Vol. 77, No. 2, February
2004
Supreme Court Orders
The Wisconsin Supreme Court has created SCR Chapter 36
requiring training to become eligible for appointment as a GAL for
adults.
Training for GALs for Adults
In the matter of the creation of Supreme Court Rules Chapter 36 -
Eligibility for Appointment as Guardian Ad Litem for an Adult
Order 03-03
On Oct. 1, 2003, the court held a public hearing on the petition
filed on April 2, 2003, by the Judicial Council, seeking creation of
Supreme Court Rules Chapter 36 relating to required training for
guardians ad litem for adults.
IT IS ORDERED that, effective July 1, 2004, Supreme Court Rules
Chapter 36 is created to read:
36.01 Eligibility to accept an
appointment. Commencing on July 1, 2004, a lawyer may not
accept an appointment by a court as a guardian ad litem for an adult in
an action or proceeding under chs. 51, 55, or 880, stats., unless any of
the following conditions have been met:
(1) The lawyer has attended 30 hours of guardian ad litem
education approved under SCR 36.03.
(2) The lawyer has attended 6 hours of guardian ad litem
education approved under SCR 36.03 during the combined current reporting
period specified in SCR 31.01 (7) at the time he or she accepts an
appointment and the immediately preceding reporting period.
(3) The appointing court has made a finding in writing or on the
record that the action or proceeding presents exceptional or unusual
circumstances for which the lawyer is otherwise qualified by experience
or expertise to represent the best interests of the adult.
36.02 Effect of acceptance. A lawyer's
acceptance of appointment as a guardian ad litem for an adult in an
action or proceeding under chs. 51, 55, or 880, stats., constitutes the
lawyer's representation to the appointing court that the lawyer is
eligible to accept the appointment under SCR 36.01 and is governed by
SCR 20:3.3.
36.03 Approval of guardian ad litem
education. (1) The board of bar examiners shall
approve courses of instruction at a law school in this state and
continuing legal education activities that the board determines to be on
the subject of the role and responsibilities of a guardian ad litem for
an adult or on the subject matter of proceedings under chs. 51, 55, or
880, stats., and that are designed to increase the attendee's
professional competence to act as guardian ad litem for an adult in
those proceedings. The board of bar examiners may only approve courses
of instruction or continuing legal education activities that are
conducted after January 1, 1995.
(2) The board of bar examiners shall designate, under SCR
31.05 (3) and 31.07, the number of hours applicable to
SCR 36.01 (1) and (2) for each approved course of instruction
and continuing legal education activity.
(3) Approval of a course of instruction or continuing legal
education activity under sub. (1) constitutes approval of that
course or activity for purposes of continuing legal education under SCR
ch. 31.
(4) The procedure for obtaining approval of courses of
instruction and continuing legal education activities is specified in
SCR 31.08.
IT IS FURTHER ORDERED that notice of this amendment of Supreme Court
Rules chapter 36 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 8th day of January, 2004.
By the court: Cornelia G. Clark
Clerk of Supreme Court
¶ PATIENCE D. ROGGENSACK, J. (dissenting). I write in
dissent because I would not adopt SCR ch. 36 as it has the capacity to
require different legal education requirements for lawyers doing the
same work, depending on the county in which lawyers practice and the
judge before whom they appear. Additionally, I am concerned that Chapter
36 is another step toward a specialized bar, when this court has not
considered the effects of specialization on the public interest.
¶ Presently attorneys who are licensed to practice in Wisconsin
must attend a minimum of thirty hours of approved continuing legal
education (CLE) during each two-year reporting period. SCR 31.02. The
Board of Bar Examiners (BBE) determines the number of hours each
approved program receives.
¶ In 1994, we adopted a CLE requirement that a minimum of three
hours of each reporting period must be obtained in legal ethics and
professional responsibility. SCR 31.02(2). In 1997, we adopted another
specifically focused CLE requirement for those who represent children as
guardians ad litem (GALs) in chs. 48, 767, and 938 proceedings. SCR
35.01. Chapter 35 was amended in 2001 and requires either completion of
thirty hours of GAL education approved by BBE or at least six hours of
such education within the reporting period, as well as further education
under SCR 35.03(1m). SCR 35.015. These requirements can be set aside
under circumstances similar to those described below for Chapter 36.
¶ On October 1, 2003, this court voted to adopt Rule Petition
03-03 as Chapter 36. It imposes a similar, but separate, six-hour CLE
requirement for those who serve as GALs for adults in chs. 51, 55 and
880 proceedings, as is required of GALs for children. SCR 36.01(1), (2).
An attorney may be appointed as a GAL for an adult without meeting the
educational requirements, if the appointing court finds, in writing or
on the record, that the "action or proceeding presents exceptional or
unusual circumstances for which the lawyer is otherwise qualified by
experience or expertise to represent the best interests of the adult."
SCR 36.01(3). This permits the appointing court to select an attorney
who has not complied with Chapter 36 education requirements.
