Wisconsin Lawyer
Vol. 78, No. 11, November
2005
Supreme Court Orders
The Wisconsin Supreme Court will hold
open administrative conferences on Dec. 15, 2005, and on Jan. 19 and
Jan. 25, 2006, to discuss various aspects of the Wisconsin Ethics 2000
Committee petition to amend Supreme Court Rules Chapter 20 - Rules of
Professional Conduct for Attorneys. In addition, The Board of Bar
Examiners has amended Chapter 40 of the Supreme Court Rules.
Rules of Professional Conduct - Dec.
15 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 Dec. 15, 2005, 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 20:1.6
(Confidentiality); 20:1.7 (Conflicts); 20:1.8 (Conflicts); 20:1.9
(Duties to Former Clients); (Proposed) SCR 20:1.11 (Special conflicts of
interest for former and current government officers and employees);
20:1.18 (Duties to Prospective Clients); 20:3.3 (Candor toward the
tribunal); (Proposed) 20:5.4 (Professional independence of a lawyer),
(Proposed) 20:7.2 (Advertising); 20:7.3 (Direct contact with Prospective
Clients); (Proposed) 20:8.3 (Reporting professional misconduct); and
(Proposed) 20:8.4 (Misconduct).
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 Dec. 1, 2005. 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 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 3rd day of October, 2005.
By the court:
Cornelia G. Clark, Clerk of Supreme Court
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Rules of Professional Conduct _ Jan. 19
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 Jan. 19, 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 20:3.10
(Threatening criminal prosecution); (Proposed) 20:4.1 (Truthfulness in
statements to others); (Proposed) 20:4.2 (Communications with person
represented by counsel); (Proposed) 20:4.3 (Dealing with unrepresented
person); and (Proposed) SCR 20:7.1 (Communications concerning a lawyer's
services).
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 Jan. 5, 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 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 3rd day of October, 2005.
By the court:
Cornelia G. Clark, Clerk of Supreme Court
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Rules of Professional Conduct _Jan. 25
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 Jan. 25, 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 20:4.5
(Guardian ad Litem); (Proposed) SCR 6.1 (Pro bono); and (Proposed) SCR
6.5 (Non-profit).
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 Jan. 11, 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 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 3rd day of October, 2005.
By the court:
Cornelia G. Clark, Clerk of Supreme Court
Petition
Wisconsin Ethics 2000 Committee respectfully petitions the Wisconsin
Supreme Court to revise the Rules of Professional Conduct for Attorneys
(Chapter 20, Supreme Court Rules) as recommended in the committee's
Proposed Amendments to Supreme Court Rules Chapter 20 attached to this
Petition.
Background
Mission. The Wisconsin Supreme Court created the Wisconsin
Ethics 2000 Committee in February 2003 and issued the following Mission
Statement:
"The Commission on the Evaluation of the Rules of Professional
Conduct, commonly known as Ethics 2000, was a commission appointed by
the American Bar Association to review the ABA Model Rules of
Professional Conduct and propose changes or revisions to update the
rules for today's legal practice. The commission was charged to conduct
a comprehensive study and evaluation of the ethical and professionalism
precepts of the legal profession; examine and evaluate the Model Rules
and the rules governing professional conduct in the state and federal
jurisdictions; conduct original research, surveys, and hearings; and
formulate recommendations for action. The commission completed its work
in 2001 and proposed changes to the Model Rules which the ABA House of
Delegates considered and adopted in part in 2002."
In response, the Supreme Court of Wisconsin has created the Wisconsin
Ethics 2000 Committee. Its mission is as follows:
1. The committee shall conduct a comprehensive review of the
Wisconsin Rules of Professional Conduct for Attorneys in light of the
changes, both proposed and adopted, to the Model Rules by the
commission, and any other changes the committee deems appropriate. This
shall include consideration of the rules petition to be submitted to the
court from the Fee Arbitration Study Committee; the committee shall
respond to that petition at the court's public hearing on the matter in
the fall, 2003. The committee shall not consider matters relating to
multi-jurisdictional or multi-disciplinary practice.
2. The committee shall recommend changes, if any, to the existing
Wisconsin Rules via a petition to this court for a rules change. The
petition, with detailed comments, shall be filed by October, 2004. The
court anticipates scheduling the matter for a public hearing in winter,
2004.
