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| Vol. 74, No. 2, February 2001
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Supreme Court Orders
The Wisconsin Supreme
Court sets a public hearing for march 13 to consider amending SCR 75 regarding
requirements of court commissioners and to consider a petition to create
a mandatory fee arbitration system. The court also has amended SCR 70.21
dealing with the statutory authorities of Chief Judges.
Court Commissioners
In the Matter of Implementation of SCR 75, regarding Court Commissioners
Amended Order 00-12
On Sept. 15, 2000, the director of state courts, on the recommendation
of the Committee of Chief Judges and District Court Administrators, filed
a petition requesting the amendment of Supreme Court Rules to require
a statement of economic interest from all circuit court commissioners
and from authorized supplemental court commissioners who have performed
at least 40 hours of circuit court commissioner duties in the preceding
year, to omit the requirement that court commissioners file a monthly
certification of pending cases, and to clarify the legal experience required
for appointment as a court commissioner.
IT IS ORDERED that a public hearing on the petition
shall be held in the Supreme Court Hearing Room, 119 Martin Luther King
Jr. Blvd., Madison, Wis., on March 13, 2001, at 9:30 a.m.
IT IS FURTHER ORDERED that the court's conference
in the matter shall be held promptly following the public hearings held
that day.
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 19th day of Dec.,
2000.
By the court:
Cornelia G. Clark, Clerk
Petition
The Director of State Courts, on the recommendation of the Committee
of Chief Judges and District Court Administrators, hereby petitions the
court to amend the Supreme Court Rules governing court commissioners,
pursuant to the court's rulemaking authority under §751.12. These amendments
respond to issues arising from implementation of SCR 75 since it became
effective on Jan. 1, 1999.
These amendments require a statement of economic interest from all circuit
court commissioners and from those authorized supplemental court commissioners
who have performed circuit court commissioner duties 40 or more hours
in the preceding year, omit the requirement that court commissioners file
a monthly certification of pending cases, and clarify the legal experience
necessary for appointment as a court commissioner.
(1) The statement of economic interest should
be required of all circuit court commissioners appointed under SCR 75.02(1)
and of those supplemental court commissioners authorized under SCR 75.02(3)
who have performed 40 hours or more of circuit court commissioner duties
in the preceding calendar year. SCR 60.07 should be amended to read
as follows:
SCR 60.07 Code of Judicial Ethics. Applicability. (1) Subject to sub.
(2), all judges shall comply with this chapter.
(2) A judge who serves on a part-time basis,
including a reserve judge, a part-time municipal judge and a part-time
court commissioner, is not required to comply with the following: SCR
60.05(3)(a), (b), (c)1.b., 2.a. and c., (4)(a)1.b., (b), (c), (d) and
(e), (5), (6), (7) and (8). All circuit court commissioners appointed
under SCR 75.02(1) and those supplemental court commissioners authorized
under SCR 75.02(3) who have performed 40 hours or more of circuit court
commissioner duties during the preceding calendar year are required to
comply with SCR 60.05(8).
SCR 60.05(8)(b) should be amended as follows:
SCR 60.05 Code of Judicial Ethics. (8) Compensation,
Reimbursement and Reporting. (b) Financial Reports. Except as provided
in SCR 60.07, a judge shall file with the ethics board a timely financial
report as required by section 19.43 of the statutes. The report shall
also be filed by commissioners of the supreme court, staff attorneys of
the court of appeals, the director of state courts, members of the board
of attorneys professional responsibility and members of the board of bar
examiners.
Comment: As provided in SCR 60.07(2), sub. (8) does not apply
to a judge serving on a part-time basis. Sub. (8) does not apply to
a supplemental court commissioner authorized under SCR 75.02(3) who has
performed fewer than 40 hours of circuit court commissioner duties in
the preceding calendar year.
(2) Court commissioners should not be required
to file a monthly certification of status of pending cases. Court
commissioners are already required to notify the chief judge of any matter
that remains under advisement for more than 30 days, and this notification
is sufficient to keep the chief judge informed of case status. SCR 70.36(5)
should be amended as follows:
SCR 70.36 Judges' and circuit court commissioners' certification of
pending cases.... (5)(a) In this subsection, 1. "Chief judge" means the
judge appointed under SCR 70.18 for the judicial administrative district
in which the matter is pending.
2. "Circuit court commissioner" means a person
appointed under SCR 75.02 (1) and a person authorized under SCR 75.02
(3) to the limited extent of that authorization.
