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Vol. 74, No. 2, February 2001
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Supreme Court Orders
The Wisconsin Supreme Court sets a public hearing
for March 13 to consider amending SCR 75 regarding requirements of court
commissioners and to consider a petition to create a mandatory fee
arbitration system. The court also has amended SCR 70.21 dealing with
the statutory authorities of Chief Judges.
Court Commissioners
In the Matter of Implementation of SCR 75, regarding Court
Commissioners
Amended Order 00-12
On Sept. 15, 2000, the director of state courts, on the
recommendation of the Committee of Chief Judges and District Court
Administrators, filed a petition requesting the amendment of Supreme
Court Rules to require a statement of economic interest from all circuit
court commissioners and from authorized supplemental court commissioners
who have performed at least 40 hours of circuit court commissioner
duties in the preceding year, to omit the requirement that court
commissioners file a monthly certification of pending cases, and to
clarify the legal experience required for appointment as a court
commissioner.
IT IS ORDERED that a public hearing on the
petition shall be held in the Supreme Court Hearing Room, 119 Martin
Luther King Jr. Blvd., Madison, Wis., on March 13, 2001, at 9:30
a.m.
IT IS FURTHER ORDERED that the court's
conference in the matter shall be held promptly following the public
hearings held that day.
IT IS FURTHER ORDERED that notice of the
hearing be given by a single publication of a copy of this order and of
the petition in the official state newspaper and in an official
publication of the State Bar of Wisconsin not more than 60 days nor less
than 30 days before the date of the hearing.
Dated at Madison, Wis., this 19th day of
Dec., 2000.
By the court:
Cornelia G. Clark, Clerk
Petition
The Director of State Courts, on the recommendation of the Committee
of Chief Judges and District Court Administrators, hereby petitions the
court to amend the Supreme Court Rules governing court commissioners,
pursuant to the court's rulemaking authority under §751.12. These
amendments respond to issues arising from implementation of SCR 75 since
it became effective on Jan. 1, 1999.
These amendments require a statement of economic interest from all
circuit court commissioners and from those authorized supplemental court
commissioners who have performed circuit court commissioner duties 40 or
more hours in the preceding year, omit the requirement that court
commissioners file a monthly certification of pending cases, and clarify
the legal experience necessary for appointment as a court
commissioner.
(1) The statement of economic interest
should be required of all circuit court commissioners appointed under
SCR 75.02(1) and of those supplemental court commissioners authorized
under SCR 75.02(3) who have performed 40 hours or more of circuit court
commissioner duties in the preceding calendar year. SCR 60.07 should
be amended to read as follows:
SCR 60.07 Code of Judicial Ethics. Applicability. (1) Subject to sub.
(2), all judges shall comply with this chapter.
(2) A judge who serves on a part-time basis,
including a reserve judge, a part-time municipal judge and a part-time
court commissioner, is not required to comply with the following: SCR
60.05(3)(a), (b), (c)1.b., 2.a. and c., (4)(a)1.b., (b), (c), (d) and
(e), (5), (6), (7) and (8). All circuit court commissioners appointed
under SCR 75.02(1) and those supplemental court commissioners authorized
under SCR 75.02(3) who have performed 40 hours or more of circuit court
commissioner duties during the preceding calendar year are required to
comply with SCR 60.05(8).
SCR 60.05(8)(b) should be amended as
follows:
SCR 60.05 Code of Judicial Ethics. (8)
Compensation, Reimbursement and Reporting. (b) Financial Reports. Except
as provided in SCR 60.07, a judge shall file with the ethics board a
timely financial report as required by section 19.43 of the statutes.
The report shall also be filed by commissioners of the supreme court,
staff attorneys of the court of appeals, the director of state courts,
members of the board of attorneys professional responsibility and
members of the board of bar examiners.
Comment: As provided in SCR 60.07(2), sub. (8) does not apply
to a judge serving on a part-time basis. Sub. (8) does not apply to a
supplemental court commissioner authorized under SCR 75.02(3) who has
performed fewer than 40 hours of circuit court commissioner duties in
the preceding calendar year.
(2) Court commissioners should not be
required to file a monthly certification of status of pending cases.
Court commissioners are already required to notify the chief judge of
any matter that remains under advisement for more than 30 days, and this
notification is sufficient to keep the chief judge informed of case
status. SCR 70.36(5) should be amended as follows:
SCR 70.36 Judges' and circuit court commissioners' certification of
pending cases.... (5)(a) In this subsection, 1. "Chief judge" means the
judge appointed under SCR 70.18 for the judicial administrative district
in which the matter is pending.
2. "Circuit court commissioner" means a person
appointed under SCR 75.02 (1) and a person authorized under SCR 75.02
(3) to the limited extent of that authorization.
(b) A circuit court commissioner may should not
routinely take matters under advisement. Every circuit court
commissioner shall decide any matter within 30 days after the matter is
submitted to him or her for decision. If the circuit court commissioner
is unable to decide the matter within 30 days, he or she shall notify
the chief judge not later than 5 days before the end of the 30-day
period. The chief judge may extend the period to decide the matter for
an additional 30 days or may require the circuit court commissioner to
suspend all other assigned activities until the decision is filed with
the court.
