Wisconsin Lawyer
Vol. 82, No. 9, September 2009

Criminal Defense Attorneys Protect Freedoms

I appreciate the honorable mention in the July 2009 executive director’s column, “The (Bargain Basement) Cost of Justice,” that discusses the rate of assigned-counsel reimbursement. I hope that I might yet have further input on this topic.

So far, the primary voices on the subject of assigned-counsel rates have been individuals related to the State Public Defender’s assigned-counsel division with one or two others, bar presidents and a few legislators. Notably silent on this issue are the vast majority of attorneys in the state: the ones who don’t now take and perhaps never have taken public defender cases. Perhaps these silent attorneys think this issue doesn’t affect them. I believe that would be an error.

We are all colleagues. Disrespect of one subset of our profession diminishes all of our profession. This tacit acceptance of taking advantage of some of us is an indication that it is acceptable to take advantage of any of us. Most people don’t distinguish between one type of attorney and another.

When a rate of $40 per hour is established for public defender attorneys, does that not apply to all attorneys? Are criminal law issues really less complex than trusts and estates? Business law issues? Real estate law issues? Indeed, do any of these other areas of the law implicate the most important of our rights as directly as criminal law? Life, liberty, and the pursuit of happiness. (You might say we do not have the death penalty, yet it is perennially revisited here.)

Should the attorneys whose work is constitutionally mandated really be paid the least?

As attorneys, even those who don’t regularly practice criminal law, we must recognize even more so than the rest of the population, that our Constitution and Bill of Rights are defended here, in criminal law.

We should not tolerate that the attorneys who do the work of protecting and preserving those most elemental aspects of our American freedom are being paid so far below cost.

Peter C. Rotter, Wausau

Copyrighted Codes Not Easily Available

Thank you for the excellent legal research guide, “A Guide to Wisconsin Legal Information Sources,” by Bonnie Shucha and Heidi Yelk, in the July 2009 issue.

I am an in-house attorney for a real-estate-construction development and management company in the Milwaukee area. Contending with the limited library at our offices has never been much of a problem since it provided me with the opportunity to visit other venues for research. Your guide will now eliminate that necessity in many instances.

I would like to relate a problem I have with a trend that is becoming more prevalent and bothersome as time goes on. That trend is the adoption of copyrighted codes. My concern is the lack of availability of the text of these copyrighted codes for review purposes, either in hard copy or online.

One example of a copyrighted code that comes to mind is the NFPA Code. To quote the Note in Comm 14.001, “A copy of NFPA 1 Uniform Fire Code is on file in the offices of the department and the legislative reference bureau. Copies … may be purchased from the National….”

This code is not available without payment of subscription fees, unless the local fire chief is willing to share the department’s license or its copy of the text, or a person travels to Madison. I am not aware of any local public legal research facility that subscribes to or has a current copy of the text of this or other copyrighted codes.

The adoption by the Department of Commerce of the International Building Code Series in the early 2000s has significantly added to the problem.

Since copyrighted code is becoming prevalent for enforcement actions (not just design criteria), my concern now increases; often a court order will issue that references only a state or local code section adopting the copyrighted code. The order, however, does not even reference the pertinent copyrighted code section!

Laws must be published to be valid.

It seems to be a paradox that at a time when the text of law is almost universally available either online or in a library at no cost, the text of new codes under the popular guise of “uniformity” is copyrighted and thus not available to the public without fee or a drive to Madison.

Am I missing something here?

Michael C. Chmurski, Megal
Development Corp., Brookfield

Response. In my opinion, access to these copyrighted codes is indeed a problem. Codes from the National Fire Protection Association (NFPA 1 and the National Electrical Code, both cited in the Wisconsin Administrative Code) are not available free online. Print or online subscriptions are expensive. Only a few libraries throughout the state can afford to collect these codes.

As Mr. Chmurski notes, state law requires agencies to file a copy of incorporated standards with the Legislative Reference Bureau, where they are available for public access. Wendt Library, on the U.W.-Madison campus, also makes an effort to maintain all current standards. In addition, attorneys have the option of contacting the Wisconsin State Law Library to inquire about Interlibrary Loan copies. However, these options are admittedly time-consuming and not free.

So, which codes are available free and online? Recently, the Commerce Newsletter, an electronic publication from the Department of Commerce, addressed this topic. The Department of Commerce has adopted many of the model codes created by the International Code Council (ICC). See sections Comm 61.04 and 61.05 of the Wisconsin Administrative Code for a listing of these codes. Many of these codes, with the exception of the ICC National Electrical Code, are available for free use on the ICC Web site.

To access these codes, go to http://www.ecodes.biz/. On the left side, click on “Free Codes.” A click on “International Codes” will bring up a page with editions from 2000, 2003, 2006, and 2009. In the process, you may be presented with a registration/survey form. To bypass this step, simply click on “Returning User” just above the registration form. In addition to the ICC codes, users can access the Wisconsin Enrolled Commercial Building Code on this site. According to a representative from the ICC, the Wisconsin code is updated whenever the ICC receives updates from the Department of Commerce.

Heidi Yelk, Reference/Electronic
Services Librarian, Wisconsin State Law Library, Madison   

Wisconsin Lawyer