Supreme Court Orders
The Wisconsin Supreme Court sets a public hearing for Oct. 19 to
consider special responsibilities of a prosecutor concerning trial
publicity; and denies a petition, following a public hearing on May 24,
to amend certain supreme court rules regarding Board of Bar Examiners
records and multistate bar examination scores.
Special Responsibilities of a Prosecutor
In the Matter of the Amendment of Supreme Court Rules:
SCR 20:3.6 - Trial Publicity; 20:3.8 -
Special Responsibilities of a Prosecutor
Order 97-06
At conference following the public hearing Sept. 9, 1997, on the
petition of the Wisconsin Association of Criminal Defense Lawyers for
the amendment of Supreme
Court Rule 20:3.6 concerning trial publicity, the court expressed
interest in issues involving trial publicity that have been addressed by
the U.S. Supreme Court and Rule 3.6 of the ABA Model Rules of
Professional Conduct but were not included in the rule petition. The
court determined that the petition be held in abeyance in order that the
petitioner could explore those and other issues with the State Bar, the
Board of Attorneys Professional Responsibility, and other interested
persons, including prosecutors, judges, and the civil bar, and file a
report with the court or, in the alternative, file an amended petition
proposing additional amendments to SCR 20:3.6.
On May 14, 1999, the Wisconsin Association of Criminal Defense
Lawyers filed an amended petition proposing additional amendments to SCR
20:3.6 and the creation of an additional provision in SCR
20:3.8 concerning special responsibilities of a prosecutor.
IT IS ORDERED that a public hearing on the amended petition shall be
held in the Supreme Court Hearing Room, 119 Martin Luther King Jr.
Blvd., Madison, Wis., on Oct. 19, 1999, 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 23rd day of June, 1999.
By the court:
Marilyn L. Graves, Clerk
Amended 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 amends its petition in this matter, filed May 2,
1997, and petitions the Wisconsin Supreme Court to amend SCR 20:3.6 and
20:3.8 as follows:
SCR 20:3.6 Trial Publicity
(a) A lawyer who is participating in the investigation or
litigation of a matter shall not make an extrajudicial statement
that a reasonable person would expect to be disseminated by means of
public communication if the lawyer knows or reasonably should know that
it will have a substantial likelihood of materially prejudicing an
adjudicative proceeding in the matter.
(b) A statement referred to in paragraph (a) ordinarily is
likely to have such an effect when it refers to a civil matter triable
to a jury, a criminal matter, or any other proceeding that could result
in incarceration, and the statement relates to:
(1) the character, credibility, reputation or criminal record
of a party, suspect in a criminal investigation or witness, or the
identity of a witness, or the expected testimony of party or
witness;
(2) in a criminal case or proceeding that could result in
deprivation of liberty, the possibility of a plea of guilty to the
offense or the existence or contents of any confession, admission, or
statement given by a defendant or suspect or that person's refusal or
failure to make a statement;
(3) the performance or results of any examination or test or
the refusal or failure of a person to submit to an examination or test,
or the identity or nature of physical evidence expected to be
presented;
(4) any opinion as to the guilt or innocence of a defendant
or suspect in a criminal case or proceeding that could result in
deprivation of liberty;
(5) information the lawyer knows or reasonably should know is
likely to be inadmissible as evidence in a trial and would if disclosed
create a substantial risk of prejudicing an impartial trial;
or
(6) the fact that a defendant has been charged with a crime,
unless there is included therein a statement explaining that the charge
is merely an accusation and that the defendant is presumed innocent
until and unless proven guilty;
(c) (b) Notwithstanding paragraph (a) and
(b)(1-5), a lawyer involved in the investigation or
litigation of a matter may state without
elaboration:
(1) the general nature of the claim or defense
claim, offense or defense involved and, except when prohibited by law,
the identity of the persons involved;
(2) the information contained in a public record;
(3) that an investigation of the matter is in progress,
including the general scope of the investigation, the offense or
claim or defense involved and, except when prohibited by law, the
identity of the persons involved;
(4) the scheduling or result of any step in litigation;
(5) a request for assistance in obtaining evidence and information
necessary thereto;
(6) a warning of danger concerning the behavior of a person involved,
when there is reason to believe that there exists the likelihood of
substantial harm to an individual or to the public interest; and
(i) the identity, residence, occupation and family status of the
accused;
(ii) if the accused has not been apprehended, information necessary
to aid in apprehension of that person;
(iii) the fact, time and place of arrest; and
(iv) the identity of investigating and arresting officers or agencies
and the length of the investigation.
