Supreme Court Orders
The Wisconsin Supreme Court will hold public hearings on Sept. 9,
1997, at 1:30 p.m. in the Supreme Court Room in the State Capitol to
hear petitions to amend several rules of judicial
administration, to amend the rules of attorney
professional conduct governing attorney trust accounts and other
accounts for retaining funds held in a fiduciary capacity, and to
amend the supreme court rule regulating trial
publicity. Petitions regarding these subjects follow below;
appendices to the petitions may be obtained from the supreme court
clerk.
Electronic Data Dissemination
In the Matter of the Amendment of Supreme Court Rules: (Proposed)
SCR Chapter 75 - Electronic Data Dissemination
Order 96-16
The court held a public hearing May 6, 1997, on the petition of the
Director of State Courts requesting the adoption of rules governing
access to and release of electronic database information in the courts,
applicable to circuit and appellate courts and to the Office of the
Director of State Courts. At that hearing, several persons appeared in
opposition to the petition, in whole or in part, and Judge Gary L.
Carlson, on behalf of the petitioner, submitted a revised petition, to
which opposition was also expressed. A copy of the revised petition is
available from the office of the clerk of the court. Because of the
issues raised at the public hearing, the court wishes to have further
comment from interested persons on the matter, including the fundamental
issue identified by the court as whether there is a need for the
proposed rules to govern access to and release of electronic database
information in the courts in addition to the existing rules governing
access to and release of paper records.
IT IS ORDERED that the petition is held in abeyance for further
consideration.
IT IS FURTHER ORDERED that written comments, with eight copies
thereof, on the revised petition submitted at the public hearing may be
filed with the court on or before Sept. 2, 1997.
IT IS FURTHER ORDERED that a copy of this order shall be published in
the official state newspaper and in an official publication of the State
Bar of Wisconsin not more than 30 days following the date of the
order.
Dated at Madison, Wis., this 4th day of June, 1997.
By the court:
Marilyn L. Graves, Clerk
Rules of Judicial Administration
In the Matter of the Amendment of Supreme Court Rules: SCR 70.16 -
Definitions; SCR 70.21 - Additional Authority of the Chief Judge; SCR
70.28 - Trial Court Services; SCR 70.30 - Additional District Court
Administrators; SCR 70.31 - Assistant to the Chief Judge and District
Court Administrator; SCR 70.35 - Reserve Judge Eligibility; SCR 32.08 -
Reserve Judges; SCR 71.04 - Transcripts
Order 97-04
On March 17, 1997, the Director of State Courts filed a petition
seeking the amendment of numerous rules of judicial administration,
including the rules concerning the appointment of district court
administrators, the rules governing reserve judge eligibility, and the
rule governing transcripts of reporters' notes and other records of
court proceedings.
IT IS ORDERED that a public hearing on the petition be held in the
Supreme Court Room in the State Capitol, Madison, Wis., on Sept. 9,
1997, at 1:30 p.m.
IT IS FURTHER ORDERED that the court's conference in the matter shall
be held promptly following the public hearing.
IT IS FURTHER ORDERED that notice of the hearing be given by a single
publication of a copy of this order and of the petition in the official
state newspaper and in an official publication of the State Bar of
Wisconsin not more than 60 days nor less than 30 days before the date of
the hearing.
Dated at Madison, Wis., this 2nd day of June, 1997.
By the court:
Marilyn L. Graves, Clerk
Petition
The Director of State Courts hereby petitions the court, pursuant to
its administrative authority over all courts conferred by Article VII,
section 3 of the Wisconsin Constitution, to amend portions of SCR
Chapters 32, 70 and 71.
1.SCR 70.16 (2) is repealed.
2.SCR 70.16 (3) is repealed.
3.SCR 70.16 (4) is amended to read:
SCR 70.16 (4) "District court administrator" means a person who is a
state employee and qualified to provide administrative and technical
assistance. as well as to assist the chief judge in carrying
out duties and responsibilities.
