State Bar to Reconsider Bylaws for Dues Reduction Arbitration
By Andrea Gage, Public Relations
Coordinator, State Bar of Wisconsin
May 18,
2012 – The Wisconsin Supreme Court voted 5-2 this week to send
recently amended bylaws back to the State Bar of Wisconsin so it can
rewrite a portion of its dues reduction arbitration procedure.
Under SCR 10.03(5)(b)1, State Bar members can
challenge, through arbitration, mandatory dues assessment amounts they
believe are not reasonably related to the State Bar’s dual
purposes of “regulating the legal profession” or
“improving the quality of legal services.”
The amendments, which were originally adopted by the Board of Governors
in April 2011, include a section that explains that an
arbitrator’s decision is subject to de novo review in
cases that address a member’s constitutional rights.
Attorney Steve Levine and other bar members filed a petition with the
Court, urging justices to reject the State Bar’s bylaw language
and adopt alternative language. Counsel for the State Bar argued that
de novo review is already the law, and the bylaw serves as a
way to give notice to members who are not familiar with arbitration
law.
“The point is to educate and make the procedure clear for those
who are going to participate,” said attorney Roberta Howell.
While the court did not disagree with the State Bar’s
interpretation of the law regarding de novo review of arbitrations, it did express that restating the
law in its bylaw language might cause some confusion. In deliberations,
the court opted to reject the bylaws outright and send them back to the
State Bar for review, rather than attempting to rewrite them. The court
recommended including discussion of the law in a footnote instead.
The petitioners also asked the court to impose on the State Bar a
burden to prove by a preponderance of the evidence that a
challenged expenditure was intended for the purposes of regulating the
legal profession or improving the quality of legal services. The
preponderance of the evidence burden is a departure from Kingstad et al. v. State Bar of Wisconsin,
622 F.3d 708 (7th Cir. 2010), which
states that the State Bar must show a challenged expenditure is
reasonably related to the legitimate interests of regulating
the legal profession or improving the quality of legal services.
Levine argued for other changes to the bylaws as well, including a
provision that would allow State Bar members to request arbitration by
email and another provision that would expand the pool of arbitrators.
The bylaws currently call for arbitrators to be selected by the chief
judge of the federal district court. Levine wanted the court to give the
chief judge of the Dane County Circuit Court or “any other
arbitration pool” the power to select an arbitrator, but the court
did not consider the requests.
Petition to Get Names of Bar Exam Participants
Denied
Levine also filed a petition that would
require the Board of Bar Examiners (BBE) to release names and
addresses of those who took the July 2011 bar exam in Wisconsin. Levine
said that he wanted to survey participants about their bar exam
experience, but that the BBE refused to provide
the information, calling it confidential.
Levine said the information he requested is not “deeply
personal” or “embarrassing.” He compared it with
other types of requests that are subject to open records law.
“This court decided over 30 years ago that arrest records are
public records subject to requests under the open records law. What
could be more embarrassing to a person than the fact they were arrested
for something?” asked Levine.
BBE Director Jacqueline Rothstein said that the agency keeps bar exam
results confidential, and conforms to Supreme Court 40.12.
Levine also called for the BBE to be subject to open
meetings and open records law. While not technically subject to the
laws, Rothstein said that the BBE is acting well within the bounds of the
provisions, often posting its agendas online a week in advance.
Rothstein also pointed out that the legal
profession is already very well regulated.
“I’m really hard pressed to find another profession that is
given the type of scrutiny that incoming attorneys are given,”
said Rothstein.
The court denied the petition 5 to 2.
The court also heard a proposal that creates guidelines for graduates
of foreign law schools who want to sit for the Wisconsin bar exam.
(Petition 11-08).
The court decided unanimously to send the proposal back to the BBE for further consideration, encouraging the
agency to consult with law schools and other interested parties.
Continue to monitor WisBar.org and
visit the State Bar’s Government
Relations page for updated information on these and
other budget issues.
