By Adam Korbitz, Government Relations Coordinator, State Bar of Wisconsin

Aug. 9, 2010 – The Wisconsin Supreme Court has announced its initial schedule of rule-making proceedings for its 2010-11 term, scheduling public hearings for most of the rules petitions currently pending before the court.

The court has set public hearing dates on six pending petitions, including a petition filed last year that would increase the payment rate for court-appointed attorneys. In addition, the court has scheduled new public hearings or open administrative conferences on five more petitions or rule-making orders that have already had at least one public hearing. The court has not yet decided one petition that had a public hearing earlier this year, and it has not scheduled any public hearing on one additional petition that is held in abeyance because of related litigation.

The Supreme Court has scheduled as many as five days of hearings in September, October and November 2010 as well as an additional day in January 2011 on the petitions currently pending before the court. The schedule does not take into account any petitions under development but not yet filed with the court.

On Sept. 30, 2010, the court will hold a public hearing and an open administrative conference at 9:30 a.m. on petition 09-09, filed by former State Bar of Wisconsin president Steven Levine and 70 other attorneys, seeking to amend or repeal Supreme Court Rule 40.03, relating to the diploma privilege. Specifically, the petition asks the Supreme Court to extend the diploma privilege to graduates of all ABA-approved law schools or to abolish the privilege entirely.

At the same hearing, the court will also review new rules governing the discovery of electronically stored information. The rules previously received a public hearing in January 2010. On July 6, 2010, the Supreme Court promulgated the new rules, which will be effective Jan. 1, 2011. At the same time, the court scheduled another public hearing on the rules, so that attorneys and other members of the public can comment on them once more before they become effective. The State Bar’s Board of Governors is on record as supporting the new rules, which were proposed by the Judicial Council. (Written comments regarding the new rules are due to the court no later than Aug. 31, 2010. According to the scheduling order, any comments shall be filed with the Clerk of the Supreme Court, P.O. Box 1688, Madison, WI 53701-1688, and emailed to clerk@wicourts.gov.)

On Oct. 4, 2010, the court has scheduled a public hearing on petition 10-07, filed by the State Bar, to amend SCR 12.02(6) and SCR 12.03(7) relating to the Lawyers Assistance Corporation. According to a memorandum supporting the petition, the State Bar is seeking permission to dissolve the corporation because it no longer serves any significant function. The LAC was incorporated in April 1994 to obtain professional liability insurance for attorneys acting as trustees appointed to unwind the affairs of attorneys who had abandoned their practices, died, disappeared or become incapacitated. According to the memorandum filed with the petition, most professional liability insurance carried by those who might serve as trustees now covers these risks. The State Bar also provides coverage for those attorneys performing pro bono services under its aegis, including trustee services.

At the same hearing on Oct. 4, the court has also scheduled a public hearing to review its order dated May 1, 2006, relating to petition 05-01 and the assessment of lawyer regulation system costs under SCR 22.24.

Also on Oct. 4, the court will continue its discussion of petition 09-07 by meeting in open administrative conference on the petition. The State Bar filed the petition last year to provide guidance to circuit court judges when ordering certain case files expunged, removed from an online database or otherwise sealed.

At an all-day public hearing on Feb. 24, 2010 almost two dozen individuals testified in favor of the petition. The vast majority of those who testified favored the proposal and described how their personal lives or professional careers had been adversely affected by the online posting of court cases. In most of the situations described at the hearing, the cases had either been dismissed, overturned on appeal or had ended in outright acquittal after a jury trial.

After the Feb. 24 hearing, a majority of the justices appeared willing to continue exploring ways to provide limited relief to individuals harmed by the online availability of cases that have either been dismissed or that ended in outright acquittal. The Legislature’s Joint Legislative Council has also established a committee to study similar issues over the next year.

On Oct. 18, 2010, the court has scheduled a public hearing to review its orders entered on July 31, 2008 and July 1, 2009 relating to rules governing the discretionary transfer of cases to tribal court.