4.SCR 70.16 (8) is amended to read:
SCR 70.16 (8) "Technical assistance" means assistance in trial court
administration with respect to records management; caseflow
management, ; court reporting management; jury
management, ; statistical analysis, ;
computerization, ; grant application and education of
support personnel.
5.SCR 70.21 (4) is amended to read:
SCR 70.21 (4) Sections 48.06(1)(a)) and 938.06(1)(a)2:
policy formulation and supervision of child court center court
services for juvenile matters.
6.SCR 70.21 (5) is amended to read:
SCR 70.21 (5) Sections 48.06(2) and 938.06(2): approval
of circuit judge's policy governing juvenile intake workers.
7.SCR 70.21 (6) is amended to read:
SCR 70.21 (6) Sections 48.065(1) and 938.065(1):
appointment of juvenile court commissioners.
8.SCR 70.21 (7) is amended to read:
SCR 70.21(7) Sections 48.067(6) and(9), 48.067(9),
938.067(6) and 938.067(9): guidance and assistance of juvenile
intake workers.
9.SCR 70.21 (8), as affected by Supreme Court Order 97-02 dated Jan.
13, 1997, is repealed.
10.SCR 70.21 (8e), as affected by Supreme Court Order 97-02 dated
Jan. 13, 1997, is repealed.
11.SCR 70.21 (8s) is created to read:
SCR 70.21 (8s) Sections 48.38(5) and 938.38(5): permanency planning
review panel involvement.
12.SCR 70.21 (9) is amended to read:
SCR 70.21 (9) Section 59.38(2) 59.40(1)(b): approval of
appointment of deputy clerks.
13.SCR 70.21 (11) is created to read:
SCR 70.21 (11) Section 751.025: court reporting management
involvement.
14.SCR 70.21 (15m) is repealed.
15.SCR 70.21 (16) is created to read:
SCR 70.21 (16) Section 756.001(5): designation of a circuit judge to
supervise the jury system.
16.SCR 70.21 (20) is created to read:
SCR 70.21 (20) Sections 938.22(1)(b) and (3)(a): approval of policy
and the appointment of superintendent of secure detention
facilities.
17.SCR 70.21 (20e) is created to read:
SCR 70.21 (20e) Sections 938.245(2) (a)8a, 938.32(1m)(a),
938.34(2m)(a), 938.342(1)(f)1, 938.343(2m)(a) and 938.344(2g)(a)4a:
approval of teen court programs.
18.SCR 70.21 (20m) is created to read:
SCR 70.21 (20m) Section 938.346(5): establishment of procedure for
notice to victims of juveniles' acts.
19.SCR 70.21 (26) is amended to read:
SCR 70.21 (26) Sections 48.29(1m), 345.315(1m), 799.205(2),
800.05(3), 801.58(2) and , 938.29(1m) and 971.20(8):
determination of substitution requests and reassignment of judges.
20.SCR 70.28(1) is repealed.
21.SCR 70.28(2) is repealed.
22.SCR 70.28(3) is repealed.
23.SCR 70.30 is repealed and recreated to read:
SCR 70.30 District court administrators;
creation.
(1) There are created the positions of district court administrator
for judicial administrative districts 1 through 10.
(2) The director of state courts may recommend the creation of
assistant district court administrator positions in one or more judicial
administrative districts.
24.SCR 70.31 is repealed.
25.SCR 70.35 is repealed and recreated to read:
SCR 70.35 Reserve judge eligibility.
(1) To be eligible for appointment as a reserve judge to perform
marriages, a person must be eligible pursuant to section 753.075(2),
Wis. Stats.
