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.

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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