Vol. 70, No. 7, July
1997
Supreme Court Orders
The Wisconsin Supreme Court will hold public hearings on Sept. 9, 1997,
at 1:30 p.m. in the Supreme Court Room in the State Capitol to hear petitions
to amend several rules of judicial administration,
to amend the rules of attorney professional conduct
governing attorney trust accounts and other accounts for retaining funds
held in a fiduciary capacity, and to amend
the supreme court rule regulating trial publicity. Petitions regarding
these subjects follow below; appendices to the petitions may be obtained
from the supreme court clerk.
Electronic Data Dissemination
In the Matter of the Amendment of Supreme Court Rules: (Proposed) SCR
Chapter 75 - Electronic Data Dissemination
Order 96-16
The court held a public hearing May 6, 1997, on the petition of the Director
of State Courts requesting the adoption of rules governing access to and
release of electronic database information in the courts, applicable to
circuit and appellate courts and to the Office of the Director of State
Courts. At that hearing, several persons appeared in opposition to the petition,
in whole or in part, and Judge Gary L. Carlson, on behalf of the petitioner,
submitted a revised petition, to which opposition was also expressed. A
copy of the revised petition is available from the office of the clerk of
the court. Because of the issues raised at the public hearing, the court
wishes to have further comment from interested persons on the matter, including
the fundamental issue identified by the court as whether there is a need
for the proposed rules to govern access to and release of electronic database
information in the courts in addition to the existing rules governing access
to and release of paper records.
IT IS ORDERED that the petition is held in abeyance for further consideration.
IT IS FURTHER ORDERED that written comments, with eight copies thereof,
on the revised petition submitted at the public hearing may be filed with
the court on or before Sept. 2, 1997.
IT IS FURTHER ORDERED that a copy of this order shall be published in
the official state newspaper and in an official publication of the State
Bar of Wisconsin not more than 30 days following the date of the order.
Dated at Madison, Wis., this 4th day of June, 1997.
By the court:
Marilyn L. Graves, Clerk
Rules of Judicial Administration
In the Matter of the Amendment of Supreme Court Rules: SCR 70.16 - Definitions;
SCR 70.21 - Additional Authority of the Chief Judge; SCR 70.28 - Trial Court
Services; SCR 70.30 - Additional District Court Administrators; SCR 70.31
- Assistant to the Chief Judge and District Court Administrator; SCR 70.35
- Reserve Judge Eligibility; SCR 32.08 - Reserve Judges; SCR 71.04 - Transcripts
Order 97-04
On March 17, 1997, the Director of State Courts filed a petition seeking
the amendment of numerous rules of judicial administration, including the
rules concerning the appointment of district court administrators, the rules
governing reserve judge eligibility, and the rule governing transcripts
of reporters' notes and other records of court proceedings.
IT IS ORDERED that a public hearing on the petition be held in the Supreme
Court Room in the State Capitol, Madison, Wis., on Sept. 9, 1997, 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 petition 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 2nd day of June, 1997.
By the court:
Marilyn L. Graves, Clerk
Petition
The Director of State Courts hereby petitions the court, pursuant to
its administrative authority over all courts conferred by Article VII, section
3 of the Wisconsin Constitution, to amend portions of SCR Chapters 32, 70
and 71.
1.SCR 70.16 (2) is repealed.
2.SCR 70.16 (3) is repealed.
3.SCR 70.16 (4) is amended to read:
SCR 70.16 (4) "District court administrator" means a person
who is a state employee and qualified to provide administrative and technical
assistance. as well as to assist the chief judge in carrying out duties
and responsibilities.
4.SCR 70.16 (8) is amended to read:
SCR 70.16 (8) "Technical assistance" means assistance in trial
court administration with respect to records management; caseflow management,
; court reporting management; jury management, ; statistical analysis, ;
computerization, ; grant application and education of support personnel.
5.SCR 70.21 (4) is amended to read:
SCR 70.21 (4) Sections 48.06(1)(a)) and 938.06(1)(a)2: policy formulation
and supervision of child court center court services for juvenile matters.