(2) To be eligible for appointment as a reserve judge to perform
judicial assignments, a person must:
(a) be eligible pursuant to section 753.075(2), Wis. Stats.;
(b) be eligible for appointment pursuant to SCR 32.08; and
(c) subject to sub. (3), have in force and on file with the office of
the director of state courts a written consent to eligibility for
appointment as reserve judge, which shall be renewed in writing for each
successive calendar year, in the following form;
"I, the undersigned, _____, in consideration of being eligible for
appointment and assignment as a reserve judge during calendar year ___,
hereby consent to be bound for such calendar year by the provisions of
the Code of Judicial Ethics (Supreme Court Rules chapter 60) applicable
to reserve judges."
A written consent to eligibility for permanent reserve judges shall
contain the following language: "In the event I am appointed a
'permanent reserve judge,' as that term is defined in section 753.075,
Stats., I hereby consent to be bound by all provisions of the Code of
Judicial Ethics (Supreme Court Rules chapter 60) from the date of that
appointment and until its expiration."
COMMENT: The ad hoc reserve judge committee's report states: The
committee considered the issue of whether persons appointed as
'permanent reserve judges,' that is, appointed to serve an assignment
for a period of six months, should be required to comply with all of the
provisions of the Code of Judicial Ethics, rather than just those
provisions now applicable to part-time judges. Because 'permanent
reserve judges' are, in effect, full-time judges and are so perceived by
the public, the committee recommends that they be bound by the Code of
Judicial Ethics to the same extent as full-time judges." The rule so
provides.
(3)If a consent is not renewed for a successive calendar year before
the end of the calendar year for which it has been filed, the person may
not file a consent under sub. (2)(c) for a period of six months from the
end of the calendar year for which the consent which was not renewed has
been filed.
(4)A person may withdraw in writing a consent to eligibility for
appointment as reserve judge filed with the office of the director of
state courts. If a consent is withdrawn, the person may not file a
consent under sub. (2)(c) for a period of six months from the effective
date of the withdrawal.
26.SCR 32.08 (1) is amended to read:
SCR 32.08 (1) To be eligible for appointment or reappointment as a
reserve judge to perform judicial assignments, a person otherwise
entitled to appointment shall earn 5 credits during the calendar year
immediately preceding appointment or reappointment. The director of
state courts shall determine the judicial education programs for which
the 5 credits may be earned. One credit is awarded for each half-day of
attendance at programs sponsored or approved by the judicial education
committee. Reserve judges are not required to comply with SCR 32.04.
27.SCR 71.04 (4) is amended to read:
SCR 71.04 (4) Reporters' notes or other verbatim record of
proceedings under chapters 48 and, 767, and 938 of
the statutes shall be transcribed only upon order of the court.
Respectfully submitted this 17th day of March, 1997.
J. Denis Moran
Director of State Courts
Safekeeping Property
In the Matter of the Amendment of Supreme Court Rules: SCR 20:1.15 -
Safekeeping Property
Order 97-05
On April 16, 1997, the Board of Governors of the State Bar of
Wisconsin and the Board of Attorneys Professional Responsibility filed a
petition seeking the amendment of the rule of attorney professional
conduct, SCR 20:1.15, governing attorney trust accounts and other
accounts for the retention of funds held in a fiduciary capacity. The
proposed rule amendments would permit attorneys to place trust funds in
income-generating investments in addition to holding them in trust
accounts, would permit attorneys to place sufficient funds in a trust
account to avoid the imposition of service charges on it, and would
require attorneys to maintain trust accounts in financial institutions
that are approved by the Board of Attorneys Professional Responsibility
as agreeing to report to the Board any properly payable instrument
presented against a lawyer trust account containing insufficient
funds.
IT IS ORDERED that a public hearing on the petition be held in the
Supreme Court Room in the State Capitol, Madison, Wis., on Sept. 9,
1997, at 1:30 p.m.
IT IS FURTHER ORDERED that the court's conference in the matter shall
be held promptly following the public hearing.
IT IS FURTHER ORDERED that notice of the hearing be given by a single
publication of a copy of this order and of the petition in the official
state newspaper and in an official publication of the State Bar of
Wisconsin not more than 60 days nor less than 30 days before the date of
the hearing.