(c) Notwithstanding paragraph (a), 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.
(d) No lawyer associated in a firm or government agency with a
lawyer subject to paragraph (a) shall make a statement prohibited by
paragraph (a).
Rule 3.8 Special Responsibilities of a
Prosecutor
The prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the prosecutor knows is
not supported by probable cause;
(b) make reasonable efforts to assure that the accused has been
advised of the right to, and the procedure for obtaining, counsel and
has been given reasonable opportunity to obtain counsel;
(c) not seek to obtain from an unrepresented accused a waiver of
important pretrial rights, such as the right to a preliminary
hearing;
(d) make timely disclosure to the defense of all evidence or
information known to the prosecutor that tends to negate the guilt of
the accused or mitigates the offense, and, in connection with
sentencing, disclose to the defense and to the tribunal all unprivileged
mitigating information known to the prosecutor, except when the
prosecutor is relieved of this responsibility by a protective order of
the tribunal;
(e) exercise reasonable care to prevent investigators, law
enforcement personnel, employees or other persons assisting or
associated with the prosecutor in a criminal case from making an
extrajudicial statement that the prosecutor would be prohibited from
making under Rule 3.6; and
(f) except for statements that are necessary to inform the public
of the nature and extent of the prosecutor's action and that serve a
legitimate law enforcement purpose, refrain from making extrajudicial
comments that have a substantial likelihood of heightening public
condemnation of the accused.
This amended petition aims, among other things, to resolve First
Amendment concerns 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 Rules 3.6 and 3.8 were amended in 1994 to their current form to
include the provisions which are the subject of this amended petition.
The amendments were cosponsored by the ABA Standing Committee on Ethics
and Professional Responsibility and the ABA Section of Criminal
Justice.
Addition of the requested provisions will bring Wisconsin's own
professional responsibility rules on trial publicity in SCR 20:3.6 and
20:3.8 into conformity with the current ABA Model Rules and the
comparable rules of other states that have adopted the 1994 ABA
amendments.
Dated at Milwaukee, Wis., this 29th day of April, 1999.
Ellen Thorn, President
Wisconsin Association of Criminal Defense Lawyers
James A. Walrath, Past President
Wisconsin Association of Criminal Defense Lawyers
Board of Bar Examiners Records
In the Matter of the Amendment of Supreme Court Rules:
Board of Bar Examiners Records, Transfer of
Multistate Bar Examination Scores - SCR 40.12,
(Proposed) SCR 30.03, (Proposed) SCR 40.04(2)(b)
Order 98-09
The court held a public hearing May 24, 1999, on the petition of
Steven Levine seeking the amendment of the Supreme Court Rules to repeal
the provision, SCR
40.12, making application files of the bar admission applicant and
all bar examination materials confidential, to create a rule making all
records of the Board of Bar Examiners subject to the Wisconsin public
records law, and to permit an applicant for bar admission on examination
to use the score obtained on a multistate bar examination previously
taken in another jurisdiction within five years of the application in
place of repeating the multistate portion of the Wisconsin bar
examination, provided the score on the previously taken examination was
equal to or better than the minimum passing score in Wisconsin for the
same year in which that examination was taken. The court has considered
the presentations at that public hearing and the materials filed with
the court in the matter.
At conference following the public hearing, the court determined that
the interest in the information contained in the bar admission
application records of the Board of Bar Examiners can be satisfied by
having the Board provide a statistical information sheet to be submitted
with but not be a part of the bar admission application. The information
set forth on the statistical information sheet would be available for
public inspection. Accordingly, the court directed the Board of Bar
Examiners to provide the court a list of the information that would be
solicited on the statistical information sheet.
IT IS ORDERED that the petition is denied.
IT IS FURTHER ORDERED that notice of the court's decision in this
matter 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 7th day of July, 1999.
By the court:
Cornelia G. Clark
Chief Deputy Clerk
Wisconsin Lawyer
