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Vol. 74, No. 2, February 2001
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Court considers
mandatory fee arbitration for lawyer-client disputes
On March 13, the Wisconsin Supreme Court will hold a public hearing on a
petition submitted by attorney Gerald C. Sternberg, former administrator
of the Board of Attorneys Professional Responsibility, seeking to create
a mandatory fee arbitration system for lawyer-client fee disputes. The
ABA Model Rules for Fee Arbitration, which are the basis of the proposed
supreme court rules, require lawyers to participate in fee arbitration
at the client's request.
If any parties find the arbitration decision
unacceptable, the proposed rules provide the opportunity for a trial de
novo in circuit court.
"While two good programs, namely those run by the State Bar and Milwaukee
Bar Association, are in place to resolve lawyer-client disputes, they
are hindered from being truly effective by the fact that the lawyer is
not required to participate when the client seeks to use those programs,"
commented Sternberg.
The State Bar Board of Governors has not yet taken a position on the
proposed rules. However, the Resolution of Fee Disputes Committee supports
mandatory fee arbitration in principle, but opposes the rules as proposed.
"The committee is concerned that, in the absence of a written agreement
at the outset of the arbitration process, parties are not bound by the
arbitrator's decision and may seek a de novo hearing," said Chair Robert
Swain. "The committee fears that in a situation in which there already
is ill will between lawyers and clients, clients could be further alienated
by a program that would have them go through an arbitration only to be
required to repeat the process in court. If the supreme court were to
support mandatory fee arbitration, the committee suggests modifying the
current State Bar program."
The proposed rules petition, which accompanies supreme court order 00-15
(printed on page 26), will be discussed at the March 2 Board of Governors
meeting. Comments for the board can be sent to Kris Wenzel at the State
Bar, P.O. Box 7158, Madison, WI 53707-7158, or kwenzel@wisbar.org,
or contact your district governor. The court's hearing will be held March
13 at 9:30 a.m., in the Supreme Court Public Hearing Room, 119 Martin
Luther King Jr. Blvd., Madison. For more information visit www.wisbar.org/committees/caz00/.
Seventh
Circuit reimburses court-appointed attorneys
The U.S. Court of Appeals for the Seventh Circuit announces an appellate
expense reimbursement program for court-appointed attorneys who accept
pro bono civil appointments.
To encourage and enable more lawyers to accept pro bono appointments,
the court will reimburse certain out-of-pocket expenses incurred by appointed
counsel up to a maximum of $1,000.
All expenses must be supported by receipts and are subject to the same
regulations that apply to Criminal Justice Act appointments. Submit requests
and supporting documents to the Clerk of the Court of Appeals after final
disposition of the appeal.
For more information, call (312) 435-5850.
Court of
Appeals seeks input on judge reappointment
Bankruptcy Judge Margaret D. McGarity of the U.S. Court of Appeals, Eastern
District of Wisconsin, seeks appoint-ment to another 14-year term. Judge
McGarity's current term expires on Oct. 25.
The court is accepting comments regarding Judge McGarity's reappointment.
Written comments can be sent by Feb. 24 to: Collins T. Fitzpatrick, Circuit
Executive, 219 S. Dearborn St., Room 2780, Chicago, IL 60604.
Sensenbrenner
to chair House Judiciary Committee
The House of Representatives has appointed Wisconsin Congressman F. James
(Jim) Sensenbrenner Jr. as chair of the prestigious House Judiciary Committee
for the upcoming Congress. The Judiciary Committee is one of the most
active House committees and holds primary responsibility over a variety
of legal issues.
Sensenbrenner, U.W. 1968, formerly a practicing attorney, represents
the Ninth Congressional District, which covers portions of Dodge, Fond
du Lac, Jefferson, Sheboygan, and Waukesha counties and all of Washington
and Ozaukee counties. He was elected to Congress in 1978 and previously
chaired the House Science Committee.
New filing
address for IRS forms 706, 709, and 1041
All Federal Estate, Gift Tax Returns, and Estate and Trust forms, forms
706, 709, and 1041 due after Jan. 1, 2001, must be filed with the Internal
Revenue Service at the Cincinnati Service Center, Cincinnati, OH 45999-0002.
All other federal tax returns should continue to be filed at the Kansas
City Service Center. For federal estate and gift tax information, call
(414) 297-3411.
