Wisconsin Lawyer: Coming Together: The State Bar's First 125 Years - Part I:

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    Coming Together: The State Bar's First 125 Years - Part I

    Why and how did Wisconsin's attorneys come together to form an association in 1878? To commemorate the State Bar's 125th anniversary in 2003, this article looks at some of the key events, issues, and personalities that caused the formation of the State Bar and helped to set its course for future generations.

    Dianne Molvig

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    Edward G. Ryan

    Chief Justice Edward G. Ryan envisioned an organization that would allow lawyers to accomplish more by banding together than they could as individuals.

    Correction to the printed magazine: The printed version of this article included a date for Wisconsin's statehood that was incorrect. The correct date is 1848.

    Pulitzer Prize-winning author and historian David McCullough once said, "History is who we are and why we are the way we are." As the State Bar of Wisconsin celebrates its 125th anniversary, it seems appropriate to examine our story of "who we are and why." This is the first article in a series that will look at some of the key events, issues, and personalities that have shaped the State Bar into what it is today.

    The Bar's founding traces back to a meeting in the Wisconsin Supreme Court chambers in Madison on Jan. 9, 1878, three decades after Wisconsin attained statehood. One of the major instigators behind that gathering of 265 lawyers was Edward G. Ryan, supreme court chief justice. He welcomed the meeting's participants that day by stating, "I have long desired to see an efficient association of the state bar, and I am happy to think that the auspicious time has come at last when one may be formed."

    Ryan envisioned a cohesive, professional organization that would allow lawyers to accomplish more by banding together than they could as individuals. "The bar as a body," he said, "can only have the influence which properly belongs to it, on professional subjects, through an organization by which it can speak with one voice."

    Gaining a glimpse of what may have been on Ryan's mind as he made those remarks requires stepping back to view the evolution of Wisconsin's legal profession in the years leading up to 1878.

    Stamina and Stature

    By the mid-1800s, the federal census showed that Wisconsin had 471 attorneys serving a state population of 305,000. In those days, being a lawyer often demanded at least as much physical endurance as intellectual capability. The first quality enabled lawyers to get through the day. The second earned them widespread respect in their communities and beyond. Lawyers figured prominently in creating the new state's laws in 1848. In their hometowns, they "became natural leaders, and their help and influence were sought in all projects, not only political and governmental, but in business matters as well," writes James Anderson in Pioneer Courts and Lawyers of Manitowoc County, Wisconsin. Anderson practiced law and was a judge there in the late 1800s.

    drawing of Moses Strong

    Founding members elected officers, including Moses Strong, president, and approved a constitution and bylaws at its organizational meeting on Jan. 9, 1878, all recorded by hand by Edwin Bryant, secretary.

    In 1850, the state had six circuit court districts, with one judge assigned to each circuit. Traveling sometimes for days on snowshoes, horseback, wagons, sleighs, or on foot, judges made their way from one county seat to another. Shadowing them were troops of local lawyers who, by necessity, migrated to where the court work was.

    Local residents loved it when the court came to town. Courtroom dramas were one of their few diversions, and lawyers made sure they didn't disappoint the spectators. In big trials, lawyers' arguments would go on for days, and those who put on the best show were perhaps as well known to the general public then as movie celebrities are today.

    As years passed, the number of circuit districts multiplied and thus each circuit shrunk in size. Railroads and better roads also began to cross the state, so "riding the circuit" wound to an end. Still, practicing law remained physically arduous, except for attorneys in relatively urban Madison and Milwaukee.

    For example, attorney Anderson describes the effort he put into preparing for one case. He left Manitowoc by train at 10 p.m. on a winter night in 1875. Four hours later, he arrived in New London, where he paced the depot for three hours to stay warm in subzero temperatures while waiting to catch a train to a station half-way to Green Bay. He arrived there to discover that the town clerk he needed to visit lived four miles out in the woods, so he tromped out to the clerk's cabin, often through knee-high snow. Anderson sat in the cabin all day and into the night copying records by hand. As it was too late to hike the four miles back to the train station, he slept in a spare room where the interior walls were, he says, "covered an inch deep with ice and white frost." In the morning he trekked to catch the train, repeated the same pattern of waits and layovers, and arrived that night back in Manitowoc, "thoroughly exhausted from work and loss of sleep," he writes.