Dated at Madison, Wis., this 2nd day of June, 1997.
By the court:
Marilyn L. Graves, Clerk
Petition
The Board of Governors of the State Bar of Wisconsin and the Board of
Attorneys Professional Responsibility having considered the American Bar
Association model rule on trust account overdraft notification, adopted
by its House of Delegates on Feb. 9, 1988, and attached hereto as
Appendix A; and the Board of Governors of the State Bar of Wisconsin and
the Board of Attorneys Professional Responsibility having voted at their
Jan. 23, 1996, and Oct. 30, 1995, meetings, respectively, to petition
the Supreme Court of Wisconsin for the adoption of both the ABA model
rule on overdraft notification and for certain other amendments to
Supreme Court Rule (SCR) 20:1.15, do hereby make this petition to the
Supreme Court and propose the following amendments to SCR 20:1.15:
1.SCR 20:1.15(a) is amended to read:
(a) A lawyer shall hold in trust, separate from the lawyer's own
property, property of clients or third persons that is in the lawyer's
possession in connection with a representation. Funds held in trust
include funds held in any fiduciary capacity in connection with a
representation, whether as trustee, agent, guardian, personal
representative or otherwise. All funds of clients paid to a lawyer
or law firm shall be deposited in one or more identifiable trust
accounts as provided in paragraph (c) maintained in a bank, trust
company, credit union or savings and loan association authorized to do
business and located in Wisconsin, which account shall be clearly
designated as "Client's Account" or "Trust Account" or words of similar
import, and no funds belonging to the lawyer or law firm except funds
reasonably sufficient to pay or avoid imposition of account
service charges may be deposited in such an account. Unless the client
otherwise directs in writing, securities in bearer form shall be kept by
the attorney in a safe deposit box in a bank, trust company, credit
union or savings and loan association authorized to do business and
located in Wisconsin, which safe deposit box shall be clearly designated
as "Client's Account" or "Trust Account" or words of similar import.
Other property of a client or third person shall be identified as such
and appropriately safeguarded. If a lawyer also licensed in another
state is entrusted with funds or property in connection with an
out-of-state representation this provision shall not supersede the trust
account rules of such other state.
2.SCR 20:1.15(c) is amended to read:
(c) Each trust account under this rule shall be an account in any
bank, trust company, credit union or savings and loan association,
selected in the exercise of ordinary prudence, authorized by federal or
state law to do business in Wisconsin and insured by the Federal Deposit
Insurance Corporation, the National Credit Union Share Insurance Fund,
the Wisconsin Credit Union Savings Insurance Corporation, or the Federal
Savings and Loan Insurance Corporation, and approved as provided in
paragraph (h). An interest-bearing trust account shall bear interest
at a rate no less than that applicable to individual accounts of the
same type, size and duration and in which withdrawals or transfers can
be made without delay when funds are required, subject only to any
notice period which the depository institution is required to observe by
law or regulation. Lawyers and law firms are subject to the
following:
(1)a.A lawyer who receives client funds shall maintain a pooled
interest-bearing trust account for deposit of client funds that are:
1.Nominal in amount or expected to be held for a short period of
time, or
2.Not deposited in an account or investment under paragraph (2),
or
3.Not eligible for an account or investment under paragraph (2)
because the client is a corporation or organization not permitted by law
to maintain such an account, or the terms of the account are not
consistent with a need to make funds available without delay.
b.The interest accruing on this account, net of any transaction
costs, shall be paid to the Wisconsin Trust Account Foundation, Inc.,
which shall be deemed the beneficial owner thereof. A lawyer may notify
the client of the intended use of these funds.
