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    Wisconsin Lawyer
    July 01, 2007

    Profile: Basting Strikes a Chord

    In the aftermath of the most recent supreme court election, Thomas Basting's vow to work to reform how judicial campaigns are conducted prompted an ovation from lawyers and others attending his swearing-in ceremony. Other issues he will advance while State Bar president include implementing the Access to Justice Study Committee's recommendations to make civil legal services available to low-income people and protecting consumers from nonlawyers who give legal advice.

    Dianne Molvig

    Wisconsin LawyerWisconsin Lawyer
    Vol. 80, No. 7, July 2007

    Tom BastingIn his legal career, Thomas Basting has seen his share of comings and goings. He's experienced a few such transitions himself.

    For instance, on the last day of 2005, he left the firm where he'd arrived as a rookie lawyer in 1962. Back then, "Glen Campbell convinced me I'd enjoy being in Janesville and practicing with a small law firm," recalls Basting, who came on board as the firm's fifth lawyer.

    Over the years, the firm eventually evolved into Brennan, Steil & Basting, with 21 attorneys and offices in Janesville and Madison.

    When Basting retired from the firm that had come to bear his name, he entered the next phase of his professional life. He moved from Janesville to Madison and launched Midwest Mediation LLC, along with friend and former Dane County circuit court judge Gerald Nichol. They do mediation and arbitration around the state.

    In Basting's 45 years as a Wisconsin lawyer, he's seen 45 State Bar presidents come and go, as well. Now he's the latest to take the helm, having been sworn in at the State Bar convention on May 10 in front of colleagues, long-time friends, and his family, including his wife, Sally, and their three children: Thomas Jr., a Minneapolis lawyer; Ellen Basting Dizard, a Milwaukee lawyer; and Anne Basting, a theater professor at U.W.-Milwaukee and director of the Center on Age and Community.

    In his acceptance speech, Basting laid out three key initiatives he hopes to advance during his tenure as president. His mention of one of those initiatives triggered an especially enthusiastic response from the crowd.

    Prime Time

    Basting, 70, says this is a good point in his career to take on the extra duties of the State Bar's presidency - even though he has his mediation practice to run; he still serves as retained counsel for three state entities (the Office of Lawyer Regulation, the Wisconsin Judicial Commission, and the Wisconsin Ethics Board); he continues the work he started as State Bar president-elect in educating lawyers about the recent changes in the professional rules of conduct that came out of the Ethics 2000 Committee, for which he was vice chair; and he tries to fit in as much time as possible for bicycling, canoeing, kayaking, golfing, photography, reading, community service, and six grandchildren.

    "This is a great time for me to be Bar president," he says. "I don't have the constant pressures of law practice that a lot of lawyers who have taken this position before me have had."

    Basting knows those pressures well, having spent more than four decades in private practice, all at the same firm. A lifelong Wisconsin resident, Basting grew up in Milwaukee, where he had no exposure to the legal profession in his formative years. "The closest I came to it was that my mother once had been employed as a legal secretary," he says.

    He graduated from Marquette University with majors in English and chemistry and had his sights set on attending medical school. By the end of college, however, he'd discovered he'd prefer not to spend the rest of his life in the sciences. "I decided law school was a better choice for me," he says.

    He had a few what-am-I-doing-here moments while a 1L at the U.W. Law School. But in his second year in Prof. Willard Hurst's legislation class, Basting felt truly inspired and realized that the field of law was right where he belonged.

    Thus began a long career in commercial, personal injury, and criminal defense litigation. Basting also gained a reputation as being extremely knowledgeable about legal ethics. He often acts as a consultant to colleagues on questions of conflict of interest and other matters related to professional conduct.

    He brings all these varied experiences to his new career as a mediator and arbitrator - and to his stint as State Bar president. To the latter he also brings a list of what he plans to focus on in his one-year term.

    "It's not a new laundry list," Basting points out. "I think the Bar staff breathed a sigh of relief when I mentioned the three things I want to work on because these are already on the table."

    Closing the Justice Gap

    The first of the three initiatives Basting has highlighted for the coming year is closing the justice gap of unmet civil legal needs of low-income people, a topic discussed in two Wisconsin Lawyer articles in the April and July 2007 issues. Basting says he was gratified to see the Board of Governors' support for the Access to Justice Study Committee's recommendations at the board's May meeting.

    "After considerable debate, the Board of Governors adopted the committee's recommendations in full," he says. As he watched and listened to the vigorous debate, the old advice came to mind that "you don't want to know how they make sausage," Basting jokes. "But the result is great."

    The board then instructed Basting to call on State Bar committees to develop strategies to implement the recommendations to improve access to the justice system. "I don't have any fantasies that I can come back after one year and say, `Okay, we got that done,'" he acknowledges. "But we can begin to move the ball forward to get the Access to Justice Commission appointed and to begin the process of getting money into the state budget" to fund civil legal services for low-income people.

    Basting began helping with the implementation while still State Bar president-elect, when he and other Bar leaders met with Department of Administration Secretary Michael Morgan to discuss the Access to Justice Study Committee findings and recommendations to support a proposal for $1 million for civil legal services for low-income families, which was added to Gov. Jim Doyle's budget. The fate of that measure ultimately will be in legislators' hands.

    "Whether it will survive, I don't know," Basting says. "But I'm hoping to get even more money into the budget for the next biennium."

