April 30, 2010 – The Wisconsin Supreme Court has taken action on two rule-making petitions, one filed by the Judicial Council relating to the confidentiality of communications made in mediation and the other filed by the Board of Bar Examiners relating to bar admission procedures.
Following a public hearing on April 27, the court voted unanimously in open administrative conference to approve petition 09-12, which the Judicial Council filed in October 2009 to clarify that hearings held under Wis. Stat. section 904.085(4)(e) must be held in camera. Section 904.085 provides generally that communications made in mediation are privileged.
Under section 904.085(4)(e), courts may admit evidence which would otherwise be barred by that section, but only after a hearing is held to determine if admission is 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 makes it clear that such hearings must be held in camera rather than in open court.
The Judicial Council filed the petition at the suggestion of Judge Robert Haase, who told the court that having such hearings in open court defeated the purpose of making communications made in mediation privileged in the first place.
“In Wisconsin, if you want to breach the confidentiality, you can do so, but it is in a hearing,” Judge Haase told the court in explaining the problem with the current rule. “It doesn’t make sense that if you are going to have a hearing to determine whether you are going to make communications public that you would do it in a public forum rather than an in camera proceeding.”
The State Bar of Wisconsin’s Board of Governors supported the Judicial Council’s petition, at the request of the Bar’s Alternative Dispute Resolution Section.
The court also adopted in principle petition 08-11, which the BBE filed in 2008. That petition proposes various modifications to procedures related to informing an applicant for bar admission that their application is at risk of being denied and informing applicants of their right to request a hearing regarding such potential denials.
While the court adopted petition 08-11 in principle, it asked court staff to work with the BBE and other interested parties to address various issues raised by the justices and by speakers during the public hearing on the petition and modify the language accordingly. The court will give the petition final consideration at an open administrative conference in the fall of 2010, after a draft order with proposed language is available.
The State Bar’s Board of Governors also supported the BBE petition.
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.
By
Adam Korbitz, Government Relations Coordinator, State Bar of Wisconsin
Related articles:
Supreme Court sets 2010 schedule of rule-making proceedings - November 23, 2009
State Bar faces busy year with Supreme Court rule-making – Sept. 21, 2009
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