(2)A lawyer shall deposit all client funds in the account specific in
paragraph (1) unless they are deposited in any of the following:
a.A separate interest-bearing trust account for the particular client
or client's matter, the interest on which shall be paid to the client,
net of any transaction costs.
b.A pooled interest-bearing trust account with sub-accounting by the
financial institution, the lawyer or the law firm that will provide for
computation of interest earned by each client's funds and the payment
thereof to the client, net of any transaction costs.
c.An income-generating investment vehicle selected by the client and
designated in specific written instructions from the client, or
authorized by the court or other tribunal, on which income shall be
paid to the client, or as directed by the court or other
tribunal, net of any transaction costs.
d.An income-generating investment vehicle selected by the lawyer
and approved by a court where the lawyer serves as guardian for a ward,
pursuant to sections 880 and 881, Stats.
e.An income-generating investment vehicle selected by the lawyer
to protect and maximize the return on funds in a bankruptcy estate,
which investment vehicle is approved by the trustee in bankruptcy and by
a bankruptcy court order, consistent with 11 U.S.C. § 345.
e.f. A demand deposit or other noninterest-bearing
account for funds that are neither nominal in amount nor expected to be
held for a short term, provided the client specifically so directs.
(3)In deciding whether to use the account specified in paragraph (1)
or an account or investment specified in paragraph (2), a lawyer shall
determine, at the time of their deposit, only whether the client funds
could be utilized to provide a positive net return to the client by
taking into consideration all of the following:
a.The amount of income the funds would earn during the period they
are expected to be on deposit.
b.The cost of establishing and administering the account, including
the cost of the lawyer's services and the cost of preparing any tax
reports required for income accruing to a client's benefit.
c.The capability of financial institutions to calculate and pay
interest or other income to individual clients.
(4)The determination whether funds to be invested could be utilized
to provide a positive net return to the client rests in the sound
judgment of the lawyer or law firm. If a lawyer acts in good faith in
making this determination, the lawyer is not subject to any charge of
ethical impropriety or other breach of the rules of professional
conduct.
(5)For accounts created under paragraph (1), the lawyer or law firm
shall direct the depository institution to remit to the Wisconsin Trust
Account Foundation, Inc., at least quarterly, the interest or dividends,
net of any service charges or fees, on the average monthly balance in
the account or as otherwise computed in accordance with an institution's
standard accounting practice, together with a statement showing the name
of the lawyer or law firm for whose account the remittance is sent, the
rate of interest applied, the amount of service charges deducted, if
any, and the account balance for the period for which the report is
made, and to provide a copy of the statement to the owner of the
account.
3.SCR 20:1.15(h) through (o) are created to read:
(h)Lawyer trust accounts shall be maintained only in financial
institutions approved by the Board of Attorneys Professional
Responsibility.
(i)A financial institution shall be approved as a depository for
lawyer trust accounts if it shall file with the Board of Attorneys
Professional Responsibility an agreement, in a form provided by the
Board, to report to the Board in the event any properly payable
instrument is presented against a lawyer trust account containing
insufficient funds, irrespective of whether or not the instrument is
honored. The Board of Attorneys Professional Responsibility shall
establish rules governing approval and termination of approved status
for financial institutions and shall annually publish a list of approved
financial institutions. No trust account shall be maintained in any
financial institution which does not agree to make such reports. Any
such agreement shall apply to all branches of the financial institution
and shall not be canceled except upon thirty (30) days notice in writing
to the Board.
(j)The overdraft notification agreement shall provide that all
reports made by the financial institution shall be in the following
format:
(1)In the case of a dishonored instrument, the report shall be
identical to the overdraft notice customarily forwarded to the depositor
and should include a copy of the dishonored instrument, if such a copy
is normally provided to depositors.
(2)In the case of instruments that are presented against
insufficient funds but which instruments are honored, the report shall
identify the financial institution, the lawyer or law firm, the account
number, the date of presentation for payment and the date paid, as well
as the amount of overdraft created thereby.
Such reports shall be made simultaneously with and within the time
provided by law for notice of dishonor, if any. If an instrument
presented against insufficient funds is honored, then the report shall
be made within five (5) banking days of the date of presentation for
payment against insufficient funds.
