Wisconsin Lawyer
Vol. 83, No. 7, July 2010
Trust Account Rules – Safekeeping Property
In the matter of amendment of Supreme Court Rules 20:1.15(b)(4m) and 20:1.15(e)(4)h. Safekeeping Property.
Order 06-04A
On May 22, 2006, the Office of Lawyer Regulation and the State Bar of Wisconsin filed a joint petition proposing certain modifications to the “trust account rule,” Supreme Court Rule (SCR) 20:1.15, together with related amendments to SCR 20:1.0 that added definitions for advanced fees, flat fees, and retainers, SCR 21.16 (Discipline) and SCR 12.04 (Wisconsin Lawyers’ Fund for Client Protection). On Jan. 17, 2007, the supreme court held a public hearing on the rule petition number 06-04. On April 12, 2007, the Court voted 6 to 1 to adopt the petition, with modifications. Justice Bradley dissented from that portion of the petition permitting alternative protection for advanced fees, SCR 20:1.15(b)(4m).
On Nov. 12, 2009, the court issued an order scheduling a review of the 2007 amendments and requested comments. On May 10, 2010, the court held an administrative conference. The court reviewed the rule amendments and considered the comments and proposed amendments received. Upon consideration of the submissions made in response to the scheduled and noticed review, the court unanimously adopted the following amendments. Therefore,
IT IS ORDERED that the following amendments to the Supreme Court Rules shall be effective Jan. 1, 2011, but are subject to revision if the court receives comments and further proposed changes that would necessitate a public hearing in the fall of 2010. Any written comments and proposed amendments related to rule order 06-04A should be filed with the Clerk of the Supreme Court by Aug. 15, 2010:
Section 1. SCR 20:1.15(b)(4m) (intro.) and a.5. are amended to read:
20:1.15 (b) (4m) Alternative protection for advanced fees. (intro.) A lawyer who accepts advanced payments of fees may deposit the funds in the lawyer’s business account, provided that review of the lawyer’s fee by a court of competent jurisdiction must ultimately approve the lawyer’s fee is available in the proceeding to which the fee relates, or provided that the lawyer complies with each of the following requirements:
a. 5. that the lawyer is required to submit any unresolved dispute about a requested refund of advanced fees the fee to binding arbitration within 30 days of receiving a request for such a refund written notice of such a dispute; and
Section 2. The first paragraph of the Comment to SCR 20:1.15(b)(4m) is amended to read:
This section allows lawyers to deposit advanced fees into the lawyer’s business account, as an alternative to SCR 20:1.15(b)(4). The provision regarding court review applies to lawyers’ fees in proceedings in which the lawyer’s fee is subject to review at the request of the parties or the court, such as bankruptcy, formal probate, and proceedings in which a guardian ad litem’s fee may be subject to judicial review. In any proceeding in which the lawyer’s fee must be challenged in a separate action, the lawyer must either deposit advanced fees in trust or use the alternative protections for advanced fees in SCR 20:1.15(b)(4m). The lawyer’s fee remains subject to the requirement of reasonableness (SCR 20:1.5) as well as the requirement that unearned fees be refunded upon termination of the representation [SCR 20:1.16(d)]. A lawyer must comply either with SCR 20:1.15(b)(4), or with SCR 20:1.15(b)(4m), and a lawyer’s failure to do so shall be professional misconduct and grounds for discipline.
Section 3. SCR 20:1.15(e)(4)h. (intro.), 2., and 3. are amended to read:
20:1.15 (e) (4) h. (intro.) Exception: Fee and cost advances by credit card, debit card or other electronic deposit. A lawyer may establish a trust account, separate from the lawyer’s IOLTA account, solely for the purpose of receiving advanced payments of legal fees and costs by credit card, debit card or other electronic deposit, subject to the following conditions provided that the lawyer complies with all of the following:
2. lawyer and or law firm funds, reasonably sufficient to cover all monthly account fees and charges and, if necessary, any deductions by the financial institution or card issuer from a client’s payment by credit card, debit card, or other electronic deposit, shall be maintained in the credit card trust account, and a ledger for account fees and charges shall be maintained;
3. each payment of legal fees or costs by credit card, debit card or other electronic deposit, including, if necessary, a reimbursement by the lawyer or law firm for any deduction by the financial institution or card issuer from the gross amount of each payment, shall be transferred from the credit card trust account to the IOLTA account immediately upon becoming available for disbursement; and subject to the following requirements:
Section 4. SCR 20:1.15(e)(4)h.3.a. and b. are created to read:
20:1.15 (e) (4) h. 3. a. All advanced costs and advanced fees held in trust under sub. (b)(4) shall be transferred by check to the IOLTA account.
b. Earned fees, cost reimbursements, and advanced fees that are subject to the requirements of sub. (b)(4m) shall be transferred by check to the business account.
IT IS FURTHER ORDERED that notice of the amendments to SCR 20:1.15 be given by a single publication of a copy of this order in the official state newspaper and in an official publication of the State Bar of Wisconsin.
Dated at Madison, Wis., this 27th day of May, 2010.
BY THE COURT:
David R. Schanker, Clerk of Supreme Court
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Appellate Appendices
In the matter of the petition to amend Wis. Stat. § (Rule) 809.19 relating to the content of appellate appendices.
In the matter of the petition to amend Wis. Stat. § (Rule) 809.62 relating to content of Appendix to Petitions for Review
Orders 10-01 and 10-02
On Jan. 14, 2010, the Wisconsin Court of Appeals, by Chief Judge Richard S. Brown, petitioned this court to amend Wis. Stat. § (Rule) 809.19 relating to the content of appellate appendices (Petition 10-01). On Feb. 5, 2010, David R. Schanker, Clerk of the Supreme Court, petitioned this court to amend Wis. Stat. § (Rule) 809.62 relating to content of appendices to petitions for review (Petition 10-02).