(c) Within the first 10 days of each month, each circuit court
commissioner shall certify in writing to the chief judge and to the
commissioner's supervising judge that there are no matters awaiting
decision beyond the 30-day period or, if extended by the chief judge,
the 60-day period specified in par. (b). If there are matters so
pending, the certificate shall set forth the case number and caption of
each matter and the date on which it was submitted for
decision....
(3) The level of legal experience required
for appointment as a court commissioner should be clarified. SCR
75.02(1) should be amended as follows:
SCR 75.02 Appointment; authorization. (1) The
chief judge of a judicial administrative district shall appoint within
the district, as authorized by law, officers of the court to perform
limited judicial and quasi-judicial functions under the direction and
authority of the chief judge and the judges of the circuit. These
officers of the court shall be selected on the basis of merit through a
process approved by the chief judge and the circuit court judges of the
counties in which the officers will serve. The chief judge may
only appoint persons under this subsection only
persons who are licensed to practice law in this state and in
good standing with at least 3 years of legal experience who have
been so licensed for three years immediately prior to
appointment.
Respectfully submitted:
J. Denis Moran, Director of State Courts
Mandatory Fee Arbitration System
In the Matter of the Petition to Create a Mandatory Fee
Arbitration System
Amended Order 00-15
On Sept. 25, 2000, Gerald Sternberg filed a petition seeking the
adoption of Supreme Court Rules creating a fee arbitration system for
lawyer-client fee disputes that requires the lawyer's participation in
the system.
IT IS ORDERED that a public hearing on the
petition shall be held in the Supreme Court Hearing Room, 119 Martin
Luther King Jr. Blvd., Madison, Wis., on March 13, 2001, at 9:30
a.m.
IT IS FURTHER ORDERED that the court's
conference in the matter shall be held promptly following the public
hearings held that day.
IT IS FURTHER ORDERED that notice of the
hearing be given by a single publication of a copy of this order and of
the petition in the official state newspaper and in an official
publication of the State Bar of Wisconsin not more than 60 days nor less
than 30 days before the date of the hearing.
Dated at Madison, Wis., this 19th day of
Dec., 2000.
By the court:
Cornelia G. Clark, Clerk
Petition
Proposed Chapter 14 of Wisconsin Supreme Court Rules
FEE ARBITRATION
SCR 14.01. General Principles and Jurisdiction
A. Definitions. The following definitions shall apply in all fee
arbitration proceedings.
(1) "Client" means a person or entity who directly or through an
authorized representative consults, retains or secures legal service or
advice from a lawyer in the lawyer's professional capacity.
(2) "Decision" means the determination made by the panel in a fee
arbitration proceeding.
(3) "Lawyer" means a person admitted to the practice of law in
Wisconsin, or any other person who appears, participates or otherwise
engages in the practice of law in this state, regardless of the status
of his or her license. In these rules, the term "lawyer" includes a
lawyer's assignee.
(4) "Panel" means the arbitrator(s) assigned to hear a fee dispute
and to issue a decision.
(5) "Party" means the client, lawyer, the lawyer's assignee and any
third person or entity who has been joined by the client or lawyer in
the proceeding.
(6) "Petition" means a written request for fee arbitration in a form
approved by the Fee Arbitration Program.
(7) "Petitioner" means the party requesting fee arbitration.
(8) "Respondent" means the party with whom the petitioner has a fee
dispute.
B. Establishment; Purpose. It is the policy of the Supreme Court of
Wisconsin to encourage the informal resolution of fee disputes between
lawyers who practice law in Wisconsin and their clients and, in the
event such informal resolution cannot be achieved, to provide for the
arbitration of such disputes. To that end, the Supreme Court of
Wisconsin hereby establishes through adoption of these rules, a program
and procedures for the arbitration of disputes concerning any and all
fees and/or costs paid, charged, or claimed for professional services by
lawyers.
C. Arbitration Mandatory for Lawyers. Fee arbitration pursuant to
these rules is voluntary for clients and mandatory for lawyers if
commenced by a client.
D. Effect of Arbitration.
(1) The Fee Arbitration is binding where all parties have agreed in
writing that it will be binding.
(2) In the absence of a written agreement to be bound by the
arbitration, the decision automatically becomes binding, unless, as
permitted under Rule 14.07.B., any party seeks a trial de novo pursuant
to Wisconsin's rules of civil procedure within 30 days after service of
the decision. This 30 day time period shall not be extended by an
application for modification under these rules.
(3) After all parties have agreed in writing to be bound by an
arbitration award, a party may not withdraw from that agreement unless
all parties agree to the withdrawal in writing. At any time during the
proceedings, the parties may agree in writing to be bound by the
decision.
E. Jurisdiction. Any lawyer, as defined in SCR 14.01.A(3), is subject
to these rules for fee arbitration.
