Court considers mandatory fee
arbitration for lawyer-client disputes
On
March 13, the Wisconsin Supreme Court will hold a public hearing on a
petition submitted by attorney Gerald C. Sternberg, former administrator
of the Board of Attorneys Professional Responsibility, seeking to create
a mandatory fee arbitration system for lawyer-client fee disputes. The
ABA Model Rules for Fee Arbitration, which are the basis of the proposed
supreme court rules, require lawyers to participate in fee arbitration
at the client's request. If any parties find the arbitration decision
unacceptable, the proposed rules provide the opportunity for a trial de
novo in circuit court.
"While two good programs, namely those run by the State Bar and
Milwaukee Bar Association, are in place to resolve lawyer-client
disputes, they are hindered from being truly effective by the fact that
the lawyer is not required to participate when the client seeks to use
those programs," commented Sternberg.
The State Bar Board of Governors has not yet taken a position on the
proposed rules. However, the Resolution of Fee Disputes Committee
supports mandatory fee arbitration in principle, but opposes the rules
as proposed. "The committee is concerned that, in the absence of a
written agreement at the outset of the arbitration process, parties are
not bound by the arbitrator's decision and may seek a de novo hearing,"
said Chair Robert Swain. "The committee fears that in a situation in
which there already is ill will between lawyers and clients, clients
could be further alienated by a program that would have them go through
an arbitration only to be required to repeat the process in court. If
the supreme court were to support mandatory fee arbitration, the
committee suggests modifying the current State Bar program."
The proposed rules petition, which accompanies supreme court order
00-15 (printed on page 26), will be discussed at the March 2 Board of
Governors meeting. Comments for the board can be sent to Kris Wenzel at
the State Bar, P.O. Box 7158, Madison, WI 53707-7158, or kwenzel@wisbar.org, or contact your
district governor. The court's hearing will be held March 13 at 9:30
a.m., in the Supreme Court Public Hearing Room, 119 Martin Luther King
Jr. Blvd., Madison. For more information visit www.wisbar.org/committees/caz00/.
Seventh Circuit reimburses
court-appointed attorneys
The U.S. Court of Appeals for the Seventh Circuit announces an
appellate expense reimbursement program for court-appointed attorneys
who accept pro bono civil appointments.
To encourage and enable more lawyers to accept pro bono appointments,
the court will reimburse certain out-of-pocket expenses incurred by
appointed counsel up to a maximum of $1,000.
All expenses must be supported by receipts and are subject to the
same regulations that apply to Criminal Justice Act appointments. Submit
requests and supporting documents to the Clerk of the Court of Appeals
after final disposition of the appeal.
For more information, call (312) 435-5850.
Court of Appeals seeks input on judge
reappointment
Bankruptcy Judge Margaret D. McGarity of the U.S. Court of Appeals,
Eastern District of Wisconsin, seeks appoint-ment to another 14-year
term. Judge McGarity's current term expires on Oct. 25.
The court is accepting comments regarding Judge McGarity's
reappointment. Written comments can be sent by Feb. 24 to: Collins T.
Fitzpatrick, Circuit Executive, 219 S. Dearborn St., Room 2780, Chicago,
IL 60604.
Sensenbrenner to chair House Judiciary
Committee
The House of Representatives has appointed Wisconsin Congressman F.
James (Jim) Sensenbrenner Jr. as chair of the prestigious House
Judiciary Committee for the upcoming Congress. The Judiciary Committee
is one of the most active House committees and holds primary
responsibility over a variety of legal issues.
Sensenbrenner, U.W. 1968, formerly a practicing attorney, represents
the Ninth Congressional District, which covers portions of Dodge, Fond
du Lac, Jefferson, Sheboygan, and Waukesha counties and all of
Washington and Ozaukee counties. He was elected to Congress in 1978 and
previously chaired the House Science Committee.
New filing address for IRS forms 706,
709, and 1041
All Federal Estate, Gift Tax Returns, and Estate and Trust forms,
forms 706, 709, and 1041 due after Jan. 1, 2001, must be filed with the
Internal Revenue Service at the Cincinnati Service Center, Cincinnati,
OH 45999-0002. All other federal tax returns should continue to be filed
at the Kansas City Service Center. For federal estate and gift tax
information, call (414) 297-3411.
