Wisconsin Lawyer
Vol. 82, No. 3, March 2009

What is the lure of pro bono work? Giving back to the community? Getting the chance to work on novel and important legal issues that establish precedent or help shape the law? Tackling unique cases that sharpen legal skills? How about an opportunity to do all three but at the request of the Wisconsin Supreme Court or the 7th Circuit Court of Appeals? For the past 10 years, volunteers with the Pro Bono Program of the State Bar of Wisconsin Appellate Practice Section have been providing pro bono services for all these reasons.

Each year the section’s Pro Bono Program provides counsel for indigent clients in about 10 to 12 civil appeals at the request of the appellate courts. According to attorney Colleen Ball, who administers the program along with attorney Robert Henak, although the Wisconsin State Public Defender provides appellate counsel to indigent clients in criminal cases, there is no comparable resource for indigent clients pursuing civil appeals. Without counsel, these appellants typically cannot properly research the legal issues or present effective arguments to advance their cases, making it difficult for courts to evaluate the merits of a case.

The program does not take representation requests from individual clients, because there are not enough resources for volunteer attorneys to review the merits of cases and evaluate indigent status. Instead, the program relies on court employees to spot significant cases or appellate attorneys at public interest organizations like the ACLU or the Legal Aid Society who request amicus briefs to develop an area of the law. Most of the case referrals come from the Wisconsin Supreme Court, possibly because the most novel and complex legal issues tend to be raised at that level. If the appellant does not sufficiently develop the legal issues, the court may ask for a supplement to the petition before deciding whether to review the case. Thus, the program’s work can directly affect the viability of an appeal and enable the court to determine whether a case raises an issue that will clarify the law or establish legal precedent.

About 30 lawyers volunteer their time for the program. Any attorney can be on the referral list and can decline a representation request. Volunteer attorneys can consult with other attorneys on cases and receive assistance with preparing oral arguments. The amount of time required depends on who the lawyer is appointed to represent (a party or an amicus) and the complexity of the case and issues.

The program has provided direct or amicus representation on appeals involving prisoners’ rights, family law, fee shifting in public interest litigation, civil procedure, and criminal law.

Some recent and pending representations include the following:

• Attorney Brent Nisteler represented an inmate in Jackson v. U.S., 541 F.3d 688 (7th Cir. 2008), involving an injured prisoner denied medical assistance, in which the court ruled that the relation-back doctrine applies to Federal Tort Claims Act suits against the United States.
• Attorney Dan LaFave filed an amicus brief for Disability Rights Wisconsin, NAACP, and the Benedict Center in Christensen v. Sullivan, Appeal No. 2006AP803, which addresses the circuit court’s authority to impose monetary sanctions for contempt after the underlying conduct (violations of a consent decree concerning conditions at the Milwaukee County Jail) had ceased.
• Attorney John Rhode represents the ex-husband in Gaffney v. Gaffney, Appeal No. 2008AP2297, in which the husband, who has a disability, argues that in applying the statutory test for a maintenance award in a divorce action, the circuit court failed to address his “needs.”
• Attorney Rob Henak was appointed to file a supplemental petition for review in State v. Allen, Appeal No. 2007AP795, which addresses whether a criminal defendant waives any legal challenges to his or her conviction or sentence that were overlooked by the appointed counsel’s no-merit report and the court of appeals’ ruling on that report.
• Attorney Colleen Ball represented the petitioner in State ex rel. Hipp v. Murray, 2008 WI 67, 310 Wis. 2d 342, 750 N.W.2d 873, in which the Wisconsin Supreme Court established the procedure for subpoenaing and examining witnesses for John Doe proceedings.

For more information about the Pro Bono Program, or to volunteer and be placed on the referral list, contact Colleen Ball at cball@applaw.com or Robert Henak at henaklaw@sbcglobal.net. For more information about the Appellate Practice Section, please visit www.wisbar.org/sections/app.

• Back to article

Wisconsin Lawyer