(b) A circuit court commissioner may should not routinely
take matters under advisement. Every circuit court commissioner shall
decide any matter within 30 days after the matter is submitted to him
or her for decision. If the circuit court commissioner is unable to decide
the matter within 30 days, he or she shall notify the chief judge not
later than 5 days before the end of the 30-day period. The chief judge
may extend the period to decide the matter for an additional 30 days or
may require the circuit court commissioner to suspend all other assigned
activities until the decision is filed with the court.
(c) Within the first 10 days of each month, each circuit court commissioner
shall certify in writing to the chief judge and to the commissioner's
supervising judge that there are no matters awaiting decision beyond the
30-day period or, if extended by the chief judge, the 60-day period specified
in par. (b). If there are matters so pending, the certificate shall set
forth the case number and caption of each matter and the date on which
it was submitted for decision....
(3) The level of legal experience required
for appointment as a court commissioner should be clarified. SCR 75.02(1)
should be amended as follows:
SCR 75.02 Appointment; authorization. (1) The
chief judge of a judicial administrative district shall appoint within
the district, as authorized by law, officers of the court to perform limited
judicial and quasi-judicial functions under the direction and authority
of the chief judge and the judges of the circuit. These officers of the
court shall be selected on the basis of merit through a process approved
by the chief judge and the circuit court judges of the counties in which
the officers will serve. The chief judge may only appoint persons
under this subsection only persons who are licensed to practice
law in this state and in good standing with at least 3 years of legal
experience who have been so licensed for three years immediately
prior to appointment.
Respectfully submitted:
J. Denis Moran, Director of State Courts
Mandatory
Fee Arbitration System
In the Matter of the Petition to Create a Mandatory Fee Arbitration
System
Amended Order 00-15
On Sept. 25, 2000, Gerald Sternberg filed a petition seeking the adoption
of Supreme Court Rules creating a fee arbitration system for lawyer-client
fee disputes that requires the lawyer's participation in the system.
IT IS ORDERED that a public hearing on the petition
shall be held in the Supreme Court Hearing Room, 119 Martin Luther King
Jr. Blvd., Madison, Wis., on March 13, 2001, at 9:30 a.m.
IT IS FURTHER ORDERED that the court's conference
in the matter shall be held promptly following the public hearings held
that day.
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 19th day of Dec.,
2000.
By the court:
Cornelia G. Clark, Clerk
Petition
Proposed Chapter 14 of Wisconsin Supreme Court Rules
FEE ARBITRATION
SCR 14.01. General Principles and Jurisdiction
A. Definitions. The following definitions shall apply in all fee arbitration
proceedings.
(1) "Client" means a person or entity who directly or through an authorized
representative consults, retains or secures legal service or advice
from a lawyer in the lawyer's professional capacity.
(2) "Decision" means the determination made by the panel in a fee
arbitration proceeding.
(3) "Lawyer" means a person admitted to the practice of law in Wisconsin,
or any other person who appears, participates or otherwise engages in
the practice of law in this state, regardless of the status of his or
her license. In these rules, the term "lawyer" includes a lawyer's assignee.
(4) "Panel" means the arbitrator(s) assigned to hear a fee dispute
and to issue a decision.
(5) "Party" means the client, lawyer, the lawyer's assignee and any
third person or entity who has been joined by the client or lawyer in
the proceeding.
(6) "Petition" means a written request for fee arbitration in a form
approved by the Fee Arbitration Program.
(7) "Petitioner" means the party requesting fee arbitration.
(8) "Respondent" means the party with whom the petitioner has a fee
dispute.
B. Establishment; Purpose. It is the policy of the Supreme Court of
Wisconsin to encourage the informal resolution of fee disputes between
lawyers who practice law in Wisconsin and their clients and, in the event
such informal resolution cannot be achieved, to provide for the arbitration
of such disputes. To that end, the Supreme Court of Wisconsin hereby establishes
through adoption of these rules, a program and procedures for the arbitration
of disputes concerning any and all fees and/or costs paid, charged, or
claimed for professional services by lawyers.
C. Arbitration Mandatory for Lawyers. Fee arbitration pursuant to these
rules is voluntary for clients and mandatory for lawyers if commenced
by a client.
D. Effect of Arbitration.
(1) The Fee Arbitration is binding where all parties have agreed in
writing that it will be binding.
(2) In the absence of a written agreement to be bound by the arbitration,
the decision automatically becomes binding, unless, as permitted under
Rule 14.07.B., any party seeks a trial de novo pursuant to Wisconsin's
rules of civil procedure within 30 days after service of the decision.
This 30 day time period shall not be extended by an application for
modification under these rules.
