April 22, 2013 – The State Bar of Wisconsin’s Board of Governors recently took action on several proposed rule changes impacting lawyer discipline and disciplinary proceedings, as well as other rules enforced by the Office of Lawyer Regulation.

The 52-member board, which convened April 19-20 in Sheboygan, also heard a budget proposal with no plans to increase State Bar dues in fiscal year 2014 (July 1, 2013, to June 30, 2014). Instead, reserve funds would be used to supplement a budget of $11.7 million, a 2 percent increase over the approved operating budget for 2013.

The budget proposal depletes the remaining $286,633 from the State Bar’s Dues Stabilization Reserve Fund, which was established to mitigate dues increases and is expected to gain $100,000 by the end of the year from a 2013 budget surplus.

State Bar President-elect Patrick Fiedler, a member of the State Bar's Finance Committee, presents the proposed budget for fiscal year 2014.

Keith Sellen, director of the Office of Lawyer Regulation, asks the State Bar to cosponsor several rules petitions the OLR plans to submit to the Wisconsin Supreme Court.

District 2 Govs. Anique Ruiz (left) and Athenee Lucas, both of Milwaukee, consult board materials during discussion about the budget.

State Bar President-elect Patrick Fiedler, on behalf of the Finance Committee, reported that the Dues Stabilization Fund “will be depleted if this budget is approved.”

State Bar dues – currently $224 for active members – have not increased since 2004. The State Bar has spent down more than $1 million of dues reserves since 2008.

The proposal also taps $58,000 from an Opportunities Reserve Fund to support the $444,634 in total reserves necessary to fund the 2014 budget.

“I’m really disturbed that we are dipping into reserves,” said District 2 Margaret Hickey, who last year advocated for a 2013 budget proposal that would include a potential dues increase. She noted that reserves already fall below recommended levels.

“We have a structural deficit. You’re not supposed to fund your operations out of reserves. I think this is the year for a dues increase,” she said.

The State Bar Finance Committee, which includes State Bar President Kevin Klein and President-elect Patrick Fiedler, had considered various budget scenarios for 2014, including one with a dues increase. Ultimately, the Finance Committee voted down a proposed budget with an increase in dues, noting the availability of reserves.

“The dues fund is there for this purpose,” said State Bar Treasurer Kelly Nickel, also a member of the Finance Committee. “To me, it makes no sense to raise dues without exhausting that fund.”

The board will vote on a final budget at its June 12 meeting in Madison, which coincides with the scheduled Real Estate & Business Institute, the State Bar’s Annual Meeting, and the swearing-in ceremony for Pat Fiedler, incoming State Bar president.

OLR Petitions 

Keith Sellen, director of the Office of Lawyer Regulation (OLR), asked the board to cosponsor several rule change petitions the OLR plans to file with the Wisconsin Supreme Court. The board approved cosponsorship of all but one petition, which would require public disclosure when a lawyer is formally investigated for attorney misconduct under Wisconsin’s Rules of Professional Conduct for Attorneys.

Sellen sought comments and recommendations from various State Bar committees – including the State Bar’s Professional Ethics Committee – as well as board support of any comments or recommendations offered on the OLR’s five proposals. The board voted to cosponsor the following proposed petitions: 

• Referees in Disciplinary Hearings. A referee in a lawyer disciplinary matter would need judicial or litigation experience, under a proposed rule supported by the board. The rule would also require the Wisconsin Supreme Court to appoint no more than four referees to serve on a permanent panel hearing lawyer disciplinary matters. Currently, the number of referees assigned to hear disciplinary cases is not limited. Sellen says a permanent panel would promote “quality, efficiency, and uniform application of disciplinary standards and procedures.”

• Enforcement Mechanism for Supreme Court Disciplinary Orders. The proposed petition would create a rule for enforcing Wisconsin Supreme Court disciplinary orders. Currently, there is no procedural mechanism for enforcing disciplinary orders. In a recent case, the supreme court asked the OLR to draft a rule governing the enforcement process.

• Reactivation Rules for Inactive Members. The proposed rule would amend the current procedure for reactivating lawyers who did not actively practice law in Wisconsin during the previous 10 years. The proposal would create a fitness investigation and CLE compliance review before return to active status, among other measures designed to protect the public. The proposal also establishes rules for reinstatement of lawyers who have voluntarily resigned from State Bar membership. Currently, no such rule exists.

The board supported a petition that seeks to provide up to three CLE ethics credits to lawyers serving on the OLR's Preliminary Review Committee and Special Preliminary Review Panel. The former reviews investigative reports concerning grievances against attorneys. The latter reviews investigative reports of special investigators concerning grievances against lawyers. Both require application of attorney ethics rules.

The board did not support a proposal to require public disclosure when a lawyer is formally investigated for attorney misconduct under the Rules of Professional Conduct for Attorneys, but asked Sellen to draft and present the actual petition to the board. The proposed rule would create public disclosure procedures when an attorney is under formal investigation for misconduct. Disclosure of formal investigations would meet consumer protection demands, according to Sellen.

District 2 Gov. Margaret Hickey, a member of the Executive Committee, voices concern about a budget proposal to use State Bar reserves.

Nonresident Lawyer Division representative Anthony Gray, Conn., comments on the proposed budget.

When there is probable cause to proceed against a lawyer, the information would be posted on the Wisconsin Court System website. A statement would clarify that a matter underlying a finding of cause is pending with no final determination of wrongdoing.

According to State Bar Ethics Counsel Tim Pierce, the State Bar Professional Ethics Committee believes that disclosure should be limited to the court website and should include a disclaimer stating these are allegations, not findings of misconduct 

State Bar Policy Positions

• The board unanimously voted to sunset a State Bar policy position that opposes apprenticeship programs as an alternative to formal legal education. The State Bar’s Policy Committee found this policy, adopted in 1984, to be out-of-date and no longer necessary.

• The board approved a shortened version of the State Bar’s policy supporting citation to unpublished court of appeals decisions.

• The board unanimously supported a Government Lawyers Division request to take a policy position supporting adequate funding for attorneys who work for the state of Wisconsin. State-employed attorneys protect and defend the rights and welfare of the state of Wisconsin and its citizens. Professional and experienced attorneys provide sound legal advice and services to the state of Wisconsin for the public benefit. Retention of experienced attorneys promotes effective advocacy on behalf of the state and just tribunals (courts) that the state provides its citizenry.

• The board voted to modify and improve existing State Bar policy positions to assist the State Bar’s government relations staff in lobbying the legislature. The board’s Public Policy Committee reviewed 31 policies this fiscal year.

Consent Agenda 

• The board approved amendments to the Alternate Dispute Resolution Section bylaws.

• The board approved rules and bylaw amendments to implement a dues structure change to the emeritus and active new membership categories previously approved by the board in December 2012.

• The board reappointed attorney Howard Bichler and Wisconsin Appeals Court Judge Margaret Vergeront to the Wisconsin Access to Justice Commission, whose terms expired in March. The State Bar makes four appointments to the Access to Justice Commission’s 17-member board.

• The board approved the requests of nine State Bar sections to carryover a surplus of more than $10,000, which is required under the bylaws.

The final board meeting of the fiscal year will be held on June 12 in Madison.

Pursuant to Wisconsin Supreme Court Rule 10.05, the State Bar maintains a complete summary of the minutes of each meeting of the board of governors on the WisBar website after board approval. In addition, any interested person may obtain a copy of the minutes upon request to the State Bar.