F. Disputes not Subject to Arbitration. These rules do not apply to
the following:
(1) Disputes where the lawyer is also admitted to practice in another
jurisdiction, the lawyer maintains no office in Wisconsin, and no
portion of the legal services was rendered in Wisconsin;
(2) Disputes where the client seeks affirmative relief for damages
against the lawyer based upon alleged malpractice or professional
misconduct;
(3) Disputes where entitlement to and the amount of the fees and/or
costs charged or paid to a lawyer by the client or on the client's
behalf have been determined by court order, rule, or decision;
(4) Disputes where a third person is responsible for payment of the
fees and the client fails to join in the request for arbitration;
and
(5) Disputes where the request for arbitration is filed more than
[four] year(s) after the lawyer-client relationship has been terminated
or more than [four] year(s) after the final billing has been received by
the client, whichever is later, unless a civil action concerning the
disputed amount is not barred by the statute of limitations.
G. Notice of Right to Arbitration; Stay of Proceedings; Waiver by
Client.
(1) Prior to or at the time of service of a summons in a civil action
against his or her client for the recovery of fees, costs, or both for
professional services rendered, a lawyer shall serve upon the client [by
certified mail return receipt requested] a written notice of the
client's right to arbitrate. The notice, in a form approved by the Fee
Arbitration Program, shall include a provision advising the client that
failure to file a Petition for Fee Arbitration within 30 days of service
of notice of the right to arbitrate shall constitute a waiver of the
right to arbitrate. Failure to give this notice shall be grounds for
dismissal of the civil action.
(2) If a lawyer commences a fee collection action in any court, the
court shall issue an order of stay upon the client giving notice to the
court and the lawyer that a Petition for Arbitration was filed with the
Fee Arbitration Program within [thirty] days of service of the notice of
the right to arbitrate.
(3) After a client files a Petition, the lawyer shall refrain from
any nonjudicial collection activities related to the fees and/or costs
in dispute pending the outcome of the arbitration.
(4) Unless all parties agree in writing to the arbitration, the right
of the client to petition or maintain an arbitration is waived if:
(a) the client fails to file a Petition for Arbitration within
[thirty] days of service of the notice of right to arbitrate pursuant to
these rules; or
(b) the client commences or maintains a civil action or files any
pleading seeking judicial resolution of the fee dispute, or seeking
affirmative relief against the lawyer for damages based upon alleged
malpractice.
Commentary: A fee arbitration system provides
lawyers and clients with an out-of-court method of resolving fee
disputes that is expeditious, confidential, inexpensive, and impartial.
The court should ensure adequate funding for an effective
program.
Although these rules only address fee arbitration, consideration
should be given to the development of mediation as a component of the
program as a prerequisite or alternative to fee arbitration.
A client who believes he or she may have been overcharged by a
lawyer may have the lawyer's fee reviewed without incurring the expense
of formal litigation. Participation in the Fee Arbitration Program is
mandatory for lawyers if the request for arbitration is commenced by a
client. The decision is binding only upon written agreement of the
parties. In the absence of a written agreement to be bound by the
arbitration decision, any party may seek a trial de novo within 30 days
after service of the decision. The decision becomes binding if no party
seeks a trial de novo within the 30 day period. The program is voluntary
for the client since the lawyer regulatory system has no power to
regulate the consumer of legal services. However, nothing in these rules
precludes a lawyer and a client from entering into a contract to
participate in binding arbitration under these rules as permitted by
law.
A lawyer must notify a client of the availability of the Fee
Arbitration Program prior to or at the time of service of a summons in a
civil action against the client to recover fees and/or costs for
professional services. The rule provides that notice be sent by
certified mail return receipt requested. However, a jurisdiction may
substitute such other means of service as will reasonably establish
receipt. The client must file a Petition for Fee Arbitration within
[thirty] days of service of such notice or the client waives the right
to petition or maintain an arbitration proceeding under these rules. If
all parties agree, the fee arbitration can proceed even if the client
did not file the Petition for Fee Arbitration within the [thirty] day
period.
The client also waives the right to petition or maintain an
arbitration if the client commences or maintains a civil action or files
any pleading seeking judicial resolution of the fee dispute or seeking
affirmative relief against the lawyer for damages based on alleged
malpractice. This prevents the same facts from being the subject matter
of the arbitration and a civil action. Nothing herein precludes a client
from filing a complaint with the disciplinary authority. Nothing in
these rules prevents the filing of a malpractice action after a decision
is rendered in the fee arbitration proceeding. In accordance with Rule
14.07.B.(4), a decision under these rules is not admissible in a
subsequent malpractice action.
The scope of these rules includes costs as well as fees. In many
cases, fees and costs are inextricably linked. The fee arbitration
process should be able to resolve both issues in one process.
The Fee Arbitration Program can be expanded to handle disputes
between lawyers if all parties agree to be bound by the decision of the
panel.
An alternative approach, which currently works effectively in
those jurisdictions where it has been adopted, is to provide for
arbitration which is both mandatory and binding in all cases. Under such
a system, the arbitration decision is binding on the parties subject to
appeal only in cases of demonstrable and fundamental unfairness in the
procedures used in deciding the matter.
