Inside the Bar
February 2008

Wisconsin Supreme Court takes up MJP, videoconferencing, and tribal court issues

On Jan. 8 and 9, the Wisconsin Supreme Court addressed petitions regarding the multi-jurisdictional practice of law in Wisconsin, videoconferencing in court proceedings, and the discretionary transfer of cases to tribal courts.

Multi-Jurisdictional Practice.  State Bar Petition 06-06 proposed a number of changes to regulate the multi-jurisdictional legal practice to bring Wisconsin’s rules into conformity with the majority of states and the ABA Model Rule.  At an administrative conference on Jan. 9, the court tentatively adopted a number of amendments to SCR 20:5.5 pertaining to the practice of law in Wisconsin by lawyers not licensed to practice here but who are licensed in another state.

The changes tentatively adopted by the court would allow a lawyer who is licensed and not disbarred or suspended in another United States jurisdiction to provide legal services in Wisconsin on an occasional basis in specific circumstances. In addition, lawyers who are licensed and not disbarred or suspended in another United States jurisdiction would be allowed to practice in Wisconsin if the lawyer is authorized to provide the legal services by federal or Wisconsin law.

At the first public hearing on the bar’s petition last April, the supreme court also asked the bar to specifically address the issue of how the practice of law by in-house counsel employed in Wisconsin should be regulated when the in-house lawyer is not admitted to practice law Wisconsin.

At the Jan. 9 hearing, the court considered a number of alternatives for in-house counsel, including some suggested by the bar and others by the court or other interested parties. Rather than adopting the limited licensing application process recommended by the bar, the court instead voted to tentatively adopt a modified version of ABA Model Rule 5.5(d)1 that is a hybrid of the model rule and the bar’s proposal. Lawyers licensed elsewhere in the United States and employed as in-house counsel in Wisconsin would be allowed to practice law in Wisconsin for their employer or its affiliates if they are not disbarred or suspended in another jurisdiction. In a change from the ABA Model, in-house counsel who are employed but not licensed as attorneys in Wisconsin would need to register, and the court indicated that in-house counsel practicing under this provision would also be able to count their time as in-house counsel in Wisconsin towards the practice requirement in a future application for full admission to the bar in Wisconsin. The court did not decide what fees or assessments, if any, in-house counsel would need to pay to practice under this rule. The court will prepare a draft of the language on in-house counsel and make it available for further comment.

At its next hearing on the petition on Feb. 22, the court will address the remainder of the issues raised by the bar’s petition, including the pro hac vice admission process. It is likely that they also will address the issue of in-house counsel practice again after they have received further comment from interested parties.

Videoconferencing in courts.The supreme court agreed to consider creating a rule governing the use of videoconferencing in the courts, as requested in Petition 07-12. The petition was submitted by A. John Voelker, Director of State Courts, on behalf of the Planning and Policy Advisory Committee (PPAC). The State Bar supports the petition. No one testified in opposition.

The goal of the proposed rule is to provide legal guidance to the courts on the appropriate and effective use of videoconferencing and to maximize the use of videoconferencing within the court system while maintaining the integrity of the judicial branch and the constitutional rights of all litigants.

Mike Neimon, District 3 court administrator, told the court, “In 2003 the Office of Justice Assistants reported that 35 percent of the courthouses and 45 percent of the county jails have videoconferencing capabilities. Today the number is 90 percent and increasing. All state correctional and mental health facilities are utilizing videoconferencing as well.”

Several concerns were raised during the hearing, including the following:

• When a defendant does not want a witness brought in by videoconference and moves for a continuance, does this request prevent the defendant from making a claim that he has been denied his right to a speedy trial?
• Do witnesses tend to be more truthful when appearing in person than in a videoconference?
• What impact will videoconferencing have on a jury?
• What impact would videoconferencing have on defendants appearing pro se, especially in family or small claims cases?
• Would the use of videoconferencing negatively affect the constitutional right of the defendant to have counsel present in open court and at all stages of a proceeding?

The Department of Justice (DOJ) indicated that it supports the petition as it relates generally to civil actions, but expressed concerns about fundamental rights with regard to criminal, juvenile, mental health, and child protective proceedings and therefore has taken no position on the proposed rule as drafted.