6.SCR 70.21 (5) is amended to read:
SCR 70.21 (5) Sections 48.06(2) and 938.06(2): approval of circuit judge's
policy governing juvenile intake workers.
7.SCR 70.21 (6) is amended to read:
SCR 70.21 (6) Sections 48.065(1) and 938.065(1): appointment of juvenile
court commissioners.
8.SCR 70.21 (7) is amended to read:
SCR 70.21(7) Sections 48.067(6) and(9), 48.067(9), 938.067(6) and
938.067(9): guidance and assistance of juvenile intake workers.
9.SCR 70.21 (8), as affected by Supreme Court Order 97-02 dated Jan.
13, 1997, is repealed.
10.SCR 70.21 (8e), as affected by Supreme Court Order 97-02 dated Jan.
13, 1997, is repealed.
11.SCR 70.21 (8s) is created to read:
SCR 70.21 (8s) Sections 48.38(5) and 938.38(5): permanency planning review
panel involvement.
12.SCR 70.21 (9) is amended to read:
SCR 70.21 (9) Section 59.38(2) 59.40(1)(b): approval of appointment of
deputy clerks.
13.SCR 70.21 (11) is created to read:
SCR 70.21 (11) Section 751.025: court reporting management involvement.
14.SCR 70.21 (15m) is repealed.
15.SCR 70.21 (16) is created to read:
SCR 70.21 (16) Section 756.001(5): designation of a circuit judge to
supervise the jury system.
16.SCR 70.21 (20) is created to read:
SCR 70.21 (20) Sections 938.22(1)(b) and (3)(a): approval of policy and
the appointment of superintendent of secure detention facilities.
17.SCR 70.21 (20e) is created to read:
SCR 70.21 (20e) Sections 938.245(2) (a)8a, 938.32(1m)(a), 938.34(2m)(a),
938.342(1)(f)1, 938.343(2m)(a) and 938.344(2g)(a)4a: approval of teen court
programs.
18.SCR 70.21 (20m) is created to read:
SCR 70.21 (20m) Section 938.346(5): establishment of procedure for notice
to victims of juveniles' acts.
19.SCR 70.21 (26) is amended to read:
SCR 70.21 (26) Sections 48.29(1m), 345.315(1m), 799.205(2), 800.05(3),
801.58(2) and , 938.29(1m) and 971.20(8): determination of substitution
requests and reassignment of judges.
20.SCR 70.28(1) is repealed.
21.SCR 70.28(2) is repealed.
22.SCR 70.28(3) is repealed.
23.SCR 70.30 is repealed and recreated to read:
SCR 70.30 District court administrators; creation.
(1) There are created the positions of district court administrator for
judicial administrative districts 1 through 10.
(2) The director of state courts may recommend the creation of assistant
district court administrator positions in one or more judicial administrative
districts.
24.SCR 70.31 is repealed.
25.SCR 70.35 is repealed and recreated to read:
SCR 70.35 Reserve judge eligibility.
(1) To be eligible for appointment as a reserve judge to perform marriages,
a person must be eligible pursuant to section 753.075(2), Wis. Stats.
(2) To be eligible for appointment as a reserve judge to perform judicial
assignments, a person must:
(a) be eligible pursuant to section 753.075(2), Wis. Stats.;
(b) be eligible for appointment pursuant to SCR 32.08; and
(c) subject to sub. (3), have in force and on file with the office of
the director of state courts a written consent to eligibility for appointment
as reserve judge, which shall be renewed in writing for each successive
calendar year, in the following form;
"I, the undersigned, _____, in consideration of being eligible for
appointment and assignment as a reserve judge during calendar year ___,
hereby consent to be bound for such calendar year by the provisions of the
Code of Judicial Ethics (Supreme Court Rules chapter 60) applicable to reserve
judges."
A written consent to eligibility for permanent reserve judges shall contain
the following language: "In the event I am appointed a 'permanent reserve
judge,' as that term is defined in section 753.075, Stats., I hereby consent
to be bound by all provisions of the Code of Judicial Ethics (Supreme Court
Rules chapter 60) from the date of that appointment and until its expiration."