Criminal and family law produce most
grievances against lawyers
The two areas of practice that again produced the most grievances
against lawyers in fiscal year 2000 were criminal and family law,
according to the Board of Attorneys Professional Responsibility (BAPR),
now the Office of Lawyer Regulation, annual report filed with the
supreme court. The allegations most commonly filed were lack of
diligence and lack of communication with the client.
For the period July 1, 1999 through June 30, 2000 (FY 00), BAPR
handled 2,154 grievances (628 pending from the previous fiscal year, and
1,526 new matters). BAPR closed 1,287 matters in an average time of 177
days as compared to closure within 161 days the previous fiscal
year.
Volume of grievances. BAPR received more grievances
in FY 00 (1,526) than in fiscal year 1998-99 (1,423). BAPR disposed of
1,287 grievances this year, including nine reinstatements, as compared
with 1,302 dispositions in FY 99. At the end of FY 00, 867 grievances
were pending. BAPR referred 145 grievances to district professional
responsibility committees in FY 00. The committees completed 169
grievance investigations during the same period.
Formal discipline imposed. In FY 00, 24 attorneys
received a public disciplinary sanction. The supreme court imposed three
license revocations, 13 license suspensions, including two temporary
suspensions under SCR 22.30 and two suspensions for failure to pay
court-ordered costs from previous discipline. One temporary suspension
was imposed but lifted three months later. There were three court public
reprimands. In addition, BAPR imposed five public reprimands, with the
lawyer's consent.
Criminal and family law and estate/probate were the practice areas
that generated the most public discipline cases. The rule violations
most frequently found in public discipline cases were lack of diligence,
lack of communication, dishonesty or misrepresentation, and failure to
cooperate.
Other dispositions. BAPR imposed 36 private
reprimands in FY 00. Private reprimands typically are imposed for
isolated acts of misconduct that cause relatively minor harm.
During the fiscal year, 48 attorneys received dismissals with
caution. Usually, a dismissal with caution is issued in cases of a
technical violation of a rule and no harm to the client. There were
dispositions in 1,151 additional matters, including 563 grievances that
were dismissed because the inquiry did not warrant investigation, 510
that lacked sufficient evidence of a rule violation, 63 that were
dismissed with an advisory letter, 13 matters that were closed pending
petition for reinstatement, and two dismissed by the court.
Actions pending. BAPR filed formal disciplinary
actions against 20 attorneys in FY 00. At year's end, 21 formal actions
were pending in the supreme court.
Other actions. After BAPR investigation, the court
completed action on nine reinstatement petitions - six administrative
and three disciplinary. The court granted three of the administrative
reinstatement petitions and two of the disciplinary reinstatement
petitions, one of which included conditions on the attorney's practice.
Three administrative reinstatement petitions and one disciplinary
reinstatement were withdrawn.
Trust account overdraft reporting. The Overdraft
Notification Rule (SCR 20:1.15(I)-(p)) became effective on Jan. 1, 1999.
Under the rule, attorneys must authorize their banks to notify BAPR, now
the Office of Lawyer Regulation (OLR), of overdrafts on their client
trust and fiduciary accounts.
In FY 00, 104 overdrafts were reported to BAPR, of which about
one-third were closed without investigation as bank errors. Of the
remaining matters, 38 warranted investigation, and 31 required further
screening. The trust account rules most frequently violated were SCR
20:1.15(e) (recordkeeping) and SCR 20:1.15(g) (false certifications to
the State Bar regarding recordkeeping).
Finances. The legal profession assumes the costs of
policing itself. In addition to an assessment imposed on every State Bar
member ($89.82 per member in FY 00), BAPR collects costs from the
attorneys disciplined in formal court proceedings and fees on petitions
for reinstatement. Collections from FY 00 were $159,294.
BAPR's budget for FY 01 is $1,783,700. BAPR will use $100,000 in
reserves and $50,000 in anticipated collections to place the assessment
at $100.23 per attorney. The FY 01 budget includes funding for a central
intake function in the Office of Lawyer Regulation.
Conclusion. BAPR completed 85 percent of
investigations in less than one year, with an average grievance
processing time of 5.9 months. The pending investigative caseload is 867
cases, an increase over the 621 pending cases in FY 99. BAPR concluded
1,287 grievance inquiries.
Throughout much of the fiscal year, the supreme court studied
Wisconsin's system of lawyer regulation, and ultimately created the
Office of Lawyer Regulation to replace BAPR. Supreme Court Rules
relating to the new system of lawyer regulation became effective Oct. 1,
2000.
Wisconsin Lawyer
