Sept. 28, 2020 – The “emeritus” classification of membership, which currently applies to members age 70 and older, would change under a proposal approved by the State Bar of Wisconsin’s Board of Governors at its first (virtual) meeting of the fiscal year.

The State Bar will now petition the Wisconsin Supreme Court seeking final approval of a classification change under court rules, SCR Chapter 10, which regulates the State Bar.

The proposal would require attorneys ages 70 to 75 in “active” law practice to continue paying full State Bar dues (currently $260 annually) and to fulfill all continuing legal education (CLE) requirements (30 credit-hours every two-year reporting period).

Actively practicing attorneys over 75 would become “Senior Active” members and only be required to pay half State Bar dues and obtain half of required CLE (15 credits). Those electing emeritus status would be truly retired, but could still do pro bono work.

Emeritus status would become a totally “inactive” class of retired, non-dues paying members who elect such status at age 70 or older, but would continue to receive benefits of State Bar membership, including the Wisconsin Lawyer™ magazine.

Currently, attorneys can elect emeritus status at age 70 and practice law but are not required to pay any State Bar dues or Wisconsin Supreme Court assessments (currently $236), aside from the court’s client protection fund fee (currently $20).

Additionally, current emeritus members who continue to practice law are exempt from CLE requirements.

Existing emeritus members would be exempt from the new classification, if the state supreme court approves it, and could actively practice law with no dues or CLE.

Proposal Passes

The most recent emeritus classification proposal is the final product of a 12-person Emeritus Task Force appointed in 2018 to study the issue and make recommendations in consultation with the Senior Lawyers Division (SLD), which supports the proposal.

But it was not adopted without significant debate. The SLD board rejected prior proposals, and the State Bar board debated the issue at numerous board meetings.

The discussion continued at last Friday’s meeting, but ultimately the board overwhelmingly supported the proposal. Only one board member voted against it.

In prior debates, some questioned the need to change the current structure, which gives the bar’s eldest lawyers a financial break after decades of service and dues payments.

Others questioned why the most experienced lawyers should be required to obtain CLE, or why they shouldn’t if actively practicing law in an ever-changing environment.

Ultimately, the consensus was that actively practicing attorneys should keep up with CLE and pay their fair share of dues.

The current emeritus structure was established in 1975. Jill Kastner, State Bar immediate past president, noted that a significantly larger proportion of today’s lawyers actively practice law well into their 70s while continuing to use State Bar services.

When the current structure was enacted, she said, most lawyers retired upon reaching their 70s and requiring them to pay dues and take CLE did not make sense.

“Being age 70 in 1975, when this was originally enacted, is very different than being 70 today,” said Kastner, noting no other state appears to have one membership category that includes both actively practicing and retired members. “Going forward, we want to distinguish between those who are practicing and those who are retired,” she said.

About 13 percent of the membership is age 70 and over and 72 percent of them are emeritus members. About 20 percent of members are between the ages of 60 and 69.

Opening Remarks: New U.W. Law School Dean Tokaji Discusses Equity, Diversity, Inclusion

Daniel Tokaji, the newest dean of U.W. Law School, provided opening remarks last Friday at the State Bar of Wisconsin’s Board of Governors meeting. Dean Tokaji was previously associate dean at the Ohio State University’s Moritz College of Law.

“We consider every one of you a friend of U.W. Law School, and as dean I’m very much looking forward to having many opportunities to work together,” Dean Tokaji said.

He commended the State Bar for its leadership on issues of diversity, equity, and inclusion and particularly on issues of racial justice. He said these issues have hit close to home with the killing of George Floyd and the shooting of Jacob Blake in Kenosha.

“One of the things that I think we have come to realize is that these issues of diversity, equity, and inclusion – especially racial justice ­– are not someone else’s problem,” he said. They are all of our problems and as law professors, law students and lawyers, we have to take responsibility. I’m grateful that the State Bar has stepped up in that regard.”

Dean Tokaji, who replaced former Dean Margaret Raymond, noted the law school has already started a dialogue with the State Bar on ways to improve and enhance the State Bar’s Diversity Clerkship Program to include more employers and more opportunities for students of diverse backgrounds.

He thanked State Bar members for serving their clients, as well as the broader legal community and the many people who rely on legal services, including people of limited means. That ideal, he said, aligns with the Wisconsin Idea and his vision as dean.