On May 11, 2010, the court held a public hearing on the petitions. Upon consideration of matters presented at the public hearing and submissions made in response to the proposed amendments, the court unanimously adopted the petitions with modifications.
Therefore,
IT IS ORDERED that effective Jan. 1, 2011:
Section 1. 809.19 (2) of the statutes is amended to read:
809.19 (2) Appendix. (a) Contents. The appellant’s brief shall include a short appendix containing, at a minimum, the findings or opinion of the circuit court, and limited portions of the record essential to an understanding of the issues raised, including oral or written rulings or decisions showing the circuit court’s reasoning regarding those issues, and a copy of any unpublished opinion cited under s. 809.23(3)(a) or (b). If the appeal is taken from a circuit court order or judgment entered in a judicial review of an administrative decision, the appendix shall also contain the findings of fact and conclusions of law, if any, and final decision of the administrative agency. The appendix shall include a table of contents. If the record is required by law to be confidential, the portions of the record included in the appendix shall be reproduced using first names and last initials instead of full names of persons, specifically including juveniles and parents of juveniles, with a notation that the portions of the record have been so reproduced to preserve confidentiality and with appropriate references to the record.
(b) Certification. An appellant’s counsel shall append to the appendix a signed certification that the appendix meets the content requirements of par. (a) in the following form:
I hereby certify that filed with this brief, either as a separate document or as a part of this brief, is an appendix that complies with s. 809.19(2)(a) and that contains, at a minimum: (1) a table of contents; (2) the findings or opinion of the circuit court; and (3) a copy of any unpublished opinion cited under s. 809.23(3)(a) or (b); and (4) portions of the record essential to an understanding of the issues raised, including oral or written rulings or decisions showing the circuit court’s reasoning regarding those issues.
I further certify that if this appeal is taken from a circuit court order or judgment entered in a judicial review of an administrative decision, the appendix contains the findings of fact and conclusions of law, if any, and final decision of the administrative agency.
I further certify that if the record is required by law to be confidential, the portions of the record included in the appendix are reproduced using first names and last initials instead of full names of persons, specifically including juveniles and parents of juveniles, with a notation that the portions of the record have been so reproduced to preserve confidentiality and with appropriate references to the record.
Signed: ....
Signature
Section 2. 809.19(3)(b) of the statutes is amended to read:
809.19 (3) (b) The respondent may file with his or her brief a supplemental appendix. If the record is required by law to be confidential, the supplemental appendix must comply with the confidentiality requirements under sub. (2)(a). Any supplemental appendix shall include a table of contents, a copy of any unpublished opinion cited under s. 809.23(3)(a) or (b), and a signed certification that the appendix complies with the confidentiality requirements under sub. (2)(a) in a form substantially similar to the confidentiality provision under sub. (2)(b).
Section 3. 809.19(4)(b) of the statutes is amended to read:
809.19 (4) (b) The reply brief under par. (a) shall comply with sub. (1)(e) and (f). If an unpublished opinion is cited under s. 809.23(3)(a) or (b), a copy of the opinion shall be provided in an appendix to the reply brief.
Section 4. 809.19(7)(b) of the statutes is amended to read:
809.19 (7) (b) If the brief will support or oppose a petition under s. 809.62 or 809.70, the brief shall accompany the motion and shall be filed within the time permitted for the opposing party to file a response to the petition. If an unpublished opinion is cited under s. 809.23(3)(a) or (b), a copy of the opinion shall be provided in an appendix to the brief.
Section 5. 809.19(7)(c) of the statutes is amended to read:
809.19 (7) (c) Except as provided in par. (b), the motion shall be filed not later than 14 days after the respondent’s brief if filed, and the brief shall be filed within the time specified by the court. If an unpublished opinion is cited under s. 809.23(3)(a) or (b), a copy of the opinion shall be provided in an appendix to the brief.
Section 6. 809.19(8m) of the statutes is amended to read:
809.19 (8m) Guardian ad litem brief. If the guardian ad litem chooses to participate in an appeal and takes the position of an appellant, the guardian ad litem’s brief shall be filed within 40 days after the filing in the court of the record on appeal. If the guardian ad litem chooses to participate in an appeal and takes the position of a respondent, the guardian ad litem’s brief shall be filed within 30 days after service of the appellant’s brief. If an unpublished opinion is cited under s. 809.23(3)(a) or (b), a copy of the opinion shall be provided in an appendix to the brief. If the guardian ad litem chooses not to participate in an appeal of an action or proceeding, the guardian ad litem shall file with the court a statement of reasons for not participating within 20 days after the filing of the appellant’s brief.
Section 7. 809.62(2)(f)4. of the statutes is created to read:
809.62 (2) (f) 4. A copy of any unpublished opinion cited under s. 809.23(3)(a) or (b).
Section 8. 809.62(3) of the statutes is amended to read:
809.62 (3) Except as provided in sub. (1m) and s. 809.32(4) and (5), an opposing party may file a response to the petition within 14 days after the service of the petition. If an unpublished opinion is cited under s. 809.23(3)(a) or (b), a copy of the opinion shall be provided in an appendix to the response. If filed, the response may contain any of the following:
IT IS FURTHER ORDERED that notice of this amendment of Wis. Stat. § (Rule) 809.19 and Wis. Stat. § (Rule) 809.62 be given by a single publication of a copy of this order in the official state newspaper and in an official publication of the State Bar of Wisconsin.
Dated at Madison, Wis., this 27th day of May, 2010.
BY THE COURT:
David R. Schanker,
Clerk of Supreme Court
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