(k)The Board shall hold each overdraft report for ten business
days to enable the financial institution to withdraw a report provided
by inadvertence or mistake, except that the curing of an insufficiency
of available funds by a lawyer or law firm by the deposit of additional
funds shall not constitute reason for withdrawing an overdraft
report.
(l)Every lawyer practicing or admitted to practice in Wisconsin
shall, as a condition thereof, be conclusively deemed to have consented
to the reporting and production requirements mandated by this
rule.
(m) Nothing herein shall preclude a financial institution from
charging a particular lawyer or law firm for the reasonable cost of
producing the reports and records required by this rule.
(n)Nothing in this rule shall create a liability or claim in favor
of a third party against a financial institution or its representative
for failure to provide a trust account overdraft notification.
(o)Definitions: "Financial Institution" is defined as those
institutions enumerated in SCR 20:1.15(a) and(c).
"Properly payable" refers to an instrument which, if presented in
the normal course of business, is in a form requiring payment under the
laws of Wisconsin.
"Notice of dishonor" refers to the notice which a financial
institution is required to give, under the law of Wisconsin, upon
presentation of an instrument which the institution dishonors.
Rationale for Proposed Amendments to SCR 20:1.15(a) and
(c)
A revision in SCR 20:1.15(a) will clarify that the rule applies to
funds held in any fiduciary capacity by the lawyer, whether the account
is labeled as a client trust account, estate account, guardianship
account or otherwise.
It also needs to be clear to lawyers that trust funds can be placed
in an income-generating investment, such as a treasury bill or an
investment in a brokerage house, as an alternative to depositing it in a
bank, trust company, credit union or savings and loan association. While
the option to utilize an income-generating investment vehicle exists in
current SCR 20:1.15(c)(2)c, the language in both SCR 20:1.15(a) and (c)
limiting the financial institutions in which trust funds may be placed
to banks, trust companies, credit unions and savings and loans, can
conflict with the duty to maximize the return, such as in guardianship
or bankruptcy cases. The petitioner Boards recommend amending SCR
20:1.15(c) to provide flexibility and an opportunity to maximize the
return for the client, while at the same time maintaining the safety of
the property. In addition, the proposed amendments would avoid any
conflict between the rule and other laws, such as 11 U.S.C. § 345,
under which funds of a bankruptcy estate must be deposited or invested
to yield the maximum reasonable net return on such money available.
Under the proposed amendment, either the client's written
instructions or a court order will be a basis for exempting the lawyer
from placing the trust funds in a trust account per se. The
proposed amendments in no way diminish the importance of Wisconsin's
IOLTA program, whereby interest on trust account funds that are nominal
in amount or expected to be held short-term is used for the benefit of
the programs supported by the Wisconsin Trust Account Foundation.
The petitioner Boards also propose an amendment in SCR 20:1.15(a)
permitting a lawyer to place sufficient funds in a trust account in
order to avoid the imposition of service charges on the account.
Currently, the rule permits the lawyer to place sufficient funds in the
account to pay service charges. By amending the rule to include the
lawyer's ability to meet the minimum balance of the financial
institution to avoid a service charge on the account, the lawyer will be
able to take care of the service charge obligation in advance if the
institution imposes such charges on trust accounts. The petitioner
Boards do not believe that placement of the minimum balance required by
the bank into the trust account out of the lawyer's own funds in order
to avoid such charges should be deemed a violation of SCR 20:1.15(a),
and should be considered an alternative to, and the equivalent of,
payment of service charges, which is currently permitted by the rule.
Obviously, to avoid commingling, the lawyer is required to monitor the
account to ensure that whenever there is a minimum balance payment into
the account, it is preserved as just that is not used for any other
purpose. The petitioners propose an addition to the Comments to SCR
20:1.15 which would state: "A lawyer's funds may be deposited into a
trust account only for the purpose of paying or avoiding service
charges. The minimum deposit required by the financial institution in
which the account is placed should be the lawyer's guide in complying
with this rule."
