Return Ultimate Pass to a Reasonable Price, Redux

In March 2014, the Wisconsin Lawyer published my letter about the dramatic price increases in the Ultimate Pass program. As I mentioned in that letter, when I chaired the State Bar CLE Committee, we created the Ultimate Pass as a member benefit so that lawyers could access existing State Bar CLE seminar materials. The purpose of the program was to provide lawyers – especially, although certainly not exclusively, low-income lawyers – with a reasonably priced way to access already-existing State Bar seminar resources to better serve their clients and, by extension, the public. In my prior letter, I suggested that the current price point of $1,099 (or $899 for the silver model) is simply out of reach of the intended audience and I announced my intention to work to return the Ultimate Pass to a reasonable price.

As a result of that letter, I was asked by the Bar leadership to work with the CLE Committee to address my concerns before asking the Board of Governors to become involved. I was invited to and attended the March meeting of the CLE Committee. At that meeting, the committee essentially decided to make no changes to the Ultimate Pass program. However, it was initially open to studying other potential products. During that conversation, we attempted to come up with any solution that would permit Wisconsin lawyers to access already-existing CLE materials. One idea that was floated and now rejected (after a membership survey) was to have a pass that would be considerably less expensive but could be used for on-demand seminars only. I also suggested, but the committee did not endorse, an audit program under which lawyers, earning no CLE credits, could access CLE seminar materials.

In the end, then, my efforts to return the Ultimate Pass to a reasonable price have failed. My efforts to encourage the CLE Committee to create a new product to allow reasonable-cost access to already-existing seminar materials have not borne fruit. At this point, I believe the CLE Committee and State Bar leadership believe that I am the only Wisconsin Bar member interested in the overall concept of allowing Wisconsin lawyers to access already-existing seminar materials at a cost that is not prohibitive. Frankly, it is discouraging to be back to the very position we were in when the Ultimate Pass was first created: We have lawyers who would benefit from already-existing materials but cannot afford to access them.

I plan to seek an audience with the Board of Governors, but so long as I am perceived as the only interested State Bar member, I will almost certainly be politely received and dismissed. If folks reading this letter share my concerns about the Ultimate Pass, please contact your representative to the Board of Governors or other State Bar leaders. I am willing to plow this ground alone but would prefer a team effort.

Atty. Gretchen G. Viney
Viney & Viney, Baraboo

Response: The Executive Committee referred Attorney Viney’s concerns about increases to the price of the Ultimate Pass to the CLE Committee, and she was invited to and did attend our March 2014 meeting to express those concerns in person. We listened to her concerns, and also explained the cost and usage issues that the committee had previously vetted prior to approving the Ultimate Pass price increases. After considerable discussion at that meeting, there was consensus that perhaps a pass that allowed unlimited access to the State Bar’s OnDemand programming could address the concerns about Ultimate Pass pricing and provide a low-price vehicle for those who wished to have broad access to the State Bar’s archived CLE materials.

As I confirmed to Attorney Viney by email on Oct. 31, after careful consideration, the CLE Committee decided at its Oct. 29 meeting not to pursue development of such an OnDemand pass. This decision was made only after the committee and various State Bar departments and staff members spent numerous hours investigating the proposition, surveying member interest in such a vehicle, and assessing its financial viability. Attorney Viney was regularly informed of the status of committee and staff investigative efforts as they proceeded.

As part of this investigation, a survey was distributed to approximately 17,000 State Bar members. Analysis of survey responses indicated that nearly all members who access OnDemand programming (including Ultimate Passholders) do so only to the extent of the 10-credit threshold that is allowed for CLE reporting purposes. This indicates that there is little interest in accessing “existing materials” beyond what may be used for CLE reporting. Additionally, there was minimal interest in purchasing a pass that would allow unlimited access to archived OnDemand programs. Finally, the economic impact of such a pass to the State Bar was uncertain. In light of these results, the CLE Committee agreed that it could not recommend that the Pinnacle department proceed with development of an OnDemand pass.

Having also been a member of the CLE Committee that first proposed and approved the development of the Ultimate Pass, I am well aware of the impetus behind it. We are now many years beyond the introduction of the Ultimate Pass, and price increases are unfortunately inevitable unless the State Bar as a whole wishes to financially subsidize the Ultimate Pass. That is a policy decision that reaches beyond the sole purview of the CLE Committee. We understand that this is not the result that Attorney Viney seeks. The committee does feel that it, and State Bar staff, have thoroughly investigated this matter nonetheless.

Atty. Kathryn M. Bullon
Chair, CLE Committee
Deerhaven Consulting Services, Sombra, Ontario, Canada

Returning 17 Year Olds to Juvenile Court: Another Approach

Wisconsin Lawyer always offers timely, informative, and often fascinating content. I am a retired prosecutor who spent much of my career handling juvenile delinquency cases in Minnesota, so I read the November 2014 “As I See It” commentary by Judge Walsh with particular interest and was very impressed by his well-supported and articulated insights into the juvenile justice system.

