Kevin Palmersheim, Middleton, believes the proposed resolution is the best way to proceed, given the divisive nature of the mandatory/voluntary bar issue.

March 2, 2010 – The State Bar’s Board of Governors continues what has been months of discussion regarding the association’s mandatory structure. At its Feb. 26 meeting, the board did not act on the key elements of a resolution drafted by the Strategic Planning Committee (SPC), which asks the board to petition the Wisconsin Supreme Court “to review the status of the integrated bar.” The Future of the State Bar: Mandatory/Voluntary Membership Report will likely come before the BOG again in May.

In presenting the report, SPC Chair John Macy stressed that a paramount concern throughout the committee’s deliberations was to protect the integrity of its work by creating an open process and by inviting the broadest possible input from members. The report and resolution proposes two key matters for board consideration: 1) to request the supreme court to address the issue of the integrated structure of the State Bar of Wisconsin; and 2) to provide a mechanism for multiple proposals for the future of the bar to be considered. The mechanism would allow for the SPC to draft and submit multiple petitions including a voluntary structure, continuation of the integrated structure, or a hybrid structure.

Under Chapter 10 of the Supreme Court Rules, persons wishing to practice law in Wisconsin are required to be members of the State Bar of Wisconsin. Only a change in court rules could effect a change to the State Bar’s status. Macy noted that the committee’s proposed resolution reflects a consensus among its members that it is essential to move the issue forward by referring it to the only body that can provide finality -- the Wisconsin Supreme Court.

The deciders in chief

While many board members acknowledged their initial concern over the lack of a clear recommendation on the State Bar’s future, they were generally supportive of the belief that a declaration from the court is necessary to resolve the issue and address member concerns.

Governor Kevin Palmersheim, Middleton, said that his initial reaction to the SPC recommendation was that it seemed “wishy-washy,” but after giving the matter further thought he now believes that, given the divisive nature of the mandatory/voluntary issue, “it has to come before the supreme court” and that the mechanism proposed by the committee is the best available way to proceed. While noting that he has not made a final decision on how he will vote when the matter comes before the board as an action item, he is now leaning in favor of the approach.

Governor Paul Swanson, Oshkosh, was on the board during a key part of the State Bar’s history two decades ago when the court suspended the State Bar’s mandatory membership rule. He told the board that the issue has “come up time and time again,” and the supreme court is the only body that can render a final judgment on the matter. “One way or another, I think the court needs to talk about this,” and the process outlined by the committee offers a mechanism to get it before the court for its full consideration of the options.

Multiple petitions proposed

A key issue of contention is exactly what form a petition (or petitions) should take that would provide options for the court. Governor Marla Stephens, Milwaukee, welcomed the wealth of information documented by the committee but cautioned that any petition forwarded to the supreme court should offer specific information about how a voluntary bar would be structured. She noted that some of the objections to the status quo raised by voluntary bar advocates could be addressed without restructuring the association.

She questioned the appropriateness of asking the supreme court to resolve the issue, particularly without defining a clear State Bar position. Stephens predicted that Chief Justice Abrahamson will ask, “What is it you want?” Stephens also challenged the appropriateness of a State Bar-initiated petition: “What is the rationale for utilizing State Bar resources to advance this petition when people who are interested in a voluntary bar are unwilling to do it themselves?”

While generally supportive of the resolution, Governor Margaret Wrenn Hickey, Milwaukee, also raised concerns regarding the manner in which any petitions are developed and presented to the court. In particular, she urged that the BOG determine who would advocate for the petition or petitions and that State Bar members be assured that all sides of the issue are advocated effectively before the court.

Margaret Hickey, Milwaukee, weighs in on the Strategic Planning Committee's resolution. "We have an obligation to get this issue before the court," she told the board.

