Vol. 78, No. 2, February 2005

Letters

Make Pro Bono Count for CLE Credit

Yesterday I received an order from the court in one of my cases. Although the court's order contained nothing negative to my clients' interests, I nevertheless found it deeply dismaying.

The case involves an indigent and allegedly disabled prison inmate's claims under the Americans With Disabilities Act and the U.S. Constitution. The inmate had petitioned for the appointment of counsel.

The court's order explained that the judge had spent more than five months trying to find a lawyer willing to take this man's case on a pro bono basis. The judge made it known to prospective counsel that she would allow severing of those claims that the lawyer was willing to take, leaving the plaintiff to proceed pro se on the remaining claims. Nevertheless, not a single lawyer in the Madison area agreed to take the case. The judge then sought help through the 7th Circuit's Office of the Circuit Executive, but again no lawyer was willing to step forward. As a result, the court was obliged to make the plaintiff proceed pro se.

As I read the court's order, my first reaction was dismay that no lawyer was willing to take this man's case. Where were all these lawyers who wrote their law school admissions essays on how they wanted to go to law school to represent the poor and disenfranchised?

My second reaction was that we should admit that our pro bono system is broken and needs fundamental change. Ideally, lawyers should step up and do pro bono work with no additional incentive, but the reality is that just not enough of us do so. (Incidental note: I wouldn't urge anyone to do something I'm not doing myself, so I will mention that I have done and am doing pro bono work. I am particularly grateful to Bill Duffin and Bill Levit, two partners at Godfrey & Kahn, who encouraged and supported my pro bono work when I was employed by that firm.)

As I thought about the problem, it occurred to me that a potential solution was sitting in front of me on my desk: my end-of-the-year CLE reporting form. We Wisconsin lawyers spend at least 30 hours every two years attending CLE programs. It's an open secret in the profession that many of those hours are wasted hours spent listening to lectures about subjects with little if any value beyond getting the CLE credits.

My proposed reform is this: allow pro bono hours to count toward the CLE requirement. Thirty hours of pro bono work will benefit this state far more than 30 hours of listening to lectures. The prospect of getting CLE credit will motivate at least some lawyers who aren't doing pro bono work under the current system to do so. On the other hand, those lawyers who find CLEs useful, or who simply don't want to do pro bono work, won't be required to make any changes.

By making this reform, we will take lawyers out of the lecture halls and into the world, helping ensure that our profession works "for the public good" and not just for our own.

(I am required to state that the opinions expressed in this letter are my own and do not necessarily reflect the views of my employer, the Wisconsin Department of Justice.)

Tim Kiefer, Madison

CLE Credit for Pro Bono is Misdirected

Tim Keifer should be commended for doing pro bono legal work and for caring enough about the issue to propose a solution for analysis. The problem is, the solution creates a new problem.

First, some history. Since the Reagan years, federal funding for legal services to the poor has declined in real dollars so dramatically that the organizations that provide such services have reduced staff and the type of cases they will handle to skeletal proportions. The ability of low-income people to participate fully in our justice system as a problem-solving mechanism has been seriously compromised.

Second, the profession, to its credit, has struggled to make up for this lack of societal commitment in a number of ways, including taking pro bono cases, participating in advice clinics and "equal justice" fund drives, and contributing money, to mention a few. All have been somewhat successful but have only put a dent in the need.

Responding to the repeated requests either for dollars or more pro bono work, many lawyers rightly ask, "Why is it that we are expected to meet all the legal needs of the society? Are the doctors asked to donate 50 to 100 hours a year to the poor? Other professionals?" So the first level of questioning that needs to be resolved is just how much is a reasonable commitment from the legal profession in making free services available? As a longtime lawyer, a former legal services attorney, and someone who handled numerous cases for the poor, the disabled, and the young during my career, I understand the need. We continue to struggle with a comprehensive answer, though the Wisconsin Supreme Court recently granted a petition seeking a $50 assessment per lawyer.

But as we look for solutions, we have to be sure that they are appropriate to the problem. To give credit for pro bono representation in the place of continuing legal education is like giving your surgeon continuing credit for giving shots at the clinic! You want her operating on you? I don't. I want her at the seminar on the latest, best techniques for doing safe surgery.

Likewise, the purpose of mandatory continuing legal education, imposed by the Wisconsin Supreme Court, is to ensure a high quality, competent profession and thereby protect the interests of the public. Competence cannot be assured by doing good works, as laudable as they might be. Therefore, relieving lawyers of an obligation created to ensure competence in order to enhance their willingness to do good things is misdirected.

It may well be true that there are lawyers who are bored at seminars or who try simply to accrue credits to meet the mandatory reporting requirement. That is indeed an open secret. Let me tell you a few more. The State Bar CLE Department put on 68 seminar titles in 2004. That's 68 separate topics covering everything from outstanding legal writing, negotiating, and cross examination, presented by national experts, to handling legal problems of the aging, real estate issues, and many more. In addition, we presented those seminars using different technologies - Webcasts, phone, live, and video - to make them accessible.

The Wisconsin Justice Department puts on a number of highly regarded seminars. The State Public Defender has one of the best criminal defense conventions in the country. Moreover, virtually every local bar association puts on continuing legal education seminars as do several for-profit companies and specialty bars. Wisconsin is reputed to have approximately 900 CLE providers. To put it simply, if you can't find a seminar of interest in your area of the law, you just aren't looking.

The point of CLE is not credits, and it's not "attending CLE programs." These are simply vehicles for ensuring that the profession continues to hone its expertise and competence, providing quality service to the public. All the other vehicles are after the fact. And pro bono service, while extremely important, is no vehicle at all.

Thomas E. Dixon Jr., director

State Bar CLE Department

Praise Long-term Care Workers

Bravo to Brian Purtell for a fair, balanced, and informative article! (See "Issues Affecting Long-term Care," October 2004.) Despite the often bad press, long-term care workers perform an extraordinary service for our communities and should be praised for their hard work.

Thomas J. Kapusta, vice president and chief legal officer

The Evangelical Lutheran Good Samaritan Society

Improper Use of the Guard

I recently read online "Protecting Legal Rights of Activated Guards and Reservists" by Stephen J. McManus (July 2003). Great article.

I am very concerned about how our military is depending on the guard and reserve for 70 percent of logistical support during a conflict or war. I believe we are abusing the law. If we need to increase the active forces back up to the proper levels, then do it.

We are straining the employer, so that hundreds of employers are risking law suits just to keep their companies operating. In some towns, half of the employees are on military leave. We will be facing a bigger problem. No employer will hire a reservist or guardsperson.

Let's make up our mind. Do we use the guard for state support or do we use the guard like some employers use temporary job agencies? For cheap help. The reservist does not receive equal benefits as the active soldier. There is a great disparity.

Capt. William E. Green, Retired Army Reserve, Ohio

Wisconsin Lawyer