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    Wisconsin Lawyer
    February 01, 2005

    Legal News and Trends

    Wisconsin Lawyer
    Vol. 78, No. 2, February 2005

    Legal News & Trends

    Wisconsin Supreme Court: $50 per lawyer assessment to WisTAF

    On Jan. 12, the Wisconsin Supreme Court granted the Wisconsin Trust Account Foundation (WisTAF) petition imposing a $50 annual assessment on all active-licensed Wisconsin lawyers. The order requires the Bar to collect the assessment and pay it to WisTAF. The assessment, which will appear on dues statements in July, will fund civil legal services for people who cannot afford an attorney.

    The Wisconsin Supreme Court created WisTAF in 1986 to receive and make grants of IOLTA funds to provide legal aid to the poor.

    The court also indicated that the State Bar should conduct a two-year study of civil legal needs of the poor in Wisconsin.

    Justices Abrahamson, Roggensack, Crooks, Bradley, and Butler voted in favor of and Justices Prosser and Wilcox voted against the mandatory assessment.

    The court's order marks the first time a supreme court in a state with a mandatory bar association has ordered a mandatory assessment on lawyers to fund civil legal services.

    The Bar's position on the petition. The Board of Governors, while opposing a mandatory assessment on lawyers, voted 34 - 7 in November to support a voluntary contribution in the form of a two-year $50 opt-out assessment via the annual dues statement.

    State Bar testimony on the petition. State Bar President Michelle Behnke spoke on behalf of the Bar, reminding the court of the Board's position, but also stating that the State Bar recognizes the serious problem of access to justice for many poor people in Wisconsin.

    Behnke told the court that the State Bar believes the answer to this larger societal problem will not be found in a $50 assessment on Wisconsin lawyers. She reminded the court that Wisconsin lawyers regularly provide free legal services to the indigent and make monetary contributions to civil legal services providers.

    Behnke stressed that the Bar believes that permitting each lawyer to decide whether to contribute to a legal services provider of the lawyer's choosing is an important consideration for a mandatory bar association. Citing member feedback the State Bar and Behnke personally received from local bar associations, Behnke reported that members overwhelmingly - sometimes adamantly - oppose a mandatory assessment.

    Speaking for the Bar, Behnke noted that the problem of access to justice is not a problem for lawyers only and that mandating an assessment against every active lawyer could erode support for broader measures to address the problem, causing the legislature and the public to believe the need is being satisfied by lawyers.

    Behnke also argued that a mandated fee may conceivably alter the willingness of some attorneys to perform pro bono service or maintain their existing charitable support of legal services providers. The Bar believes if this hap- pens, the public may feel the effect of lost pro bono efforts of individual attorneys.

    Behnke and other speakers noted that the petition was flawed in several respects. Even the petitioners admitted the $50 assessment was merely a stopgap measure and would not fill the unmet needs. In addition, there was no sunset provision and no long-range plan in place to correct the problem. Behnke raised the prospect that once imposed, the assessment may become a permanent feature. Minnesota imposed a $50 annual assessment several years ago, and a proposal is pending to raise that assessment to $125.

    Behnke and other speakers raised the objection that mandating lawyers to fund WisTAF takes away attorneys' freedom of choice for charitable donations and would establish WisTAF as the preferred funder of legal services. This could harm other legal service entities serving the poor that are not funded by WisTAF. Behnke noted this is an important consideration given that WisTAF recently recommended not funding four programs that formerly received WisTAF grants.

    Deliberation over the petition. Justice Prosser expressed a number of concerns about the petition. He observed that the court's action converts the moral and ethical pro bono obligation of attorneys into a legal obligation for the first time. The court's action will force lawyers to support organizations whose activities they may find offensive, and it is not clear what specific problems of the poor will be addressed by this stopgap funding.

    Justice Wilcox did not dispute the need for civil legal services but disputed the mechanism being proposed to address the need.

    Justice Bradley rejected the argument that the court ought to ignore the immediate short-range funding need merely because some members of the court felt a long-range solution was needed. She spoke of lawyers' special obligations that come from their special privileges, and she did not think lawyers would consider $50 an excessive fee.

