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    Wisconsin Lawyer
    December 01, 1998

    Wisconsin Lawyer December 1998: Supreme Court Orders

     


    Vol. 71, No. 12, December 1998

    Supreme Court Orders

    The Wisconsin Supreme Court, following public hearings, has amended the Supreme Court Rules pertaining to: SCR Chapter 75 regarding the appointment, performance evaluation, continuing education, discipline, and decisions of circuit court commissioners; SCR chapters 21 and 22 regarding attorney medical incapacity and license reinstatement; SCR 33.04(2) regarding mandatory municipal judge education; SCR 20.1.15 regarding lawyers' safekeeping of client property; and SCR 10.06(1) regarding the election of State Bar Executive Committee members.


    Circuit Court Commissioners

    In the Matter of the Amendment of Supreme Court Rules: SCR 70.36(5); SCR Chapter 75 - Appointment, Performance Evaluation, Continuing Education, Discipline, and Decisions of Circuit Court Commissioners

    Order 97-10

    The court held a public hearing Dec. 16, 1997, on the petition of the Supreme Court's Planning and Policy Advisory Committee requesting the adoption of rules to provide for the appointment, performance evaluation, continuing education, and discipline of court commissioners. The petition also requested the adoption of a rule establishing time periods for decisions of court commissioners, a procedure for extending the time for those decisions, and the monthly reporting of matters pending decision and sanctions for violations of those provisions. The court then held a public conference on the rule proposal on Jan. 20, 1998.

    Following consideration of the presentations at the public hearing and the materials filed with the court in the matter, the court, by order of March 9, 1998, amended Wis. Stat. section 70.36 and created SCR chapter 75, effective July 1, 1998. Prior to that effective date, the court was advised of concerns with those rules, and the court issued an order June 29, 1998, withdrawing the July 1, 1998, effective date of that order and holding the matter in abeyance pending further order of the court. The court has considered the concerns communicated to the court June 22, 1998, by the Committee of Chief Judges and the Wisconsin Records Management Committee and additional matters brought to its attention.

    IT IS ORDERED that the order of March 9, 1998, in this matter is vacated.

    IT IS FURTHER ORDERED that, effective Jan. 1, 1999, the Supreme Court Rules are amended as follows.

    SECTION 1. 70.36 (title) of the supreme court rules is amended to read:

    70.36 (title) Judges' and circuit court commissioners' certification of status of pending cases.

    SECTION 2. 70.36(5) of the supreme court rules is created to read:

    70.36(5)(a) In this subsection,

    1. "Chief judge" means the judge appointed under SCR 70.18 for the judicial administrative district in which the matter is pending.

    2. "Circuit court commissioner" means a person appointed under SCR 75.02(1) and a person authorized under SCR 75.02(3) to the limited extent of that authorization.

    (b) A circuit court commissioner may not routinely take matters under advisement. Every circuit court commissioner shall decide any matter within 30 days after the matter is submitted to him or her for decision. If the circuit court commissioner is unable to decide a matter within 30 days, he or she shall notify the chief judge not later than 5 days before the end of the 30-day period. The chief judge may extend the period to decide the matter for an additional 30 days or may require the circuit court commissioner to suspend all other assigned activities until the decision is filed in the court.

    (c) Within the first 10 days of each month, each circuit court commissioner shall certify in writing to the chief judge and to the commissioner's supervising judge that there are no matters awaiting decision beyond the 30-day or, if extended by the chief judge, the 60-day period specified in par. (b). If there are matters so pending, the certificate shall set forth the case number and caption of each matter and the date on which it was submitted for decision.

    (d) The chief judge may withdraw temporarily or permanently the circuit court commissioner's appointment or authority to act if the commissioner fails to comply with pars. (b) or (c).

    SECTION 3. Chapter 75 of the supreme court rules is created to read:

    SCR CHAPTER 75

    CIRCUIT COURT COMMISSIONERS

    SCR 75.01 Definitions. In this chapter,

    (1) "Chief judge" means the judge appointed under SCR 70.18 for the judicial administrative district.

