Wisconsin Lawyer
Vol. 80, No. 3, March 2007
Continuing Legal Education
In the matter of the Petition for Amendment to Supreme Court Rules 31.01 and 31.05 relating to Continuing Legal Education
Order 05-09
On Dec. 9, 2005, the Director of the Board of Bar Examiners (BBE) filed a petition proposing certain amendments to Supreme Court Rule Chapter 1 relating to continuing legal education. At the public hearing conducted on Dec. 11, 2006, the BBE advised the court that after consulting with the State Bar of Wisconsin, the BBE proposed amending the language in the petition. The State Bar of Wisconsin appeared in support of the petition and the Office of Lawyer Regulation appeared in support of the proposed creation of SCR 31.06. The court also considered written comments submitted in connection with this petition. At the ensuing open administrative conference the court adopted the petition, as amended, effective Jan. 29, 2007.
Section 1. 31.01 (6m) of the Supreme Court Rules is created to read:
31.01 (6m) "Repeated on-demand program" means an on-line program delivered over the Internet, repeating a program previously approved by the board, and given at a time of the attendee's choosing within twelve (12) months of the approval of the on-demand on-line program.
Section 2. 31.05 (5) and (6) of the Supreme Court Rules are created to read:
31.05 (5) (a) A repeated on-demand program may be used to satisfy the requirement of SCR 31.02, if all of the following conditions are met:
1. The repeated on-demand program is approved prior to being claimed for credit by a lawyer on CLE Form 1.
2. Sponsors of the approved on-demand on-line program must maintain a roster verifying the attendance of all attorneys logged-in and paying for the program and provide the roster to the board if requested.
(b) No more than 10.0 credits may be claimed for repeated on-demand programs during a lawyer's reporting period.
(c) No legal ethics and professional responsibility credit is allowed for a repeated on-demand program.
(d) Repeated on-demand programs may not be used for reinstatement, readmission, or reactivation.
(6) Each hour of service on the office of lawyer regulation district committee or as an office of lawyer regulation special investigator may be used to satisfy the requirements of SCR 31.02, to a maximum of 3.0 hours of legal ethics and professional responsibility credit per reporting period, provided that the office of lawyer regulation maintains a roster verifying service and provides the roster to the board if requested.
IT IS ORDERED that notice of the creation of Supreme Court Rules 31.01 (6m) and 31.05 (5) and (6) be given by a single publication of a copy of this order in the official state newspaper and in an official publication of the State Bar of Wisconsin.
Dated at Madison, Wis., this 29th day of January, 2007.
By the court:
A. John Voelker
Acting Clerk of Supreme Court
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State Bar Classes of Membership
In the matter of the Petition of the United States Administrative Law Judges Appointed Under 5 U.S.C. § 3105 to Amend SCR 10.03(3)(a)
Order 06-09
On Dec. 8, 2006, the United States Administrative Law Judges appointed under 5 U.S.C. § 3105 filed a petition seeking to amend SCR 10.03(3)(a), regarding state bar classes of membership.
IT IS ORDERED that a public hearing on the petition shall be held in the Supreme Court Room in the State Capitol, Madison, Wis., on April 12, 2007, at 9:30 a.m.
IT IS FURTHER ORDERED that the court's conference in the matter shall be held promptly following the public hearing.
IT IS FURTHER ORDERED that notice of the hearing be given by a single publication of a copy of this order and of the petition in the official state newspaper and in an official publication of the State Bar of Wisconsin not more than 60 days nor less than 30 days before the date of the hearing.
Dated at Madison, Wis., this 20th day of December, 2006.
By the court:
Cornelia G. Clark, Clerk of Supreme Court
Petition
NOW COME the United States Administrative Law Judges appointed under 5 U.S.C. sec. 3105 and hereby petition the Wisconsin Supreme Court for an order amending SCR 10.03(3)(a) as follows:
(3) Classes of membership. (a) The members of the state bar are divided into 4 classes: active members, judicial members, inactive members and emeritus members. The class of active members includes all members of the state bar except the judicial members and inactive members. The class of inactive members includes those persons who are eligible for active membership but are not engaged in the practice of law in this state and have filed with the secretary of the association written notice requesting enrollment in the class of inactive members. Judges of courts of record, full-time family court commissioners, full-time court commissioners, U.S. bankruptcy judges, U.S. magistrate judges, U.S. administrative law judges appointed under 5 U.S.C. sec. 3105 and retired judges who are eligible for temporary judicial assignment and are not engaged in the practice of law are classed as judicial members, except that any judicial member may elect to become an active member with all rights of active membership except to hold office as an officer or governor or to practice law. The class of emeritus members includes those persons who are either active or inactive members in good standing but who are at least 70 years of age and have filed written notice requesting enrollment in the class of emeritus members. An emeritus member has all the privileges of membership in the state bar and need not pay membership dues for the years following the year in which he or she attains the age of 70.
Attached is a memorandum in support of the petition.
Submitted by:
Ronald G. Bernoski, U.S. Administrative Law Judge, President, Association of Administrative Law Judges
On behalf of himself and U.S. Administrative Law Judges Stephen J. Ahlgren, Ira S. Epstein, Gregory S. Pokrass, and Arthur J. Schneider
This memorandum is submitted in support of our petition for an amendment to SCR 10.03(3) which we are filing concurrently.
