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    Wisconsin Lawyer
    September 01, 1999

    Wisconsin Lawyer September 1999: Supreme Court Orders

    Supreme Court Orders


    The Wisconsin Supreme Court sets a public hearing for Oct. 19 to consider special responsibilities of a prosecutor concerning trial publicity; and denies a petition, following a public hearing on May 24, to amend certain supreme court rules regarding Board of Bar Examiners records and multistate bar examination scores.


    Special Responsibilities of a Prosecutor

    In the Matter of the Amendment of Supreme Court Rules:
    SCR 20:3.6 - Trial Publicity; 20:3.8 -
    Special Responsibilities of a Prosecutor

    Order 97-06

    At conference following the public hearing Sept. 9, 1997, on the petition of the Wisconsin Association of Criminal Defense Lawyers for the amendment of Supreme Court Rule 20:3.6 concerning trial publicity, the court expressed interest in issues involving trial publicity that have been addressed by the U.S. Supreme Court and Rule 3.6 of the ABA Model Rules of Professional Conduct but were not included in the rule petition. The court determined that the petition be held in abeyance in order that the petitioner could explore those and other issues with the State Bar, the Board of Attorneys Professional Responsibility, and other interested persons, including prosecutors, judges, and the civil bar, and file a report with the court or, in the alternative, file an amended petition proposing additional amendments to SCR 20:3.6.

    On May 14, 1999, the Wisconsin Association of Criminal Defense Lawyers filed an amended petition proposing additional amendments to SCR 20:3.6 and the creation of an additional provision in SCR 20:3.8 concerning special responsibilities of a prosecutor.

    IT IS ORDERED that a public hearing on the amended petition shall be held in the Supreme Court Hearing Room, 119 Martin Luther King Jr. Blvd., Madison, Wis., on Oct. 19, 1999, at 1:30 p.m.

    IT IS FURTHER ORDERED that the court's conference in the matter shall be held promptly following the public hearing.

    IT IS FURTHER ORDERED that notice of the hearing be given by a single publication of a copy of this order and of the petition in the official state newspaper and in an official publication of the State Bar of Wisconsin not more than 60 days nor less than 30 days before the date of the hearing.

    Dated at Madison, Wis., this 23rd day of June, 1999.

    By the court:
    Marilyn L. Graves, Clerk

    Amended Petition

    To the Justices of the Wisconsin Supreme Court:

    The Wisconsin Association of Criminal Defense Lawyers, a membership organization of Wisconsin lawyers who defend persons accused of criminal law violations, hereby amends its petition in this matter, filed May 2, 1997, and petitions the Wisconsin Supreme Court to amend SCR 20:3.6 and 20:3.8 as follows:

    SCR 20:3.6 Trial Publicity

    (a) A lawyer who is participating in the investigation or litigation of a matter shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

    (b) A statement referred to in paragraph (a) ordinarily is likely to have such an effect when it refers to a civil matter triable to a jury, a criminal matter, or any other proceeding that could result in incarceration, and the statement relates to:

    (1) the character, credibility, reputation or criminal record of a party, suspect in a criminal investigation or witness, or the identity of a witness, or the expected testimony of party or witness;

    (2) in a criminal case or proceeding that could result in deprivation of liberty, the possibility of a plea of guilty to the offense or the existence or contents of any confession, admission, or statement given by a defendant or suspect or that person's refusal or failure to make a statement;

    (3) the performance or results of any examination or test or the refusal or failure of a person to submit to an examination or test, or the identity or nature of physical evidence expected to be presented;

    (4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in deprivation of liberty;

    (5) information the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and would if disclosed create a substantial risk of prejudicing an impartial trial; or

    (6) the fact that a defendant has been charged with a crime, unless there is included therein a statement explaining that the charge is merely an accusation and that the defendant is presumed innocent until and unless proven guilty;