    Chief Justice Abrahamson recognized the valuable pro bono efforts of State Bar members. However, she cited a compelling need for the court to act to address a critical situation, and she believes the assessment is consistent with the duties of a lawyer and the purposes of the bar. She added that funding legal services for the poor is not just an obligation of the supreme court and lawyers.

    On Jan. 13, in response to the court's action, the Board of Governors voted 24 - 17, with one abstention, to hire counsel and obtain a legal opinion as to the legality of the supreme court order granting the WisTAF petition and its potential impact on the status of the bar. Several board members recommended, if possible, counsel be obtained pro bono.

    Members with concerns about the court's ruling or the board's action can send feedback to:; Dan Rossmiller, Public Affairs Director, State Bar of Wisconsin, P.O. Box 7158, Madison, WI 53707-7158; or their district governor.

    Comments due by March 1

    Committee seeks feedback on Wisconsin jury instructions

    In November, at the request of the Board of Judges, the Wisconsin Jury Instructions Committee formed a subcommittee to recommend revisions to the eminent domain series of jury instructions in Wisconsin Jury Instructions - Civil.

    The subcommittee, comprising six lawyers from throughout the state, plans to submit its recommendations to the Board of Judges by November 2005 and seeks feedback by March 1. Comments should be directed to one of the following subcommittee members:

    Since 1960, the U.W. Law School has joined with Wisconsin trial judges to develop uniform jury instructions for civil and criminal cases. This partnership has produced nearly 1,000 jury instructions to assist judges, lawyers, and, most importantly, jurors in understanding what the jury must decide at the conclusion of a trial. These instructions are published by the U.W. Law School in Wisconsin Jury Instructions - Criminal and Wisconsin Jury Instructions - Civil.

    The Courts: Who should pay the price?

    Should the state of Wisconsin, not the county taxpayer, pay for the cost of the state-mandated court system? That is the question the Wisconsin Counties Association wants all 72 counties to put on their April ballot.

    While the voters' answer to this referendum question would merely be advisory, the Association believes it would send a strong message to lawmakers in Madison. In 1990 when voters were polled on the issue of all unfunded state mandates, nearly 70 percent said the state should pay for programs it creates. Later the state picked up the tab for district attorneys' salaries.

    Expect the property tax burden to be at the center of debate this legislative session as lawmakers consider limiting government spending and "freezing" property taxes.

    County boards have until Feb. 22, 2005 to act to place the question on the April 5 ballot.

    Mandatory court form updates
    Civil, criminal, general, guardianship, juvenile, probate, and small claims

    As of Dec. 1, 2004, the Wisconsin Records Management Committee, an advisory committee to the Director of State Courts Office, which develops and distributes mandated forms, has updated and introduced the following. Key: New (N)/Revised (R)

    • CV-426 Garnishment Exemption Worksheet (R)
    • CR-226 Waiver of Right to Attorney (N)
    • CR-228 Notice of Bail/Bond Forfeiture (R)
    • CR-229 Notice of Bail/Bond Forfeiture and Forfeiture Hearing (R)
    • CR-244 Order for Presentence Investigation Report (R)
    • CR-253* Order for Reconfinement after Revocation of Extended Supervision
    • GF-163 Application and Order Concerning Circuit Court Commissioner in Probate Duties (R)
    • GF-171 Judgment for Unpaid Fines, Forfeitures and Other Financial Obligations (R)
    • GN-2024 Account of Guardian/Conservator (R)
    • GN-2036 Bond Certificate (Wisconsin Resident) (R)
    • JK-1736 Waiver of Right to Attorney (Child/Juvenile) (R)
    • PR-1802 Declination to Act as Personal Representative (R)
    • PR-1814 Final Account (R)
    • PR-1826 Notice of Probate Summary Procedures Deadline (N)
    • PR-1840 Summary Assignment - Petition (R)
    • PR-1842 Summary Assignment - Notice to Creditors (R)
    • PR-1905 Order for Formal Administration (R)
    Small Claims
    • SC-514 Writ of Replevin (R)

    Forms and summaries are available in PDF or MS Word format at For more information, contact Judy Mahlkuch at (608) 266-7143 or

    *Form summary change only, effective March 1, 2004.

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