COMMENT: The ad hoc reserve judge committee's report states: The committee
considered the issue of whether persons appointed as 'permanent reserve
judges,' that is, appointed to serve an assignment for a period of six months,
should be required to comply with all of the provisions of the Code of Judicial
Ethics, rather than just those provisions now applicable to part-time judges.
Because 'permanent reserve judges' are, in effect, full-time judges and
are so perceived by the public, the committee recommends that they be bound
by the Code of Judicial Ethics to the same extent as full-time judges."
The rule so provides.
(3)If a consent is not renewed for a successive calendar year before
the end of the calendar year for which it has been filed, the person may
not file a consent under sub. (2)(c) for a period of six months from the
end of the calendar year for which the consent which was not renewed has
been filed.
(4)A person may withdraw in writing a consent to eligibility for appointment
as reserve judge filed with the office of the director of state courts.
If a consent is withdrawn, the person may not file a consent under sub.
(2)(c) for a period of six months from the effective date of the withdrawal.
26.SCR 32.08 (1) is amended to read:
SCR 32.08 (1) To be eligible for appointment or reappointment as a reserve
judge to perform judicial assignments, a person otherwise entitled to appointment
shall earn 5 credits during the calendar year immediately preceding appointment
or reappointment. The director of state courts shall determine the judicial
education programs for which the 5 credits may be earned. One credit is
awarded for each half-day of attendance at programs sponsored or approved
by the judicial education committee. Reserve judges are not required to
comply with SCR 32.04.
27.SCR 71.04 (4) is amended to read:
SCR 71.04 (4) Reporters' notes or other verbatim record of proceedings
under chapters 48 and, 767, and 938 of the statutes shall be transcribed
only upon order of the court.
Respectfully submitted this 17th day of March, 1997.
J. Denis Moran
Director of State Courts
Safekeeping Property
In the Matter of the Amendment of Supreme Court Rules: SCR 20:1.15 -
Safekeeping Property
Order 97-05
On April 16, 1997, the Board of Governors of the State Bar of Wisconsin
and the Board of Attorneys Professional Responsibility filed a petition
seeking the amendment of the rule of attorney professional conduct, SCR
20:1.15, governing attorney trust accounts and other accounts for the retention
of funds held in a fiduciary capacity. The proposed rule amendments would
permit attorneys to place trust funds in income-generating investments in
addition to holding them in trust accounts, would permit attorneys to place
sufficient funds in a trust account to avoid the imposition of service charges
on it, and would require attorneys to maintain trust accounts in financial
institutions that are approved by the Board of Attorneys Professional Responsibility
as agreeing to report to the Board any properly payable instrument presented
against a lawyer trust account containing insufficient funds.
IT IS ORDERED that a public hearing on the petition be held in the Supreme
Court Room in the State Capitol, Madison, Wis., on Sept. 9, 1997, 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 petition 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 2nd day of June, 1997.
By the court:
Marilyn L. Graves, Clerk
Petition
The Board of Governors of the State Bar of Wisconsin and the Board of
Attorneys Professional Responsibility having considered the American Bar
Association model rule on trust account overdraft notification, adopted
by its House of Delegates on Feb. 9, 1988, and attached hereto as Appendix
A; and the Board of Governors of the State Bar of Wisconsin and the Board
of Attorneys Professional Responsibility having voted at their Jan. 23,
1996, and Oct. 30, 1995, meetings, respectively, to petition the Supreme
Court of Wisconsin for the adoption of both the ABA model rule on overdraft
notification and for certain other amendments to Supreme Court Rule (SCR)
20:1.15, do hereby make this petition to the Supreme Court and propose the
following amendments to SCR 20:1.15:
1.SCR 20:1.15(a) is amended to read:
(a) A lawyer shall hold in trust, separate from the lawyer's own property,
property of clients or third persons that is in the lawyer's possession
in connection with a representation. Funds held in trust include funds held
in any fiduciary capacity in connection with a representation, whether as
trustee, agent, guardian, personal representative 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) maintained in a
bank, trust company, credit union or savings and loan association authorized
to do business and located in Wisconsin, which account shall be clearly
designated as "Client's Account" or "Trust Account"
or words of similar import, and 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 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 other state.