We are United States Administrative Law Judges assigned to the Social Security Administration Office of Disability Adjudication and Review in Milwaukee, Wis. Although we currently hold judicial membership status in the State Bar of Wisconsin, and have been so designated for at least 25 years, we have recently been informed by Executive Director George C. Brown that our status will change to active, nonjudicial membership as of July 1, 2007. A copy of Mr. Brown's letter is attached.
We consider Mr. Brown's characterization of our existing judicial membership status as an "incorrect election/allowance" to be an unacceptably dismissive rejection of a practice that has been in place for decades. His claim that SCR 10.03(3) does not apply to federal executive branch judges has no support in the language of the rule itself. We submit that we qualify as judges of courts of record and that was the basis for placing us in the judicial membership status category in the first place. Regardless, in the interest of clarifying the rule as may be necessary, we ask the court to add our position to the list of those persons entitled to judicial status under SCR 10.03(3).
Our appointment is authorized by the United States Congress under 5 U.S.C. sec. 3105. We have tenure that is, in essence, lifetime and very similar to that provided federal judges appointed under the Constitution. S. Rep. No. 697, 95th Cong. 1st Sess. 2 (1978). With full seniority we receive a salary of $152,000, equivalent to that for federal magistrate and bankruptcy judges, who are listed among the class of persons entitled to judicial status under SCR 10.03(3).
After a selection and training process described as "rigorous," NLRB v. Permanent Label Corp., 657 F. 2d 512 (3d Cir. 1981), we assume a role and powers that the United States Supreme Court in Federal Maritime Commission v. South Carolina State Ports Authority, 535 U.S. 743 (2002) and Butz v. Economou, 438 U.S. 478 (1978) stated is "functionally similar" to that of federal district judges, the latter decision also noting that the similarities between federal administrative proceedings and civil litigation are "overwhelming." The matters which we adjudicate have an average value of $250,000. Our duties are established by 5 U.S.C. sec. 556: preside over the taking of evidence, administer oaths, issue subpoenas, rule on offers of proof, take depositions, regulate the full course of the proceeding, hold conferences for settlement or simplification of the issues, dispose of procedural requests and similar matters and, finally, make decisions that are based on the record, which includes the transcript of the testimony and all exhibits and documents filed in the case. This process is no different than that followed by any other federal or state court of record. As noted in Stieberger v. Heckler, 615 F. Supp. 1315 (S.D.N.Y. 1986), "the federal administrative law judge must decide cases just as any state or federal judge decides cases: based solely and wholly on the applicable legal rules and the facts as established by the record."
We are prohibited from practicing law by 5 U.S.C. sec. 3105 which states we may not perform duties inconsistent with our duties and responsibilities as judges. In turn, the ABA Model Code of Judicial Conduct, which designates us judges for all purposes and prohibits us from practicing law, has been applied by us by the United States Merit Systems Protection Board (MSPB). See In re Chocallo, 1 M.S.P.R. 612 (1978).
Discipline for judicial misconduct is also regulated ultimately by the MSPB and placing us under the jurisdiction of the Office of Lawyer Regulation would both interfere and be inconsistent with this federal structure. 5 U.S.C. sec. 7521 states that an action for removal and suspension of a United States Administrative Law Judge may occur for cause established and determined by the MSPB after a hearing. Federal agencies themselves may reprimand judges without seeking MSPB approval. See In re Perry, 39 M.S.P.R. 446 (1989). Numerous cases have demonstrated the efficiency and strength of this disciplinary structure. See, e.g., Social Security Administration v. Anyel, 58 M.S.P.R. 261 (1993) (judge suspended for failure to adequately protect the rights of unrepresented claimants); Social Security Administration v. Davis, 19 M.S.P.R. 279 (1984) (judge removed for lewd and lascivious conduct toward staff members); Chocallo, supra (judge removed for demonstrated bias and lack of judicial temperament).
New judges in our agency attend a one month training course and then a one week refresher course a year later. There are periodic educational requirements thereafter in subjects such as Social Security substantive and procedural law, docket management, diversity and ethics. Our Association also conducts an annual conference that includes educational sessions. We will report this continuing judicial education as the court deems appropriate.
Finally, what we proposed is consistent with the practice in numerous other jurisdictions. Many apparently have no separate judicial status. But among those that do, some define judicial status in general terms that clearly would include us (e.g., Rhode Island: "full-time judges not engaged in the practice of law"). But more importantly, those that specifically address the status of United States Administrative Law Judges include them in the judicial membership category. See State Bar of California (Rule of Court 958 & Business Professions Code sec. 6070-Rule 6.1); District of Columbia Bar (Rule II, Sec. 4 & Bylaw Article III, sec. 1); Washington State Bar Association (Bylaw IIA3); South Carolina Bar (Bylaw Article I, sec. 1.1(c)); and State Bar of Mississippi (Mississippi Code 73-3-125). It is notable that this includes two jurisdictions, California and D.C., that are among those with the greatest number of United States Administrative Law Judges.
In conclusion, we ask this court to approve this rule change to maintain consistency with past practice; to properly recognize our federal judicial position, duties and disciplinary obligations; and to keep Wisconsin in line with the practice in other jurisdictions.
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