    Protecting Legal Consumers

    When people can't find legal help they can afford, they simply may go without or, equally risky, turn to someone who purports to be a lawyer or the equivalent but has no legal training.

    For instance, businesses calling themselves "notarios" have sprung up in Wisconsin, especially in the Milwaukee area. In many Latin American countries, a notario is a lawyer often with specialized training. In the United States, a notario may be someone who merely registers as a notary public, which nearly anyone can do, and hangs out a shingle.

    This is a problem Basting intends to address. "It's what we have been calling, to my consternation, the `unauthorized practice of law,'" he says. "I prefer to call it `legal services consumer protection.'"

    The unauthorized practice of law (UPL) issue has been around for a long time. Although many people may see the legal profession's concern about nonlawyers giving legal advice as an attempt to protect lawyers' turf, that misses the point, Basting contends. He's not looking, for instance, to stop staff at domestic abuse shelters from helping their clients deal with the legal system. His concern is about people being led to believe they're getting real legal help, when in fact that help is coming from someone with no legal expertise or training.

    Basting served on the State Bar's Unauthorized Practice of Law Committee, which in a multiyear study asked lawyers and various agencies around the state to report instances when people had been harmed by nonlawyers giving legal advice. "We found many, many such instances," Basting reports.

    At the same time, the UPL Committee, like the Access to Justice Study Committee, recognizes the valuable role nonlawyers play in meeting civil legal needs of poor people. "A good example is the state's benefits specialists," Basting notes. "They are not lawyers, but they're supervised by lawyers."

    In light of the committee's findings, last month the State Bar filed a petition with the Wisconsin Supreme Court to adopt the Legal Services Consumer Protection Act. The petition asks the court to, first, define the "practice of law" in civil legal matters for consumer protection purposes. Second, it asks the court to create an administrative system to enforce the new rule by empowering the Office of Lawyer Regulation to investigate UPL-related consumer complaints and, if necessary, bring a civil action. In the state of Washington, for instance, creating such channels for consumer action has helped to reduce the UPL problem. Providers of questionable legal services often choose to close shop rather than face a lawsuit.

    Currently in Wisconsin, someone who is harmed in some way by a nonlawyer's faulty advice "has no place to go," Basting says. "You could go to a lawyer, but the lawyer's hands are tied because there isn't a procedure, other than suing for damages. That's probably not going to get you very far because most of these operations are fly by night."

    Cleaning Up Judicial Campaigns

    Basting listed one more issue during his swearing-in speech that he wants to work on in the coming year: judicial campaign reform. This was the issue that prompted the audience to burst into applause.

    He says he was appalled - as he surmises were many lawyers and members of the general public - at the nature of the advertising and the third-party-sponsored ads during the latest supreme court campaign. "It really got ugly," he says.

    The campaign's tone drew criticism from outside the state, as well, Basting told the crowd listening to his speech. He spoke of reading an op-ed piece by Burt Brandenburg from Justice at Stake, a nonprofit organization based in Washington, D.C., which hailed Wisconsin as joining an "elite national club" of states where judicial elections have become battlegrounds for partisan and special-interest groups.

    "This situation is destroying the whole concept of fair and impartial courts," Basting contends. "I want to take a leadership role in trying to get the Bar to do something about that."

    What can the State Bar do? It's already taking one action: advocating for Senate Bill 171 in the state legislature. The Bar is a proponent of the bill, and Basting testified in favor of it at a senate committee hearing in early May.

    The bill "could level the playing field," Basting explains, by providing campaign funds to supreme court candidates from the state's general-purpose revenues. A candidate could turn down special-interest money and instead use the general-purpose funds to help finance campaign ads.

    Besides taking an advocacy role in the political arena, Basting cites another action the Bar could take toward judicial campaign reform. He wants to create an ad-watch task force, which he describes as "an all-star panel of public and legal scholars."

    Their task would be to review judicial campaign materials and advertising and to speak out on campaign statements that impugn the integrity of the judicial system or the candidates or that erode public confidence in the independence of the judiciary. Think of it as a "back at you" effort, Basting says, that would push campaigns and special interest groups to stay honest in their claims and allegations.

    Coupled with that, the State Bar could ask judicial candidates to sign an agreement to abide by rules, as set forth by the task force, to keep their campaigns clean. The candidates would agree to take personal responsibility for the content of campaign advertising. This approach is modeled after an effort the Ohio State Bar Association launched in that state.

    "We'd ask candidates to sign this agreement," Basting explains, "and if they don't, they may do so at their peril - especially if their opponent does sign it."

    Taking the lead on such actions to reform judicial campaigns is a natural fit for the State Bar, in Basting's view. It's a matter of holding the judiciary to the same standards that apply to the rest of the legal profession.

    "I was a trial lawyer for 40 years," Basting says, "and every time I walked into a courtroom - whether it was a trial court, or appellate court, or the state supreme court - every judge expected me to act within the rules of decorum they created. They expected me to be civil; they expected the public to be civil.

    "I think the public and lawyers ought to expect the same thing from lawyers when they are judicial candidates. We ought to say to them, `You have to act with integrity and civility toward each other and toward the public. If you expect us to act that way, we expect you to act that way.'"

    Dianne Molvig operates Access Information Service, a Madison writing and editing service. She is a frequent contributor to area publications.

     

    Wisconsin Lawyer


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