SCR 14.02. Fee Arbitration Program
A. Delegation of Fee Arbitration Function to State Bar of Wisconsin
and Milwaukee Bar Association. The Supreme Court of Wisconsin designates
the State Bar of Wisconsin and the Milwaukee Bar Association to run
equal branches of the statewide Fee Arbitration Program. Each of those
programs shall designate one member to serve as Chair of that branch of
the Program.
B. Composition. The Panels of the Fee Arbitration Program shall
consist of members of whom one?third shall be nonlawyers. Members shall
be appointed for terms of three years or until a successor has been
appointed. Appointments shall be on a staggered basis so that the number
of terms expiring shall be approximately the same each year. No members
shall be appointed for more than two consecutive full terms, but members
appointed for less than a full term (either originally or to fill a
vacancy) may serve two full terms in addition to such part of a
term.
C. Duties of the Fee Arbitration Program. The Fee Arbitration Program
shall have the following powers and duties.
(1) to appoint, remove and provide appropriate training for lawyer
and nonlawyer arbitrators and arbitration panels;
(2) to interpret these rules;
(3) to approve forms;
(4) to establish written procedures that afford a full and equal
opportunity to all parties to present relevant evidence;
(5) to issue an annual report and periodic policy recommendations, as
needed, to the Supreme Court of Wisconsin regarding the program;
(6) to maintain all records of the Fee Arbitration Program;
(7) to determine challenges for cause where an arbitrator has not
voluntarily acceded to a challenge;
(8) to educate the public and the bar about the Fee Arbitration
Program; and
(9) to perform all acts necessary for the effective operation of the
program.
Commentary: Overall authority to administer the Fee
Arbitration Program is delegated by the Supreme Court of Wisconsin to
the State Bar of Wisconsin and Milwaukee Bar Association. Both lawyers
and nonlawyer members serve in the Fee Arbitration Program. Members are
appointed for three year terms. The State Bar of Wisconsin and the
Milwaukee Bar Association should ensure diversity in the membership of
the Fee Arbitration panels.
Members may be appointed for a period not to exceed two
consecutive full terms and a portion of an additional term, if appointed
originally to less than a full term. A rotation system is employed in
the appointment of members so that, generally, the terms of one-third of
the members expire annually. This procedure preserves continuity while
inviting the fresh ideas which new personnel inevitably bring to a
task.
The Fee Arbitration Program has the duty to inform the bar and the
public about the Fee Arbitration Program through such means as
brochures, public service announcements, and any other means available.
There should be a central place where the public can call with questions
about lawyers and which can refer appropriate matters to the Fee
Arbitration Program. Members of the bar should be encouraged to inform
any member of the public known to have a fee dispute with a lawyer about
the right to seek fee arbitration or to pursue other available means to
resolve the dispute, such as mediation.
Depending on funding, pro bono requirements, and other
considerations, the Fee Arbitration Program may authorize the
reimbursement of reasonable costs and expenses to its members and to
arbitrators.
SCR 14.03. Arbitrators
A. List of Approved Arbitrators. The Fee Arbitration Program shall
maintain a list of approved arbitrators and shall adopt written
standards for the appointment of the arbitrators. Such standards should
ensure appropriate training and experience for arbitrators as well as
diversity in the background and experience of the arbitrators.
Arbitrators shall be appointed for terms of [three] years and may be
reappointed. For good cause, the Fee Arbitration Program may remove an
arbitrator from the list of approved arbitrators, and may appoint a
replacement member to serve the balance of the term of the removed
member.
B. Panels. The Fee Arbitration Program shall appoint panels from the
list of approved arbitrators. For disputes involving [$5,000] or more,
the panel shall consist of three arbitrators of whom one shall be a
nonlawyer member. For disputes involving less than [$5,000], or in any
case if the parties so stipulate, the panel shall consist of a sole
arbitrator who shall be a lawyer. If the panel consists of three
members, the Fee Arbitration Program shall designate one member to act
as Chair of the panel and to preside at the arbitration hearing.
C. Conflicts of Interest. Within [five] days of the notification of
appointment to a panel, an arbitrator shall notify the Fee Arbitration
Program of any conflict of interest with a party to the arbitration as
defined in the ABA Code of Judicial Conduct with respect to part?time
judges. Upon notification of the conflict, the Fee Arbitration Program
shall appoint a replacement from the list of approved arbitrators.
D. Challenges for Cause. A party may challenge any arbitrator for
cause. A challenge for cause naming the arbitrator and the reason for
the challenge shall be filed within [fifteen] days after service of the
notice of appointment. An arbitrator shall accede to a reasonable
challenge and the Fee Arbitration Program shall appoint a replacement.
If an arbitrator does not voluntarily accede, the Fee Arbitration
Program shall decide whether to appoint a replacement. The decision of
the Fee Arbitration Program on challenges shall be final.
E. Duties. The panel shall have the following powers and duties.
(1) to take and hear evidence pertaining to the proceeding;
(2) to administer oaths and affirmations;
(3) to compel, by subpoena, the attendance of witnesses and the
production of books, papers, and documents pertaining to the proceeding,
and consider challenges to the validity of subpoenas;
(4) to issue decisions; and
(5) to perform all acts necessary to conduct an effective arbitration
hearing.