    (2) "Circuit court commissioner" means a person appointed under SCR 75.02(1) and a person authorized under SCR 75.02(3) to the limited extent of that authorization.

    (3) "Supplemental court commissioner" means a person appointed under s. 757.68(2), stats.

    COMMENT: This chapter applies to persons appointed under SCR 75.02(1) and to persons appointed under s. 757.68(2), stats., and authorized by a chief judge under SCR 75.02(3) to perform on a temporary or occasional basis specified duties other than those duties they are authorized by statute to perform on their own authority. A person appointed under s. 757.68 (2), stats., may perform duties specified in s. 757.69(1), stats., only on authority delegated by a judge and with the approval of the chief judge of the judicial administrative district.

    The performance evaluation and complaint procedures in SCR 75.04 and 75.06 apply to a circuit court commissioner's performance of the duties authorized by the chief judge, however limited. Continuing education requirements set forth in SCR 75.05 apply to circuit court commissioners appointed under SCR 75.02(1) and to circuit court commissioners authorized under SCR 75.02(3) who spend 40 or more hours per year on duties authorized by a chief judge. This chapter does not apply to persons appointed by one or more circuit judges under s. 757.68(2), stats., who are not authorized to perform activities other than those specified in s. 757.69(3), stats., or to registers in probate authorized by a chief judge under SCR 75.02(4) to perform the duties of a circuit court commissioner in probate matters.

    SCR 75.02 Appointment; authorization. (1) The chief judge of a judicial administrative district shall appoint within the district, as authorized by law, officers of the court to perform limited judicial and quasi-judicial functions under the direction and authority of the chief judge and the judges of the circuit. These officers of the court shall be selected on the basis of merit through a process approved by the chief judge and the circuit court judges of the counties in which the officers will serve. The chief judge may only appoint persons under this subsection who are licensed to practice law in this state and in good standing with at least 3 years of legal experience.

    (2) The chief judge shall, by order, authorize each person appointed under sub. (1) to perform one or more specific duties allowed court commissioners by statute and approved by the supreme court.

    (3) The chief judge may, by order, authorize a supplemental court commissioner to perform on a temporary or occasional basis one or more specific duties allowed court commissioners by statute and approved by the supreme court.

    (4) Upon application of a judge within the judicial administrative district exercising probate jurisdiction, the chief judge may, by order, authorize a register in probate to perform the duties of a circuit court commissioner in probate matters.
    COMMENT: Based on s. 757.69, stats., sub. (2) requires that the order of appointment enumerate specific duties to be performed. It is not expected that every circuit court commissioner will be authorized to perform all of the duties allowed court commissioners by statute and approved by the supreme court.

    Subsection (4) is based on s. 757.72(5), stats.

    SCR 75.03 Oath. Each circuit court commissioner and supplemental court commissioner shall take and file the official oath in the office of the clerk of the circuit court of the county for which appointed before performing any duty of the office.

    COMMENT: This rule reiterates the language of s. 757.68(1) and (2), stats.

    SCR 75.04 Performance evaluation. (1) The director of state courts shall establish a standard procedure for the regular evaluation of the job performance of circuit court commissioners, which shall include minimum performance standards that a circuit court commissioner must meet to be certified as qualified.

    (2) The chief judge shall appoint annually one or more supervising judges for each circuit court commissioner. The supervising judge or judges shall communicate responsibilities and performance objectives to the commissioner and shall evaluate annually, pursuant to the procedures and performance standards established under sub. (1), the performance of each circuit court commissioner under his, her or their supervision. The supervising judge or judges shall recommend to the chief judge whether the circuit court commissioner should be certified as qualified to continue in that capacity in the succeeding year. The recommendation of the supervising judge or judges shall be in writing and supported by reasons and shall include findings regarding all of the following:

    (a) Whether the circuit court commissioner has met or exceeded the minimum performance standards established under sub. (1).