2.SCR 20:1.15(c) is amended to read:
(c) Each trust account under this rule shall be an account in any bank,
trust company, credit union or savings and loan association, selected in
the exercise of ordinary prudence, authorized by federal or state law to
do business in Wisconsin and 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, and approved as provided in paragraph (h). 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:
(1)a.A lawyer who receives client funds shall maintain a pooled interest-bearing
trust account for deposit of client funds that are:
1.Nominal in amount or expected to be held for a short period of time,
or
2.Not deposited in an account or investment under paragraph (2), or
3.Not eligible for an account or investment under paragraph (2) because
the client is a corporation or organization not permitted by law to
maintain such an account, or the terms of the account are not consistent
with a need to make funds available without delay.
b.The interest accruing on this account, net of any transaction costs,
shall be paid to the Wisconsin Trust Account Foundation, Inc., which shall
be deemed the beneficial owner thereof. A lawyer may notify the client of
the intended use of these funds.
(2)A lawyer shall deposit all client funds in the account specific
in paragraph (1) unless they are deposited in any of the following:
a.A separate interest-bearing trust account for the particular client
or client's matter, the interest on which shall be paid to the client, net
of any transaction costs.
b.A pooled interest-bearing trust account with sub-accounting by the
financial institution, the lawyer or the law firm that will provide for
computation of interest earned by each client's funds and the payment thereof
to the client, net of any transaction costs.
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.
d.An income-generating investment vehicle selected by the lawyer and
approved by a court where the lawyer serves as guardian for a ward, pursuant
to sections 880 and 881, Stats.
e.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 U.S.C. § 345.
e.f. A demand deposit or other noninterest-bearing account for funds
that are neither nominal in amount nor expected to be held for a short term,
provided the client specifically so directs.
(3)In deciding whether to use the account specified in paragraph (1)
or an account or investment specified in paragraph (2), a lawyer shall determine,
at the time of their deposit, only whether the client funds could be utilized
to provide a positive net return to the client by taking into consideration
all of the following:
a.The amount of income the funds would earn during the period they are
expected to be on deposit.
b.The cost of establishing and administering the account, including
the cost of the lawyer's services and the cost of preparing any tax reports
required for income accruing to a client's benefit.
c.The capability of financial institutions to calculate and pay interest
or other income to individual clients.
(4)The determination whether funds to be invested could be utilized
to provide a positive net return to the client rests in the sound judgment
of the lawyer or law firm. If a lawyer acts in good faith in making this
determination, the lawyer is not subject to any charge of ethical impropriety
or other breach of the rules of professional conduct.
(5)For accounts created under paragraph (1), the lawyer or law firm
shall direct the depository institution to remit to the Wisconsin Trust
Account Foundation, Inc., at least quarterly, the interest or dividends,
net of any service charges or fees, on the average monthly balance in the
account or as otherwise computed in accordance with an institution's standard
accounting practice, together with a statement showing the name of the lawyer
or law firm for whose account the remittance is sent, the rate of interest
applied, the amount of service charges deducted, if any, and the account
balance for the period for which the report is made, and to provide a copy
of the statement to the owner of the account.
3.SCR 20:1.15(h) through (o) are created to read:
(h)Lawyer trust accounts shall be maintained only in financial institutions
approved by the Board of Attorneys Professional Responsibility.
(i)A financial institution shall be approved as a depository for lawyer
trust accounts if it shall file with the Board of Attorneys Professional
Responsibility an agreement, in a form provided by the Board, to report
to the Board in the event any properly payable instrument is presented against
a lawyer trust account containing insufficient funds, irrespective of whether
or not the instrument is honored. The Board of Attorneys Professional Responsibility
shall establish rules governing approval and termination of approved status
for financial institutions and shall annually publish a list of approved
financial institutions. No trust account shall be maintained in any financial
institution which does not agree to make such reports. Any such agreement
shall apply to all branches of the financial institution and shall not be
canceled except upon thirty (30) days notice in writing to the Board.