Commentary: The Fee Arbitration Program appoints both
lawyers and nonlawyers to serve as arbitrators for [three] year
renewable terms, and maintains a list of approved arbitrators. When a
Petition is received, the Fee Arbitration Program appoints from the list
of approved arbitrators a panel of one or three arbitrators to hear the
matter, depending on the amount in dispute. For larger jurisdictions,
the Fee Arbitration Program may hire staff or designate a presiding
arbitrator to handle the appointment of panels or other administrative
tasks as delegated by the Fee Arbitration Program. The number of people
on the list of approved arbitrators should not be so large as to prevent
the participating arbitrators from obtaining sufficient experience in
the program.
Appointments to the list of approved arbitrators should represent
all segments of the profession and the general population, including
diversity on the basis of race, gender and practice setting. Arbitrators
should also be dispersed throughout the state to increase access to the
fee arbitration process.
The Fee Arbitration Program should adopt written standards for
appointment of arbitrators which may include compliance with training
requirements, ability to meet minimum time and case commitments, years
in practice and experience. All panels of more than one arbitrator
should include one nonlawyer member.
Members of panels exercise a quasi-judicial role and should,
therefore, be disqualified upon the same grounds and conditions
applicable to judges. The Fee Arbitration Program may wish to provide
that within [fifteen] days after service of the notice of appointment,
any party may file one peremptory challenge. In the event of such a
challenge, the Fee Arbitration Program should relieve the challenged
arbitrator and appoint a replacement.
Panels do not render advisory opinions but, rather, adjudicate fee
controversies between lawyers and clients.
In jurisdictions with a high volume of arbitration cases,
consideration should be given to having pre?set arbitration panels which
meet at specified times to simplify the scheduling of hearings.
SCR 14.04. Commencement of
Proceedings
A. Petition to Arbitrate. A fee arbitration proceeding shall commence
with the filing of a Petition for Arbitration on a form approved by the
Fee Arbitration Program [and paying the appropriate filing fee as
established by the {Fee Arbitration Program}]. Any person who is not the
client of the lawyer but who has paid or may be liable for the lawyer's
fees may consent to be joined by the client as a party to the
arbitration. The Petition for Arbitration must be signed by the client
and any other party included by the client.
B. Fee Arbitration Program. The Fee Arbitration Program will review
the Petition to determine if it is properly completed and if the Fee
Arbitration Program has jurisdiction. If the Petition is not properly
completed, the Fee Arbitration Program will return it to the petitioner
and specify what clarification or additional information is required. If
the Fee Arbitration Program does not have jurisdiction, the petitioner
shall be so advised.
C. Service of Petition; Response. Within [five] days of the receipt
of a properly completed Petition, the Fee Arbitration Program shall
serve a copy of the Petition, along with the Fee Arbitration Response
Form on the respondent. Within [twenty] days after service, the
respondent shall file the completed Fee Arbitration Response Form with
the Fee Arbitration Program which shall forward a copy to all other
parties. The Fee Arbitration Program shall serve a copy of the Petition
for Arbitration and a Fee Arbitration Response Form upon the law firm,
if any, with which a lawyer?party is associated. If the respondent is a
lawyer, the respondent shall set forth in the response the name of any
other lawyer or law firm who the lawyer claims is responsible for all or
part of the client's claim. Within [five] days of receipt of the
response, the Fee Arbitration Program shall serve on the lawyer(s) or
law firm(s) named in the Response a copy of the Petition for Arbitration
and a Fee Arbitration Response Form for completion. Within [twenty] days
after service, the lawyer(s) or law firm(s) may file the completed Fee
Arbitration Response Form with the Fee Arbitration Program which shall
forward a copy to all other parties.
D. Failure of a Lawyer Respondent to Respond. Failure of a lawyer
respondent to file the Fee Arbitration Response Form shall not delay the
scheduling of a hearing; however, in any such case the panel may, in its
discretion, refuse to consider evidence offered by the lawyer which
would reasonably be expected to have been disclosed in the response.
E. Client Consent Required. If a lawyer files a Petition for
Arbitration the arbitration shall proceed only if the client files a
written consent with [thirty] days of service of the Petition.
F. Settlement of Disputes. If the dispute giving rise to the Petition
for Arbitration has been settled, upon reasonable confirmation of that
settlement, the matter shall be dismissed by the Fee Arbitration Program
or by the panel if one has been assigned.
G. Appointment of Panel. The Fee Arbitration Program shall, within
[ten] days after receipt of the Petition for Arbitration, appoint a
panel and mail to the parties written notification of the name(s) of the
panel member(s) assigned to hear the matter.
Commentary: The fee arbitration process begins with
the filing of a Petition of Arbitration on a form approved by the Fee
Arbitration Program. The respondent has twenty days after service to
return the Fee Arbitration Response Form. The process is commenced
either unilaterally by a client or by the lawyer with the client's
consent. If it is initiated by the client, participation is mandatory on
the part of the lawyer.