    (b) Whether the circuit court commissioner is subject to any disciplinary order which forbids him or her to act in a quasi-judicial capacity or is currently suspended or removed from office.

    (c) Whether the circuit court commissioner, if required to do so, has complied with SCR 70.36(5) and 75.05 and has attended specific educational programs recommended by the chief judge.

    (3) The chief judge, upon considering the recommendation of the supervising judge or judges, shall certify annually each circuit court commissioner as qualified to act in that capacity or deny that certification. The chief judge may not certify any circuit court commissioner as qualified unless affirmative findings have been made under sub. (2)(a) and (c) and a negative finding has been made under sub. (2)(b).

    COMMENT: Unless the circuit court commissioner has met minimum performance standards, complied with rules relating to education and prompt decision making and is not under ethical sanctions, he or she cannot be certified as qualified to discharge the functions of the office. Local jurisdictions may use members of the bar and civic and consumer groups to assist the supervising judge in the evaluation process. Under SCR 75.01, this section applies to supplemental court commissioners authorized by a chief judge under SCR 75.02(3) to perform specified duties on a temporary or occasional basis.

    SCR 75.05 Continuing education. (1) A circuit court commissioner shall maintain and improve professional competence by participating in programs of continuing education designed for circuit court commissioners and by participating in local orientation programs, which may include mentoring by circuit court judges.

    (2) A person appointed as a circuit court commissioner under SCR 75.02(1) shall comply with all of the following:

    (a) Earn at least 60 education credits each period of 6 years by participating in continuing education programs.

    (b) Earn not less than 10 nor more than 30 education credits every 2 years.

    (c) If employed fulltime in that capacity, earn credits only by participating in continuing education programs approved by the judicial education committee.

    (d) If not employed fulltime in that capacity, earn not more than 40 of the required 60 credits in any 6-year period by participating in continuing legal education programs approved by the board of bar examiners.

    (3) A person authorized under SCR 75.02(3) to perform specified duties of a circuit court commissioner on a temporary or occasional basis shall earn not less than 3 education credits in programs approved by the judicial education committee in any year in which the performance of those duties requires 40 or more hours.

    (4) In this section, one credit is awarded for each half-day of attendance at an in-state education program or at a continuing legal education program approved by the board of bar examiners. The judicial education committee shall determine the amount of credit awarded for attendance at a national program.

    COMMENT: SCR 31.05(4) requires that the board of bar examiners allow participation in activities approved by the judicial education committee to be used to satisfy CLE requirements for attorneys.

    SCR 75.06 Complaints; discipline. (1) A person may file a complaint regarding the conduct of a circuit court commissioner with the chief judge or with the judicial commission. The chief judge or a designee of the chief judge shall advise any complainant of the right to file a complaint with the judicial commission. Notwithstanding the jurisdiction of the judicial commission, the chief judge may discipline a circuit court commissioner as provided in sub. (2).

    (2) The chief judge is responsible for disciplining circuit court commissioners within the judicial administrative district with respect to their quasi-judicial activities and for determining the severity of the discipline, including removal. The determinations of the chief judge shall be in writing and set forth the reasons for them. The chief judge shall consider information and recommendations from the supervising judge or judges when making those determinations.

    SCR 75.07 Local court rules. (1) The circuit court judges of any county may establish any of the following as local court rules:

    (a) Rules and standards clarifying the authority of circuit court commissioners in particular types of cases.

    (b) Guidelines for decision making by circuit court commissioners.

    (2) All local court rules established under sub. (1) shall be adopted under s. 753.35(2), stats., shall be consistent with statutes and supreme court rules, and shall be approved by the chief judge.

    COMMENT: The guidelines established under sub. (1)(b) may not interfere with the decision-making discretion of circuit court commissioners in individual cases.

    IT IS FURTHER ORDERED that the Comments to the rules are not adopted but shall be published with the rules for information purposes.

    IT IS FURTHER ORDERED that notice of these amendments of the Supreme Court Rules 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.

    Dated at Madison, Wis., this 15th day of October, 1998.

