Supreme court rejects proposal to review State
Bar’s performance, dismisses voluntary bar petition
By Adam Korbitz, Government Relations
Coordinator, State Bar of Wisconsin
Feb. 29,
2012 – The Wisconsin Supreme Court has voted 4-3 to reject a
proposal to appoint a committee under Supreme Court Rule (SCR) 10.10 to review the State Bar of
Wisconsin’s performance of its public functions.
Meeting in open
administrative conference on Feb. 27, the court also voted by the
same 4-3 margin to dismiss without a public hearing a petition seeking
to convert the State Bar from an integrated to a voluntary
association.
The court did, however, order that a public hearing be scheduled on
another petition challenging recent bylaw amendments approved by the
State Bar’s Board of Governors in April 2011.
SCR 10.10 committee and voluntary bar petition
both rejected
In November 2011, Chief Justice Shirley Abrahamson and
Justice Patrick Crooks had
proposed the appointment of a review committee under SCR
10.10 as an alternative to holding a public hearing on Petition 11-04,
which sought to convert Wisconsin’s integrated bar into a
voluntary bar. Wisconsin attorneys Steven Levine and James Thiel had
filed that petition in July 2011. Levine is a former president of
the State Bar, and both Levine and Thiel are current
members of the State Bar’s Board of Governors.
Supreme Court Rule (SCR) 10-10
allows the supreme court, at such time as the court deems it advisable,
to appoint a committee “to review the performance of the state bar
in carrying out its public functions.”
The supreme court would have determined the size and composition of the
committee, and the State Bar would have paid the expenses of the
committee.
At its Jan. 11 administrative conference, the court discussed the
possibility of appointing an SCR 10.10 committee to review the State
Bar’s performance, and agreed to hold Petition 11-04 in abeyance
during that consideration. At its meeting on Feb. 10, the State
Bar’s Board of Governors voted
unanimously to oppose the appointment of a review committee.
After discussion at its open conference on Feb. 27, the court rejected
both the appointment of an SCR 10.10 committee and decided, by the same
4-3 margin, to dismiss Petition 11-04 without a public hearing.
Attorneys Levine and Thiel filed Petition 11-04 after the court had
similarly voted on
June 1, 2011, to reject Petition
11-01. Levine and Thiel had filed that
petition in February 2011.
The court formally denied Petition 11-01 in a 5-2 written order,
stating that it did not set forth proposed language for a rule to
accomplish its purpose. The court’s action on Petition 11-01 had
left the petitioners free to file Petition 11-04, as long as that
petition set forth a draft rule proposing how the conversion from an
integrated bar to a voluntary bar could be accomplished.
Court to hold public hearing on State Bar bylaws
amendments
At its open administrative conference on Feb. 27, the court also voted
to hold a public hearing on Petition
11-05, submitted by Steven Levine, James Thiel, and 23
other State Bar members.
The petition seeks to void or replace a recent revision to State Bar
Bylaw Art. I, Section 5, relating to the burden of proof that applies in
arbitrations regarding mandatory dues rebates. The date of the
hearing will be set in the near future.
Under SCR 10.03(5)(b)1, State Bar members can challenge, through
arbitration, mandatory dues assessment amounts they believe are not
reasonably related to the State Bar’s dual purposes of
“regulating the legal profession” or “improving the
quality of legal services.”
In April 2011, the State Bar Board of Governors voted
to amend Art. I, Section 5 of the State Bar’s bylaws to provide
that any arbitration award regarding dues rebates is subject to de
novo review. Petition 11-05 asks the court to strike this
amendment.
The petition also asks the court to amend Art. I, Section 5 to impose
on the State Bar a burden to prove by a preponderance of the evidence
that a challenged expenditure was intended for the purposes of
regulating the legal profession or improving the quality of legal
services.
The preponderance of the evidence burden is a departure from
Kingstad
et al. v. State Bar of Wisconsin, 622 F.3d
708 (7th Cir. 2010), which states that the State Bar must show a
challenged expenditure is reasonably related to the legitimate interests
of regulating the legal profession or improving the quality of legal
services.
Other business
In other business, the court at its Feb. 27 conference voted to
schedule several other pending rules petitions for public hearings later
this year. Those include Petition 11-07, filed by
the Office of Lawyer Regulation and the State Bar regarding the
provision of legal services following a disaster, Petition 11-08, filed by
the Board of Bar Examiners regarding the legal competence requirements
of graduates of foreign law schools, and Petition 11-09, filed by
the Director of State Courts regarding ex parte communications in
treatment courts.
The court also voted to schedule for public hearing Petition 12-02, which
Steven Levine filed seeking to obtain the names and addresses of persons
who took the July 2011 Wisconsin bar examination. The petition also
seeks to require the Board of Bar Examiners to be bound, with
exceptions, by both the Wisconsin open meetings and open records
laws.
Finally, the court voted 4-3 to approve a proposal by Justice Patience
Roggensack to amend the court’s internal operating procedures to
require a majority vote of the court in order to schedule for open
conference any administrative matters other than pending rules
petitions.
Prior to the court’s amendment of its procedures, the power to
set the agenda for open conferences was vested, in practice, in the
chief justice.
Continue to monitor WisBar.org and visit the State Bar’s
Government
Relations page for updated information on these and
other issues.
Related articles:
-
State
Bar Board unanimously opposes evaluation; president announces task force
to help new lawyers, among other actions
– Feb. 10, 2012
-
Wisconsin
Supreme Court considering a review of the State Bar’s
performance – Jan. 12, 2012
-
Supreme
court rejects another voluntary bar petition – Nov.
8, 2011
-
Supreme
Court addresses voluntary bar petition, petition on bar dues, among
others – Sept. 27, 2011
-
Petitioners
resubmit call for voluntary bar, ask to void or replace recent bylaw
amendment – July 12, 2011
-
Supreme
Court rejects petition to abolish integrated bar –
June 1, 2011
-
Board
takes no position on pending voluntary bar petition, opposes petition to
amend mandatory dues reduction rule – April 12,
2011
-
Rules
petition filed with supreme court seeks to revive mandatory/voluntary
bar issue – February 23, 2011