I would suggest that anyone who is interested in improving Wisconsin’s system explore Minnesota’s Extended Jurisdiction Juvenile (EJJ) proceedings. The EJJ process straddles juvenile and adult systems and offers older juveniles who commit serious crimes a juvenile disposition, probation until age 21, and a stay of execution of an adult sentence, should the juvenile fail the conditions of his or her probation. Therefore, EJJ provides for a jury trial for the underlying offenses. I would also note that in Minnesota, juveniles must be at least 14 before they can be classified as EJJ or be certified into adult court.

Atty. Mary “Chris” Misurek
Burnsville, Minn.

Advice to Avoid Criticizing Judges on Blogs Defeats the Premise of an Elected Judiciary

I am writing in response to the article “Keeping Blog Posts Ethically Clean,” in the November 2014 Wisconsin Lawyer. I appreciate that in the area of ethics, it may be best to avoid the sin by avoiding the occasion of sin. To that extent, the advice may be good. However, I believe that the column does a disservice to Wisconsin’s tradition of an elected judiciary.

The problem with the column is that it extrapolates from the text of SCR 20:8.2 to the headlined proposition: “Never provide information in blog posts … that criticizes judges.” Nor is the headline a misprint. The author reinforces his point at the end: “This language, coupled with other rules … make it very clear that a lawyer may not criticize a judge in most circumstances.”

That last is simply wrong. The actual text of SCR 20:8.2(a) reads: “A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge.”

Our ethics rule follows the standard for libel set forth in N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964), that is, in order to be actionable, a libel of a public official must be “made with ‘actual malice’ – that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Obviously, if the ethics rule forbade more conduct than actionable civil libel, there would be grave constitutional issues. Equally obviously, there is a great deal of room between silence and actionable libel for legitimate criticism of those who hold a public trust.

I believe the vast majority of judges are honest, hardworking servants of the citizens of this state. But judges are, after all, human beings. They fall across a spectrum of work, ethic, integrity, and intelligence. Most judges are worthy of retaining their office. Some are not. And some, though not bad in themselves, could be replaced by better.

The people who have the greatest knowledge of a judge’s “qualifications or integrity” are the lawyers who appear in front of them day in and day out. If we want to have the best judiciary possible, lawyers should publish our honest opinions about the judges we appear in front of. It should not take an unfavorable judicial ethics opinion to inform the public that a particular judicial official is no longer worthy of public trust. Voters should not have to rely on the 30-second spot for information on which candidate is more worthy of their vote.

The columnist’s advice of avoiding criticism of judges defeats the premise of an elected judiciary. Of course, lawyers should strive for temperance and civility in their criticism. Of course, we must respect the truth. But a judiciary worthy of respect is only strengthened, not weakened, by a well-placed critique.

Atty. Charles W. Kramer
Weiss Law Office S.C., Mequon

Response: I certainly appreciate the comments by Attorney Kramer and do acknowledge the importance of an elected judiciary as well as the importance of meaningful decisions made by the electorate when voting to elect a judge. My advice, however, is based on past experiences and contains a strong recommendation that a blogger should not criticize a judge in a blog post. There is a great risk in doing that from an ethics-prosecution perspective. I want to thank Attorney Kramer for addressing the importance of communicating information about an elected judge but also acknowledging the importance of using appropriate techniques for such communication.

Atty. Dean R. Dietrich
Vice Chair, Professional Ethics Committee
Ruder Ware, Wausau

More Lawyer License Plates

The number of specialty Wisconsin license plates that are tied to lawyers or judges continues to grow. Plates were first listed in “Briefly” (Nov. 2013) and updated in “Inbox” (Dec. 2013, Feb. 2014).

Antigo attorney Jerry D. McCormack’s specialty plate for his Porsche Boxter is MCLAW.

Wausaw attorney James T. Rogers’ plate is ATTY 1. He has had it since the very first day that personalized license plates were issued.

Attorney Steven J. Steinhoff, who practices in Eagle, sports LEAGLE – his hybrid version of “Legal Eagle.”

Attorney Paul J. Pytlik, Waukesha, says, “While my brother-in-law, Mike Kirby, is not an attorney, when he was in the state legislature he sponsored the vanity license plate legislation. His plate: MY LAW.”

Finally, Teresa K. Kobelt dishes on Kevin Palmersheim, both Madison attorneys. She writes, “It’s no longer current, but Kevin Palmersheim had EX CURIA on his plates for years. It means ‘out of court,’ which I thought was really clever. Apparently, some people thought it had something to do with the priesthood, and for obvious reasons, Kevin eventually got new plates. Too bad, though, I still like it.” We do, too.