From the Archive: Will Ekern Control Job Security?

During the past two years, Wisconsinites have fiercely debated the amount of job security government employees should receive. Interestingly, this year marks the centennial of a case that laid the foundation for a career in civil service in Wisconsin: Ekern v. McGovern (1913).

Gov. Francis McGovern appointed Herman Ekern as insurance commissioner, but later fell out with him politically and tried to fire him. Ekern argued that even though he held a policymaking position, he could only be discharged for cause after a hearing.

The Wisconsin Supreme Court agreed, stating that “a minimum of political interference” was required at all levels in order to attract employees of “high character and special attainments.” Two justices dissented, arguing that governors have a free hand in choosing a policy team.

It remains to be seen whether the Ekern majority view will prevail as Wisconsin moves through the 21st century.

Source: Jay Ranney, Madison lawyer and legal historian

By the Numbers: 416

The average number of days from notice of appeal to opinion by a three-judge panel in 2012.

Each judge on the 16-judge Wisconsin Court of Appeals had an average caseload of 168 cases last year, based on 2,689 filed appeals.

The appeals court issued 317 three-judge opinions in 2012, and 127 were published.

Source: Wisconsin Court of Appeals, Case Load Statistics 2012, www.wicourts.gov

Tech Tip: Save the Gas: Remote Deposits to Credit Card Trust Accounts

The OLR has now explicitly authorized Wisconsin lawyers to deposit client checks for advanced fees and costs into the Credit Card Trust Account by remote deposit. Previously, the only Internet transactions authorized by the OLR were credit card payments made in accordance with SCR 20:1.15(e)(4)(h) into the Credit Card Trust Account.

Remote depositing allows lawyers to make check deposits electronically, without physically visiting the financial institution that houses lawyer and law firm accounts.

Checks are scanned at the office, and the information is transmitted to the bank over the Internet. Some banks offer this service to their customers. Others can use an independent processor, such as iStream Financial Services, a State Bar affinity program provider that offers remote deposit services that work with your current bank.

Because lawyers must transfer credit card, debit card, and other electronic payments (which now include remote deposits) to their IOLTA accounts immediately upon becoming available for disbursement, remote depositing gives lawyers a more efficient means of transferring funds. Previously, remote deposits could only be made to business accounts.

Source: Nerino Petro, State Bar Practice Management Advisor

Good Ideas: Turn Down the Volume!

If that television commercial seems a lot louder than the Milwaukee Brewers game you’re watching this summer, you may have a reason to complain.

The federal Commercial Advertisement Loudness Mitigation Act requires commercials to have the same average volume as the programs they accompany. Broadcast television stations and cable operators must now comply, unless they have obtained a one-year waiver.

Quotable: “Litigation financing is a cure looking for a disease.”

– Robert Weber, general counsel for IBM

In a recent guest post for Forbes.com, Weber attacked so-called third-party litigation financing – a practice in which outside investors agree to fund litigation in exchange for a cut of any settlement or damage award. Litigation financing is a “risk to clients, our court system and to lawyer professionalism itself.”

Weber says the U.S. contingency fee system already ensures equal access to the justice system, and third-party financing arrangements threaten the client protections created by ethical rules.

“Part of what makes the attorney-client relationship unique is the attorney’s ethical obligation to put his client’s interest first and pursue those interests zealously as an officer of the court. An outside investor has no comparable duty; indeed, there is a competing duty to maximize return for the investor’s investors,” Weber wrote.

The Economist currently pegs litigation financing as a $1 billion industry and growing.

Q&A: May it Please the Court?

Brian Garner, editor-in-chief of Black’s Law Dictionary and author of several books on legal usage, recently asked a handful of judges whether use of the phrase “May it please the court” to open an oral argument is still an encouraged practice.

Here are a few answers, revealed in Garner’s recent ABA Journal article:

“I don’t care whether a lawyer opens an oral argument with this phrase. When it appears in a brief or motion, which is often, it is a waste of space. It may help some lawyers get started; icebreakers have their place.” – Chief Judge Frank Easterbrook, 7th Circuit Court of Appeals

“The introduction seems to me simply a historically acceptable way to begin. What would lawyers say instead? … What’s shakin’, Chiefie baby?” – Justice Nathan Hecht, Texas Supreme Court

“Its absence is always more notable than its presence, so I prefer lawyers saying ‘May it please the Court.’” – Judge Susan Graber, 9th Circuit Court of Appeals