Rationale for proposed creation of SCR 20:1.15(h) through
(o)
The petitioner Boards believe that the addition of paragraphs
20:1.15(h) through 20:1.15(o) will constitute a device by which some
misconduct that would otherwise be undiscovered will be detected, and,
in other cases, will result in education of the lawyers involved. The
most ameliorative aspect of having the Board of Attorneys Professional
Responsibility (BAPR) receive a copy of the same overdraft notice
ordinarily sent to the lawyer is that it will be an early-warning system
to the lawyer and BAPR of a possible problem, which may be simply an
error in recordkeeping or may be the result of serious misconduct, such
as misappropriation. Too often, overdrawn trust or other fiduciary
accounts are discovered at a point in time when it is too late to take
remedial steps to protect monies of clients or third parties entrusted
to the lawyer.
Under paragraph (1), BAPR will hold the notice from the bank for ten
days to enable the financial institution to withdraw a report provided
in error, and will then provide the lawyer an opportunity to explain how
the overdraft occurred. Investigations will be initiated only in the
event of possible misconduct, rather than a mistake by the lawyer.
The petitioner Boards have added paragraph (n) to avoid unwarranted
problems for financial institutions concerning liability to third
persons. This was a concern voiced in the financial institutions'
opposition to BAPR's first petition for overdraft notification. The
petitioner Boards believe they have appropriately addressed that
concern.
Fiscal impact note: The fiscal impact of the
proposed procedure would be that the lawyer whose account is overdrawn
would pay for the additional copy of the notice sent to BAPR. Also, BAPR
would likely need one additional staff person to review the notices. The
range of investigator salaries, plus fringe benefits, is between $38,080
and $43,867, depending on experience. This is less than the amount by
which BAPR's assessment was reduced in Fiscal Year 1995-96, resulting in
a $4 per lawyer savings in that year, as compared to Fiscal Year
1994-95.
An overdraft is a warning signal deserving of professional concern,
since client funds should not normally be overdrawn and are required to
be preserved. The petitioner Boards support this proposal and believe
that the public will receive greater protection by having this tool of
detection in place in Wisconsin.
The petition has also taken into consideration the work of the two
Boards' joint committee, whose report is attached hereto as Appendix
B.
Conclusion
Wherefore, the petitioner Boards submit that the proposed amendments
will assist the profession in providing additional protection for funds
held by Wisconsin lawyers in a fiduciary capacity and make clear the
various alternatives for maximizing the return on client funds.
David Saichek, President
State Bar of Wisconsin
Adrian P. Schoone, Chair
Board of Attorneys Professional
Responsibility
Trial Publicity
In the Matter of the Amendment of Supreme Court Rules: SCR 20:3.6 -
Trial Publicity
Order 97-06
On May 2, 1997, the Wisconsin Association of Criminal Defense Lawyers
filed a petition seeking to amend SCR 20:3.6 regulating trial publicity
to authorize a lawyer to make a statement reasonably believed necessary
to protect a client from substantial undue prejudicial publicity not
initiated by the lawyer or the client.
IT IS ORDERED that a public hearing on the petition be held in the
Supreme Court Room in the State Capitol, Madison, Wis., on Sept. 9,
1997, at 1:30 p.m.
IT IS FURTHER ORDERED that the court's conference in the matter shall
be held promptly following the public hearing.
IT IS FURTHER ORDERED that notice of the hearing be given by a single
publication of a copy of this order and of the petition in the official
state newspaper and in an official publication of the State Bar of
Wisconsin not more than 60 days nor less than 30 days before the date of
the hearing.
Dated at Madison, Wis., this 2nd day of June, 1997.