(3) After all parties have agreed in writing to be bound by an arbitration
award, a party may not withdraw from that agreement unless all parties
agree to the withdrawal in writing. At any time during the proceedings,
the parties may agree in writing to be bound by the decision.
E. Jurisdiction. Any lawyer, as defined in SCR 14.01.A(3), is subject
to these rules for fee arbitration.
F. Disputes not Subject to Arbitration. These rules do not apply to
the following:
(1) Disputes where the lawyer is also admitted to practice in another
jurisdiction, the lawyer maintains no office in Wisconsin, and no portion
of the legal services was rendered in Wisconsin;
(2) Disputes where the client seeks affirmative relief for damages
against the lawyer based upon alleged malpractice or professional misconduct;
(3) Disputes where entitlement to and the amount of the fees and/or
costs charged or paid to a lawyer by the client or on the client's behalf
have been determined by court order, rule, or decision;
(4) Disputes where a third person is responsible for payment of the
fees and the client fails to join in the request for arbitration; and
(5) Disputes where the request for arbitration is filed more than
[four] year(s) after the lawyer-client relationship has been terminated
or more than [four] year(s) after the final billing has been received
by the client, whichever is later, unless a civil action concerning
the disputed amount is not barred by the statute of limitations.
G. Notice of Right to Arbitration; Stay of Proceedings; Waiver by Client.
(1) Prior to or at the time of service of a summons in a civil action
against his or her client for the recovery of fees, costs, or both for
professional services rendered, a lawyer shall serve upon the client
[by certified mail return receipt requested] a written notice of the
client's right to arbitrate. The notice, in a form approved by the Fee
Arbitration Program, shall include a provision advising the client that
failure to file a Petition for Fee Arbitration within 30 days of service
of notice of the right to arbitrate shall constitute a waiver of the
right to arbitrate. Failure to give this notice shall be grounds for
dismissal of the civil action.
(2) If a lawyer commences a fee collection action in any court, the
court shall issue an order of stay upon the client giving notice to
the court and the lawyer that a Petition for Arbitration was filed with
the Fee Arbitration Program within [thirty] days of service of the notice
of the right to arbitrate.
(3) After a client files a Petition, the lawyer shall refrain from
any nonjudicial collection activities related to the fees and/or costs
in dispute pending the outcome of the arbitration.
(4) Unless all parties agree in writing to the arbitration, the right
of the client to petition or maintain an arbitration is waived if:
(a) the client fails to file a Petition for Arbitration within [thirty]
days of service of the notice of right to arbitrate pursuant to these
rules; or
(b) the client commences or maintains a civil action or files any
pleading seeking judicial resolution of the fee dispute, or seeking
affirmative relief against the lawyer for damages based upon alleged
malpractice.
Commentary: A fee arbitration system provides lawyers
and clients with an out-of-court method of resolving fee disputes that
is expeditious, confidential, inexpensive, and impartial. The court should
ensure adequate funding for an effective program.
Although these rules only address fee arbitration, consideration
should be given to the development of mediation as a component of the
program as a prerequisite or alternative to fee arbitration.
A client who believes he or she may have been overcharged by a lawyer
may have the lawyer's fee reviewed without incurring the expense of formal
litigation. Participation in the Fee Arbitration Program is mandatory
for lawyers if the request for arbitration is commenced by a client. The
decision is binding only upon written agreement of the parties. In the
absence of a written agreement to be bound by the arbitration decision,
any party may seek a trial de novo within 30 days after service of the
decision. The decision becomes binding if no party seeks a trial de novo
within the 30 day period. The program is voluntary for the client since
the lawyer regulatory system has no power to regulate the consumer of
legal services. However, nothing in these rules precludes a lawyer and
a client from entering into a contract to participate in binding arbitration
under these rules as permitted by law.
A lawyer must notify a client of the availability of the Fee Arbitration
Program prior to or at the time of service of a summons in a civil action
against the client to recover fees and/or costs for professional services.
The rule provides that notice be sent by certified mail return receipt
requested. However, a jurisdiction may substitute such other means of
service as will reasonably establish receipt. The client must file a Petition
for Fee Arbitration within [thirty] days of service of such notice or
the client waives the right to petition or maintain an arbitration proceeding
under these rules. If all parties agree, the fee arbitration can proceed
even if the client did not file the Petition for Fee Arbitration within
the [thirty] day period.
