Supreme Court Orders
The Wisconsin Supreme Court has amended the supreme court rules on
attorney trust accounts and other accounts to retain funds held in a
fiduciary capacity; and the supreme court rules on the law school
graduation requirement for bar admission on examination.
The Wisconsin Supreme Court also will hold public hearings on Sept.
17 regarding the creation and use of forms in the circuit courts and the
procedure in attorney discipline and medical incapacity proceedings. The
hearings will be held at 1:30 p.m. in the Supreme Court Room in the
State Capitol, Madison, Wis.
Safekeeping Property
In the Matter of the Amendment of Supreme Court Rules: SCR
20:1.15 - Safekeeping Property
Order 97-05
The court held a public hearing Sept. 9, 1997, on the petition of the
Board of Governors of the State Bar of Wisconsin and the Board of
Attorneys Professional Responsibility for the amendment of SCR 20:1.15,
governing attorney trust accounts and other accounts for the retention
of funds held in a fiduciary capacity. The proposed amendments would
permit attorneys to place sufficient attorney or law firm funds in a
trust account to avoid the imposition of service charges on it, would
enlarge the authority for placing client funds in an income-generating
investment vehicle, and would require attorneys to maintain trust
accounts in financial institutions that agree to report to the Board of
Attorneys Professional Responsibility any properly payable instrument
presented against a lawyer trust account containing insufficient
funds.
The original petition was filed April 16, 1997, and an amended
petition was filed Sept. 8, 1997, the day before the public hearing.
Because the amended petition proposed rule amendments that were not part
of the petition originally filed and there was no opportunity to give
notice of them, the court declines to adopt those proposed amendments;
the petitioners may resubmit them in a new petition, for which notice
will be given and a public hearing held.
The court has considered the amended petition, the materials filed
with the court in the matter, and the presentations of the petitioners
and others at the public hearing.
IT IS ORDERED that, effective Jan. 1, 1999, the Supreme Court Rules
are amended as follows.
SECTION 1. 20:1.15(a) of the supreme court rules is amended to
read:
20:1.15 (a) A lawyer shall hold in trust, separate from the lawyer's
own property, that property of clients or
and third persons that is in the lawyer's possession in
connection with a representation or when acting in a fiduciary
capacity. Funds held in connection with a representation or in a
fiduciary capacity include funds held as trustee, agent, guardian,
personal representative of an estate, or otherwise. All funds of
clients paid to a lawyer or law firm shall be deposited in one or more
identifiable trust accounts as provided in paragraph (c). The trust
account shall be maintained in a bank, trust company, credit union
or savings and loan association authorized to do business and located in
Wisconsin, which. The trust account shall be
clearly designated as "Client's Account" or "Trust Account" or words of
similar import, and no. No funds belonging to
the lawyer or law firm, except funds reasonably sufficient to pay
or avoid imposition of account service charges, may be
deposited in such an account. Unless the client otherwise directs in
writing, securities in bearer form shall be kept by the attorney in a
safe deposit box in a bank, trust company, credit union or savings and
loan association authorized to do business and located in
Wisconsin, which. The safe deposit box shall be
clearly designated as "Client's Account" or "Trust Account" or words of
similar import. Other property of a client or third person shall be
identified as such and appropriately safeguarded. If a lawyer also
licensed in another state is entrusted with funds or property in
connection with an out-of-state representation, this provision
shall not supersede the trust account rules of such
the other state.
SECTION 2. 20:1.15 (c) (intro.) of the supreme court rules is amended
to read:
20:1.15 (c) (intro.) Each trust account under this
rule shall be an account in any a bank,
trust company, credit union or savings and loan
association, selected in the exercise of ordinary
prudence, and authorized by federal or state law
to do business in Wisconsin and. The trust account
shall be insured by the Federal Deposit Insurance Corporation, the
National Credit Union Share Insurance Fund, the Wisconsin Credit Union
Savings Insurance Corporation, or the Federal Savings and Loan Insurance
Corporation. An interest-bearing trust account shall bear interest at a
rate no less than that applicable to individual accounts of the same
type, size and duration and in which withdrawals or transfers can be
made without delay when funds are required, subject only to any notice
period which the depository institution is required to observe by law or
regulation. Lawyers and law firms are subject to the following:
SECTION 3. 20:1.15 (c) (2)c. of the supreme court rules is amended to
read:
20:1.15 (c) (2)c. An income-generating investment vehicle selected by
the client and designated in specific written instructions from the
client or authorized by the court or other tribunal, on which
income shall be paid to the client or as directed by the court or
other tribunal, net of any transaction costs.
SECTION 4. 20:1.15 (c) (2)cg. and cm. of the supreme court rules are
created to read:
20:15 (c) (2)cg. An income-generating investment vehicle selected by
the lawyer and approved by a court where the lawyer serves as guardian
for a ward, under chs. 880 and 881, stats.
cm. An income-generating investment vehicle selected by the lawyer to
protect and maximize the return on funds in a bankruptcy estate, which
investment vehicle is approved by the trustee in bankruptcy and by a
bankruptcy court order, consistent with 11 USC 345.
