Vol. 78, No. 5, May
2005
Letters
Letters to the editor: The Wisconsin Lawyer
publishes as many letters in each issue as space permits. Please limit
letters to 500 words; letters may be edited for length and clarity.
Letters should address the issues, and not be a personal attack on
others. Letters endorsing political candidates cannot be accepted.
Please mail letters to "Letters to the Editor," Wisconsin Lawyer, P.O.
Box 7158, Madison, WI 53707-7158, fax them to (608) 257-4343, or email them.
Contested Judicial Elections Ensure
Independence
In Wisconsin, we elect our judges to ensure their independence. In
this way, the authority of the judicial branch is drawn directly from
the people. Wisconsin Supreme Court Chief Justice Shirley S. Abrahamson
is clearly correct in citing the need for judicial independence as a
campaign issue. (See "Making Judicial Independence a Campaign
Issue," in the February 2005 Wisconsin Lawyer.) Nevertheless,
judicial independence as a campaign issue means little when so many
judges run for election unopposed. This spring all three appellate court
seats went uncontested. Statewide, only eight circuit court judgeships
were contested. Elections with only one candidate represent a failure of
the system. No judge, not even the great John Marshall, is so good that
he or she does not deserve a stiff challenge.
People like to vote when they have a choice. Contested elections make
the system work, bring needed attention to the court system, and give
the people a personal stake in the process. Contested elections force
the candidates to go out and meet the people and share the candidates'
wisdom, thus educating the public about the judiciary and its role in
our lives. In uncontested elections the public learns nothing. That is a
great threat to judicial independence, because it leaves defining of the
court system to the media and other groups that may not favor judicial
independence. Single candidate elections leave the people feeling shut
out of the process, because a choice of only one candidate is really no
choice at all.
Nicholas C. Zales, Milwaukee
Section Supports $50 Assessment to
WisTAF
When the Wisconsin Supreme Court decided that all lawyers of
Wisconsin must help to support legal services for low-income people,
some Wisconsin lawyers greeted this well-reasoned and morally grounded
decision with anger, and disdain. Now the State Bar's Board of Governors
has authorized a process to retain counsel to review a potential
challenge to the court's decision. And over what? A $50 assessment that
lawyers will be required to pay to support the delivery of legal
services for the have-nots of our society.
The State Bar Public Interest Law Section applauds the action by the
supreme court and believes the State Bar should follow this lead with
grace and dignity. Our supreme court's decision to approve a $50
assessment is a measured attempt to support providers of legal services
to those who can't afford them, and it represents a move toward a
partnership of key stakeholders, including the legislature, lawyers, and
the philanthropic community in Wisconsin.
Sadly, it was the State Bar's reluctance to vigorously support the
notion of equal justice for all that moved the court to action. As
Justice Roggensack commented when she introduced a motion in support of
the petition: "This is a leadership issue for the court." And indeed it
was. The supreme court stepped into the leadership void that the State
Bar of Wisconsin left vacant. Although some lawyers go to extraordinary
lengths to provide pro bono services to the people of our state, the
distressing fact remains that the needs are overwhelming.
The failure by some of our colleagues to acknowledge the immediate
legal service needs of the state's poor reflects badly on our
profession, and this failure contradicts and undermines the State Bar's
recent campaign to brand the profession in a positive image to the
public. That some lawyers balk at the prospect of supporting legal
services for the poor over a $50 surcharge is disheartening. The State
Bar Board of Governor's action to seek out counsel to potentially
challenge the supreme court's 5-2 majority decision is a public
relations disaster waiting to happen.
We as lawyers bear a responsibility - indeed, a higher responsibility
- to all of the residents of our state to promote the ideal of equal
justice for all. Our supreme court wisely recognized this and nudged the
bar to action.
Wisconsin lawyers should heed the motto of our state and look and
move Forward to lead the effort to promote a justice system that
serves everyone and brings us closer to the day when we truly will live
in a society where there is equal justice for all.
Public Interest Section Board of
Directors, Mary Catherine Fons, chair
Response: It is important to view in context the Board of
Governors' decision to direct the Bar's officers to obtain counsel for a
legal opinion about the legality of the Wisconsin Supreme Court Order
approving the WisTAF petition (Petition 04-05) to impose an annual $50
mandatory assessment on every active State Bar member. The legal opinion
also is to consider the potential impact of the mandatory assessment on
the status of the Bar. The State Bar position before the supreme court
was an acknowledgement of the unmet legal needs and a request that the
$50 assessment be placed on the dues statement with the ability for
individual lawyers to remove the assessment if he or she was already
contributing time or money. Seeking a legal opinion is not tantamount to
an unwillingness to be a part of the solution. In fact, the State Bar is
committing resources to fund and conduct a comprehensive study of the
civil legal needs of poor people in Wisconsin.
Michelle A. Behnke, president
State Bar of Wisconsin
Judiciary Should Defend Against Assault on
Legal System
With the assault being made on our legal system by luminaries no less
than that of the President of the United States, I write to inquire why
officials within Wisconsin's judicial system remain silent. Critics of
our courts decry a panoply of ills ranging from out-of-control juries
handing out exorbitant awards to a mountain of frivolous lawsuits that
are used to extort millions of dollars from nonculpable defendants.