3. In the interest of providing full and fair consideration of these
important public policy issues, the committee shall solicit comments
from the bench, bar, and public. In planning its meeting, the committee
shall consider the state's fiscal condition and keep expenditures at a
minimum, so far as consistent with conducting a comprehensive review.
Accordingly, the committee is urged to seek written submissions and
utilize teleconferencing and subcommittees as appropriate.
This Petition is filed by the committee pursuant to the court's
direction in the Mission Statement.
Meetings. The full committee had 10 day-long meetings, which
were held on April 21, June 24, Sept. 23, and Nov. 18, 2003, and on Jan.
27, March 1, March 23, April 27, May 17, and June 24, 2004. Five
subcommittees held many additional meetings in person and by
teleconference. Considerable work was also performed by email, which was
facilitated by a listserve hosted by the State Bar of Wisconsin.
Outreach. Tentative drafts of the committee's proposals have
been posted on the State Bar Web site since late April 2004.
Members of the committee met with approximately 200 State Bar members
in a three-hour session at the annual meeting of the State Bar in
Madison on May 7, 2004. In addition, committee members met with many
other groups of lawyers and laypersons, including at meetings sponsored
by Milwaukee Bar Association, Waukesha County Bar Association, Barron
County Bar Association, Inns of Court in Brown County and Milwaukee
County, Eau Claire County Bar Association, Wausau Early Bird Rotary
Club, Dane County Bar Association, Wisconsin chapter of the American
Corporate Counsel Association, Legal Aid Society of Milwaukee, Wisconsin
Legislative Institute, Wisconsin Prosecutors Seminar, Wisconsin Bar
non-resident members in Chicago and Minnesota, Wisconsin Department of
Justice, Civil Trial Counsel of Wisconsin, Marquette University Law
School, and University of Wisconsin Law School Resource Center on
Impaired Driving. The committee also consulted in person and in writing
with the Wisconsin Supreme Court Fee Arbitration Study Committee,
particularly with respect to issues concerning fees.
In addition to the extensive comments received in these various
meetings, the committee received written submissions from a number of
individuals and groups. Among the groups submitting written comments
were the Government Lawyers Division of the State Bar, the State Public
Defender's Office, and the Lawyer Dispute Resolution Committee.
General Comments
Format. The attached proposal concerning Supreme Court Rules
Chapter 20 contains the following components:
• The current rules are presented in a red-line format
that highlights all proposed changes (i.e. amendments to current rules,
proposed new rules, proposed deletions of current rules).
• With respect to proposed rules that differ from their
counterpart provisions in the American Bar Association Model Rules of
Professional Conduct (August 2003), a Wisconsin Committee Comment
is included that identifies the difference between the proposed rule and
the model rule.
• The Preamble and Scope sections of the Model Rules and ABA
comments to each model rule are included, without noting changes
from prior versions.
The committee recommends that the court retain the current format of
chapter 20. Currently, only the "black letter" provision of each rule is
promulgated by the court, but the Preamble and Scope sections of the
Model Rules and ABA comments to each model rule are included in chapter
20 for information purposes. This approach provides helpful guidance to
the meaning of the rules and is consistent with the design of the Model
Rules. See Model Rules Scope ¶ 21.
The committee recommends including in chapter 20, for information
purposes, Wisconsin Committee Comments for rules that differ from their
model rule counterparts. These comments identify differences from the
model rules; for the most part, they do not explain or justify those
differences. Under this approach, the rule language speaks for itself,
and additional interpretive problems are not introduced in the Wisconsin
Committee Comments.
Working assumptions. The ABA Ethics 2000 Commission
proposed, and the American Bar Association adopted, very extensive
changes to the model rules. The great majority of these changes,
however, are intended to clarify rather than change existing duties. For
this reason, a cursory review of the committee's proposals may be
misleading. While the committee, following the lead of the ABA, proposes
amendments to over half of the rules, the vast majority of these
proposed amendments clarify rather than alter existing policy. After
approximately 20 years of experience under the model rules as adopted in
most jurisdictions, certain gaps and ambiguities have surfaced. Much of
this revision resolves those problems without significantly changing
underlying policy.