SECTION 5. 20:1.15 (h) to (p) of the supreme court rules are created
to read:
20:1.15 (h) In subsections (i) to (p):
(1) "Financial institution" means an institution listed in subs.(a)
and (c).
(2) "Properly payable instrument" means an instrument that, if
presented in the normal course of business, is in a form requiring
payment under the laws of this state.
COMMENT: Terms used in subsections (j) to (p), such as "dishonored
instrument," that have specific meaning in Wis. Stat. chapters 401 to
411 (Uniform Commercial Code) and in case law and administrative
regulations are to be understood as having that meaning for purposes of
subs. (j) to (p).
(i) Lawyer trust accounts shall be maintained only in a financial
institution that has agreed to provide the overdraft report under sub.
(j).
(j) In the event any properly payable instrument is presented against
a lawyer trust account containing insufficient funds, whether or not the
instrument is honored, the financial institution shall, simultaneously
with the customary overdraft notice to the depositor or investor, report
the overdraft to the Board of Attorneys Professional Responsibility.
(k) The overdraft reporting agreement under par. (i) shall provide
that all reports made by the financial institution shall be
substantially in the following format:
(1) In the case of a dishonored instrument, identical to the
overdraft notice customarily forwarded to the depositor and with a copy
of the dishonored instrument, if a copy is normally provided to the
depositor.
(2) In the case of instruments that are presented against
insufficient funds and are honored, identification of the financial
institution involved, the lawyer or law firm, the account number, the
date on which the instrument is paid, and the amount of overdraft
created by the payment.
(l) A report made under par. (j) shall be made simultaneously with
the overdraft notice given to the depositor.
(m) The Board shall hold each overdraft report for 10 business days
or the minimum time required by the financial institution, whichever is
less, to enable the financial institution to withdraw a report provided
by inadvertence or mistake, except that the curing of an insufficiency
of available funds by a lawyer or law firm by the deposit of additional
funds does not constitute reason for withdrawing an overdraft
report.
(n) Every lawyer practicing or admitted to practice in this state
shall comply with the reporting and production requirements of this
rule.
(o) This rule does not preclude a financial institution from charging
a particular lawyer or law firm for the reasonable costs of producing
the reports and records required by this rule.
(p) This rule does not create a claim against a financial institution
or its officers, directors, employees, and agents for failure to provide
a trust account overdraft report or for compliance with any provision of
this rule.
IT IS FURTHER ORDERED that notice of these amendments of the Supreme
Court Rules shall be given by a single publication of a copy of this
order in the official state newspaper and in an official publication of
the State Bar of Wisconsin.
Dated at Madison, Wis., this 4th day of June, 1998.
By the court:
Marilyn L. Graves, Clerk of Court
Bar Admission on Examination
In the Matter of the Amendment of Supreme Court Rules: SCR
40.04(1) - Law School Graduation Requirement for Bar Admission on
Examination
Order 97-09
The court held a public hearing Oct. 21, 1997, on the petition of
Massachusetts School of Law deemed to constitute a petition for the
amendment of SCR 40.04(1) to permit its graduates to satisfy the legal
competence requirement for bar admission by passing the Wisconsin bar
examination. The court has considered the presentations made at that
public hearing and the materials filed with the court in the matter.
IT IS ORDERED that, effective the date of this order, 40.04(1) of the
supreme court rules is amended to read:
(1) An applicant who has been awarded a first professional degree in
law from a law school that is fully or provisionally approved by
the American bar association at the time of the applicant's
graduation one of the following shall satisfy the legal
competence requirement by presenting to the clerk certification of the
board that the applicant has passed an examination administered by the
board covering all or part of the subject matter areas of law specified
in SCR 40.03(2)(a).:
(a) A law school that is fully or provisionally approved by the
American bar association at the time of the applicant's
graduation.
(b) A law school whose graduates are eligible to take the bar
examination of the state, territory or District of Columbia in which the
law school is located, provided the applicant has passed the bar
examination of and has been admitted to practice in that or another
state, territory or the District of Columbia.
IT IS FURTHER ORDERED that notice of this amendment of the Supreme
Court Rules shall be given by a single publication of a copy of this
order in the official state newspaper and in an official publication of
the State Bar of Wisconsin.
Dated at Madison, Wis., this 4th day of June, 1998.
