Clients' Security Fund
In the Matter of the Amendment of Supreme Court Rules, SCR 12.04(2)
and (3) - Clients' Security Fund
Order 96-15
On Dec. 12, 1996, the Board of Governors of the State Bar of
Wisconsin filed a petition requesting the amendment of SCR 12.04(2) and
(3) to increase from $150,000 to $250,000 the balance required to be
maintained in the Clients' Security Fund. The proposed amendment would
not increase the maximum amount of any annual assessment of
attorneys.
IT IS ORDERED that a public hearing on the petition be held in the
Supreme Court Room in the State Capitol, Madison, Wis., on April 15,
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 22nd day of January, 1997.
By the court:
Marilyn L. Graves, Clerk
Petition
To the Justices of the Wisconsin Supreme Court:
The Board of Governors of the State Bar of Wisconsin hereby petitions
the Wisconsin Supreme Court to amend SCR 12.04(2) and (3) as
follows:
(2)Annual Assessments. Commencing with the state bar's July 1, 1982,
fiscal year, every attorney shall pay to the fund such annual
assessments as are necessary to maintain a balance in the fund of
$150,000 250,000, but in no event shall any
annual assessment exceed $15. An attorney whose annual state bar
membership dues are waived for hardship shall be excused from the
payment of the annual assessment for that year. An attorney shall be
excused from the payment of the annual assessment for the fiscal year
during which he or she is admitted to practice law in Wisconsin.
(3)Certificate of Sufficiency. The committee shall determine the net
value of the fund as of May 1 of each year. Whenever the value of the
fund shall equal or exceed $150,000 250,000,
after deducting all claims which the committee has determined to pay and
which are not disposed of at the date of valuation and all expenses
properly chargeable against the fund, the committee shall file with the
supreme court prior to May 31 of that year a certificate of sufficiency
to that effect. When a certificate of sufficiency is filed with the
supreme court, there shall be no annual assessment for the next fiscal
year.
DISCUSSION. 1. Background. The Clients' Security Fund (Fund) was
established in 1981 to financially compensate clients who have lost
money or other property because of the dishonest conduct of their
attorneys. Since 1981, the Fund has made more than $1.2 million in
reimbursements to over 170 clients.
The Fund is financed by mandatory annual assessments on all licensed
Wisconsin attorneys. Each year, the State Bar Clients' Security Fund
committee determines the amount of the assessment based upon past and
anticipated future claims experience and the current Fund balance. By
rule, the committee cannot set the annual assessment in excess of $15.
SCR 12.04(2). In addition, if, on May 1 of a given year, the Fund
balance equals or exceeds the fund sufficiency level of $150,000, there
may be no assessment for the next fiscal year. SCR 12.04(3).
In 1992, the committee requested, and the Court approved, an increase
in the fund sufficiency level from $100,000 to $150,000. At that time,
the committee advised that an increase in the fund sufficiency level was
required to offset the effects of inflation as well to counteract the
potential for increased Fund activity due to the rising number of
attorneys practicing law in Wisconsin.
In addition, since 1981 the committee has increased the maximum
reimbursement amount allowed for an individual claim from $25,000 to
$45,000 to provide more complete compensation to clients who have
suffered large financial losses at the hands of their attorneys. In
1996, the Board of Governors, following the recommendation of the State
Bar/BAPR Joint Trust Account committee, requested the Clients' Security
Fund committee to further increase this maximum reimbursement amount to
$75,000 to more fully protect clients who have suffered extreme
financial hardship. The committee has agreed to increase the maximum
reimbursement amount to $75,000 if the fund sufficiency level is
proportionally increased.
2.Current Request to Increase Fund Sufficiency Amount. The Clients'
Security Fund committee advises that an increase in the fund sufficiency
level is necessary to keep pace with the need to increase the maximum
reimbursement amount allowed per claim. Under the current fund
sufficiency requirements, the committee would have to approve three
maximum-level claims of $45,000 each before the Fund, carrying a minimum
reserve of $150,000, would be nearly depleted. An increase in the fund
sufficiency level to $250,000 would allow the committee to increase the
maximum reimbursement amount to $75,000 while keeping that amount at 30
percent of the fund sufficiency level. While it has no realistic way of
predicting the number of payable claims that will exceed the maximum
reimbursement amount, the committee feels that the proposed higher level
of reserve will help to avoid surges in assessments in the future to
cover unanticipated high levels of claims activity. Increasing the fund
sufficiency amount should also permit the mandatory attorney assessment
to remain at no more than $15 per year.
The undersigned respectfully submits this petition on behalf of the
Board of Governors and prays for an order accordingly this 9th day of
December, 1996.