Public hearing on petition to increase Supreme Court rate for court-appointed attorneys

On Oct. 19, 2010, the court has scheduled a public hearing on petition 10-03, which wasfiled by several Wisconsin attorneys, to increase the rate for court-appointed attorneys to $80 per hour.The group filing the petition includes eight past presidents of the State Bar. On May 4, 2010, the Board of Governors voted to support the petition.

If approved by the court, the petition would increase the Supreme Court rate under SCR 81.02 to $80 per hour and index the rate to the consumer price index. The current Supreme Court rate for court-appointed attorneys, such as GALs, is set by rule at $70 per hour. However, this rate does not apply to State Public Defender (SPD) private bar appointments, which are set by statute at $40 per hour.

While the petition would not directly set SPD private bar rates, it would provide that payment of an hourly rate less than the rate set forth in SCR 81.02(1) for legal services rendered pursuant to appointment by the SPD under Wis. Stat. section 977.08 is unreasonable.

The attorneys who filed the petition also filed a supporting memorandum, which notes that the current rate of compensation in federal court for appointed counsel in criminal cases is $125 an hour. The memorandum also states that the proposed amendment would permit lawyers representing indigent criminal defendants and the defendants themselves to assert that a rate of compensation less than $80 per hour is unreasonable, by Supreme Court Rule.

The memorandum further states that, although the proposed rule could effectively double the rate of hourly compensation for counsel representing indigent criminal defendants, the fiscal impact of the proposed changed is unclear and would require study. According to the memorandum, “Variables include the legislature’s response; the possibility that it would be cost-effective to increase the number of staff attorneys employed by the State Public Defender to reduce the number of cases appointed to private counsel; and the possibility that expense of indigent defense would shift from the counties entirely back to the state if the legislature responds appropriately, or would not.”

Also on Oct. 19, the court has scheduled a public hearing on petition 10-04, which was filed by the Office of Lawyer Regulation 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. At its meeting on Feb. 26, 2010, the State Bar’s Board of Governors voted to oppose the petition.

On Nov. 5, 2010, the court has tentatively scheduled a public hearing on petition 10-05, filed by the Office of Lawyer Regulation, which would provide greater protection to the public when a lawyer holds trust property in a credit union. The same day, the court may also hold a hearing on petition 10-06, filed by the Director of State Courts to amend SCR 71.01(2) and sec. 885.42, Wis. Stats., regarding required court transcription of videotapes.

Finally, the court has set aside Jan. 13, 2011, to hold a possible public hearing on two petitions filed by the Board of Bar Examiners, 08-11 regarding adverse determination of applicants’ character and fitness, and 08-13, regarding conditional admission to the bar. Both petitions have already had public hearings but are awaiting amended petitions from the BBE. The State Bar is on record as supporting both petitions.

The court will also have at least one other petition pending before it that has not yet been scheduled for public hearing. That petition, 09-08, was filed by several Wisconsin attorneys to change Supreme Court rules governing the use of State Bar dues. According to the court, that petition is held in abeyance pending related litigation (case no. 09-4080, Kingstad v. State Bar of Wisconsin (7th Circuit)).

Under Wis. Stat. section 751.12 and Supreme Court Internal Operating Procedures II.B.5. and III, any person may file a petition to change Supreme Court rules, pleading, practice, procedural statutes and administrative matters. The State Bar’s activities regarding Supreme Court rule-making petitions are coordinated by the State Bar’s government relations team. If you have questions regarding the State Bar’s position on a rule-making petition pending before the Supreme Court, please contact Adam Korbitz, government relations coordinator.

Related articles:

Supreme court schedules diploma privilege debate for Sept. 30 - July 21, 2010
Supreme court wraps up busy year of rule-making proceedings - June 16, 2010
Supreme Court approves discovery rules to address electronically stored information - May 4, 2010
Supreme court adopts procedures for referral and monitoring program - May 3, 2010
Petition filed to increase Supreme Court rate for court-appointed attorneys - March 22, 2010
Supreme Court to continue studying record retention and removal petition - February 26, 2010

 

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