NLRD Presents Petition on CLE Requirements

The board discussed a petition the Nonresident Lawyers Divisions is seeking to file with the Wisconsin Supreme Court related to CLE rules. The board took no action, but may consider whether to support the petition at a future board meeting.

The petition addresses the issue of transferring between active and inactive status for members who have not practiced law in Wisconsin for the past 10 years.

Currently, inactive members can transfer to active status only if they obtain at least 30 credits of Wisconsin-compliant CLE, if they did not comply with the most recent reporting period. If they failed to comply with two reporting periods, it’s 60 credits.

The proposal would allow inactive attorneys who reside in mandatory CLE states to use compliance with their home state’s CLE to meet the requirements for transferring to active status in Wisconsin. It would also remove the requirement that the attorney be actively practicing in their home state the entire time they are inactive in Wisconsin.

“Rather, they need only meet the requirements necessary for an attorney to petition for full membership in Wisconsin, practicing three out of the past five years,” the division’s memo states. “This three-out-of-five years rule tracks the requirements of [CLE] 3.015 for admission to the State Bar of Wisconsin based on practice in another jurisdiction.”

NLRD Representative Kathryn Bullon said the current rule creates a “disconnect” when inactive lawyers want to return to active status in Wisconsin, since “active” Wisconsin lawyers can use CLE from other jurisdictions to comply with Wisconsin’s requirements.

Access to Justice Commission Presents Law Student Practice Rule

The board discussed a petition the Wisconsin Access to Justice Commission is seeking to file with the Wisconsin Supreme Court to update Wisconsin’s law student practice rule, which governs the practical training of law students.

U.W. Clinical Law Professor Mitch, speaking to the board in support of the petition, noted that currently, students must complete half their law school education before they can practice law under the supervision of an attorney.

This petition would allow supervised students to practice after the first year of law school. Mitch said law schools generally offer clinical programs after the first year and the rule change will allow those law students to get more practical experience sooner.

The proposal would also allow law school graduates of out-of-state law schools to practice under supervision in government roles and approved pro bono programs for the first 12 months before taking the Wisconsin Bar Exam to gain admission.

This aspect would allow Wisconsin to attract a more diverse pool of attorneys than currently exists at Wisconsin’s two law schools, Mitch said. Additionally, he said expanding the rule would promote greater access to justice in Wisconsin.

In a petition filed with the court, the commission says the current rules, adopted in the 1970s, “do not provide for adequate experiential learning opportunities for law students, nor do they encourage equitable and diverse membership in the Wisconsin Bar.

“Beyond that, the proposed rule furthers administrative efficiency, and modernizes and clarifies the out-of-date and at times confusing current Student Practice Rule.” The board may consider whether to support the petition at a future board meeting.

Board Approves Nomination Committee

The board approved State Bar President Kathy Brost’s appointments to the board’s Nomination Committee, which will seek election candidates for State Bar president-elect and other officer positions. The membership elects officers every year in April.

The 2021 Nomination Committee members include: Current State Bar President-elect Cheryl Daniels (chair); past State Bar President Fran Deisinger; State Bar Treasurer Eric Andrews; Dist. 2 Gov. Amy Wochos; and Wisconsin Law Foundation President Margaret (Peggy) Herlitzka.

Board Supports State Bar Bylaws and Court Rule Modifications

The board passed several modifications to State Bar bylaw and Wisconsin Supreme Court rules recommended by the Governance Committee. The modifications do not change the substance of any provisions but reflects current procedure and terminology. The Wisconsin Supreme Court must approve the recommended changes.

Governance Committee member Mary Lynne Donohue noted that most modifications are procedural in nature or “scrivener” changes that update the bylaws.

Other Business

• The board approved the requests of numerous State Bar sections to carry over more than $10,000 in their operating budgets into fiscal year 2021.

• The board approved a position description for the Building Bridges liaisons in an effort to strengthen the relationship between the State Bar and diversity groups in the legal profession. Building Bridges liaisons are members of affinity bar groups that attend Board of Governors' meetings and participate in other board activities.

• The board, on recommendation of the board’s Governance Committee, created a Building Bridges liaison position to include a member of the LGBT Bar Association of Wisconsin.