    By the court:

    Marilyn L. Graves, Clerk of Court


    Attorney Medical Incapacity

    In the matter of the Amendment of Supreme Court Rules: SCR 21.07, 21.11, 22.27(5), 22.28(2) and (3), and 22.30(1) - Attorney Medical Incapacity; License Reinstatement

    Order 98-02

    On Sept. 17, 1998, the court held a public hearing on its own motion for the amendment of the Supreme Court Rules of procedure in attorney discipline and medical incapacity proceedings to specify that a suspension of an attorney's license to practice law for medical incapacity under SCR 21.07 is for an indefinite period, to make procedural rules applicable to disciplinary proceedings also applicable to medical incapacity proceedings, and to specify a procedure for license reinstatement following a suspension for medical incapacity. The court has considered the matters presented at that public hearing and submitted to the court in writing in response to the notice of public hearing.

    IT IS ORDERED, effective the date of this order, that the Supreme Court Rules are amended as follows.

    SECTION 1. 21.07(1) and (2) of the supreme court rules are amended to read:

    21.07 Medical incapacity. (1) A court finding an attorney mentally ill, drug dependent or an alcoholic, under chapter 51 of the statutes, or an incompetent or spendthrift under chapter 880 of the statutes, shall immediately file a copy of the finding findings and order with the clerk of the supreme court and the board. The supreme court shall immediately issue an order suspending for medical incapacity order the attorney to show cause why the attorney's license to practice law should not be suspended by reason of medical incapacity. If cause satisfactory to the court is not shown, the court shall suspend the attorney's license to practice law for an indefinite period. SCR 21.09 does not apply to this subsection.

    (2) An attorney's license to practice law is subject to suspension may be suspended indefinitely or his or her right to practice law may be made subject to conditions upon a finding that the attorney has a medical incapacity as defined in SCR 22.01(12). SCR 21.09 applies to this subsection.

    SECTION 2. 21.07(3) of the supreme court rules is created to read:

    (3) Reinstatement from a license suspension or the removal of conditions ordered under subs. (1) or (2) shall be pursuant to SCR 22.27(5) by the filing of a petition for reinstatement under SCR 21.11, investigation by the board, and determination by the court that the attorney's medical incapacity has been removed.

    SECTION 3. 21.11 of the supreme court rules is amended to read:

    Reinstatement. A person whose license to practice law has been revoked, or suspended for a definite or an indefinite term, or with the imposition of conditions upon reinstatement, or suspended for medical incapacity may file with the supreme court a petition for reinstatement. The board shall conduct an investigation of the moral character or medical capacity of the petitioner and shall report its findings and recommendations to the supreme court. The board of bar examiners shall make a recommendation to the supreme court on the legal competence of the petitioner to practice law. The supreme court may refer the petition to a referee for a hearing to be held in accordance with SCR 21.09(4) and (5).

    SECTION 4. 22.27(5) of the supreme court rules is amended to read:

    (5) An attorney whose license is suspended under SCR 21.07 or this rule may petition for reinstatement under SCR 21.11. The supreme court shall refer the application to the board, which shall determine investigate whether the attorney's medical incapacity has been removed. The board may direct an examination of the attorney by such qualified medical or psychological experts as the board designates and may direct that the expense of the examination be paid by the attorney. The applicant has the burden of showing by clear and convincing evidence that the incapacity has been removed and the applicant is fit to resume the practice of law. If an attorney who has been suspended under SCR 21.07(1) is thereafter judicially declared to be competent no longer in the condition previously determined under chapter 51 or chapter 880 of the statutes, the supreme court may direct reinstatement with or without conditions. This subsection also governs a petition to remove conditions imposed under SCR 21.07.

    SECTION 5. 22.28(2) and (3) of the supreme court rules are amended to read:

    (2) An attorney's license suspended for misconduct or medical incapacity for less than 6 months is automatically reinstated upon the attorney's filing with the administrator an affidavit showing full compliance with all the terms and conditions of the order of suspension.

