Wisconsin Lawyer
Vol. 79, No. 4, April 2006

WisTAF Assessment: Timing Is Everything

by D. Michael Guerin

"A great man always considers the timing before he acts." - Chinese Proverb

How often have you heard a version of that adage and in how many contexts? The near-miss accident on the freeway. The pass just beyond the leaping receiver's reach. The tabbing of a case before a certain judge based on the judicial rotation. The client lost for failure to return a phone call. Depending on your point of view, all of these are examples of either very bad or very good timing.

Timing also affects our decisions as to whether and how to proceed with a case. Do we move for dismissal or would our chances be better on summary judgment? Do we use our "smoking gun" question in deposition, or wait for trial? Is an appeal worthwhile, despite law against our position, based on a change in the composition of the court?

Again, timing is everything. So too with the Bar's efforts to challenge the Wisconsin Supreme Court's decision to obtain funds from Bar members through a $50 assessment payable to WisTAF for grants to organizations providing civil legal services to indigent people. As your president, I concur with the Board of Governors' recent vote against suing the supreme court over the assessment. For various reasons, the timing is off.

The WisTAF Petition and the Board's Response

To put this issue in perspective, some background is helpful. In March 2004, the Board of Governors received notice that the Wisconsin Trust Account Foundation (WisTAF) was petitioning the supreme court for the assessment described above. The board devoted considerable hours in debate as to the appropriate response. Ultimately, after a two-day special meeting, the board directed then-president Michelle Behnke to speak on behalf of the Bar at the public hearing in strong opposition to the proposal. As president-elect, I also attended that hearing.

The board's representatives and other opponents informed the supreme court that while this was a well-intentioned petition, it would affect each member differently. For example, although the $50 assessment would barely be felt by attorneys who work for larger firms or whose dues are paid by their employers, for solo practitioners, many government attorneys, and attorneys struggling to start a new practice, the $50 would be a hardship. It was, in effect, a tax.

The board opposed the assessment on several grounds. We argued that the supreme court had no taxing authority. We argued that the Wisconsin Law Foundation was the more appropriate repository and distributing agent of these funds. We argued that no real study addressed the actual needs in Wisconsin. And we all recognized the total amount collected would not meaningfully address the vast problem.

In addition, other opponents testified that WisTAF itself was neither created nor authorized to raise funds. Its only function is to distribute the interest money accumulated from the trust account funds of the lawyers in Wisconsin. The question of First Amendment rights also was raised because individual members might object to WisTAF's choice of recipients of the funds.

After all of the written objections and the live testimony, the court rendered its decision. Justice Prosser and Justice Wilcox felt that the board's rationale was appropriate and that there should be no assessment. The majority, however, ruled that the assessment was appropriate.

The Board's Post-decision Review

Since the court's decision, there has been much wringing of hands and this matter regularly comes before the Board of Governors. The opposition and concern became strong enough at the board level that president Behnke solicited the help of two Bar members who can only be described as true legal scholars. They prepared full reports for the board's consideration and discussion. Ultimately, like any client given the evaluations of legal counsel, the board determined that either way - for or against - the issue was not a "slam dunk." On March 8, 2006, the board voted overwhelmingly (29-9) not to sue the supreme court.

Where Do We Go from Here?

Frankly, I agree with the board's decision. I believe suing the supreme court would speak rather poorly of our profession and would negatively affect the public perception of lawyers. I truly believe taking such an action would frustrate all of the Bar's hard work to improve perception in recent years. I can just imagine the scathing reaction of lawyer-bashers: the "You" in "Expert Advisers. Serving You" apparently doesn't include the indigent!

In addition, I believe it would be futile to take this issue back to the supreme court seeking some form of reconsideration at this time. The current majority is not likely to reverse itself. That said, I believe reconsideration is appropriate and I will vigorously advocate certain modifications to the present rule. I believe it is more appropriate to raise the issue first during a meeting with the chief justice, and perhaps with other court justices, which, as president of the Bar, I am entitled to do on a rule issue. In that forum, I could explain some of the problems with the present rule. As an example, I would suggest that Bar members be allowed to designate the recipients of their assessment, much like many of us designate funds to organizations such as the United Way or Community Health Charities. Although such a member-designated program would have costs, and I am informed that managing such a program is more complex than I originally thought it might be, if it can be done and the members feel that is appropriate, I believe the State Bar should investigate this proposal as a solution.

Most Lawyers Have Accepted the Mandatory Assessment

I have traveled throughout Wisconsin meeting with lawyers individually and in their respective local and specialty bar associations and, although there remains some resentment to a mandatory assessment, most members are willing to move forward and accept the assessment as a relatively modest attempt to address an undeniable problem. To the extent that these lawyers have some resentment, it is not strong enough to overcome their traditional willingness to participate in solutions rather than creating additional problems. In any event, when I do meet with these lawyers, I have heard relatively little interest in taking action to address this issue in the courts. The statistics that we expressed fears about when the WisTAF petition was presented to the court, have not materialized. We have not lost any members, other than the normally anticipated drop. While it is true that we have had some drop in section membership, it is a very small amount.

Other than tweaking the rules to make the assessment more fair for some individuals who believe they are adversely affected, I propose that the board and Bar members agree to disagree and end the discussion of this issue. I would rather have the board focus its attention on other important issues. If there are individuals who wish to pursue the issues, district 2 governor Lisa Arent has drafted a full petition and is willing to give it to any Bar member or other group interested in pursuing it. In my opinion, however, the timing simply is not right for the board to pursue the issue any further.

Wisconsin Lawyer