(j)The overdraft notification agreement shall provide that all reports
made by the financial institution shall be in the following format:
(1)In the case of a dishonored instrument, the report shall be identical
to the overdraft notice customarily forwarded to the depositor and should
include a copy of the dishonored instrument, if such a copy is normally
provided to depositors.
(2)In the case of instruments that are presented against insufficient
funds but which instruments are honored, the report shall identify the financial
institution, the lawyer or law firm, the account number, the date of presentation
for payment and the date paid, as well as the amount of overdraft created
thereby.
Such reports shall be made simultaneously with and within the time provided
by law for notice of dishonor, if any. If an instrument presented against
insufficient funds is honored, then the report shall be made within five
(5) banking days of the date of presentation for payment against insufficient
funds.
(k)The Board shall hold each overdraft report for ten business days
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 shall not constitute
reason for withdrawing an overdraft report.
(l)Every lawyer practicing or admitted to practice in Wisconsin shall,
as a condition thereof, be conclusively deemed to have consented to the
reporting and production requirements mandated by this rule.
(m) Nothing herein shall preclude a financial institution from charging
a particular lawyer or law firm for the reasonable cost of producing the
reports and records required by this rule.
(n)Nothing in this rule shall create a liability or claim in favor of
a third party against a financial institution or its representative for
failure to provide a trust account overdraft notification.
(o)Definitions: "Financial Institution" is defined as those
institutions enumerated in SCR 20:1.15(a) and(c).
"Properly payable" refers to an instrument which, if presented
in the normal course of business, is in a form requiring payment under the
laws of Wisconsin.
"Notice of dishonor" refers to the notice which a financial
institution is required to give, under the law of Wisconsin, upon presentation
of an instrument which the institution dishonors.
Rationale for Proposed Amendments to SCR 20:1.15(a) and (c)
A revision in SCR 20:1.15(a) will clarify that the rule applies to funds
held in any fiduciary capacity by the lawyer, whether the account is labeled
as a client trust account, estate account, guardianship account or otherwise.
It also needs to be clear to lawyers that trust funds can be placed in
an income-generating investment, such as a treasury bill or an investment
in a brokerage house, as an alternative to depositing it in a bank, trust
company, credit union or savings and loan association. While the option
to utilize an income-generating investment vehicle exists in current SCR
20:1.15(c)(2)c, the language in both SCR 20:1.15(a) and (c) limiting the
financial institutions in which trust funds may be placed to banks, trust
companies, credit unions and savings and loans, can conflict with the duty
to maximize the return, such as in guardianship or bankruptcy cases. The
petitioner Boards recommend amending SCR 20:1.15(c) to provide flexibility
and an opportunity to maximize the return for the client, while at the same
time maintaining the safety of the property. In addition, the proposed amendments
would avoid any conflict between the rule and other laws, such as 11 U.S.C. § 345, under which funds of a bankruptcy estate must be deposited or invested
to yield the maximum reasonable net return on such money available.
Under the proposed amendment, either the client's written instructions
or a court order will be a basis for exempting the lawyer from placing the
trust funds in a trust account per se. The proposed amendments in no way
diminish the importance of Wisconsin's IOLTA program, whereby interest on
trust account funds that are nominal in amount or expected to be held short-term
is used for the benefit of the programs supported by the Wisconsin Trust
Account Foundation.
The petitioner Boards also propose an amendment in SCR 20:1.15(a) permitting
a lawyer to place sufficient funds in a trust account in order to avoid
the imposition of service charges on the account. Currently, the rule permits
the lawyer to place sufficient funds in the account to pay service charges.
