Dec. 9, 2019 – The State Bar of Wisconsin’s Board of Governors last Friday discussed but took no action on possible changes to the “emeritus” classification of State Bar membership. Currently, attorneys who reach age 70 can elect to take emeritus status.

Emeritus members can still practice law but are not required to pay State Bar dues (currently $260 annually) or Wisconsin Supreme Court assessments (currently $236 annually), aside from a fee to the court’s client protection fund (currently $20).

Additionally, emeritus members are not subject to continuing legal education (CLE) requirements. Currently, “active” status members must obtain at least 30 CLE credit hours every two-year reporting period. Emeritus members are exempt.

Mark Petri – an emeritus member and chair of a 12-person Emeritus Task Force (task force) that has recommended changes to the emeritus classification – said the current structure does not distinguish between “inactive” members who are truly retired and no longer practicing and “active” lawyers who continue practicing well beyond age 70.

Petri said the task force reached two fundamental conclusions in developing the recommendations.

First, all lawyers who actively practice law, regardless of age, should be required to obtain CLE to stay up-to-day on the law. Second, all active members, regardless of age, should pay their fair share of membership dues to support the State Bar’s mission.

A straw poll indicated that a majority of the board supports a change to the emeritus membership category, and a majority believe the board should move forward on one of the two task force proposals presented. A majority also indicated support for a “grandparent provision” within any proposal to change the emeritus category.

Again, the board only discussed the proposals. The task force will continue its work to present a final draft proposal for future board consideration, and to gather and communicate additional information as requested by board members.

Emeritus Category has Not Changed in 44 Years

The current emeritus structure was established in 1975. The term “emeritus,” by definition, refers to an honorary title for “retired” individuals.

But the Supreme Court Rule adopted in 1975 does not refer to “emeritus” as a class of membership for retired individuals. It says the emeritus members can be “active” or “inactive.” That is, emeritus status lawyers can continue practicing law in Wisconsin, but are exempt from State Bar dues, most court assessments, and CLE requirements.

The Senior Lawyers Division (SLD) board objects to any changes to the emeritus category of membership. The SLD Board submitted materials opposing any emeritus status change, and SLD immediate past president Dean Dietrich spoke on behalf of the SLD board during the State Bar’s Board of Governors’ meeting.

Dietrich challenged any notion that attorneys ages 70 or older present consumer protection hazards and should be subject to continued CLE requirements, and said attorneys age 70 and older have earned the right to be exempt from dues and fees.

“We have been going for 44 years with this system, and there’s no data to suggest that there’s a problem with lawyers who reach age 70 and don’t have to take CLE,” Dietrich said. “That appears to be the undercurrent to a lot of this discussion.”

The SLD board previously voted to oppose any change, in a split vote. “You don’t have to fix a problem that doesn’t need to be fixed,” said Dietrich, who said the SLD board invites continued study on whether emeritus lawyers pose dangers to the public. “If we are going to make a decision on this, let’s make a decision based on data.”

But Petri, speaking on behalf of the task force, said the emeritus category is broken, and needs to be fixed. He also said the State Bar’s budget should not subsidize “active” emeritus attorneys who continue to use the State Bar’s programs and services, especially as many prolong their careers and State Bar demographics shift.

“The current emeritus category includes two distinct kinds of members, actively practicing lawyers and fully retired members,” Petri told the board. “The needs and responsibilities of those two categories are not the same.”

CLE and Dues

For instance, Petri said actively practicing lawyers of any age must stay up-to-date on legal developments through CLE. In other professions, such as the practice of medicine, continuing medical education is required, regardless of age.

“CLE is required for all other actively practicing attorneys, but not actively practicing emeritus members,” Petri said. “I think that’s a problem.” Petri also said that changes in the law come faster than ever, and all attorneys must stay ahead of the curve.

In addition, Petri said actively practicing emeritus members pay no State Bar dues, but the State Bar still incurs costs to support them as active practitioners. Meanwhile, the State Bar provides fewer services to inactive (retired) emeritus members.

“There is no reserve to cover expenses related to current actively practicing senior attorneys who happen to be over a certain age,” Petri said.

The board discussed proposals that would require lawyers age 70 and over to continue paying State Bar dues and court assessments (and meet CLE requirements) if actively practicing law, as an equitable mechanism to share the costs of State Bar services.

The Nov. 20 issue of InsideTrack included a feature article explaining two proposed changes to the emeritus status classification and sought comments for the board’s consideration. Many comments received were made part of the board’s materials.

Emeritus Task Force Includes SLD Members

For the last two years, the Emeritus Task Force (task force) reviewed whether the current emeritus structure, which has been in place since 1975, should be changed.