State Bar President-elect Jim Boll, Madison, who also is SPC vice chair, explained that while the committee’s recommendation is not an endorsement of either a mandatory or a voluntary bar structure, “it is a decision that the issue is fundamentally important and must go to the supreme court.” Boll also emphasized the committee’s conclusion that board members, as leaders of the association, should be involved through a committee process in the developing any petition or petitions advanced to the court.

Boll said that while any individual State Bar member could file a petition with the supreme court seeking a review of the association’s mandatory status, it is very important that the board advance such a petition in order to validate the central importance of the mandatory/voluntary bar matter to many State Bar members. If the board fails to petition the court, he cautioned, the issue will continue to divide members.

Governor Samuel Benedict, Waukesha, and others said that they remain conflicted about the recommendation. While Benedict agreed that the matter merits review by the court, he questioned if the process will simply shift the debate to the supreme court. He challenged the assumption that the board would be unable to attain a 60 percent board majority in favor of one position or another. Governor Charles Hanson, La Crosse, echoed similar reservations. He suggested that if a petition for a voluntary bar cannot achieve a 60 percent vote from the board, its supporters could take it to the court for resolution. He cautioned the board “not to take the easy way out by pushing our responsibility to make a decision up to the supreme court.” He favored making a decision one way or the other at the board level and then deciding what to take to the supreme court.

“It would be a source of embarrassment for us if all this work turns into a petition from outsiders challenging this rule” because the board can’t make a decision, President Douglas Kammer argued. Kammer, of Portage, said that he would have preferred the board take action on the report immediately but asked that the board accept the report now. He intends to seek a final vote at its May 5 meeting.

Paul Swanson, Oshkosh, responding to the Strategic Planning Committee's resolution, believes the Board of Governors is in the best position to draft petitions to the court.

Governor Albert Wehde, Sunnyvale, Calif., urged the board to file “a single petition that sets forth both sides of the argument.” Governor Robert Storm, Wauwatosa, expressed similar views, as did Governor Catherine Ritterbusch, Milwaukee, who stressed the importance of achieving resolution of the mandatory/voluntary question in the court so the State Bar can focus on other issues. Past President Diane Diel, Milwaukee, told the group that she also seeks finality to the matter but is troubled by the concept of giving the State Bar’s “imprimatur” to a petition that reflects multiple positions.

Governor Frank Remington, Madison, embraced the value of moving the issue forward in whatever form. He argued that “we have to do something” and that, if nothing else, two or more competing petitions could be combined.

A learning process

Governor Donna Jones, Atlanta, Ga., said she welcomed the opportunity to flesh out the structure of a potential voluntary association. She noted that the report provided a welcomed historical perspective. Governor and SPC member Robert Goepel, Racine, agreed, pointing in particular to the fact that many members don’t understand the dues structure, and that “Over half of the dues that we pay aren’t really dues but are assessments that aren’t going to go away.” He also emphasized the importance of educating members about who has the ultimate authority to decide the mandatory bar issue.

Young Lawyers Division representative, Governor Jessica J. King, Oshkosh, remarked that part of the value of the committee’s work and future deliberations on its recommendations is to educate members about the State Bar’s structure and the amounts members pay with the dues statements to support court-mandated programs that would remain in place whether the structure of the State Bar is altered or not.

Governor Nathaniel Cade Jr., Milwaukee, speculated that some of the people who advocate a voluntary bar because they feel they don’t get enough in return for their membership may not be putting enough into their involvement with the State Bar to recognize the value it can offer them.

The May 5 board meeting, where final action on the proposed resolution could be taken, will be held in conjunction with the Annual State Bar Convention in Madison.

Samuel Benedict, Waukesha, is conflicted about the proposed resolution. He wonders, will the process simply shift the debate to the supreme court?

Other business

In other business, the governors took the following actions.