    (3) An attorney whose license is revoked or, suspended for 6 months or more for misconduct, or suspended for medical incapacity shall not resume practice until the license is reinstated by order of the supreme court. A petition for reinstatement from a suspension for a definite term may be filed at any time commencing, in the case of a license suspension, 3 months prior to the expiration of the suspension period or, in the case of a license revocation,. A petition for reinstatement from a license revocation may be filed at any time commencing 5 years after the effective date of revocation. A petition for reinstatement from a suspension for medical incapacity may be filed at any time. A petition for reinstatement shall be filed with the court and a copy shall be filed with the administrator.

    SECTION 6. 22.30(1) of the supreme court rules is amended to read:

    (1) The supreme court, on its own motion or otherwise, may temporarily suspend an attorney's license to practice law in Wisconsin where it appears that the attorney's continued practice of law during the pendency of a disciplinary or medical incapacity proceeding poses a threat to the interests of the public and the administration of justice.

    IT IS FURTHER ORDERED that notice of these amendments of the Supreme Court Rules 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.

    Dated at Madison, Wis., this 15th day of October, 1998.

    By the court:

    Marilyn L. Graves, Clerk of Court


    Mandatory Municipal Judge Education

    In the Matter of the Amendment of Supreme Court Rules: SCR 33.04(2) - Mandatory Municipal Judge Education

    Order 98-04

    The court held a public hearing Oct. 28, 1998, on the petition of the Municipal Judge Education Committee requesting the amendment of SCR 33.04(2) to provide that the specified number of municipal judge education credits to be earned annually are to be earned on other than a calendar year basis. The court has considered the matters presented at the public hearing.

    IT IS ORDERED that, effective the date of this order, 33.04(2) of the Supreme Court Rules is amended to read:

    33.04(2) Each municipal judge shall earn no fewer than at least 4 credits per calendar year in each 365-day period after commencement of the term for which elected or appointed at a municipal judge orientation institute, review institute or graduate institute developed by the judicial education office. A municipal judge who holds office for less than 5 months during any calendar year is exempt from this subsection.

    IT IS FURTHER ORDERED that notice of this amendment of the Supreme Court Rules 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.

    Dated at Madison, Wis., this 30th day of October, 1998.

    By the court:

    Cornelia G. Clark, Deputy Clerk of Court


    Safekeeping Property

    In the Matter of the Amendment of Supreme Court Rules: SCR 20:1.15 - Safekeeping Property

    Order 98-06

    The court held a public hearing Oct. 28, 1998, on the petition of the Board of Attorneys Professional Responsibility and the Board of Governors of the State Bar of Wisconsin requesting the amendment of SCR 20:1.15 to authorize lawyers to maintain trust accounts in savings banks and other investment institutions insured by the Securities Investor Protection Corporation, among other entities, and capable of providing overdraft notification on lawyer trust accounts maintained in the institution. The court has considered the matters presented at the public hearing and the materials filed with the court in this matter.

    IT IS ORDERED that, effective Jan. 1, 1999, the Supreme Court Rules are amended as follows.

    SECTION 1. 20:1.15(a) is amended to read:

    20:1.15(a) A lawyer shall hold in trust, separate from the lawyer's own property, that property of clients and third persons that is in the lawyer's possession in connection with a representation or when acting in a fiduciary capacity. Funds held in connection with a representation or in a fiduciary capacity include funds held as trustee, agent, guardian, personal representative of an estate, or otherwise. All funds of clients and third persons paid to a lawyer or law firm shall be deposited in one or more identifiable trust accounts as provided in paragraph (c). The trust account shall be maintained in a bank, savings bank, trust company, credit union or, savings and loan association or other investment institution authorized to do business and located in Wisconsin. The trust account shall be clearly designated as "Client's Account" or "Trust Account" or words of similar import. 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, savings bank, trust company, credit union or, savings and loan association or other investment institution authorized to do business and located in Wisconsin. The 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 the other state.