In undertaking its analysis and formulating its proposals, the
committee generally deferred to the model rule formulations of duty,
unless an important policy concern dictated otherwise. This policy
preference in favor of the model rules is appropriate, in the
committee's view, for a number of reasons. First, the ABA Ethics 2000
Commission performed careful and high-quality work in developing its
proposals, with extensive involvement by a wide array of experts both
within and outside the legal community. Second, the model rule
formulation is enriched by interpretive guidance provided by courts and
commentators; this benefit is reduced when minor changes in language are
incorporated into the Wisconsin rule. Third, many legal matters have
multi-state dimensions so that consistency among the states is
desirable, at least when important policy concerns are not involved.
This mild deference to model rule language means that the committee
generally did not "tweak" the wording of proposed rules for stylistic
reasons. Absent a meaningful policy concern, the committee generally
recommends adoption of the model rule as it is written.
Key Proposals
The committee recognizes that certain of its proposals involve
significant changes that should be specially brought to the court's
attention. The following proposals fall in that category.
Rule 1.0 Terminology. This new rule defines certain terms
used throughout the rules. Among its most significant provisions is the
standard of "informed consent" which is applied in the proposed rules to
many decisions that clients are responsible for making. The rules do not
currently include "informed consent" as the standard. In addition, the
committee proposes definitions for "misrepresentation" (to include only
intentional misrepresentation) and "prosecutor" (to include municipal
prosecutors and prosecutors in juvenile court) that are not contained in
the model rule.
Rule 1.5 Fees. Amendments to this rule are pending before
the court by virtue of a petition filed by the court's Fee Arbitration
Study Committee. The present proposal, which differs in a couple of
respects from the committee's response to the Fee Arbitration Study
Committee petition, was developed after consultation with the Fee
Arbitration Study Committee and based on comments by lawyers and
others.
Rule 1.6 Confidentiality. The proposal contains the
distinctive exception to the duty of confidentiality that is in the
current rule, arising in certain cases involving client crimes and
frauds. The proposal adopts the model rule exceptions for compliance
with a court order to testify and also for disclosures that "comply with
other law." Because of the latter exception, the committee proposes
deletion of the current reference to §§ 19.43 and 19.44,
Stats.
Rule 1.8 Conflicts of interest: prohibited transactions.
Among other proposed changes, the committee recommends deletion of the
insurance defense exception to the requirement that a client consent to
the lawyer's fee being paid by a third party. One of the recurring
themes in the proposed rules is that lawyers clarify their
relationships, and the committee views this as equally important in the
insurance defense setting. See Marten Transport Ltd. v. Hartford
Specialty Co., 194 Wis. 2d 1, 533 N.W.2d 452 (1995).
Rule 1.10 Imputed disqualification: general rule. The
committee proposes that, when a lawyer changes firms, the lawyer's
conflict of interest in a matter will not be imputed to lawyers at the
new firm if (1) the conflict arises from legal services that were only
minor and isolated and (2) the personally disqualified lawyer is timely
screened from participation. The committee believes that this limited
screening rule protects important client interests, while responding in
a fair and practical way to the abuse of disqualification motions as a
litigation strategy. See generally Nelson v. Green Builders
Inc., 823 F. Supp. 1439 (E.D. Wis. 1993).
Rule 1.18 Duties to prospective clients. The committee
recommends that the court adopt this new rule which currently has no
counterpart in chapter 20.
Rule 2.2 Intermediary and Rule 2.4 Lawyer serving as
third-party neutral. The committee recommends that Rule 2.2 be
deleted in its entirety, as it is in the revised model rules, because
the issues addressed by this rule are better dealt with in other rules,
including conflicts of interest rules and new Rule 2.4. New Rule 2.4
defines the role and obligations of service as a third-party
neutral.
Rule 3.8 Special responsibilities of a prosecutor. The
committee proposes new provisions, not contained in the model rule, to
clarify what communications are permissible between a prosecutor and an
unrepresented defendant. The committee believes that a prosecutor should
be able to negotiate a plea with an unrepresented defendant, but the
prosecutor should not provide other legal advice or assistance to the
defendant in the process.
Rule 3.10 Threatening criminal prosecution. The committee
recommends that this provision, which has no counterpart in the model
rules, be deleted. The standards for establishing a violation of the
rule are high, and the facts of individual cases will often contain
sufficient ambiguity to make the rule inapplicable. See generally In
re Disciplinary Proceedings Against Coe, 2003 WI 117, 665 N.W.2d
849, 265 Wis. 2d 27 (2003). To the extent that threats to present
criminal charges amount to extortion, the conduct can be prosecuted
under appropriate provisions in Rule 8.4.