    Dianne Molvig operates Access Information Service, a Madison research, writing, and editing service. She is a frequent contributor to area publications.

    Anderson's document-retrieval mission had consumed 48 hours. He notes that this was just one of many such instances in his career, and "(t)hey were the same in the experience of every lawyer in general practice."

    The backgrounds lawyers brought to their practices varied considerably. Some had law degrees from back East or later from Wisconsin's still new law school, established in 1868. Rather than obtaining formal education, many had trained by serving as apprentices for a year or two with an older lawyer. But all that the statutes of 1849 required was that an attorney be a state resident and have "good moral character," which was assessed by a judge who then could grant the applicant permission to practice in his court.

    Anderson writes that some "availed themselves of this easily obtained title of 'lawyer' to exact exorbitant fees for the most ordinary clerical or conveyancing work, especially from new arrivals to this country from Europe, under the pretext of professional knowledge."

    Indeed, it was conditions such as these that, in part, spurred Chief Justice Ryan to call attorneys to meet in Madison on Jan. 9, 1878. By then, there were about 1,200 practicing attorneys statewide. Given the travel conditions of the day, it wouldn't be easy to get a sizable number of attorneys together in one place at one time. But Ryan and other key players had a plan.

    Birth of the State Bar

    The idea for a January meeting had taken root four months earlier, when many leading lawyers congregated in Madison for the funeral of federal judge J.C. Hopkins and a federal bar meeting to discuss his successor. Somehow their discussions veered to the prospect of organizing a state bar association.

    A steering committee, chaired by Ryan, set the January meeting date, knowing that federal court would be in session at that time (it convened only a few times a year), drawing many lawyers to Madison. Thus, on Jan. 9, attorneys gathered there from Eau Claire, Hudson, La Crosse, Oshkosh, Chippewa Falls, Milwaukee, Green Bay, Prairie du Chien, Superior, and other points around the state.

    Ryan's welcoming address spoke glowingly of the legal profession. "The peaceful social order, the integrity of the state, and every sacred personal right are in the keeping of our profession," he told his audience, adding that a "learned and independent bar is a condition of true civilization."

    Those words, "learned and independent," signal where Ryan was heading with his proposed association. He decried the "knaves and fools" in the profession who lacked legal training, served their clients poorly, and threatened to pull down the entire profession with them. "The rule of admission is unfortunately lax," Ryan observed. "The doors are not ajar, but wide open."

    Weeding out inept, unscrupulous lawyers and corrupt or "semi-corrupt" judges, as Ryan described them, was a paramount goal. And Ryan was clear as to where he felt that responsibility should lie. "All efficient steps to purge the bar must come from the bar itself," he said. In other words, keep legislators out of the business of disciplining lawyers, who would then be vulnerable to shifting political winds, rather than be subject to the rule of law.

    With that, Ryan set the tone. Participants went on to elect officers: Moses Strong, Mineral Point, president; 13 vice presidents, one from each judicial district; Edwin Bryant, Madison, secretary; and H.R. Carpenter, Madison, treasurer. They named a nine-person executive committee and set up four special committees: membership, legal education, amendment to the law (to seek amendments to laws regulating bar admissions), and judicial (to hear grievances against practicing lawyers). Participants also debated and approved a constitution and bylaws, and 265 of them signed the membership roll and paid their dues. Among the first items of business, the Association appointed a committee to work with the legislature to secure a reduction in the price of the Wisconsin Reports. Participants agreed to meet again on Feb. 20 to follow up on the committees' initial work.

    The members of the new State Bar Association of Wisconsin, as it was known then, accomplished much at their original meeting. "It's a classic example of intelligent people foreseeing problems and seeking to alleviate problems in an intellectual way, rather than in a confrontational way," notes Ripon attorney and former State Bar president Steven Sorenson, who researched and wrote the script for the first-meeting reenactment staged on Jan. 9, 2003. "To me, that was one of the best things about this. The intellect exuded on the table. And it cemented the idea that the supreme court and the judicial system should govern and supervise the legal system, rather than the legislature."