If that is the case, why is our judiciary not standing up and
offering concrete solutions to these terrible problems? On the other
hand, if these accusations are false or misleading, why is our
judiciary not standing up and telling the public and legislature that
they are being hornswoggled? I submit that the judiciary's silence is
generally regarded as an admission of the charges being leveled.
As the guardians of our legal system that has come under excoriating
attack, the judiciary has the obligation to either assist in fixing the
problems that are asserted, or to take to the podium and pick up the pen
and defend the system that has worked so well for so many for so
long.
John B. Edmondson, Appleton
[Editor's Note: The underlined text was inadvertently omitted
from Mr. Edmondson's letter as published in the April 2005 issue. We
apologize for the error.]
Reward Pro Bono Work with Free CLE
Programs
I write in regard to the letter by Tom Kiefer in the February
Wisconsin Lawyer and the response by State Bar CLE Director
Thomas Dixon. Like Mr. Dixon, I commend Mr. Kiefer for raising the
issues and proposing changes to the current system. The arguments by Mr.
Dixon are precisely the arguments I would have made. As a recovering
"private practice" attorney, I have moved into a highly focalized area
of corporate law. On a regular basis, I struggle to find "meaningful"
CLE credits that will further my knowledge in the field I am practicing.
And whether it is in-state or out-of-state, I am always able to find
something on point, and it advances my knowledge in the field. There is
no doubt in my mind that each attorney needs to view a CLE program as
something other than "wasted hours." (I found it ironic that at the
first Ethics CLE that I took in my career, I witnessed another attorney
reading the Wall Street Journal throughout the three-hour video
seminar.)
Perhaps the solution is somewhere in-between. There are a lot of
practice areas where pro bono work is desperately needed. Attorneys
ought to be given free tuition (or at the minimum a deep discount) on
the CLE in exchange for doing pro bono work. If the attorney does not
fulfill the required pro bono work by the end of the two-year reporting
period, he or she would have to reimburse the actual cost of the CLE.
This would allow the attorney to attend the CLE of his or her choice and
be able to use knowledge gained to assist paying clients and pro bono
clients alike.
This may make CLE a losing enterprise for the State Bar of Wisconsin,
but it potentially has a two-fold effect: encouraging attorneys to
attend CLE programs at which they will pay attention to what is being
presented and putting more attorneys in the ranks of those providing pro
bono services.
It is clear that pro bono reform needs to take place. I hope that a
solution can be reached.
Mark A. Daspit, Madison
Response: It is encouraging to receive letters recognizing the
need and value both in CLE and in providing pro bono services to those
who cannot afford legal services. In fact, attorney Jeff Brown - the
Bar's pro bono coordinator, the Legal Assistance Committee he works
with, and I have been struggling to find a variety of solutions to this
dilemma. We will be attempting a small test program of CLE cost
reduction, somewhat as Mr. Daspit suggests, later this year. Of course,
if money were no object, solutions would be readily forthcoming. And
there lies the rub.
The State Bar of Wisconsin CLE Department provides a wide number and
variety of seminars and books using an array of regular and
technological delivery vehicles. The CLE Department is entirely
self-supporting and brings in approximately half of the Bar's budget
every year. Some of our seminars and books are not cheap, but they are
generally below the market price charged by outside providers and
typically of much higher quality. Were we to significantly undercut the
income that comes to the Bar from that production, to paraphrase Woody
Hayes, three things could happen and two of them are bad.
First, free (or reduced cost) CLE could draw attorneys to serve the
indigent in greater numbers. This would be good. Now the other two.
Assuming that we were successful and drew even one seventh of our
attendees to taking a pro bono case, the quality and number of books and
seminars would soon be drastically reduced as a result of reduced
revenues. Unless we found other sources of income, CLE and other staff
would have to be reduced, which will have a domino effect on staff
support for Bar programs overall. This would be bad. Finally, either
seminar and book prices or dues would have to go up substantially to
cover some of that shortfall or a significant reduction in the services
now provided by the Bar would have to occur. I believe most of the
membership would also think this is bad.
From public information to moot court to assistance to lawyers to
assisting local bars to the extensive connectivity provided by the State
Bar Web site, for example, the State Bar provides a myriad of services
for lawyers and the public. These services would be greatly missed if
they diminished or disappeared.
Mr. Daspit's suggestions and expressions of concern are well taken,
and we will continue to look for solutions, including some kind of
discount program, within the Bar. However, my personal opinion is that
society has to step up and take some responsibility for providing access
to our justice system. Lawyers cannot, and should not, be asked to bear
this burden by themselves. As a profession we should do our part - and
many of us do. But if the system of justice is to be meaningful in our
democracy, the public and the legislature must join the supreme court
and the Bar to recognize and act on solutions for providing access to
those who cannot afford it.
Thomas E. Dixon Jr., director,
State Bar CLE Department
Wisconsin Lawyer