Rule 4.1 Truthfulness in statements to others. The committee
proposes a new paragraph, not found in the model rule, that recognizes
that prosecutors may advise and supervise others with respect to lawful
undercover investigations that involve deception. The failure of the
rules to address this issue leaves such conduct largely unregulated
because the parameters of ethical conduct are unstated. Moreover, the
committee believes that it is wise to encourage the supervision by
prosecutors of investigations so that the rights of suspects will be
protected.
Rule 4.5 Guardians ad litem. The committee proposes this new
rule, which has no counterpart in the model rules, in order that
guardians ad litem understand that their conduct is governed by the
rules, even though their responsibilities may differ, in some respects,
from those in the usual representation.
Rule 6.1 Pro bono publico service. The committee proposes
that lawyers be required to file a report annually concerning their pro
bono activities. This requirement is recommended as a way to emphasize
the pro bono responsibilities of lawyers and to collect information
about pro bono services and needs. The model rule does not contain a
reporting requirement.
Rule 6.5 Nonprofit and court-annexed limited legal services
programs. This new rule, which is part of the model rules, provides
limited protection against disqualifying conflicts of interest for
certain legal advice hotlines and advice-only clinics that qualify.
Rule 7.6 Political contributions to obtain government legal
engagements or appointments by judges. This is a new model rule,
designed to prohibit "pay-to-play" practices. The committee did not see
this as a problem in Wisconsin, but believes that the express
prohibition of such practices is sound policy.
Rule 8.4 Misconduct. The committee has proposed two new
paragraphs that are not included in the model rule. Paragraph (h)
restates the lawyer's duty to cooperate in the investigation of a
grievance, in the belief that placement of the duty in chapter 20 will
provide better notice to lawyers. Paragraph (i) makes it misconduct to
harass a person on the basis of sex, race, age, creed, religion, color,
national origin, disability, sexual preference or marital status in
connection with the lawyer's professional activities. This provision is
intended to reinforce the strong commitment to equal justice under
law.
Conclusion
This petition and the attached proposal will be posted on the State
Bar Web site. The committee may meet again if comments from others are
such that a meeting would be appropriate to consider additional
revisions. The committee expresses its gratitude to the court for this
opportunity to be of service.
Respectfully submitted:
Wisconsin Ethics 2000 Committee
By: Daniel W. Hildebrand, Chair
DeWitt, Ross & Stevens, Madison
Board of Bar Examiners
SCR 40.11 having provided for rule-making authority by the Board of
Bar Examiners that is consistent with Chapter 40 of the Supreme Court
Rules, and the Board of Bar Examiners having conducted a public hearing
on April 6, 2005, after appropriate notice, the following regulations
under Chapter 40 of the Supreme Court Rules are amended or created as
follows:
SCR Chapter 40 Appendix
LEGAL COMPETENCE REQUIREMENT: BAR EXAMINATION
Amend BA 4.02:
Special testing accommodations must be requested by writing that is
received no later than the late first filing
deadline (January December 1 for the February
examination and June May 1 for the July
examination). The Board will deny requests that are not in writing or
that are received after the deadline.
Amend BA 4.03:
(a) The Board authorizes its staff to close any bar examination
application that remains incomplete six months following the date on
which the letter notifying the applicant of his or her passing score is
mailed from the Board office.
(b) Staff closure of a file is appealable to the full Board.
LEGAL COMPETENCE REQUIREMENT: PROOF OF PRACTICE ELSEWHERE
Amend BA 5.01:
(a) The Board authorizes its staff to close any application
for admission on proof of practice elsewhere that remains incomplete one
year following the date the application was filed with the Board.
(b) Staff closure of a file is appealable to the full Board.
REQUIREMENT AS TO CHARACTER AND FITNESS TO PRACTICE LAW
Amend BA 6.06:
(a) The Board authorizes its staff to close any application
for a character and fitness certification that remains incomplete one
year following the date the application was filed with the Board.
(b) Staff closure of a file is appealable to the full
Board.
These rules shall become effective April 6, 2005.
Dated at Madison, Wis., April 2005.
By the Board of Bar Examiners:
John O. Olson, Chairperson
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