Wisconsin Lawyer
Vol. 83, No. 5, May 2010

Bar Presidents Should Build On, Not Break Down

I have to say that I am personally affronted by the April President’s Message entitled “Breaking the Circle.” I wrote my dozen columns, and so did my predecessors and successors. As far as I can remember, none of us ever abused the privilege to attack perfectly innocent people who have given years of their lives to the profession and their peers. This is a new level of low character for the organized profession.

I was president of the State Bar of Wisconsin about 15 years ago. I can’t say that I fit anyone’s definition of a member of a privileged, sinister cabal. I was not only the president who lived the farthest away from Madison in State Bar history, but I am the farthest away from Madison of any private practice lawyer in Wisconsin history. I am a solo from a minuscule town on Lake Superior. I assure you that I never made a lot of money offering services to my impoverished neighbors.

I served this State Bar for nine years. For the three presidential years, I donated far more than half my professional time to the Bar, as did most of my predecessors and successors.

The president before me was from Milwaukee, but the president before her was from La Crosse. The president after me was from Madison, but the president after him was from Ripon and was also a solo. In the time that I was active in the State Bar, we had presidents from Wausau, Stevens Point, and Green Bay, as well. All were fine people worthy of respect, but we were all very different from each other and did not represent any consistent point of view, let alone some cohesive clique. What we had in common was that we all cared deeply about the profession.

In the time that I was active in the State Bar, we revolutionized the practice of law for average lawyers in Wisconsin. We cut the cost of computerized legal research to just one quarter of what it had been only months before. We brought the efficiencies of law office technology to small firms and solos all over the state. We changed the way cases were cited, so that modern forms of legal research could be officially cited, a template that became the national model. We created a pioneering Web presence that brought amazing resources within the reach of every lawyer, winning a number of national awards in the process.

Truly it can be said that we leveled the playing field, putting into the hands of every lawyer the kind of powerful resources previously only enjoyed by the largest firms.

What have you done for the lawyers of Wisconsin that compares to that, Mr. President? Isn’t it more useful to be constructive, rather than just to tear things down? Isn’t there enough entropy in society already without our leaders using the ages-old techniques of paranoid populism to attack those who built things of value?

If the State Bar becomes voluntary, then the state supreme court will have to create some regulatory structure to replace it. Does anyone think that this will be less expensive? Think again.

The State Bar is a large, complex collection of economic entities. Dues only pay for about one third of the cost. The other two thirds is paid for by the revenue from things like books, seminars, and advertising. That means that these other “profit centers” actually subsidize the regulatory function of the State Bar.

Further, fully one third of the State Bar’s members are nonresident lawyers, who pay full dues but receive only minimal services. Many of them belong because of the diploma privilege. If they do not offer their services to the public (if they are in the military, work for the government, or are in-house counsel), then this is the only Bar that they need in order to work. If we lose their revenue, who do you think will pick up the difference?

I support candidates for president-elect who have enough history of being active in the State Bar to effectively lead this organization, rather than run it into the ground. To understand the budget, you need to understand the activities covered by the dozens and dozens of line items. You need to know the business cycles of the various activities that the Bar engages in. You need to know what works well and how to change those things that don’t.

And you need to care.

A profession, as opposed to a job, is not just a matter of the education required. Many jobs require a lot more education than our profession does. A profession is an occupation in which the members use their power of self-regulation to serve a higher calling.

If we are not willing to view ourselves as more than just a selfish interest group, I assure you (as a person who has spent the last 12 years in the Wisconsin Legislature) that there are plenty of people in the legislature and the executive branch who are more than interested in taking over the regulation of the practice of law. If that seems preferable to you, by all means go ahead and destroy what people have built up and believed in for many decades. You will reap what you sow.

Gary E. Sherman, Port Wing and Madison

State Shouldn’t Raid Lawyer-funded OLR General Fund

I am a member of the Board of Administrative Oversight. The general fund of the Office of Lawyer Regulation (OLR) is going to be tapped to the tune of $175,000 on June 30, 2010, and an additional $118,000 on June 30, 2011, to contribute to the budget of the state of Wisconsin. In other words, lawyers are being required to contribute their money from the OLR reserve fund to assist in offsetting the state’s deficit. The supreme court assessment on attorneys for self-regulation and costs recovered in discipline cases make up the OLR general fund. This is not funded with taxpayers’ dollars, and we lawyers should be outraged that the general fund of the OLR is being raided to offset the Wisconsin deficit. This is fiscal irresponsibility of the state of Wisconsin.