David A. Saichek, President
State Bar of Wisconsin
Electronic data dissemination
In the Matter of the Amendment of Supreme Court Rules: (Proposed)
SCR Chapter 75 - Electronic Data Dissemination
Order 96-16
On Dec. 30, 1996, the Director of State Courts filed a petition
requesting the adoption of rules governing access to and release of
electronic database information in the courts, applicable to circuit and
appellate courts and the Office of the Director of State Courts.
IT IS ORDERED that a public hearing on the petition be held in the
Supreme Court Room in the State Capitol, Madison, Wis., on May 6, 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 22nd day of January, 1997.
By the court:
Marilyn L. Graves, Clerk
Petition
WHEREAS, with the development of the Circuit Court Automation Program
(CCAP), the Wisconsin judiciary has embarked on a major effort to
modernize circuit court computerized case management, financial
management, and jury management systems; and
WHEREAS, the use of computers in the circuit and appellate courts has
generally changed the environment in which the courts operate because
technology allows for greater access to personally identifiable
information regarding individuals and makes it easier to compile a
dossier on an individual; and
WHEREAS, in January, 1996, the Director of State Courts convened a
Court Data Access Workgroup to make recommendations for policies and
procedures governing access to and release of electronic court database
information; and
WHEREAS, the Court Data Access Workgroup considered the competing
interests of privacy in and public access to the information
accumulating in the courts' computer systems in making their
recommendations; and
WHEREAS, the concepts contained in the Court Data Access Workgroup's
June 5, 1996, "Draft Wisconsin Court Data Dissemination Policy and
Procedures" document have been endorsed by the Committee of Chief
Judges, the CCAP Steering Committee, and the Wisconsin Records
Management Committee; and
WHEREAS, various interested groups throughout the court system have
had the opportunity to review and comment on the "Draft Wisconsin Court
Data Dissemination Policy and Procedures" document; and
WHEREAS, the Wisconsin Supreme Court has "superintending and
administrative authority over all courts," pursuant to Art. VII, 3 of
the Wisconsin Constitution and the authority extends to matters
governing access to court records;
THEREFORE, the Director of State Courts hereby petitions the Supreme
Court to adopt and promulgate Chapter 75 of the Supreme Court Rules,
governing electronic data dissemination for the courts of Wisconsin, as
follows:
SCR Chapter 75
Rules Governing Electronic Data Dissemination for the Court of
Wisconsin SCR 75.01 Purpose and Scope.
(1)This chapter governs access to and release of electronic court
database information and applies to circuit courts, appellate courts and
to the director of state courts office. These rules are to be
administered in the context of the Wisconsin Open Records Law, which
states that:
"[A]ll persons are entitled to the greatest possible information
regarding the affairs of government and the official acts of those
officers and employees who represent them. Further, providing persons
with such information is declared to be an essential function of a
representative government and an integral part of the routine duties of
officers and employees whose responsibility it is to provide such
information."
These rules do, however, distinguish between information about the
workings of government and its officials and information the government
has on private individuals.
(2)These rules do not apply to:
- (a)requests initiated by or with the consent of the chief justice,
chief judge of the court of appeals, or the director of state courts to
respond to the internal business of the courts; or
- (b)the verbatim record of a court hearing until a certified
transcript has been filed with the court.
COMMENT: "Internal business of the courts" includes, but is not
limited to, case management and jury management information.
(3)Duties and responsibilities of custodians of court records under
the Wisconsin Open Records Law have not changed except as specifically
noted in this chapter. A custodian of a record may choose to provide
information beyond what is required by rule or statute if to do so would
advance the mission of the court. Such efforts do not obligate the
custodian to similar efforts on subsequent occasions.
(4)Each circuit court and appellate court may promulgate local rules
governing the procedures, responsible officials or staff, and
production, retention, and distribution schedules of electronic database
information consistent with these or other supreme court policies or
rules.
SCR 75.02 Definitions.
In this chapter:
(1)"Ad hoc report" means a compilation of aggregate or court
official-specific data created on a single or nonrecurring basis at the
direction of the director of state courts, chief judge of a judicial
administrative district, district court administrator, clerk of circuit
court, chief judge or presiding judge of the court of appeals, chief
justice of supreme court, or clerk of supreme court and court of
appeals.
(2)"Custodian" means the person responsible for the safekeeping of
records held by a court. In the circuit court the clerk of the circuit
court is the presumptive custodian. In the appellate court and supreme
court the clerk of supreme court and court of appeals is the presumptive
custodian. Temporary handling of records is not custodianship.
(3)"New record or report" means any reordering, sorting, compilation,
or tabulation of existing data not regularly generated through routine
reports or previously generated through an ad hoc report. To the extent
that a search of electronically stored records is available through
public access terminals, the information obtained shall not be
considered a new record or report.
