Wisconsin Lawyer
Vol. 78, No. 12, December
2005
Supreme Court Orders
The Wisconsin Supreme Court will hold
an open administrative conference on Feb. 28, 2006, to discuss Wisconsin
Ethics 2000 Committee petition to amend Supreme Court Rules Chapter 20 -
Rules of Professional Conduct for Attorneys. In addition, the court
amended Supreme Court Rules affecting appellate court
procedures and amended the rules of evidence to conform to the Federal
Rules of Evidence.
Rules of Professional Conduct - Feb.
28 Hearing
In the matter of the Petition for Amendment to Supreme Court
Chapter 20 _ Rules of Professional Conduct for Attorneys
Order 04-07
On July 29, 2004, the Wisconsin Ethics 2000 Committee filed a
petition seeking to amend Supreme Court Rules Chapter 20, the Rules of
Professional Conduct for Attorneys. On Feb. 17, 2005, the court
conducted a public hearing on the petition, in which numerous persons
participated. At the open administrative conference immediately
following the hearing the court acknowledged the importance of the
Ethics 2000 Committee's report and the far-reaching implications of its
proposal. The court resolved to consider various aspects of the petition
at a series of future open administrative conferences. Therefore,
IT IS ORDERED that on Feb. 28, 2006, at 9:30 a.m., at its open
administrative conference in the Supreme Court Room in the State
Capitol, Madison, Wis., the court shall discuss (Proposed) SCR 20:1.5
(Fees).
IT IS FURTHER ORDERED any interested persons may file with the court
a written submission regarding the subjects identified for this
conference no later than Feb. 14, 2006. As this matter has already been
the subject of a public hearing, general public testimony will not be
entertained at the open conference. The court may direct questions to
individuals present at the conference to aid the court's consideration
of these matters.
IT IS FURTHER ORDERED that notice of this conference shall 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
not more than 60 days nor less than 30 days before the date of the
hearing.
Dated at Madison, Wis., this 4th day of October, 2005.
By the court:
Cornelia G. Clark
Clerk of Supreme Court
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Rules of Evidence
In the matter of Amendment of the Rules of Evidence: Wis. Stat.
§§ 908.03(6), 909.02(12) and 909.02(13), Related to Domestic
and Foreign Records of Regularly Conducted Activity
Order 04-09
On Oct. 25, 2004, Jason J. Hanson, on behalf of the Dane County
District Attorney's Office, filed a petition, as amended on Jan. 10,
2005, seeking to amend Wis. Stat. § 908.03(6), and to create Wis.
Stat. §§ 909.02(12) and 909.02(13), relating to domestic and
foreign records of regularly conducted activity. A public hearing on the
petition was conducted on March 15, 2005. At the ensuing open
administrative conference the court requested some additional
information, which Attorney Hanson provided to the court.
By letter dated Aug. 11, 2005, the court solicited comment on the
petition from the Office of the State Public Defender, the State Bar of
Wisconsin, the Judicial Council, the Dean of the Marquette University
Law School, and the Dean of the U.W. Law School. The State Public
Defender provided comments on the petition by letter dated Oct. 12,
2005. The Judicial Council provided certain comments and recommended
adoption of the petition. No objection to the proposal was received.
At its open administrative conference on Oct. 25, 2005, the court
discussed the petition again, including the question whether a time
certain, rather than a "fair opportunity to challenge" would be
appropriate in proposed s. 909.02(12). Ultimately, the court agreed with
the Judicial Council's conclusion that the "fair opportunity to
challenge" language provides better guidance to courts and litigants.
The court voted unanimously to adopt the petition with certain changes,
effective Jan. 1, 2006, as follows:
Section 1. 908.03(6) of the statutes is amended to read:
908.03 (6) Records of regular conducted activity. A memorandum,
report, record, or data compilation, in any form, of acts, events,
conditions, opinions, or diagnoses, made at or near the time by, or from
information transmitted by, a person with knowledge, all in the course
of a regularly conducted activity, as shown by the testimony of the
custodian or other qualified witness, or by certification that
complies with s. 909.02(12) or (13), or a statute permitting
certification, unless the sources of information or other
circumstances indicate lack of trustworthiness.
Comment: This amendment conforms Wisconsin's rule to the 2000
amendment of Rule 803(6) of the Federal Rule of Evidence.
Comment: The Judicial Council advised the court of its concern
and desire that the proposed amendment to Wis. Stat. § 908.03(6)
not be viewed to change the law as expressed in State v.
Williams, 2002 WI 58, 253 Wis. 2d 99, 644 N.W.2d 919, regarding
records of an investigation conducted for the particular purpose of
litigation.
Section 2. 909.02 (12) of the statutes is created to read:
909.02 (12) Certified domestic records of regularly conducted
activity. (a) The original or a duplicate of a domestic record of
regularly conducted activity that would be admissible under s. 908.03(6)
if accompanied by a written certification of its custodian or other
qualified person, in a manner complying with any statute or rule adopted
by the supreme court, certifying all of the following:
1. That the record was made at or near the time of the occurrence of
the matters set forth by, or from information transmitted by, a person
with knowledge of those matters.
2. That the record was kept in the course of the regularly conducted
activity.
3. That the record was made of the regularly conducted activity as a
regular practice.