By the court:
Marilyn L. Graves, Clerk
Petition
To the Justices of the Wisconsin Supreme Court:
The Wisconsin Association of Criminal Defense Lawyers, a membership
organization of Wisconsin lawyers who defend persons accused of criminal
law violations, hereby petitions the Wisconsin Supreme Court to amend
SCR 20:3.6, relating to trial publicity, to add the following
language:
"(d) Notwithstanding paragraphs (a)-(c), a lawyer may make a
statement that a reasonable lawyer would believe is required to protect
a client from the substantial undue prejudicial effect of recent
publicity not initiated by the lawyer or the lawyer's client. A
statement made pursuant to this paragraph shall be limited to such
information as is necessary to mitigate the recent adverse
publicity."
When the current Rules of Professional Conduct for Attorneys were
adopted in 1988, SCR 20:3.6 was a hybridization of the ABA Model
Rules of Professional Conduct, Rule 3.6 and the ABA Standards
for Criminal Justice Fair Trial and Free Press (1978), Standard
8-1.1. Neither the ABA Rule nor the ABA Standard contained the requested
provision in 1988, inasmuch as the language in proposed subsection (d)
was not added to the ABA Model Rules until 1994. The ABA Model Code
of Professional Responsibility (1986), DR7-107, also lacked a
similar provision.
During this same time period, lawyers who sought to protect their
clients from adverse pretrial publicity arising from criminal charges
found themselves threatened with rule violations related to "trial
publicity" for trying to correct the public record. Provisions in
DR7-107 that were the basis for possible disciplinary charges against
lawyers who spoke publicly about pending litigation were questioned in
Chicago Council of Lawyers v. Bauer, 522 F.2d 242 (7th Cir.
1975), for being unduly restrictive of lawyers' free speech rights under
the First Amendment to the United States Constitution.
First Amendment concerns were again raised in Gentile v. State
Bar of Nevada, 501 U.S. 1030 (1991). There, a lawyer who sought to
protect his client from the adverse publicity surrounding a criminal
investigation by disclosing limited rebuttal information was disciplined
for violating the trial publicity rule. He defended, claiming First
Amendment protection for his speech and compliance with the existing
rules.
As a result of the Supreme Court's split decision in Gentile
and the confusion over the interplay between the need for client
protection, a fair trial and the free speech rights of lawyers, ABA
Model Rule 3.6 was amended in 1994 to its current form to include the
provision which is the subject of this petition. The amendment was
co-sponsored by the ABA Standing Committee on Ethics and Professional
Responsibility and the ABA Section of Criminal Justice. The Comment to
the new ABA Model Rule 3.6 recognized the First Amendment concerns and
specifically addressed the need for the requested provision:
"Finally, extrajudicial statements that might otherwise raise a
question under this Rule may be permissible when they are made in
response to statements made publicly by another party, another party's
lawyer, or third persons, where a reasonable lawyer would believe a
public response is required in order to avoid prejudice to the lawyer's
client. When prejudicial statements have been publicly made by others,
responsive statements may have the salutary effect of lessening any
resulting adverse impact on the adjudicative proceeding. Such responsive
statements should be limited to contain only such information as is
necessary to mitigate undue prejudice created by the statements made by
others."
The Comment noted the absence of this provision in DR7-107 in its
comparative analysis.
"Finally, Rule 3.6 authorizes a lawyer to protect a client by making
a limited reply to adverse publicity substantially prejudicial to the
client."
The requested provision was added to ABA Model Rule 3.6 in 1994 to
address concerns raised in Gentile that the Rule was
unconstitutionally vague. See, ABA Annotated Model Rules of
Professional Conduct (3rd ed., 1996) "Legal Background, The Effect
of the 1994 Amendments" at 351. The provision was not included in Rule
3.6 when the ABA Standards for Criminal Justice, Fair Trial
Free Press were revised in 1978 or when the current revision was
passed in 1992.
Addition of the requested provision will bring Wisconsin's own
professional responsibility rules on trial publicity found in SCR 20:3.6
into conformity with the current ABA Model Rule.
Dated at Milwaukee, Wis., this 28th day of April, 1997.
James A. Walrath, President
Wisconsin Association of Criminal Defense Lawyers
Wisconsin Lawyer