Criminal
and family law produce most grievances against lawyers
The two areas of practice
that again produced the most grievances against lawyers in fiscal year 2000
were criminal and family law, according to the Board of Attorneys Professional
Responsibility (BAPR), now the Office of Lawyer Regulation, annual report
filed with the supreme court. The allegations most commonly filed were lack
of diligence and lack of communication with the client.
For the period July 1, 1999 through June 30, 2000 (FY 00), BAPR handled
2,154 grievances (628 pending from the previous fiscal year, and 1,526
new matters). BAPR closed 1,287 matters in an average time of 177 days
as compared to closure within 161 days the previous fiscal year.
Volume of grievances. BAPR received more grievances in FY 00
(1,526) than in fiscal year 1998-99 (1,423). BAPR disposed of 1,287 grievances
this year, including nine reinstatements, as compared with 1,302 dispositions
in FY 99. At the end of FY 00, 867 grievances were pending. BAPR referred
145 grievances to district professional responsibility committees in FY
00. The committees completed 169 grievance investigations during the same
period.
Formal discipline imposed. In FY 00, 24 attorneys received a
public disciplinary sanction. The supreme court imposed three license
revocations, 13 license suspensions, including two temporary suspensions
under SCR 22.30 and two suspensions for failure to pay court-ordered costs
from previous discipline. One temporary suspension was imposed but lifted
three months later. There were three court public reprimands. In addition,
BAPR imposed five public reprimands, with the lawyer's consent.
Criminal and family law and estate/probate were the practice areas that
generated the most public discipline cases. The rule violations most frequently
found in public discipline cases were lack of diligence, lack of communication,
dishonesty or misrepresentation, and failure to cooperate.
Other dispositions. BAPR imposed 36 private reprimands in FY
00. Private reprimands typically are imposed for isolated acts of misconduct
that cause relatively minor harm.
During the fiscal year, 48 attorneys received dismissals with caution.
Usually, a dismissal with caution is issued in cases of a technical violation
of a rule and no harm to the client. There were dispositions in 1,151
additional matters, including 563 grievances that were dismissed because
the inquiry did not warrant investigation, 510 that lacked sufficient
evidence of a rule violation, 63 that were dismissed with an advisory
letter, 13 matters that were closed pending petition for reinstatement,
and two dismissed by the court.
Actions pending. BAPR filed formal disciplinary actions against
20 attorneys in FY 00. At year's end, 21 formal actions were pending in
the supreme court.
Other actions. After BAPR investigation, the court completed
action on nine reinstatement petitions - six administrative and three
disciplinary. The court granted three of the administrative reinstatement
petitions and two of the disciplinary reinstatement petitions, one of
which included conditions on the attorney's practice. Three administrative
reinstatement petitions and one disciplinary reinstatement were withdrawn.
Trust account overdraft reporting. The Overdraft Notification
Rule (SCR 20:1.15(I)-(p)) became effective on Jan. 1, 1999. Under the
rule, attorneys must authorize their banks to notify BAPR, now the Office
of Lawyer Regulation (OLR), of overdrafts on their client trust and fiduciary
accounts.
In FY 00, 104 overdrafts were reported to BAPR, of which about one-third
were closed without investigation as bank errors. Of the remaining matters,
38 warranted investigation, and 31 required further screening. The trust
account rules most frequently violated were SCR 20:1.15(e) (recordkeeping)
and SCR 20:1.15(g) (false certifications to the State Bar regarding recordkeeping).
Finances. The legal profession assumes the costs of policing
itself. In addition to an assessment imposed on every State Bar member
($89.82 per member in FY 00), BAPR collects costs from the attorneys disciplined
in formal court proceedings and fees on petitions for reinstatement. Collections
from FY 00 were $159,294.
BAPR's budget for FY 01 is $1,783,700. BAPR will use $100,000 in reserves
and $50,000 in anticipated collections to place the assessment at $100.23
per attorney. The FY 01 budget includes funding for a central intake function
in the Office of Lawyer Regulation.
Conclusion. BAPR completed 85 percent of investigations in less
than one year, with an average grievance processing time of 5.9 months.
The pending investigative caseload is 867 cases, an increase over the
621 pending cases in FY 99. BAPR concluded 1,287 grievance inquiries.
Throughout much of the fiscal year, the supreme court studied Wisconsin's
system of lawyer regulation, and ultimately created the Office of Lawyer
Regulation to replace BAPR. Supreme Court Rules relating to the new system
of lawyer regulation became effective Oct. 1, 2000.
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