Appellate Practice Section Chair Michael Halfenger comments on the section's purpose for filing an amicus curiae brief in a case that concerns the sanctioning of lawyers by appeals courts. The State Bar Board of Governors approved the section's request.

Milwaukee governors Ray Dall'Osto (left) and Lynn Laufenberg await the start of the Feb. 4 meeting at the Bar Center in Madison.

Governor Kevin Lyons voices support for the Appellate Practice Section's request to file an amicus brief in the pending Wisconsin Supreme Court case of State ex rel. Office of the State Public Defender v. Wisconsin Court of Appeals, Appeal No. 2010AP387.

State Bar Treasurer Margaret Hickey prepares for the State Bar Board of Governors meeting to start, while governors George Steil, Janesville, and Robert Gagan, Green Bay, discuss the agenda.

In response to an oral report on the State Public Defender Office by Deputy SPD Kelli Thompson, State Bar Governor T.J. Molinari, from Milwaukee, shares his comments regarding SPD appointments. Thompson's report was part of an effort to educate the board on a variety of practice areas.

Feb. 7, 2011 – The State Bar of Wisconsin’s Board of Governors (board) approved the Appellate Practice Section’s request to file an amicus brief in a case challenging judicial authority to impose sanctions against a lawyer, and accepted a $5.25 Keller rebate of State Bar dues for 2010. The board convened Feb. 4-5 at the State Bar Center in Madison.

In addition, State Bar President Jim Boll, President-elect James Brennan, and Past President Douglas Kammer voiced support for an increased compensation rate for private bar members who take State Public Defender cases by appointment.

Boll intends to raise private funds to conduct an empirical report that highlights the adverse impact of the current $40 rate on the constitutional rights of defendants.

In his president-elect address, Brennan called on board members to help recruit “the future leadership of the bar,” noting that he will make around 800 appointments to State Bar committees and working groups when he begins his State Bar presidency in July.

“I will be looking for well-balanced committees … for people who want to get involved and bring something new, and I ask you to help recruit really what is the future leadership of the bar through this committee appointment process,” Brennan told board members.

Appellate Practice Section amicus brief

The State Public Defender (SPD) filed a petition for Wisconsin Supreme Court review in an appeals case in which a lawyer was sanctioned based on the court’s conclusion that the appendix to the SPD’s brief did not comply with statutory requirements for completeness.

The board unanimously approved the Appellate Practice Section’s request to file an amicus brief in the case, observing that supreme court review would “provide clear guidance to the Wisconsin Court of Appeals regarding imposition of sanctions for alleged procedural or substantive violations by litigants or their counsel.”

The section noted 18 such cases in which lawyers were fined between $100 and $200 for violating the court’s rules on certifications and appendices. Section Chair Michael Halfenger provided background on the case and the section’s position.

“While the Appellate Practice Section certainly understands the importance” of rules “requiring that all materials essential to understanding the appeal’s issues are included in the appendix and the rule requiring certification,” Halfenger said in video comments for the State Bar, “the section believes that the court should at least allow the lawyer to explain him or herself.”

Several board members commented that sanctioning a lawyer in this situation without notice or an opportunity to be heard may invoke due process concerns.

“Notice and a hearing, notice and a hearing, notice and a hearing,” said board governor Kevin Lyons, noting what he remembered his civil procedure professor at U.W. Law School saying. “This strikes me as being so fundamental to the practice of law, that the least we can do is unanimously support the request to file an amicus brief.”

Keller rebate

Under Keller v. State Bar of California, 496 U.S. 1 (1990), the State Bar cannot use compulsory dues of objecting members for activities that are not reasonably related to regulating the legal profession or improving the quality of legal services.

The board approved a Keller dues reduction of $5.25 for members who object to certain bar expenditures. The amount is calculated by the Finance Committee using financial statements and activities for the State Bar’s most recent audited fiscal year (in this case, FY 2010).

The board also approved the rebate amount proposed for 2011 dues by voice vote after turning back a proposed amendment for a higher rebate level. The State Bar will explore potential changes to the Keller calculation process to reflect changes in the law.

Zealous or rigorous?

State Bar Professional Ethics Committee Chair Dean Dietrich updated the board on a petition to amend Supreme Court Rules that would strike references to “zealous” lawyer representation in favor of “vigorous” lawyer representation, and solicited comments from board members.

Attorney John Schweitzer filed petition 10-09 and a supporting memo with the Wisconsin Supreme Court, noting the word “zealous” encourages a win-at-all-cost approach to litigation. The petition has not been scheduled for a hearing yet.

Dietrich informed that board that the Ethics Committee will review the petition and make a recommendation on whether the State Bar should take a position. 

Other business

At the board’s request to learn more about challenges in different practice areas, Deputy State Public Defender Kelli Thompson gave an overview of the SPD office structure, funding, attorney caseloads, and other challenges.

The board consented to the Individual Rights and Responsibilities Section’s request to change its section name to the Civil Rights and Liberties Section.

The board also consented to the Resolution of Fee Disputes Committee’s request to amend Rule 37 of the arbitration program’s rules to update and clarify a party’s rights concerning confidentiality. The State Bar maintains a program to resolve attorney fee disputes between attorneys and clients through arbitration.

Related:

• To view photos from the Board of Governors meeting, visit the State Bar's Facebook page, or click here.
• To view the video discussion with Appellate Practice Section Chair Michael Halfenger on requesting Board of Governors authorization to file an amicus brief, visit the State Bar's YouTube page, or click here.