenced under chapter 799 of the
statutes: 20 years after entry of final order or judgment for
all cases, including contested cases, stipulated dismissals and
default judgments; 1 year except 2 years from
date of filing entry of judgment for
dismissed cases dismissed because issue was not
joined and the case was not disposed of by judgment or stipulation
within 6 months from the original return date.
IT IS ORDERED that this amendment shall apply to dismissed small
claims actions in which the judgment of dismissal is entered on or after
July 1, 2006.
IT IS FURTHER ORDERED that notice of this amendment of SCR 72.01 (8)
be given by a single publication of a copy of this order in the official
state newspaper and in an official publication of the State Bar of
Wisconsin.
Dated at Madison, Wis., this 1st day of May, 2006.
By the court:
Cornelia G. Clark
Clerk of Supreme Court
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Wisconsin Lawyer