The Fee Arbitration Program is designed to be simple and fast.
Consequently, most cases should be concluded in an average of six
months.
If a lawyer fails to timely file a Fee Arbitration Response Form,
the hearing will nonetheless be held in the normal course and the panel
may, in its discretion, refuse to consider evidence offered by the
lawyer which would reasonably be expected to have been disclosed in the
Response. This is not intended as a default procedure. It will still be
necessary for the panel to determine the reasonableness of the
fee.
The Fee Arbitration Program must serve a copy of the Petition and
the Fee Response Form on the law firm, if any, of which a lawyer is a
member. The purpose of this rule is to assure that where a law firm is
due a fee, or is obligated therefor, the law firm will have notice of
the arbitration and an opportunity to participate.
SCR 14.05. Hearing
A. Notice of Hearing. The panel shall set the date, time and place
for the hearing. The panel shall send notice of the hearing to the
parties not less than [thirty] but no more than [sixty] days in advance
of the hearing date, unless otherwise agreed by the parties.
B. Representation by Counsel. Any party may be represented by
counsel.
C. Recording of Proceedings. A party to the proceedings may make
arrangements to have the hearing reported at the party's own expense,
provided notice is given to the other parties and the panel at least
[five] days prior to the scheduled hearing. If a party orders a
transcript, that party shall provide a copy of the transcript to the
panel free of charge. Any other party is entitled at his or her own
expense to acquire a copy of the transcript by making arrangements
directly with the reporter. A panel, in its discretion, may make
arrangements to have a hearing recorded and the parties may obtain a
copy at their own expense.
D. Continuances. For good cause shown, a panel may continue a hearing
upon the request of a party or upon the panel's own motion.
E. Oaths and Affirmations. The testimony of witnesses shall be by
oath or affirmation.
F. Panel Quorums. All three arbitrators shall be required for a
quorum where the panel consists of three members. A panel of three
arbitrators shall act with the concurrence of at least two
arbitrators.
G. Appearance; Failure of a Party to Appear. Appearance by a party at
a scheduled hearing shall constitute waiver by said party of any
deficiency with respect to the giving of notice of hearing. The panel
may proceed in the absence of any party or representative who, after due
notice, fails either to be present or to obtain a continuance. A
decision shall not be made solely on the default of a party. The panel
shall require parties who are present to submit such evidence as the
panel may require to issue a decision.
H. Waiver of Personal Appearance. Any party may waive personal
appearance and submit testimony and exhibits by written declaration
under oath to the panel. Such declarations shall be filed with the panel
at least [ten] days prior to the hearing. If all parties, in writing,
waive appearances at a hearing, the matter may be decided on the basis
of written submissions. If the panel concludes that oral presentations
are necessary, the panel may schedule a hearing.
I. Telephonic Hearings. In its discretion, a panel may permit a party
to appear or present witness testimony at the hearing by telephonic
conference call. The costs of the telephone call shall be paid by the
party.
J. Stipulations. Agreements between the parties as to issues not in
dispute and the voluntary exchange of documents prior to the hearing are
encouraged.
K. Evidence. The panel shall accept such evidence as is relevant and
material to the dispute and request additional evidence as necessary to
understand and resolve the dispute. The Wisconsin rules of evidence need
not be strictly followed. The parties shall be entitled to be heard, to
present evidence and to cross-examine parties and witnesses. The panel
shall judge the relevance and materiality of the evidence.
L. Subpoenas. Upon request of a party and for good cause shown, or on
its own initiative, the panel may issue subpoenas for witnesses or
documents necessary to a resolution of the dispute. The requesting party
shall be responsible for service of the subpoenas.
M. Reopening of Hearing. For good cause shown, the panel may reopen
the hearing at any time before a decision is issued.
N. Death or Incompetency of a Party. In the event of death or
incompetency of a party, the personal representative of the deceased
party or the guardian or conservator of the incompetent may be
substituted.
O. Burden of Proof. The burden of proof shall be on the lawyer to
prove the reasonableness of the fee by a preponderance of the
evidence.
Commentary: The goal of these rules is to provide a
setting for hearings that is informal yet fair. To that end, the panel
has discretion to grant postponements but need not permit the process to
be subverted by unexcused absences. The panel will receive the evidence
and testimony offered and judge its relevance and materiality. While the
hearing may be conducted informally, witnesses should be required to
testify under oath.
There is no provision for formal discovery; however, the panel has
the power of subpoena, subject to rules of relevancy and
materiality.
The burden of proof in fee arbitration is on the lawyer to prove
the reasonableness of the fee by a preponderance of the evidence. This
is consistent with SCR 20:1.5, which provides that a lawyer's fee shall
be reasonable.
The panel may consider evidence relating to claims of malpractice
and professional misconduct, but only to the extent that those claims
bear upon the fees, costs, or both to which the lawyer is entitled. The
panel may not award affirmative relief in the form of damages for
injuries underlying any such claim.
SCR 14.06. Decision
A. Form of Decision. The panel's decision shall be in writing and
shall include a clear statement of the amount in dispute, whether and to
whom monies are due, and a brief explanation of the decision.