The 12-person task force, first appointed by then-State Bar President Chris Rogers in 2018, consisted of two SLD past presidents, a SLD member, a retired Wisconsin Supreme Court justice, Nonresident Lawyers Division members, past and current State Bar presidents and officers, and other member representatives.

In making its recommendations, the task force recognized that the State Bar incurs costs to support emeritus members who actively practice law, and the emeritus membership is growing more rapidly than other membership categories as a whole.

Not all members who are eligible elect emeritus status, but a majority do. Currently, about 13 percent of the membership is 70 and over (3,165 members).

Of those, 2,277 are emeritus members. About 20 percent (4,687) of current members are between the ages of 60 and 69. Thus, if the current emeritus structure remains unchanged, there will be significantly more emeritus-eligible members in the next decade who are exempt from State Bar dues and CLE requirements.

Understanding these challenges, the task force developed two proposals intended as a good faith balancing of the interests of all bar members.

The Proposals

Under the first proposal, emeritus status would be reserved for members age 70 and over who certify that they are not actively practicing law. Emeritus members, under this proposal, could still do pro bono work for “qualified pro bono programs.”

Those members age 70 and over still actively practicing law would continue as “active” members and pay full State Bar dues and Supreme Court assessments. Those active members would also be required to meet the CLE requirements for “active” members.

The Senior Lawyers Division (SLD) Board rejected this proposal after the task force requested input. The SLD Board also opposed a revised task force proposal.

Under the revised proposal, like the first proposal, emeritus status would be reserved for members age 70 and over who certify that they are not actively practicing law. Emeritus attorneys could still do pro bono work for “qualified pro bono programs.”

Those members age 70 and over still actively practicing law would continue as “active” members and pay full State Bar dues and Supreme Court assessments. Those active members would also be required to meet the CLE requirements for “active” members.

However, “active” members would be converted to “senior active status” effective on July 1 following attainment of age 75, and would only be required to pay 50 percent of State Bar dues (plus court assessments) and obtain 15 CLE credits every two years.

Under this proposal, a transition plan is outlined for those currently emeritus and actively practicing to move to “senior active status” ahead of turning age 75.

The Senior Lawyers Division Board also rejected this proposal, for the same reasons as it rejected the first proposal. They see exemptions as an earned privilege and say CLE requirements should not be changed without data to show changes are necessary.

Proposal Not New

In 2013, the State Bar of Wisconsin petitioned the Wisconsin Supreme Court to change the structure of the emeritus classification. Under that proposal, full emeritus membership (no dues, no CLE) would have started at age 75.

From age 70 to 75, members billing more than 800 hours annually would have been considered “active emeritus” and required to pay full dues and court assessments.

Those billing less than 800 hours would have been considered “senior emeritus attorneys” required to pay half State Bar dues and assessments.

At that time, the SLD Board supported the proposal, concluding that “it is reasonable for those who are continuing to practice and who can avail themselves of the services of the Bar, to continue to pay dues and take part in those services.”

The SLD Board, at that time, in a letter to the Supreme Court, also said “the additional income to the Bar may help it provide Emeritus members with resources and services to assist them in their practice and help prepare them for eventual retirement.”

Ultimately, the Supreme Court denied the petition (4-3) – which also included changes to ease financial burdens for young lawyers – but remained open to changes after “further refinement.” The court voted 6-1 to send it back to the State Bar.

The current proposals are different from the 2013 proposal in that they do not set a standard of 800 billable hours to determine emeritus classification. The proposals merely distinguish between “active” and “inactive” members age 70 and over.

Those “active” attorneys age 70 and over would still pay all (or half) State Bar dues and Supreme Court assessments as an equitable mechanism to share costs with other “active” members, since those members would likely be using State Bar services.

The proposals for continued CLE requirements recognize that attorneys, even very experienced attorneys, must remain up-to-date on changes in the law.

Discussion at Board Meeting

The board engaged in a robust discussion about the proposals. Some said the board has an obligation to look at the financial impact of change, and would like more data.

The task force did not review the financial impact and focused on the fairness issue, as well as the concern that all active emeritus lawyers should continue to obtain CLE. But the board discussed finances, and whether emeritus active attorneys should contribute.

“I guess I’m just offended that lawyers in full-time practice, under the mandatory bar, who are contributing or making money, or both, are not paying dues and doing CLE,” said Dist. 4 Gov. Mary Lynne Donohue. “This is not about competency.”

Donohue said organizations need to change to survive, and favors changes to the emeritus category. But she also favors “grandparenting” for current emeritus members.

State Bar President Jill Kastner said the financial impact was not part of the task force’s review, which was the intent. “We wanted the task force to look at what is the best structure. But we, as leadership, do want to look at the financial component,” she said.