    Initial Slow-going

    After that initial burst of energy, the momentum slacked off considerably. The group did hold that designated second meeting on Feb. 20, 1878, but didn't meet again until three years later, and then not for another five years. Strong, who was president for the first 15 years, and the other officers and executive committee members weren't inclined, for whatever reason, to call regular annual meetings. Ryan died two years after the Association's founding, but his role had been to help launch the organization, not to be actively involved in it. This hands-off stance was necessary, he thought, because as chief justice, he might be called to decide upon matters the Association brought before his court.

    Regular annual meetings began in 1903 and continued every year thereafter. But overall activity was low, owing, in part, to poor roads and the time-consuming nature of railroad travel and Association work - time taken away from trying to make a living practicing law. Indeed, Philip Habermann wrote in A History of the Organized Bar in Wisconsin, the Association's first 70 years "were noted only for inertia."

    Wisconsin constitution

    President Moses Strong was the first to sign the membership roll. The constitution, bylaws, and roll are bound in a leather ledger, housed at the State Historical Society, Madison.

    Still, there were several noteworthy developments. The Association advocated strongly for higher bar admission standards and won improvements gradually. An 1885 law created a court-appointed board of five lawyers to examine bar applicants, who before admission had to have two years of law study, although this didn't have to be in either a law school or law office. As of 1870, University of Wisconsin Law School graduates (who didn't have to be high school graduates) gained automatic admission to the bar, an arrangement that came to be known as the "diploma privilege." This was extended to Marquette University Law School graduates in 1933. Admission standards rose in steps over many years. But it wasn't until 1940 that the supreme court required three years of college before law school and abolished law office study as a substitute for law school.

    In 1900 the Legal Education Committee proposed a code of ethics for the profession and also suggested a required reading list for those who sought admission to the bar. The code gained approval at the next year's annual Association meeting. But it would be another 55 years before any mechanism was in place to effectively discipline practicing lawyers who violated the ethics code.

    Another event of note in the early 20th century was a speech by president Claire Bird at the 1914 annual meeting calling for an integrated bar - that is, all lawyers practicing law in the state would be required to join the Association. Wisconsin was the first state to consider such a proposal. Bird described it as "radical and fundamental," and indeed it engendered debate that went on for decades in the legal profession, the legislature, and ultimately the supreme court.

    George Morton, a Milwaukee lawyer, also surfaces as a key individual in these years. As chair of the Membership Committee in 1912 and later treasurer and secretary-treasurer, Morton gave the Association a badly needed shot in the arm. He pushed to increase membership, clean up record-keeping, and rehabilitate ailing finances. Habermann credits Morton as the person who "probably saved the inept and poorly organized association from total stagnation."

    But Morton burned out after a decade. Stepping up to the plate was Gilson Glasier, who worked full time as the state law librarian. For 25 years, as a sideline to his regular job, Glasier dedicated many hours to keeping and storing Association records, a task for which he received a small stipend. In 1928 he launched the Association's first magazine, and he served as its editor until 1949.

    The year 1929 brought another proposal that was to have lingering effects for decades. For one hundred years after statehood Wisconsin lawyers were inadequately compensated, wrote Habermann. In the earliest days, most law work was charged for at flat rates, court work on a daily rate; and most lawyers who became well off did so through side ventures. Most of the fault for poor compensation lay in the haphazard system of charges for service. Up until 1929, many local bar associations had schedules listing minimum fair rates for various types of law work. At the Association's 1929 meeting, debate ensued over the merits of a statewide fee schedule. It passed and was considered to be a guide, not a bible. Numerous revisions adapted it to changing times. Minimum fees had a great impact on the economics of law practice; lawyers were keenly aware of the profession's economic pitfalls and poor pay, which was made more uncertain by clients who shopped for the lowest fees. However, in 1972 the U.S. Department of Justice decreed that the fee schedule violated price-fixing restrictions in anti-trust laws. That was the end of fee schedules. Still, the concept, which endured for 43 years, signaled that lawyers were more serious than before about keeping an eye on the economics of law practice.

    Meanwhile, other societal changes in the first half of the 20th century affected lawyers and the Association. The automobile, prevalent around the state by 1907, induced a spate of road building. The combination of automobiles and improved roads made it easier for lawyers to get around. Automobile accidents, new tax laws in 1903 and 1911, and the passage of the Workman's Compensation Act in 1911 brought more work through lawyers' doors. And the law profession, like the rest of the country, had to survive the Great Depression and two World Wars. World War II, in particular, sent lawyers away from Wisconsin in droves. Those who returned to their practices were accompanied by other military veterans who opted to earn law degrees under the GI Bill.