The proposed rule says the defendant has a right to be in the courtroom, but there is no comment about whether he or she has the right to have an attorney physically present in the courtroom.

The Hon. William McMonigal, a PPAC member, said,  “With videoconferencing we are depending heavily on the wisdom of the trial lawyers in trying to assess when videoconferencing might be appropriate and when it might be pushing the envelope. Videoconferencing saves court time, saves law enforcement time, and supports court security, among many other things. We have made inroads over the last quarter of a century with the telephone. For the last 10 years we have done the same thing with videoconferencing. We have been making participation easier, and in fact with videoconferencing we have certainly made it a much fuller experience than with the telephone. The concept of videoconferencing is here. The rule is proposed to make it more useful.”

[On May 1, 2008, the court issued it final order, effective July 1, 2008.]

Discretionary transfer of cases to tribal court.The supreme court agreed to consider the concept of the discretionary transfer of cases to tribal court as requested in Petition 07-11. The State Bar supports the petition submitted by A. John Voelker, Director of State Courts, on behalf of the State-Tribal Justice Forum. No one testified in opposition.

The court will seek comment from the state’s law schools, the State Bar Indian Law Section, the tribal courts, and others who testified or sent letters and will redraft the proposed rule.

The court heard testimony in support of the petition from the Hon. James Mohr of the LacCourte Orielles Tribal Court. Mohr chairs the State-Tribal Justice Forum, a joint committee of state and tribal court representatives established by Chief Justice Abrahamson in 2005 to promote and sustain communication, education, and cooperation among tribal and state court systems.

Mohr told the court, “The purpose of the proposed rule is to effectively and efficiently allocate judicial resources. In situations where a circuit court and a tribal court have concurrent jurisdiction, this provision would authorize the circuit court, in its discretion, to transfer a case to the appropriate tribal court.”

Justice Bradley asked if cases could be transferred from tribal courts to circuit courts. Mohr responded, “Unless we have an agreement that reaches the 11 tribes, we do not have any provision for tribal court transfer, although I assume that it could happen. There is nothing that would prohibit that and we would encourage it.  When we originally talked about this proposal it was going to be a joint proposal, but since we don’t have control over what the tribal courts do, only the state courts, we could not include it in the proposed rule.”

There are 11 federally recognized tribes in Wisconsin, and each has its own independent government with its own constitution and membership. Some tribes have formal tribal courts while others have alternative dispute resolution forums. Tribes possess inherent sovereignty, and they are distinct and separate entities from the state.

The Hon. Eugene White-Fish, with the Potowatomi Tribal Court explained that when a litigant is not a member of the Potowatomi tribe or lives outside of the tribe’s jurisdiction, the litigant does not have to respect the jurisdiction of that tribal court and has the right to say he or she does not want the case handled in the tribal court, even if it is a child welfare case.

Cooperation among state and tribal courts in Wisconsin is critical. Tribal and non-tribal citizens interact on a frequent basis and when civil disputes arise in which legal action is necessary, questions of civil jurisdiction can become complex. Wis. Stat. section 806.245 provides parameters for the application of full faith and credit to Indian tribal documents, including judicial orders, records, and judgments.

Under the current system, state and tribal court judges can temporarily stop actions that are filed in both courts and hold a joint hearing to determine which court should handle the case. The proposed rule outlines standards to be considered in the allocation of jurisdiction among state and tribal courts.

Justice Prosser expressed concern about the constitutional right to trial by jury since tribal courts do not have juries. “I think this rule is saying that a party who files in circuit court and demands a jury trial can have that right waived by the discretionary decision to send a case to tribal court. It would not be inappropriate in terms of jurisdiction, but are you giving the circuit court the right to take somebody’s constitutional rights away?”

Mohr said, “We believe with this rule judges would be in a much better position to make decisions concerning where cases should be heard. This rule also will foster a faster and more efficient mechanism for case management.”

As tribal courts continue to expand court jurisdiction and assist the state courts in resolving disputes, many new cases as well as many cases from the past can be handled in the tribal courts. A discretionary transfer mechanism would be very helpful, especially considering the large number of pro se litigants, particularly in family matters, advocates of the rule explained.

The court hopes to complete redrafting the proposed rule by next summer.

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