¶ At conference, it was accepted by the majority that in
sparsely populated counties where a circuit court may not have enough
lawyers who have obtained and maintained the CLE courses required by
Chapter 36, the appointing court may set aside the CLE requirement. SCR
36.01(3). This flexibility gives Chapter 36 the potential to create
different CLE requirements for lawyers acting as GALs in populous
counties from those CLE requirements for lawyers who perform the same
services in less populated counties. I question the wisdom of this type
of structure for our unified bar association.
¶ Furthermore, attorneys who serve as GALs for adults may also
accept appointments as GALs for children. These attorneys are now
required to comply with Chapters 35 and 36, as well as the ethics
requirement. Therefore, such an attorney must attend twelve hours of
education in a reporting period, focused solely on GAL-related topics,
as well as three hours on ethics. Accordingly, fifteen hours of the CLE
such lawyers would be required to receive are specialized credits. This
leaves general practice attorneys little time for education in other
areas of importance or interest, yet the amount of practice devoted to
GAL work may be quite small. Additionally, Attorney Timothy L. Vocke,
who is also a reserve judge, voiced economic concerns about the burden
this will place on attorneys because the payment for an appointed GAL
"doesn't even begin to cover [his or her] overhead as an attorney in
private practice." Letter from T. Vocke to Ruth Bachman, Judge James
Mason and Jay Grenig, 9/24/02.
¶ Furthermore, my research shows only three other states have
adopted separate, mandatory CLE requirements for attorneys who wish to
serve as GALs for adults: Colorado, Kansas, and New York. In both
Colorado and Kansas, the same educational requirements cover GALs for
both children and adults. 3 Colo. Prac., Methods of Practice
§ 97.86; 66 Oct. J. Kan. B.A. 15. Therefore, the approach we
have taken is hardly a national trend.
¶ The supporters of Chapter 36 stressed the vulnerability of
incompetent adults and the possibility that they may be at greater risk
for inadequate legal representation. See Letter from Crawford to
the Wisc. Supreme Court, 8/13/03, at 1. While incompetent adults are a
vulnerable group, they are not unique in their vulnerability as they
come before the courts. For example, parents who are involved in a
bitter child custody dispute are often so torn by emotion and fear of
losing their child that they, too, are very vulnerable. They need
well-trained lawyers to assist them. So, too, does the 75-year-old widow
who was induced to buy worthless securities with her life's savings or
the person permanently injured by a defective product. Few areas of the
law are more complex than securities litigation and products liability
litigation.
¶ However, because a GAL's representation is done through court
appointment, the court acts as a gatekeeper. No court would appoint an
attorney as a GAL without determining whether the attorney was qualified
to handle the representation. See Letter from T. Vocke, 9/24/02
at 3; Letter from Charles G. Norseng, 3/3/03. Indeed, even the petition
drafters acknowledge this role, as they refer to Chapter 36's "opt-out"
provision described above. SCR 36.01(3). Attorney Charles Norseng, on
behalf of the more than 2,000 members of the State Bar's General
Practice Section, opposed additional mandatory CLE requirements for
GALs, pointing out that judges "certainly can screen lawyers and do
screen lawyers for these appointments." Letter from C. Norseng,
3/3/03.
¶ Finally, in my view, Chapter 36 is yet another step toward a
specialized bar, yet specialization was not discussed by this court.
With the law's increasing complexity, it could be that we will want to
require attorneys to obtain area-specific training for certain types of
cases.1 However, we had no information
presented to us about specialization when the court approved the rule
change. Nor did we discuss whether a specialized bar would better serve
the public interest. If we decide to permit a specialized bar, either on
a voluntary or mandatory basis, we must not do so without a thorough
discussion of the many facets of this very complex issue. To do
otherwise is an abdication of our role in this important area of lawyer
regulation to special interest groups who do not have our overarching
responsibility to the public, the bench and the bar.
¶ For the foregoing reasons, I would not adopt SCR 36 and
accordingly, I respectfully dissent from the adoption of Petition 03-03,
Chapter 36, SCR.
¶ I am authorized to state that Justices Jon P. Wilcox and David
T. Prosser join in this dissent.
1Other states have created boards
of legal specialization and have adopted comprehensive programs to
"board certify" lawyers in specific areas of law. See State Status
Report on Lawyer Specialty Certification. Specialized attorneys may
be held to higher standards and are often required to take more CLE
credits than they would if they chose not to be certified. However,
these programs are voluntary, and an attorney is not required to become
board certified to practice in a certifiable area of law. See
e.g. Rules and Regulations of the Arizona Board of Legal
Specialization (rev. May 21, 1999), State Bar of
Arizona Board of Legal Specialization; State Bar of California Board
of Legal Specialization Web pages at www.calbar.ca.gov; Florida State Bar Rule 6 - Legal
Specialization and Education Programs; Louisiana
State Bar Association Plan of Legal Specialization; New Mexico
MCLE, and New Mexico
MCLE; North Carolina
Board of Legal Specialization; and Standards for Attorney
Certification of the Texas Board of Legal
Specialization (rev. Feb. 2003).
Wisconsin Lawyer