    Law schools were not prepared for the influx of law students following World War II. "When I entered law school in 1947, there were twice as many students as available seats and when I graduated, I faced an employment market that was less than desirable," writes Janesville attorney George K. Steil Sr., who was State Bar president in 1977-78. Many lawyers took employment in industry until they could find an opening where their legal talents would be used. "A lawyer in my home town urged me not to come back to my home town to practice law because there were too many lawyers there," Steil recalled.

    Strides were made in law office management, too, as technology that was developed during WWI and WWII for the military was adapted to civilian pursuits. For example, the advent of the electric typewriter and the copying machine, as well as systems for capturing time records, all helped to point lawyers to new ways of thinking about and managing their law practices.

    The stage was set for profound changes in the Bar Association in the years ahead.

    The Next Wave

    The late 1940s posed new challenges and opportunities for the Association. Veteran lawyers returning after years in the war needed to refresh and update their legal skills. The lawyer ranks burgeoned rapidly with post-war law school graduates. The supreme court rejected the latest attempt in 1946 to integrate the bar, urging the Bar Association to try again to succeed as a voluntary organization. The Association was perhaps at its most significant crossroads since its founding 68 years earlier. The 1947 annual meeting in Green Bay adopted a new constitution and charted new directions. The organization's name also changed the next year, to the Wisconsin Bar Association.

    The time seemed ripe to hire the first full-time staff person. Brought on board in 1948 as the new executive secretary, Phil Habermann's task was to manage and build the Bar Association. Within a few months, he and his staff of one part-time secretary, together with one file cabinet and a typewriter, moved into a three-room rented office just off the Capitol Square, at 114 W. Washington Avenue.

    Habermann stumped around the state, attending local bar meetings to cement relationships and recruit members for the state organization. "A small percentage [of lawyers] were members," recalls Madison attorney Jack R. DeWitt, who was State Bar president in 1975-76. "So, the Bar was limited in what it could do for lawyers or for the public." Habermann became active in the American Bar Association to build closer relationships there as well. The organization's finances improved and better record-keeping and publishing efforts enabled more effective communications with members around the state.

    Continuing legal education, although it wasn't yet called that, also got a major boost at this time. Seeds already had been planted. Back in 1878, the founders set up the Legal Education Committee, but its focus was on education to prepare to become a lawyer. Gradually, however, concerns evolved about the need for ongoing training. President Marvin Rosenberry summed up the situation in 1926: "It is thought that we have been having on our (annual meeting) programs too much general inspirational material and not enough discussion of detailed subjects, and it is suggested that it might be advisable to have a number of round table discussions on definite topics."

    The solution was to offer legal clinics and regional meetings around the state. These focused on practical discussions led by panels of local attorneys. The frequency of these events dwindled during World War II, but after the war the need for educational offerings for returning military veteran lawyers spiraled. The Bar Association created a Post-Graduate Education Committee in 1947. The next year, one of the new executive secretary's main tasks was to install an active training program. Initially, this mostly took the form of numerous regional sessions around the state.

    Another of Habermann's chief duties was to lobby the legislature. Up to that point, the Association struggled with its legislative activity, never seeming to figure out what its role should be. One action it did take was to launch its first legislative bulletin for members in 1927. But overall, the Association's stance on legislative matters remained reactive, rather than proactive, until Habermann became its lobbyist. Prior to his employment with the Association, Habermann had served as the first full-time director of the Legislative Council, an agency of the Wisconsin State Senate and State Assembly. Because Habermann's responsibilities there included research and coordination of the activities of the various subcommittees, he was well-acquainted with legislators, well-versed on the issues before them, and knowledgeable on how to approach them to advance the Association's interests.

    Then in 1955, the Association approached yet another turning point when president Alfred E. LaFrance of Racine announced his plan to again pursue integration. The supreme court approved it the following year, although, of course, the debate over integration was far from over. Still, 1956 marked a major shift in the Wisconsin Bar Association's direction, soon to undergo restructuring and another name change, to the State Bar of Wisconsin. The story continues in the June issue.