B. Issuance of Decision. The decision should be rendered within
[thirty] days of the close of the hearing or from the end of any time
period permitted by the panel for the filing of supplemental briefs or
other materials. The arbitrator or panel chair shall forward the
decision to the Fee Arbitration Program which shall serve a copy of the
decision on each party to the arbitration.
C. Modification of Decision.
(1) On application to the panel by a party to a fee dispute, the
panel may modify or correct a decision if:
(a) there was an error in the computation of figures or a mistake in
the description of a person, thing, or property referred to in the
decision;
(b) the decision is imperfect in a matter of form not affecting the
merits of the proceeding; or
(c) the decision needs clarification.
(2) Any party may file an application for modification with the panel
within [twenty] days after service of the decision and shall serve a
copy of the application on all other parties. An objection to the
application must be filed with the panel within [ten] days after service
of the application for modification.
(3) An application for modification shall not extend the thirty day
time period to seek trial de novo under these rules.
D. Retention of Files. The Fee Arbitration Program shall maintain all
fee arbitration files for a period of [three] years from the date a
decision is issued.
Commentary: In order to bring a final and speedy conclusion
to fee disputes, the decision of the panel is required to be in writing
and should be rendered within thirty days. Discretion to extend the time
period for unusually complicated or difficult matters should be
provided.
SCR 14.07. Effect of Decision:
Enforcement
A. Compliance with Decision.
(1) Where the parties have agreed to be bound by the arbitration or
have settled the dispute, the parties shall have [thirty] days from
service of the written decision or the date the stipulation of
settlement is signed by the parties to comply with the decision or
settlement.
(2) Where there is no agreement to be bound by the arbitration, any
party is entitled to a trial de novo if sought within thirty days from
service of the written decision, except that if a party willfully fails
to appear at the arbitration hearing, that party shall not be entitled
to a trial de novo. The determination of willfulness shall be made by
the court. The party who failed to appear at the arbitration shall have
the burden of proving that the failure to appear was not willful. In
making its determination, the court may consider any findings made by
the arbitrators on the subject of a party's failure to appear. If a
trial de novo is not sought within 30 days, the decision becomes
binding.
B. Trial De Novo.
(1) If there is an action pending, the trial de novo shall be
initiated by filing a rejection of arbitration award and request for
trial in that action within 30 days from service of the written
decision.
(2) If no action is pending, the trial de novo shall be initiated by
the commencement of an action in the court having jurisdiction over the
amount in controversy within thirty days from the service of the written
decision.
(3) The party seeking a trial de novo shall be the prevailing party
if that party obtains a judgment more favorable than that provided by
the arbitration award, and in all other cases the other party shall be
the prevailing party. The prevailing party may, in the discretion of the
court, be entitled to an allowance for reasonable attorney's fees and
costs incurred in the trial de novo, which allowance shall be fixed by
the court. In fixing the attorney's fees, the court shall consider the
decision and determinations of the arbitrators, in addition to any other
relevant evidence.
(4) Except as provided in this rule, the decision and determinations
of the arbitrators shall not be admissible in any action or proceeding
and shall not operate as collateral estoppel or res judicata.
C. Petition to Confirm, Correct, or Vacate the Decision.
(1) If a civil action has been stayed pursuant to these rules, any
petition to confirm, correct, or vacate the decision shall be filed with
the court in which the action is pending, and shall be served in
accordance with Wisconsin's statutes and rules of civil procedure.
(2) If no action is pending in any court, the decision may be
confirmed, corrected, or vacated by petition to the court having
jurisdiction over the amount of the decision, in accordance with
Wisconsin's statutes and rules of civil procedure.
(3) A court confirming, correcting or vacating a decision under these
rules may award to the prevailing party reasonable fees and costs
including, if applicable, fees or costs on appeals incurred in obtaining
confirmation, correction or vacation of the award. The party obtaining
judgment confirming, correcting, or vacating the decision shall be the
prevailing party except that, without regard or consideration of who the
prevailing party may be, if a party did not appear at the arbitration
hearing in the matter provided by these rules, that party shall not be
entitled to attorney's fees or costs upon confirmation, correction, or
vacation of the award.
Commentary: Thirty days is considered a reasonable
time period in which to expect the parties to comply with the decision.
The thirty days begins to run when the decision in the fee arbitration
process is served on the parties or when a settlement agreement is
signed.
The Fee Arbitration Program itself has no authority to enforce a
decision. Either party may use the summary action mechanisms which are
provided in Wisconsin to obtain a judgment consistent with the panel's
decision as expeditiously as possible.
Reasonable fees and costs may be awarded to the prevailing party
in an action to confirm, correct or vacate a panel decision, unless the
prevailing party failed to appear at the arbitration hearing in the
manner provided in the rules. This exception should encourage full
participation of the parties in the arbitration proceeding.
Every jurisdiction is encouraged to consider developing means of
assisting clients in enforcing decisions. Some jurisdictions use a panel
of pro bono lawyers to assist the clients in obtaining civil judgments.