    SECTION 2. 20:1.15(c)(intro.) of the supreme court rules is amended to read:

    20:1.15(c)(intro.) Each trust account shall be an account in a bank, savings bank, trust company, credit union or, savings and loan association or other investment institution selected in the exercise of ordinary prudence and authorized by federal or state law to do business in Wisconsin. The trust account shall be 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 Securities Investor Protection Corporation and other investment institution financial guaranty insurance. 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:

    SECTION 3. 20:1.15(h)(1m) of the supreme court rules is created to read:

    20:1.15(h)(1m) "Investment institution" means an institution, such as a brokerage house, that is capable of providing overdraft notification on lawyer trust accounts maintained in that institution and is insured by the Securities Investor Protection Corporation and other investment institution financial guaranty insurance.

    SECTION 4. 20:1.15(i) to (m) of the supreme court rules are amended to read:

    20:1.15(i) Lawyer trust accounts shall be maintained only in a financial institution or investment institution that has agreed to provide the overdraft report under sub. (j).

    (j) In the event any properly payable instrument is presented against a lawyer trust account containing insufficient funds, whether or not the instrument is honored, the financial institution or investment institution shall, simultaneously with the customary overdraft notice to the depositor or investor, report the overdraft to the Board of Attorneys Professional Responsibility.

    (k) The overdraft reporting agreement under par. (i) shall provide that all reports made by the financial institution or investment institution shall be substantially in the following format:

    (1) In the case of a dishonored instrument, identical to the overdraft notice customarily forwarded to the depositor or investor and with a copy of the dishonored instrument, if a copy is normally provided to the depositor or investor.

    (2) In the case of instruments that are presented against insufficient funds and are honored, identification of the financial institution or investment institution involved, the lawyer or law firm, the account number, the date on which the instrument is paid, and the amount of overdraft created by the payment.

    (L) A report made under par. (j) shall be made simultaneously with the overdraft notice given to the depositor or investor.

    (m) The Board shall hold each overdraft report for 10 business days or the minimum time required by the financial institution or investment institution, whichever is less, to enable the financial institution or investment 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 does not constitute reason for withdrawing an overdraft report.

    SECTION 5. 20:1.15(o) and (p) of the supreme court rules are amended to read:

    20:1.15(o) This rule does not preclude a financial institution or investment institution from charging a particular lawyer or law firm for the reasonable costs of producing the reports and records required by this rule.

    (p) This rule does not create a claim against a financial institution or investment institution or its officers, directors, employees, and agents for failure to provide a trust account overdraft report or for compliance with any provision of this rule.

    IT IS FURTHER ORDERED that notice of these amendments of the Supreme Court Rules 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.

    Dated at Madison, Wis., this 30th day of October, 1998.

    By the court:

    Cornelia G. Clark, Deputy Clerk of Court


    Election of State Bar Executive Committee Members

    In the Matter of the Amendment of Supreme Court Rules: SCR 10.06(1) - Election of State Bar Executive Committee Members

    Order 98-07

    The court held a public hearing Oct. 28, 1998, on the petition of the Board of Governors of the State Bar of Wisconsin requesting the amendment of SCR 10.06(1) to provide that the four members elected annually to the Executive Committee by the Board of Governors be selected from among persons who will serve on the Board the following fiscal year. The court has considered the matters presented at the public hearing.

    IT IS ORDERED that, effective the date of this order, 10.06(1) of the Supreme Court Rules is amended to read:

    10.06(1) Members; selection. The executive committee consists of the president, the president-elect, the immediate past-president, the chairperson of the board of governors and 4 additional members elected annually by the board of governors from among its members at its June meeting. The 4 additional members shall be elected from among the governors elect and the current governors who will serve on the board of governors during the following fiscal year. A vacancy occurring in the selected membership may be filled by action of the board of governors.

    IT IS FURTHER ORDERED that notice of this amendment of the Supreme Court Rules 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.

    Dated at Madison, Wis., this 30th day of October, 1998.

    By the court:

    Cornelia G. Clark, Deputy Clerk of Court


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