Court considers mandatory fee arbitration for lawyer-client disputes

On March 13, the Wisconsin Supreme Court will hold a public hearing on a petition submitted by attorney Gerald C. Sternberg, former administrator of the Board of Attorneys Professional Responsibility, seeking to create a mandatory fee arbitration system for lawyer-client fee disputes. The ABA Model Rules for Fee Arbitration, which are the basis of the proposed supreme court rules, require lawyers to participate in fee arbitration at the client's request. If any parties find the arbitration decision unacceptable, the proposed rules provide the opportunity for a trial de novo in circuit court.

"While two good programs, namely those run by the State Bar and Milwaukee Bar Association, are in place to resolve lawyer-client disputes, they are hindered from being truly effective by the fact that the lawyer is not required to participate when the client seeks to use those programs," commented Sternberg.

The State Bar Board of Governors has not yet taken a position on the proposed rules. However, the Resolution of Fee Disputes Committee supports mandatory fee arbitration in principle, but opposes the rules as proposed. "The committee is concerned that, in the absence of a written agreement at the outset of the arbitration process, parties are not bound by the arbitrator's decision and may seek a de novo hearing," said Chair Robert Swain. "The committee fears that in a situation in which there already is ill will between lawyers and clients, clients could be further alienated by a program that would have them go through an arbitration only to be required to repeat the process in court. If the supreme court were to support mandatory fee arbitration, the committee suggests modifying the current State Bar program."

The proposed rules petition, which accompanies supreme court order 00-15 (printed on page 26), will be discussed at the March 2 Board of Governors meeting. Comments for the board can be sent to Kris Wenzel at the State Bar, P.O. Box 7158, Madison, WI 53707-7158, or kwenzel@wisbar.org, or contact your district governor. The court's hearing will be held March 13 at 9:30 a.m., in the Supreme Court Public Hearing Room, 119 Martin Luther King Jr. Blvd., Madison. For more information visit www.wisbar.org/committees/caz00/.

Seventh Circuit reimburses court-appointed attorneys

The U.S. Court of Appeals for the Seventh Circuit announces an appellate expense reimbursement program for court-appointed attorneys who accept pro bono civil appointments.

To encourage and enable more lawyers to accept pro bono appointments, the court will reimburse certain out-of-pocket expenses incurred by appointed counsel up to a maximum of $1,000.

All expenses must be supported by receipts and are subject to the same regulations that apply to Criminal Justice Act appointments. Submit requests and supporting documents to the Clerk of the Court of Appeals after final disposition of the appeal.

For more information, call (312) 435-5850.

Court of Appeals seeks input on judge reappointment

Bankruptcy Judge Margaret D. McGarity of the U.S. Court of Appeals, Eastern District of Wisconsin, seeks appoint-ment to another 14-year term. Judge McGarity's current term expires on Oct. 25.

The court is accepting comments regarding Judge McGarity's reappointment. Written comments can be sent by Feb. 24 to: Collins T. Fitzpatrick, Circuit Executive, 219 S. Dearborn St., Room 2780, Chicago, IL 60604.

Sensenbrenner to chair House Judiciary Committee

The House of Representatives has appointed Wisconsin Congressman F. James (Jim) Sensenbrenner Jr. as chair of the prestigious House Judiciary Committee for the upcoming Congress. The Judiciary Committee is one of the most active House committees and holds primary responsibility over a variety of legal issues.

Sensenbrenner, U.W. 1968, formerly a practicing attorney, represents the Ninth Congressional District, which covers portions of Dodge, Fond du Lac, Jefferson, Sheboygan, and Waukesha counties and all of Washington and Ozaukee counties. He was elected to Congress in 1978 and previously chaired the House Science Committee.

New filing address for IRS forms 706, 709, and 1041

All Federal Estate, Gift Tax Returns, and Estate and Trust forms, forms 706, 709, and 1041 due after Jan. 1, 2001, must be filed with the Internal Revenue Service at the Cincinnati Service Center, Cincinnati, OH 45999-0002. All other federal tax returns should continue to be filed at the Kansas City Service Center. For federal estate and gift tax information, call (414) 297-3411.