(b) A party intending to offer a record into evidence under par. (a)
must provide written notice of that intention to all adverse parties and
must make the record and certification available for inspection
sufficiently in advance of the offer of the record and certification
into evidence to provide an adverse party with a fair opportunity to
challenge the record and certification.
Comment: Creation of sub. (12) conforms Wisconsin's rule to
the 2000 amendment of Rule 902 (11) of the Federal Rule of Evidence.
Section 3. 909.02(13) of the statutes is created to read:
909.02(13) Certified foreign records of regularly conducted activity.
(a) The original or a duplicate of a foreign record of regularly
conducted activity that would be admissible under s. 908.03(6) if
accompanied by a written declaration by its custodian or other qualified
person certifying all of the following:
1. That the record was made at or near the time of the occurrence of
the matters set forth by, or from information transmitted by, a person
with knowledge of those matters.
2. That the record was kept in the course of the regularly conducted
activity.
3. That the record was made of the regularly conducted activity as a
regular practice.
(b) The declaration under par. (a) must be signed in a manner that,
if falsely made, would subject the maker to criminal penalty under the
laws of the country where the declaration is signed. A party intending
to offer a record into evidence under par. (a) must provide written
notice of that intention to all adverse parties, and must make the
record and declaration available for inspection sufficiently in advance
of the offer of the record and declaration into evidence to provide an
adverse party with a fair opportunity to challenge the record and
declaration.
Comment: Creation of sub. (13) conforms Wisconsin's rule to
the 2000 amendment of Rule 902(12) of the Federal Rule of Evidence.
IT IS ORDERED that notice of this amendment of Wis. Stat. §
908.03(6), and creation of Wis. Stat. §§ 909.02(12) and
909.02(13) 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.
IT IS FURTHER ORDERED that the Comments to these rules are not
adopted but shall be printed for information purposes.
Dated at Madison, Wis., this 28th day of October, 2005.
By the court:
Cornelia G. Clark, Clerk of Supreme Court
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Appellate Procedure
In the matter of Proposed Amendment to Wis. Stat. § (Rule)
809.19 (Briefs and appendix) Relating to the Certification of Compliance
with Wis. Stat. § (Rule) 809.19(2)
Order 04-11
On Nov. 22, 2004, the Chief Judge of the Wisconsin Court of Appeals,
the Hon. Thomas Cane, filed a petition seeking to amend Wis. Stat.
§ (Rule) 809.19 to require a certification of compliance with Wis.
Stat. § (Rule) 809.19(2). A public hearing on the petition was
conducted on Oct. 25, 2005. At the ensuing open administrative
conference, the court voted to adopt the petition, effective Jan. 1,
2006, as follows:
Section 1. 809.19(2) of the statutes is renumbered
809.19(2)(a) and amended to read:
809.19(2) Appendix. (a) Contents. The appellant's brief shall
include a short appendix providing relevant trial court record entries,
the findings or opinion of the trial court and limited portions of the
record essential to an understanding of the issues raised, including
oral or written rulings or decisions showing the trial court's reasoning
regarding those issues. The appendix shall include a table of contents.
If the
record is required by law to be confidential, the portions of the
record included in the appendix shall be reproduced using first names
and last initials instead of full names of persons, specifically
including juveniles and parents of juveniles, with a notation that the
portions of the record have been so reproduced to preserve
confidentiality and with appropriate references to the record.
Section 2. 809.19(2)(b) of the statutes is created to
read:
809.19(2)(b) Certification. An appellant's counsel shall append to
the appendix a signed certification that the appendix meets the content
requirements of par. (a) in the following form:
I hereby certify that filed with this brief, either as a separate
document or as a part of this brief, is an appendix that complies with
s. 809.19(2)(a) and that contains: (1) a table of contents; (2) relevant
trial court record entries; (3) the findings or opinion of the trial
court; and (4) portions of the record essential to an understanding of
the issues raised, including oral or written rulings or decisions
showing the trial court's reasoning regarding those issues.
I further certify that if the record is required by law to be
confidential, the portions of the record included in the appendix are
reproduced using first names and last initials instead of full names of
persons, specifically including juveniles and parents of juveniles, with
a notation that the portions of the record have been so reproduced to
preserve confidentiality and with appropriate references to the
record.
Signed: _____
Signature
Comment: As the number of appeals has increased, the Court of
Appeals' reliance on appendices during the decision-making process has
increased. The Court of Appeals requests that Wis. Stat. § (Rule)
809.19(2)(b) be created to require that appellant's counsel certify
compliance with Wis. Stat. § (Rule) 809.19(2)(a) (as renumbered by
this order), that requires an appellant's brief include an appendix and
sets forth the contents of the appendix. The Court of Appeals believes
that a certification requirement, similar to the form and length
certification required by Wis. Stat. § (Rule) 809.19(8)(d) will
result in increased compliance with renumbered Wis. Stat. § (Rule)
809.19(2)(a) and improve the quality of appendices that are filed with
the court.
IT IS ORDERED that notice of this renumbering of Wis. Stat. §
(Rule) 809.19(2) as 809.19(2)(a) and creation of Wis. Stat. §
(Rule) 809.19(2)(b) 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.
IT IS FURTHER ORDERED that the Comments to these rules are not
adopted but shall be printed for information purposes.
Dated at Madison, Wis. this 28th day of October, 2005.
By the court:
Cornelia G. Clark
Clerk of Supreme Court
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