(4)"Record" means the electronic representation of court information
stored within a computer system that may be generated electronically and
transformed into a comprehensible form. This definition incorporates s.
19.32(2), Wis. Stats., as it relates to the electronic
representation fo court information.
(5)"Routine report" means a compilation of data created on a
recurring basis for court use; may be aggregate or court
official-specific.
SCR 75.03 Standards.
The following standards shall be adhered to:
(1)Public access is prohibited to records that are closed pursuant to
statute, case law, rule, or other authority; or to court records that
would personally identify the following:
- (a)jurors, whether before or after service;
- (b)victims; and
- (c)witnesses, unless they have testified in open court.
COMMENT: Because technology makes it feasible to compile numerous
electronic database records into a dossier on an individual, this
section creates an exception to the Wisconsin Open Records Law for
certain court records involving jurors, victims, and witnesses because
of the special circumstances of these court participants and their right
to privacy. Personally identifiable information includes, but is not
limited to, name, address, telephone number, and social security
number.
(2)No person may disclose information pertaining to other than their
own jurisdiction unless the custodian of the original record has
previously disclosed the information or consented to the disclosure.
(3)Requests for copies of information will be granted using only the
technology or outside resources deemed necessary by the custodian of the
record. If programs exist to permit copying, requests for computer-based
information may be granted using only the type, style and format of
diskette, tape, or other medium compatible with the court technology and
supplied by the court.
COMMENT: The record custodian should disclose information using the
medium that is most available to the custodian. Because of security and
data integrity concerns, the court record custodian must provide the
medium to prevent computer viruses or other technological problems.
(4)A custodian need not provide access to routine reports that are
customarily released on a recurrent schedule except according to that
schedule.
(5)Someone requesting to view court information on-line shall be
granted reasonable use of an available public access terminal during
regular office hours.
(6)Unregulated access to a court database by noncourt personnel is
prohibited. Authorized direct access is provided through public access
terminals, data links or other electronic means.
(7)In shared governmental systems, agreements shall be negotiated and
signed by the parties relative to what information generated by one
party may be disseminated by the other party or parties involved in the
data sharing without notice to the originating agency.
COMMENT: Because of an increase in data sharing among governmental
agencies, this section mandates that written agreements address what
types of shared information can be disclosed to other agencies or to the
public.
(8)The director of state courts or other records custodians may enter
into agreements with commercial providers of access services to
disseminate records that are otherwise open under this chapter. If the
agreement would involve connection to equipment owned or provided by the
supreme court, the director of state courts shall be notified and must
approve the plan before a connection is made.
SCR 75.04 Procedure.
(1)Except for access provided under agreements under 75.03(7) and
(8), requests for records shall be in writing and must include:
(a)information identifying the requester, including the name,
telephone number, and address, if any, of where the electronic record is
to be sent;
(b)a specific and detailed description of the information requested;
and
(c)the format requested.
COMMENT: The telephone number is specifically requested so that a
custodian who needs clarification can telephone the requester. The name
and address are specifically requested so that a denial, which must be
in writing, can be sent to the requester. "Address" may be an electronic
address.
(2)If the request is unclear, or stated in terms inconsistent with
the form and manner of data maintained by the custodian, the custodian
may request clarification from the requester. If the request remains
ambiguous or if accurate retrieval of the information is not possible,
the request may be denied. If, according to local rule, certain requests
are to be granted or denied by another authority within the
jurisdiction, the request form must be forwarded immediately to that
authority. Denials shall be in writing to the requester and shall state
the reason or reasons for denial as well as contain notice of the right
to appeal and the procedure to follow in making the appeal.
COMMENT: The appeal procedure may be used by requesters seeking
review short of bringing a circuit court case.
(3)When presented with a request for information not generated by
that custodian, the first choice of a custodian shall be to refer the
requester to the presumptive custodian of the record. A custodian
cannot, however, refuse access to a record on the basis that the record
is available from another source. If access is provided by the secondary
custodian, that custodian shall inform the presumptive custodian of the
request and the fact that access was granted.
COMMENT: As a matter of courtesy, if a secondary custodian makes an
independent determination and grants access, they are to provide
notification to the presumptive custodian.
(4)Requests for circuit court information.
(a)Request for information concerning a single county. When presented
with a request for circuit court information that is generated or stored
in a county as well as the director of state courts office, the clerk of
circuit court may either provide access or request that the director of
state courts office provide access. If the director of state courts
office declines the clerk's request, the clerk of circuit court shall
maintain the custodial responsibility for determining an appropriate
level of access and fees.
COMMENT: The option of allowing the clerk of circuit court to request
that the director of state courts office provide access is to
accommodate the common occurrence where a requester, seeking statewide
circuit court information, makes an individual records request to each
clerk of circuit court in the state.