Criminal and family law produce most grievances against lawyers

The two areas of practice that again produced the most grievances against lawyers in fiscal year 2000 were criminal and family law, according to the Board of Attorneys Professional Responsibility (BAPR), now the Office of Lawyer Regulation, annual report filed with the supreme court. The allegations most commonly filed were lack of diligence and lack of communication with the client.

For the period July 1, 1999 through June 30, 2000 (FY 00), BAPR handled 2,154 grievances (628 pending from the previous fiscal year, and 1,526 new matters). BAPR closed 1,287 matters in an average time of 177 days as compared to closure within 161 days the previous fiscal year.

Volume of grievances. BAPR received more grievances in FY 00 (1,526) than in fiscal year 1998-99 (1,423). BAPR disposed of 1,287 grievances this year, including nine reinstatements, as compared with 1,302 dispositions in FY 99. At the end of FY 00, 867 grievances were pending. BAPR referred 145 grievances to district professional responsibility committees in FY 00. The committees completed 169 grievance investigations during the same period.

Formal discipline imposed. In FY 00, 24 attorneys received a public disciplinary sanction. The supreme court imposed three license revocations, 13 license suspensions, including two temporary suspensions under SCR 22.30 and two suspensions for failure to pay court-ordered costs from previous discipline. One temporary suspension was imposed but lifted three months later. There were three court public reprimands. In addition, BAPR imposed five public reprimands, with the lawyer's consent.

Criminal and family law and estate/probate were the practice areas that generated the most public discipline cases. The rule violations most frequently found in public discipline cases were lack of diligence, lack of communication, dishonesty or misrepresentation, and failure to cooperate.

Other dispositions. BAPR imposed 36 private reprimands in FY 00. Private reprimands typically are imposed for isolated acts of misconduct that cause relatively minor harm.

During the fiscal year, 48 attorneys received dismissals with caution. Usually, a dismissal with caution is issued in cases of a technical violation of a rule and no harm to the client. There were dispositions in 1,151 additional matters, including 563 grievances that were dismissed because the inquiry did not warrant investigation, 510 that lacked sufficient evidence of a rule violation, 63 that were dismissed with an advisory letter, 13 matters that were closed pending petition for reinstatement, and two dismissed by the court.

Actions pending. BAPR filed formal disciplinary actions against 20 attorneys in FY 00. At year's end, 21 formal actions were pending in the supreme court.

Other actions. After BAPR investigation, the court completed action on nine reinstatement petitions - six administrative and three disciplinary. The court granted three of the administrative reinstatement petitions and two of the disciplinary reinstatement petitions, one of which included conditions on the attorney's practice. Three administrative reinstatement petitions and one disciplinary reinstatement were withdrawn.

Trust account overdraft reporting. The Overdraft Notification Rule (SCR 20:1.15(I)-(p)) became effective on Jan. 1, 1999. Under the rule, attorneys must authorize their banks to notify BAPR, now the Office of Lawyer Regulation (OLR), of overdrafts on their client trust and fiduciary accounts.

In FY 00, 104 overdrafts were reported to BAPR, of which about one-third were closed without investigation as bank errors. Of the remaining matters, 38 warranted investigation, and 31 required further screening. The trust account rules most frequently violated were SCR 20:1.15(e) (recordkeeping) and SCR 20:1.15(g) (false certifications to the State Bar regarding recordkeeping).

Finances. The legal profession assumes the costs of policing itself. In addition to an assessment imposed on every State Bar member ($89.82 per member in FY 00), BAPR collects costs from the attorneys disciplined in formal court proceedings and fees on petitions for reinstatement. Collections from FY 00 were $159,294.

BAPR's budget for FY 01 is $1,783,700. BAPR will use $100,000 in reserves and $50,000 in anticipated collections to place the assessment at $100.23 per attorney. The FY 01 budget includes funding for a central intake function in the Office of Lawyer Regulation.

Conclusion. BAPR completed 85 percent of investigations in less than one year, with an average grievance processing time of 5.9 months. The pending investigative caseload is 867 cases, an increase over the 621 pending cases in FY 99. BAPR concluded 1,287 grievance inquiries.

Throughout much of the fiscal year, the supreme court studied Wisconsin's system of lawyer regulation, and ultimately created the Office of Lawyer Regulation to replace BAPR. Supreme Court Rules relating to the new system of lawyer regulation became effective Oct. 1, 2000.

Wisconsin Lawyer