Kastner said the fastest increasing category is the non-dues paying emeritus category. “The number of new lawyers is not growing as fast,” she said. “We have fewer dues paying members than we did last year. The biggest contributor is emeritus status.”

The financial aspect is important as the board discusses how to proceed in the best interest of the State Bar organization as a whole, Kastner said.

Jim Marshall, one of the Supreme Court’s public appointees on the board, said this situation is similar to individuals who don’t want to pay school taxes after their children are out. “Our job is looking to the future. We are trying to build the organization and maintain it for the next generation of lawyers. That’s a legitimate goal,” he said.

Dist. 2 Gov. Margaret Hickey said a lot has changed in the last 44 years. “The practice of law is much more complex,” Hickey said. “To use the services of the bar and pay nothing doesn’t seem logical to me.”

Numerous other board members weighed in, and a majority indicated support for a change to the emeritus status. A handful raised concerns that the State Bar should not act without more data. Those members were asked to submit specific data requests.

Again, the State Bar took no action on the issue, but will likely consider whether to change the emeritus category of membership at meetings in February or April.

Board Supports Ghostwriting Petition

The board voted to support policies that allow attorneys to engage in the limited-scope representation of “ghostwriting” to help self-represented litigants draft documents.

The policy position supports a pending petition (19-16), filed by Quarles & Brady LLP, which would restore a ghostwriting rule that was adopted by the Wisconsin Supreme Court in 2014 but subsequently amended by the Wisconsin Legislature in 2018.

The Supreme Court adopted the ghostwriting rule in 2014 as part of practice and procedure rules and statutes to support and expand limited scope representation for self-represented litigants.

Under the rule, lawyers could assist self-represented litigants in drafting pleadings, motions, or documents without identifying themselves by name, so long as the pleading, motion, or document noted that it was “prepared with the assistance of a lawyer.”

The ghostwriting rule was intended to encourage more attorneys to provide free or low-cost legal help in the types of cases that pro se litigants typically appear – civil, family, small claims, and probate cases – through “limited scope” drafting services.

For instance, many volunteer legal clinics allow self-represented litigants to visit with a volunteer lawyer, for free, to obtain the lawyer’s help in drafting a court filing. This allows lawyers to do pro bono work on a limited scope as time and resources permit.

But the Wisconsin Legislature, in a 2018 omnibus bill, modified the ghostwriting rule, codified at Wis. Stat. § 802.05(2m), requiring lawyers to identify themselves and their bar numbers when they assist self-represented litigants in drafting court documents.

The legislature’s modification has a chilling effect on pro bono work, says Jeffrey Davis of Quarles & Brady LLP, who, along with firm attorneys James Goldschmidt, Sydney Vanberg, and Lauren Zenk, filed Petition 19-16.

That is, lawyers may hesitate to provide free drafting services if their names are tied to the case, for various reasons. This is particularly true at bigger firms like Quarles & Brady, which are invested in pro bono initiatives such Legal Action of Wisconsin’s Eviction Defense Project in Milwaukee.

“The court adopted it as a simple way to encourage more pro bono work. We believe it is important to bring the issue back to the court, which has worked hard to improve access to justice in Wisconsin,” Davis said in an Inside Track article on the petition.

Heiner Giese, legal counsel and registered lobbyist for the Apartment Association of Southeastern Wisconsin, filed a letter in opposition to petition 19-16.

He said the legislature has the authority to amend rules of pleading and practice, and litigation opponents and the media have a right to know the names of attorneys who are helping pro se litigants. However, Giese offered an alternative solution.

Giese worked with Sen. Luther Olson (R-Ripon) to draft legislation (not introduced) that would require attorneys helping self-represented litigants to disclose their names and bar numbers “only if it is requested by an opposing party in a contested matter.”

“This would preserve the legislature’s intention to have attorneys reveal their involvement in the small percentage of serious, non-routine cases (by which I mean contested cases) without requiring disclosure in the great majority of pro bono matters,” Giese wrote in his letter to the court.

He urged the court to adopt a ghostwriting rule that aligns with the draft legislation. The draft bill has not been introduced and Giese noted the uncertainty of legislation.

The current ghostwriting petition (19-16) is scheduled for a public hearing Jan. 17, 2020, before the Wisconsin Supreme Court.

Approved by Consent

• The board approved the Young Lawyers Division request to amend its bylaws.

• The board approved updates to State Bar policy positions, as recommended by the board’s Policy Committee. Policy positions are published in the State Bar’s Policy Positions Handbook, known as the “white book.”

• The board approved administrative modifications to rules governing the State Bar’s Fee Arbitration Program, at the recommendation of the Fee Arbitration Committee.

Upon request, interested members may obtain a copy of the minutes of each meeting of the Board of Governors. For more information, contact State Bar Executive Coordinator Jan Marks by email or by phone at (608) 250-6106.​