(b)Request for information concerning more than one county. Requests
for information concerning more than one county or statewide circuit
court information should be directed to the director of state courts
office.
(5)Requests for supreme court and court of appeals information.
Requests for information concerning the supreme court and court of
appeals shall be directed to the clerk of supreme court and court of
appeals.
(6)Information shall be provided as soon as practicable and without
delay, consistent with the conduct of governmental business. If the
record cannot be provided within ten (10) working days, no later than
the end of that period the custodian shall respond to the requester in
writing explaining the reason for the delay and giving an estimated time
of completion.
COMMENT: The ten-day period is consistent with interpretation of the
"reasonable" time frame under the Open Records Law for responding to
requests.
(7)If a request is made for information on a computer medium, the
custodian shall provide the medium.
COMMENT: To address security and data integrity concerns, the court
record custodian must provide the medium in order to prevent computer
viruses or other technological problems.
(8)Information disseminated in an electronic medium shall be
accompanied by a disclaimer regarding certification and accuracy which
shall be in substantially the following language:
"Disclaimer. The custodian has made a reasonable effort to ensure
that data/records are up-to-date, accurate, complete, and comprehensible
at the time of disclosure. Authenticated information is only accurate as
of the time of authentication. The court is not responsible for data
that is misinterpreted or changed by anyone. Tampering with public
records is a felony under s. 946.72, Wis. Stats."
COMMENT: The disclaimer reminds requesters of their responsibility to
use public records wisely and that any effort to tamper with records
could be prosecuted as a crime.
SCR 75.05 Procedure for Requests for Special Programming of New
Records or Reports.
(1)Requests for special programming to create new records or reports
shall comply with all requirements of 75.04(1). Requests related to a
circuit court shall be directed to the custodian of the record, who will
consult with the director of state courts office. Requests involving
multiple jurisdictions or the state as a whole shall be directed to the
director of state courts office. Requests involving the supreme court or
court of appeals shall be directed to the clerk of supreme court and
court of appeals.
(2)In determining whether to grant or deny special programming
requests, the following criteria are to be considered:
- a)availability of data;
- b)specificity of the request;
- c)potential for infringement of personal privacy;
- d)potential for effect on ongoing business; and
- e)the advantage to the court in providing the information through
programming as opposed to manual means.
COMMENT: The "potential for infringement of personal privacy"
criteria acknowledges that the compilation of numerous electronic
database records could more adversely affect an individual's privacy
than the existence of numerous open paper files that are unlikely to be
compiled into a dossier.
SCR 75.06 Uniform Fee Schedule.
(1)A uniform fee schedule is established for circuit and appellate
courts and the director of state courts office. Fees are payable to the
court or office that provides the record, information, or service at the
time the record, information, or service is provided, except that
prepayment may be required if the total amount exceeds $5.00 as provided
in s. 19.35(3)(f), Wis. Stats.
(2)The fee is a combination of the cost of medium; personnel time;
mail or delivery cost; and cost of special programming.
(a)Cost of medium. Copies are made of court records only. The term
"copies" includes the original production.
- 1.paper: $1.25 per sheet.
2.microfiche: $1.00 per card.
3.audiotape: $5.00 per tape.
4.videotape: $15.00 per tape.
5.diskette: $15.00 per diskette.
6.compact disk (CD): $40.00 per CD.
(b)Personnel time. The fee for personnel time to copy an audiotape,
videotape, diskette, or compact disk is the actual cost. For other
copying, there is no fee for the first 15 minutes of personnel time. The
fee for time beyond the first 15 minutes is charged in 15-minute
increments for any part thereof. Personnel time is charged at the actual
cost, including wages and benefits, for the least expensive employee
capable of identifying and providing the record.
(c)Mail or delivery cost. The fee for mailing or delivery is the
actual cost and shall include necessary transmittal between courts or
offices for which a public or private carrier is used.
(d)Cost for special programming. The fee for special programming will
be determined by the custodian of the record on a case-by-case basis
after investigation and justification of actual, necessary and direct
costs for materials, equipment, staff, mailing or other justifiable
location costs or required resources.
(3)Fees may be waived for government agencies or at the discretion of
the custodian.
COMMENT: The fee schedule reflects the variety of media in which
copies might be made and the cost of each. The costs for personnel time,
mail or delivery costs, and special programming provide more specific
guidance to the "actual, necessary, and direct" costs of providing
records outlined in the Wisconsin Open Records Law.
SCR 75.06 Review of Rules.
The director of state courts or his or her designee shall review the
rules under this chapter annually and report to the supreme court any
recommendations for their modification.
COMMENT: Because of rapidly evolving technology, it is prudent to
have in place a mechanism for regular review and revision of these
rules.
This petition is respectfully submitted this 30th day of December,
1996.
J. Denis Moran
Director of State Courts