By amending the rule to include the lawyer's ability to meet the minimum
balance of the financial institution to avoid a service charge on the account,
the lawyer will be able to take care of the service charge obligation in
advance if the institution imposes such charges on trust accounts. The petitioner
Boards do not believe that placement of the minimum balance required by
the bank into the trust account out of the lawyer's own funds in order to
avoid such charges should be deemed a violation of SCR 20:1.15(a), and should
be considered an alternative to, and the equivalent of, payment of service
charges, which is currently permitted by the rule. Obviously, to avoid commingling,
the lawyer is required to monitor the account to ensure that whenever there
is a minimum balance payment into the account, it is preserved as just that
is not used for any other purpose. The petitioners propose an addition to
the Comments to SCR 20:1.15 which would state: "A lawyer's funds may
be deposited into a trust account only for the purpose of paying or avoiding
service charges. The minimum deposit required by the financial institution
in which the account is placed should be the lawyer's guide in complying
with this rule."
Rationale for proposed creation of SCR 20:1.15(h) through (o)
The petitioner Boards believe that the addition of paragraphs 20:1.15(h)
through 20:1.15(o) will constitute a device by which some misconduct that
would otherwise be undiscovered will be detected, and, in other cases, will
result in education of the lawyers involved. The most ameliorative aspect
of having the Board of Attorneys Professional Responsibility (BAPR) receive
a copy of the same overdraft notice ordinarily sent to the lawyer is that
it will be an early-warning system to the lawyer and BAPR of a possible
problem, which may be simply an error in recordkeeping or may be the result
of serious misconduct, such as misappropriation. Too often, overdrawn trust
or other fiduciary accounts are discovered at a point in time when it is
too late to take remedial steps to protect monies of clients or third parties
entrusted to the lawyer.
Under paragraph (1), BAPR will hold the notice from the bank for ten
days to enable the financial institution to withdraw a report provided in
error, and will then provide the lawyer an opportunity to explain how the
overdraft occurred. Investigations will be initiated only in the event of
possible misconduct, rather than a mistake by the lawyer.
The petitioner Boards have added paragraph (n) to avoid unwarranted
problems for financial institutions concerning liability to third persons.
This was a concern voiced in the financial institutions' opposition to BAPR's
first petition for overdraft notification. The petitioner Boards believe
they have appropriately addressed that concern.
Fiscal impact note: The fiscal impact of the proposed procedure
would be that the lawyer whose account is overdrawn would pay for the additional
copy of the notice sent to BAPR. Also, BAPR would likely need one additional
staff person to review the notices. The range of investigator salaries,
plus fringe benefits, is between $38,080 and $43,867, depending on experience.
This is less than the amount by which BAPR's assessment was reduced in Fiscal
Year 1995-96, resulting in a $4 per lawyer savings in that year, as compared
to Fiscal Year 1994-95.
An overdraft is a warning signal deserving of professional concern,
since client funds should not normally be overdrawn and are required to
be preserved. The petitioner Boards support this proposal and believe that
the public will receive greater protection by having this tool of detection
in place in Wisconsin.
The petition has also taken into consideration the work of the two Boards'
joint committee, whose report is attached hereto as Appendix B.
Conclusion
Wherefore, the petitioner Boards submit that the proposed amendments
will assist the profession in providing additional protection for funds
held by Wisconsin lawyers in a fiduciary capacity and make clear the various
alternatives for maximizing the return on client funds.
David Saichek, President
State Bar of Wisconsin
Adrian P. Schoone, Chair
Board of Attorneys Professional
Responsibility
Trial Publicity
In the Matter of the Amendment of Supreme Court Rules: SCR 20:3.6 -
Trial Publicity
Order 97-06
On May 2, 1997, the Wisconsin Association of Criminal Defense Lawyers
filed a petition seeking to amend SCR 20:3.6 regulating trial publicity
to authorize a lawyer to make a statement reasonably believed necessary
to protect a client from substantial undue prejudicial publicity not initiated
by the lawyer or the client.
IT IS ORDERED that a public hearing on the petition be held in the Supreme
Court Room in the State Capitol, Madison, Wis., on Sept. 9, 1997, 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 petition 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 2nd day of June, 1997.