Terry W. Rose, Kenosha, member and former chair of the Board of Administrative Oversight

Whether and How to Report an Expunged Conviction

As criminal defense attorneys, we are writing in regard to the Director of State Courts (DSC) brochure titled “Expunging Court Records” (January 2010). The brochure poses the following hypothetical question:

“My record was expunged. Do I still have to admit I was convicted of a crime?”

The DSC’s answer, in relevant part, is as follows:

“Yes. Although your record was expunged and your court record sealed, the judge’s order does not reverse or set aside your conviction. If you are asked if you have ever been convicted of a crime, such as on a job application, you must answer ‘Yes.’”

Although we recognize that the office of the DSC does not have the final word on how to answer questions on employment applications, we also realize that interested parties may follow the advice in its brochure. We strongly disagree with the DSC interpretation and answer in the brochure and believe it should be changed.

First, to obtain expunction a citizen must first demonstrate to the court that he or she would benefit from expunction. Wis. Stat. § 973.015. The most common, if not sole, benefit of expunction involves employment opportunities. In fact, judges have granted our clients expunctions because we proved that they had been denied jobs as a result of their convictions. If a citizen would still have to inform employers (or others) that he has been convicted of a crime, even after expunction, then the process of expunction would be stripped of its value. Paradoxically, without any potential benefit, a citizen wouldn’t even qualify for expunction in the first place, which would render the statute meaningless.

Second, and more important, the courts, the legislature, and even the attorney general do not agree with the DSC’s interpretation. In fact, this identical issue has been raised in the context of sworn testimony in court. When a person testifies under oath as a witness in a trial, either party may ask that witness if she has ever been convicted of a crime. If she has, the witness must answer “Yes,” and may then be asked how many convictions she has. See Wis. Stat. § 906.09. (There are some nuances, especially with regard to older convictions, but those are beyond the scope of this letter.)

However, when a witness’s prior conviction has been expunged, the answer to the question “Have you ever been convicted of a crime?” would be “No.” Likewise, if the witness had one conviction in addition to the expunged conviction, the answer, in court and under oath, to the question “How many times have you been convicted of a crime?” would be “Only once.”

In fact, a state prosecutor and our state’s attorney general argued for this interpretation of the statute, and a Wisconsin circuit court and appellate court adopted this interpretation. In State v. Anderson, 160 Wis. 2d 435 (Ct. App. 1991), a case that is cited in our state’s annotation for section 973.015, the defendant wanted to ask a state’s witness at trial whether he had been convicted of a crime. The state argued that the answer to the question should be “No,” because the witness’s conviction had been expunged.

The circuit court and appellate court sided with the state. “The state argues that because the witness’s conviction had been expunged under sec. 973.015(1), it was no longer a conviction which could be used.… We agree.” Id. at 437. The reasons for the court’s decision shed even more light. “Clearly, the purpose of expungement is just that – to, in effect, obliterate the record of the individual.” Id. at 441. In addition, the court said:

“The attorney general concluded that the word expunge was to be construed according to its common and approved usage. Black’s Law Dictionary 582 (6th ed. 1990) defines expunge as follows: ‘To destroy; blot out; obliterate; erase; efface designedly; strike out wholly….’ Since 1978, the legislature has acquiesced in the attorney general’s interpretation of the statute and that acquiescence is to be given considerable weight.” Id.

Expunction results in much more than a person’s criminal record being “sealed,” as the brochure states. In fact, the courts and the attorney general have specifically rejected the idea that an expunged file is merely sealed. (Further, the distinction drawn in the brochure – that is, the assertion that expunction is not the equivalent of having a conviction “reverse[d] or set aside” – is a meaningless one. Even if a conviction had been “reverse[d] or set aside,” whatever that latter term may mean, the DSC’s proposed hyper-technical reading of the question “Have you ever been convicted of a crime?” would still require a “Yes” answer.)

The DSC should advise interested parties that the answer to the question “Have you ever been convicted of a crime?” should be “No,” if that conviction has been expunged. If the correct and truthful answer to such a question when posed in court and under oath would be “No,” so too should it be “No” in other contexts, including when given in response to questions on a job application.

Michael D. Cicchini and Terry W. Rose, Kenosha    

Wisconsin Lawyer