The client also waives the right to petition or maintain an arbitration
if the client commences or maintains a civil action or files any pleading
seeking judicial resolution of the fee dispute or seeking affirmative
relief against the lawyer for damages based on alleged malpractice. This
prevents the same facts from being the subject matter of the arbitration
and a civil action. Nothing herein precludes a client from filing a complaint
with the disciplinary authority. Nothing in these rules prevents the filing
of a malpractice action after a decision is rendered in the fee arbitration
proceeding. In accordance with Rule 14.07.B.(4), a decision under these
rules is not admissible in a subsequent malpractice action.
The scope of these rules includes costs as well as fees. In many
cases, fees and costs are inextricably linked. The fee arbitration process
should be able to resolve both issues in one process.
The Fee Arbitration Program can be expanded to handle disputes between
lawyers if all parties agree to be bound by the decision of the panel.
An alternative approach, which currently works effectively in those
jurisdictions where it has been adopted, is to provide for arbitration
which is both mandatory and binding in all cases. Under such a system,
the arbitration decision is binding on the parties subject to appeal only
in cases of demonstrable and fundamental unfairness in the procedures
used in deciding the matter.
SCR 14.02. Fee Arbitration Program
A. Delegation of Fee Arbitration Function to State Bar of Wisconsin and
Milwaukee Bar Association. The Supreme Court of Wisconsin designates the
State Bar of Wisconsin and the Milwaukee Bar Association to run equal
branches of the statewide Fee Arbitration Program. Each of those programs
shall designate one member to serve as Chair of that branch of the Program.
B. Composition. The Panels of the Fee Arbitration Program shall consist
of members of whom one?third shall be nonlawyers. Members shall be appointed
for terms of three years or until a successor has been appointed. Appointments
shall be on a staggered basis so that the number of terms expiring shall
be approximately the same each year. No members shall be appointed for
more than two consecutive full terms, but members appointed for less than
a full term (either originally or to fill a vacancy) may serve two full
terms in addition to such part of a term.
C. Duties of the Fee Arbitration Program. The Fee Arbitration Program
shall have the following powers and duties.
(1) to appoint, remove and provide appropriate training for lawyer
and nonlawyer arbitrators and arbitration panels;
(2) to interpret these rules;
(3) to approve forms;
(4) to establish written procedures that afford a full and equal opportunity
to all parties to present relevant evidence;
(5) to issue an annual report and periodic policy recommendations,
as needed, to the Supreme Court of Wisconsin regarding the program;
(6) to maintain all records of the Fee Arbitration Program;
(7) to determine challenges for cause where an arbitrator has not
voluntarily acceded to a challenge;
(8) to educate the public and the bar about the Fee Arbitration Program;
and
(9) to perform all acts necessary for the effective operation of the
program.
Commentary: Overall authority to administer the Fee
Arbitration Program is delegated by the Supreme Court of Wisconsin to
the State Bar of Wisconsin and Milwaukee Bar Association. Both lawyers
and nonlawyer members serve in the Fee Arbitration Program. Members are
appointed for three year terms. The State Bar of Wisconsin and the Milwaukee
Bar Association should ensure diversity in the membership of the Fee Arbitration
panels.
Members may be appointed for a period not to exceed two consecutive
full terms and a portion of an additional term, if appointed originally
to less than a full term. A rotation system is employed in the appointment
of members so that, generally, the terms of one-third of the members expire
annually. This procedure preserves continuity while inviting the fresh
ideas which new personnel inevitably bring to a task.
The Fee Arbitration Program has the duty to inform the bar and the
public about the Fee Arbitration Program through such means as brochures,
public service announcements, and any other means available. There should
be a central place where the public can call with questions about lawyers
and which can refer appropriate matters to the Fee Arbitration Program.
Members of the bar should be encouraged to inform any member of the public
known to have a fee dispute with a lawyer about the right to seek fee
arbitration or to pursue other available means to resolve the dispute,
such as mediation.
Depending on funding, pro bono requirements, and other considerations,
the Fee Arbitration Program may authorize the reimbursement of reasonable
costs and expenses to its members and to arbitrators.
SCR 14.03. Arbitrators
A. List of Approved Arbitrators. The Fee Arbitration Program shall maintain
a list of approved arbitrators and shall adopt written standards for the
appointment of the arbitrators. Such standards should ensure appropriate
training and experience for arbitrators as well as diversity in the background
and experience of the arbitrators. Arbitrators shall be appointed for
terms of [three] years and may be reappointed. For good cause, the Fee
Arbitration Program may remove an arbitrator from the list of approved
arbitrators, and may appoint a replacement member to serve the balance
of the term of the removed member.