• Public policy position in favor of adequate district attorney funding. The board approved by a vote of greater than 60 percent to amend its existing public policy position in favor of “general purpose revenue for additional staff necessary to maintain reasonable caseloads” in district attorney offices around the state. The board approved amending the policy to support “adequate funding for additional staff necessary” to maintain reasonable caseloads, so that the policy is not limited to general purpose revenue or GPR. (GPR are revenues limited to sources such as individual and corporate income taxes and the sales tax.)

• Judicial Council petition regarding communications in mediation. The board unanimously voted to support rules petition 09-12, filed by the Judicial Council to amend Wis. Stat. section 904.085(4)(3). That statute currently allows courts to admit communications made in mediation “if necessary to prevent a manifest injustice of sufficient magnitude to outweigh the importance of protecting the principle of confidentiality in mediation proceedings generally.” The Judicial Council petition would require the hearing to make such determinations be held in camera. The State Bar’s Alternative Dispute Resolution Section requested that the board support the petition.

• Taxation Section request for authorization to file an amicus brief. The board approved by a vote of greater than 60 percent the request of the State Bar’s Taxation Section to file an amicus brief in Metropolitan Associates LP v. City of Milwaukee, 2009AP000524, which is pending before the supreme court. The Real Property, Probate and Trust Section also supported the request but is not joining in the amicus.

• Keller dues reduction amount. The board approved the Finance Committee’s proposed Keller dues reduction amount of $10.25 for the 2011 fiscal year State Bar dues.

• Petition for permanent license revocation. The board opposed a petition by the Office of Lawyer Regulation to ask the Wisconsin Supreme Court to create rules to allow for the permanent revocation of an attorney’s license for misconduct in egregious cases. Currently, a revoked attorney may petition the court for reinstatement after five years.

• Petition to dissolve Lawyer Assistance Corporation. The board unanimously approved filing a petition with the supreme court to amend rules in SCR 12 to abolish the Lawyer Assistance Corporation (LAC). The LAC was established as a nonstock, nonprofit corporation to provide malpractice insurance to attorneys appointed to unwind the affairs of abandoned law practices. The corporation has proven unnecessary because the required insurance is provided under the State Bar’s auspices.

• Election of successor to Governor William Domina. The board unanimously elected Lynnette McNeely, Milwaukee, to serve the remainder of former Governor William Domina’s term, which ends June 30, 2011. In January 2010, Gov. Jim Doyle appointed Domina as a circuit court judge in Waukesha County. SCR 10.03 prohibits members of the judiciary from serving as officers or governors of the State Bar. The board also elected Governor Kelly Nickel, Delevan, to succeed Judge Domina on the board’s Executive Committee.

• CLE committee proposed policy regarding political activity at State Bar events. The board returned to the CLE Committee for further work a proposal to establish a policy regarding political activity at State Bar events. Several governors expressed concern that the policy as proposed may create First Amendment issues.

• Approval of date and place of 2011 Annual Convention. The board approved holding the 2011 annual convention at the Kalahari Resort in Wisconsin Dells on June 8-11, 2011.

• Consent agenda. Unanimously approved by voice vote the censent agenda, which grants the Intellectual Property Section's request to amend its bylaws and President kammer's request for free distribution of 2008 Economics of Practice Report to State Bar members.

Former State Bar president Tom Basting, a member of the Bar’s UPL Policy Committee, urged board members to contact the Wisconsin Supreme Court in support of the Bar’s UPL petition 07-09, which is scheduled for a public hearing on March 8, 2010, at 9:45 a.m.

Related:

• More Strategic Planning Committee background

• Board of Governors discusses mandatory/voluntary bar report, takes other actions – Feb. 26, 2010

• Strategic Planning Committee forwards mandatory/voluntary bar report to Board of Governors – Feb. 22, 2010

• Strategic Planning Committee hears testimony on mandatory/voluntary Bar issue – Dec. 16, 2009

• Comments regarding the mandatory/voluntary bar issue welcome – Dec. 2, 2009

• State Bar seeks insights on mandatory/voluntary bar issue – Oct. 6, 2009