Some jurisdictions refer lawyers who fail to comply with a decision or
judgment to an appropriate agency for administrative, nondisciplinary
action such as that used in the jurisdiction for failure to comply with
mandatory continuing legal education requirements or failure to pay
registration fees.
SCR 14.08. Confidentiality
A. Confidentiality of Proceedings. Except as may be otherwise
necessary for compliance with these rules or to take ancillary legal
action with respect thereto, all records, documents, rules, proceedings
and hearings pertaining to the arbitration of any dispute under these
rules shall be confidential and will be closed to the public, unless
ordered open by a [court of general jurisdiction] upon good cause shown,
except that a summary of the facts, without reference to the parties by
name, may be publicized in all cases once the proceeding has been
formally closed.
B. Confidentiality of Information. A lawyer may reveal information
relating to the representation of the client to the extent necessary to
establish his or her fee claim. In no event shall such disclosure be
deemed a waiver of the confidential character of such matters for any
other purpose.
Commentary: SCR 14.8.B. is consistent with SCR
20:1.6. or its equivalent, which permits limited disclosure of otherwise
confidential information only "to the extent reasonably...necessary to
establish a claim or defense...in a controversy between the lawyer and
the client...."
SCR 14.09. Immunity
A. Parties and Witnesses. Parties and witnesses shall have such
immunity as is applicable in a civil action in the jurisdiction.
B. Fee Arbitration Program; Arbitrators; Staff. Members of the Fee
Arbitration Program, panels and staff shall be immune from suit for any
conduct in the course and scope of their official duties.
SCR 14.10. Service
A. Method. Service on any party other than a lawyer or law firm shall
be by personal delivery, by any person authorized by the Chair of the
Fee Arbitration Program, or by deposit in the United States mail,
postage paid, addressed to the person on whom it is to be served at his
or her office or home address as last given to the Fee Arbitration
Program.
B. Official Address of Lawyer. Service on an individual lawyer shall
be at the latest address shown on the official membership records of the
State Bar of Wisconsin. Service on a law firm shall be at the address as
shown in the Petition for Arbitration Form unless the law firm
designates a lawyer to be responsible for the arbitration, in which
case, service shall be at the designee's latest address shown on the
official membership records of the State Bar of Wisconsin. Service shall
be in accordance with SCR 14.10.A. above.
C. Service on Represented Parties. If either party is represented by
counsel, service shall be on the party as indicated in SCR 14.10.A. and
14.10.B., and on the counsel at the latest address shown on the official
membership records of the State Bar of Wisconsin.
D. Completion of Service. The service is complete at the time of
deposit. The time for performing any act shall commence on the date
service is complete and shall not be extended by reason of service by
mail.
Chief Judge Additional Authority
In the Matter of the Amendment of SCR 70.21 - Additional Authority
of the Chief Judge
Order 00-17
The court, on its own motion, and after an open conference on the
matter on Oct. 23, 2000, has determined that it is advisable to amend
current SCR 70.21 dealing with the statutory authorities of chief
judges. The court concludes that such amendments are necessary to
conform SCR 70.21 to the new duties imposed by 1999 Wisconsin Act 149,
which created Wis. Stat. § 48.07(5), effective on May 25, 2000, and
1997 Act 84, which created Wis. Stat. § 343.44(2)(d), effective on
Aug. 1, 2000, and existing statutes and procedures.
SECTION 1. IT IS ORDERED that, effective on
the date of this order, 70.21(3), (4), (5) and (7) of the supreme court
rules are amended to read:
. . .
70.21 (3) Section 48.04 (1): approval of
appointment of clerk of court for juvenile matters.
(4) Section 48.06(1)(a)2., governing intake and court services for
child welfare matters under chapter 48 of the statutes, and
section 938.06(1)(a)2. of the statutes, governing intake and
court services for juvenile matters under chapter 938 of the
statutes: policy formulation and supervision of court services
related to juvenile matters in counties with a population of 500,000
or more.
(5) Sections 48.06(2)(a) and 938.06(2)(a): approval of
circuit judge's policy governing juvenile intake workers in counties
with a population of less than 500,000.
. . .
(7) Sections 48.067 (6) and (9) and
938.067 (6) and (9): guidance and request
assistance of juvenile intake workers.
. . .
SECTION 2. IT IS FURTHER ORDERED that, effective
on the date of this order, 70.21(7q) and (10q) of the supreme court
rules are created to read:
70.21(7q) Section 48.07(5): recognize and obtain the services
of a court-appointed special advocate program for proceedings under
section 48.13 of the statutes.
. . .
(10q) Section 343.44(2)(d): adoption of
sentencing guidelines for convictions resulting from violations for
operating while suspended, revoked, ordered out-of-service or
disqualified.
. . .
SECTION 3. IT IS FURTHER ORDERED that, effective
on the date of this order, 70.21(20c) of the supreme court rules is
repealed.
IT IS FURTHER ORDERED that notice of this amendment of the supreme
court rules shall 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 18th day of Dec., 2000.
By the court:
Cornelia G. Clark, Clerk
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