By the court:
Marilyn L. Graves, Clerk of Court
Use of Forms in Circuit Courts
In the Matter of the Amendment of the Rules of Civil and
Criminal Procedure: Wis. Stat. §§ 801.02(8), 971.025(1), (2),
(3) and (4) - Relating to the Creation and Use of Forms in the Circuit
Courts
Amended Order 98-01
On June 11, 1998, the Director of State Courts, on behalf of the
Wisconsin Records Management Committee, filed an amended petition
seeking the creation of Rules of Civil and Criminal Procedure requiring
the Wisconsin Judicial Conference to develop standard court forms for
mandatory use in civil and criminal actions in the circuit court and in
any other court as the Supreme Court or the Legislature may direct,
unless an agency has statutory authority for the development of a form.
As amended, the proposed rules would permit a party or a court official
to delete unnecessary portions of forms according to rules established
by the Judicial Conference and to supplement the mandatory forms with
additional material. Further, a party's failure to use the mandatory
form or follow the format rules would not constitute a reason to dismiss
a case, refuse a filing, or strike a pleading, although the party would
be required to submit a corrected pleading, and the court could impose
terms.
IT IS ORDERED that a public hearing on the amended petition shall be
held in the Supreme Court Room in the State Capitol, Madison, Wis., on
Sept. 17, 1998, at 1:30 p.m.
IT IS FURTHER ORDERED that the court's conference in the matter shall
be held promptly following the public hearing.
IT IS FURTHER ORDERED that notice of the hearing be given by a single
publication of a copy of this order and of the amended petition in the
official state newspaper once each week for three consecutive weeks 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.
IT IS FURTHER ORDERED that the court's order of May 6, 1998,
directing publication of the petition filed April 27, 1998, is
vacated.
Dated at Madison, Wis., this 15th day of June, 1998.
By the court:
Marilyn L. Graves, Clerk of Court
Amended Petition
The Director of State Courts, for and on the recommendation of the
Wisconsin Records Management Committee, hereby petitions the Court to
create the following rules of civil and criminal procedure pursuant to
§ 757.12 as follows:
1.801.02(8) is created to read:
801.02(8) Forms. (a) The Judicial Conference shall
be responsible for the development of standard court forms for mandatory
use by parties and any court official in all civil actions in the
circuit courts and any other court for which the Supreme Court or
Legislature may direct unless an agency has specific statutory authority
for the development of a form.
(b)A party or court official may delete unnecessary portions of the
forms according to the rules established by the Judicial Conference. A
party or court official may supplement the mandatory forms with
additional material.
(c)A party's failure to use the mandatory form or follow the format
rules shall not be a reason to dismiss a case, refuse a filing, or
strike a pleading. However, the court shall require the party to submit
a corrected pleading and may impose terms payable to the opposing party
or payable to the court, or both.
(d) If the Judicial Conference has not created a standard court form
for the action or pleading undertaken by the party or court official,
the party or court official may utilize a format consistent with any
statutory or court requirement for such action or pleading.
2. 971.025(1) is created to read:
971.025(1) Forms. The Judicial Conference shall be
responsible for the development of standard court forms for mandatory
use by parties and any court official in all criminal actions in the
circuit courts and any other court for which the Supreme Court or
Legislature may direct unless an agency has specific statutory authority
for the development of a form.
3. 971.025(2) is created to read:
971.025(2) A party or court official may delete unnecessary portions
of the forms according to the rules established by the Judicial
Conference. A party or court official may supplement the mandatory forms
with additional material.
4. 971.025(3) is created to read:
971.025(3) A party's failure to use the mandatory form or follow the
format rules shall not be a reason to dismiss a case, refuse a filing,
or strike a pleading. However, the court shall require the party to
submit a corrected pleading and may impose terms payable to the opposing
party or payable to the court, or both.
5. 971.025(4) is created to read:
971.025(4) If the Judicial Conference has not created a standard
court form for the action or pleading undertaken by the party or court
official, the party or court official may utilize a format consistent
with any statutory or court requirement for such action or pleading.
Respectfully submitted this 8th day of June, 1998.
J. Denis Moran, Director of State Courts
Procedure in Attorney Discipline and Medical Incapacity Proceedings
In the Matter of the Amendment of Supreme Court Rules: SCR
21.07, 22.27(5), and 22.30(1)
Order 98-02
The court, on its own motion, proposes that the Supreme Court Rules
of procedure in attorney discipline and medical incapacity proceedings
be amended to specify that an immediate suspension of an attorney's
license to practice law for medical incapacity under SCR 21.07 continue
until further order of the court, to make the procedural rules
applicable to disciplinary proceedings also applicable to medical
incapacity proceedings, and to specify a procedure for license
reinstatement following a suspension for medical incapacity.
IT IS ORDERED that a public hearing on the petition shall be held in
the Supreme Court Room in the State Capitol, Madison, Wis., on Sept. 17,
1998, at 1:30 p.m.
IT IS FURTHER ORDERED that the court's conference in the matter shall
be held promptly following the public hearing.
IT IS FURTHER ORDERED that notice of the hearing be given by a single
publication of a copy of this order 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 6th day of May, 1998.
By the court:
Marilyn L. Graves, Clerk of Court
Wisconsin Lawyer