    (c) (b) Notwithstanding paragraph (a) and (b)(1-5), a lawyer involved in the investigation or litigation of a matter may state without elaboration:

    (1) the general nature of the claim or defense claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved;

    (2) the information contained in a public record;

    (3) that an investigation of the matter is in progress, including the general scope of the investigation, the offense or claim or defense involved and, except when prohibited by law, the identity of the persons involved;

    (4) the scheduling or result of any step in litigation;

    (5) a request for assistance in obtaining evidence and information necessary thereto;

    (6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and

    (i) the identity, residence, occupation and family status of the accused;

    (ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person;

    (iii) the fact, time and place of arrest; and

    (iv) the identity of investigating and arresting officers or agencies and the length of the investigation.

    (c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.

    (d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a).

    Rule 3.8 Special Responsibilities of a Prosecutor

    The prosecutor in a criminal case shall:

    (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;

    (b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;

    (c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;

    (d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;

    (e) exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6; and

    (f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.

    This amended petition aims, among other things, to resolve First Amendment concerns raised in Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991). There, a lawyer who sought to protect his client from the adverse publicity surrounding a criminal investigation by disclosing limited rebuttal information was disciplined for violating the trial publicity rule. He defended, claiming First Amendment protection for his speech and compliance with the existing rules.

    As a result of the Supreme Court's split decision in Gentile and the confusion over the interplay between the need for client protection, a fair trial, and the free speech rights of lawyers, ABA Model Rules 3.6 and 3.8 were amended in 1994 to their current form to include the provisions which are the subject of this amended petition. The amendments were cosponsored by the ABA Standing Committee on Ethics and Professional Responsibility and the ABA Section of Criminal Justice.

    Addition of the requested provisions will bring Wisconsin's own professional responsibility rules on trial publicity in SCR 20:3.6 and 20:3.8 into conformity with the current ABA Model Rules and the comparable rules of other states that have adopted the 1994 ABA amendments.

    Dated at Milwaukee, Wis., this 29th day of April, 1999.

    Ellen Thorn, President
    Wisconsin Association of Criminal Defense Lawyers

    James A. Walrath, Past President
    Wisconsin Association of Criminal Defense Lawyers


    Board of Bar Examiners Records

    In the Matter of the Amendment of Supreme Court Rules:
    Board of Bar Examiners Records, Transfer of
    Multistate Bar Examination Scores - SCR 40.12,
    (Proposed) SCR 30.03, (Proposed) SCR 40.04(2)(b)

    Order 98-09

    The court held a public hearing May 24, 1999, on the petition of Steven Levine seeking the amendment of the Supreme Court Rules to repeal the provision, SCR 40.12, making application files of the bar admission applicant and all bar examination materials confidential, to create a rule making all records of the Board of Bar Examiners subject to the Wisconsin public records law, and to permit an applicant for bar admission on examination to use the score obtained on a multistate bar examination previously taken in another jurisdiction within five years of the application in place of repeating the multistate portion of the Wisconsin bar examination, provided the score on the previously taken examination was equal to or better than the minimum passing score in Wisconsin for the same year in which that examination was taken. The court has considered the presentations at that public hearing and the materials filed with the court in the matter.

    At conference following the public hearing, the court determined that the interest in the information contained in the bar admission application records of the Board of Bar Examiners can be satisfied by having the Board provide a statistical information sheet to be submitted with but not be a part of the bar admission application. The information set forth on the statistical information sheet would be available for public inspection. Accordingly, the court directed the Board of Bar Examiners to provide the court a list of the information that would be solicited on the statistical information sheet.

    IT IS ORDERED that the petition is denied.

    IT IS FURTHER ORDERED that notice of the court's decision in this matter be given by a single publication of a copy of this order in the official state newspaper and in an official publication of the State Bar of Wisconsin.

    Dated at Madison, Wis., this 7th day of July, 1999.

    By the court:
    Cornelia G. Clark
    Chief Deputy Clerk


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