By the court:
Marilyn L. Graves, Clerk
Petition
To the Justices of the Wisconsin Supreme Court:
The Wisconsin Association of Criminal Defense Lawyers, a membership organization
of Wisconsin lawyers who defend persons accused of criminal law violations,
hereby petitions the Wisconsin Supreme Court to amend SCR 20:3.6, relating
to trial publicity, to add the following language:
"(d) Notwithstanding paragraphs (a)-(c), a lawyer may make a statement
that a reasonable lawyer would believe is required to protect a client from
the substantial undue prejudicial effect of recent publicity not initiated
by the lawyer or the lawyer's client. A statement made pursuant to this
paragraph shall be limited to such information as is necessary to mitigate
the recent adverse publicity."
When the current Rules of Professional Conduct for Attorneys were adopted
in 1988, SCR 20:3.6 was a hybridization of the ABA Model Rules of Professional
Conduct, Rule 3.6 and the ABA Standards for Criminal Justice Fair
Trial and Free Press (1978), Standard 8-1.1. Neither the ABA Rule nor
the ABA Standard contained the requested provision in 1988, inasmuch as
the language in proposed subsection (d) was not added to the ABA Model
Rules until 1994. The ABA Model Code of Professional Responsibility
(1986), DR7-107, also lacked a similar provision.
During this same time period, lawyers who sought to protect their clients
from adverse pretrial publicity arising from criminal charges found themselves
threatened with rule violations related to "trial publicity"
for trying to correct the public record. Provisions in DR7-107 that were
the basis for possible disciplinary charges against lawyers who spoke
publicly about pending litigation were questioned in Chicago Council
of Lawyers v. Bauer, 522 F.2d 242 (7th Cir. 1975), for being
unduly restrictive of lawyers' free speech rights under the First
Amendment to the United States Constitution.
First Amendment concerns were again raised in Gentile v. State Bar
of Nevada, 501 U.S. 1030 (1991). There, a lawyer who sought to protect
his client from the adverse publicity surrounding a criminal investigation
by disclosing limited rebuttal information was disciplined for violating
the trial publicity rule. He defended, claiming First Amendment protection
for his speech and compliance with the existing rules.
As a result of the Supreme Court's split decision in Gentile and
the confusion over the interplay between the need for client protection,
a fair trial and the free speech rights of lawyers, ABA Model Rule 3.6 was
amended in 1994 to its current form to include the provision which is the
subject of this petition. The amendment was co-sponsored by the ABA Standing
Committee on Ethics and Professional Responsibility and the ABA Section
of Criminal Justice. The Comment to the new ABA Model Rule 3.6 recognized
the First Amendment concerns and specifically addressed the need for the
requested provision:
"Finally, extrajudicial statements that might otherwise raise a
question under this Rule may be permissible when they are made in response
to statements made publicly by another party, another party's lawyer, or
third persons, where a reasonable lawyer would believe a public response
is required in order to avoid prejudice to the lawyer's client. When prejudicial
statements have been publicly made by others, responsive statements may
have the salutary effect of lessening any resulting adverse impact on the
adjudicative proceeding. Such responsive statements should be limited to
contain only such information as is necessary to mitigate undue prejudice
created by the statements made by others."
The Comment noted the absence of this provision in DR7-107 in its comparative
analysis.
"Finally, Rule 3.6 authorizes a lawyer to protect a client by making
a limited reply to adverse publicity substantially prejudicial to the client."
The requested provision was added to ABA Model Rule 3.6 in 1994 to address
concerns raised in Gentile that the Rule was unconstitutionally vague.
See, ABA Annotated Model Rules of Professional Conduct (3rd ed.,
1996) "Legal Background, The Effect of the 1994 Amendments" at
351. The provision was not included in Rule 3.6 when the ABA Standards
for Criminal Justice, Fair Trial Free Press were revised in 1978
or when the current revision was passed in 1992.
Addition of the requested provision will bring Wisconsin's own professional
responsibility rules on trial publicity found in SCR 20:3.6 into conformity
with the current ABA Model Rule.
Dated at Milwaukee, Wis., this 28th day of April, 1997.
James A. Walrath, President
Wisconsin Association of Criminal Defense Lawyers |