B. Panels. The Fee Arbitration Program shall appoint panels from the
list of approved arbitrators. For disputes involving [$5,000] or more,
the panel shall consist of three arbitrators of whom one shall be a nonlawyer
member. For disputes involving less than [$5,000], or in any case if the
parties so stipulate, the panel shall consist of a sole arbitrator who
shall be a lawyer. If the panel consists of three members, the Fee Arbitration
Program shall designate one member to act as Chair of the panel and to
preside at the arbitration hearing.
C. Conflicts of Interest. Within [five] days of the notification of
appointment to a panel, an arbitrator shall notify the Fee Arbitration
Program of any conflict of interest with a party to the arbitration as
defined in the ABA Code of Judicial Conduct with respect to part?time
judges. Upon notification of the conflict, the Fee Arbitration Program
shall appoint a replacement from the list of approved arbitrators.
D. Challenges for Cause. A party may challenge any arbitrator for cause.
A challenge for cause naming the arbitrator and the reason for the challenge
shall be filed within [fifteen] days after service of the notice of appointment.
An arbitrator shall accede to a reasonable challenge and the Fee Arbitration
Program shall appoint a replacement. If an arbitrator does not voluntarily
accede, the Fee Arbitration Program shall decide whether to appoint a
replacement. The decision of the Fee Arbitration Program on challenges
shall be final.
E. Duties. The panel shall have the following powers and duties.
(1) to take and hear evidence pertaining to the proceeding;
(2) to administer oaths and affirmations;
(3) to compel, by subpoena, the attendance of witnesses and the production
of books, papers, and documents pertaining to the proceeding, and consider
challenges to the validity of subpoenas;
(4) to issue decisions; and
(5) to perform all acts necessary to conduct an effective arbitration
hearing.
Commentary: The Fee Arbitration Program appoints both lawyers
and nonlawyers to serve as arbitrators for [three] year renewable terms,
and maintains a list of approved arbitrators. When a Petition is received,
the Fee Arbitration Program appoints from the list of approved arbitrators
a panel of one or three arbitrators to hear the matter, depending on the
amount in dispute. For larger jurisdictions, the Fee Arbitration Program
may hire staff or designate a presiding arbitrator to handle the appointment
of panels or other administrative tasks as delegated by the Fee Arbitration
Program. The number of people on the list of approved arbitrators should
not be so large as to prevent the participating arbitrators from obtaining
sufficient experience in the program.
Appointments to the list of approved arbitrators should represent
all segments of the profession and the general population, including diversity
on the basis of race, gender and practice setting. Arbitrators should
also be dispersed throughout the state to increase access to the fee arbitration
process.
The Fee Arbitration Program should adopt written standards for appointment
of arbitrators which may include compliance with training requirements,
ability to meet minimum time and case commitments, years in practice and
experience. All panels of more than one arbitrator should include one
nonlawyer member.
Members of panels exercise a quasi-judicial role and should, therefore,
be disqualified upon the same grounds and conditions applicable to judges.
The Fee Arbitration Program may wish to provide that within [fifteen]
days after service of the notice of appointment, any party may file one
peremptory challenge. In the event of such a challenge, the Fee Arbitration
Program should relieve the challenged arbitrator and appoint a replacement.
Panels do not render advisory opinions but, rather, adjudicate fee
controversies between lawyers and clients.
In jurisdictions with a high volume of arbitration cases, consideration
should be given to having pre?set arbitration panels which meet at specified
times to simplify the scheduling of hearings.
SCR 14.04. Commencement of
Proceedings
A. Petition to Arbitrate. A fee arbitration proceeding shall commence
with the filing of a Petition for Arbitration on a form approved by the
Fee Arbitration Program [and paying the appropriate filing fee as established
by the {Fee Arbitration Program}]. Any person who is not the client of
the lawyer but who has paid or may be liable for the lawyer's fees may
consent to be joined by the client as a party to the arbitration. The
Petition for Arbitration must be signed by the client and any other party
included by the client.
B. Fee Arbitration Program. The Fee Arbitration Program will review
the Petition to determine if it is properly completed and if the Fee Arbitration
Program has jurisdiction. If the Petition is not properly completed, the
Fee Arbitration Program will return it to the petitioner and specify what
clarification or additional information is required. If the Fee Arbitration
Program does not have jurisdiction, the petitioner shall be so advised.
C. Service of Petition; Response. Within [five] days of the receipt
of a properly completed Petition, the Fee Arbitration Program shall serve
a copy of the Petition, along with the Fee Arbitration Response Form on
the respondent. Within [twenty] days after service, the respondent shall
file the completed Fee Arbitration Response Form with the Fee Arbitration
Program which shall forward a copy to all other parties. The Fee Arbitration
Program shall serve a copy of the Petition for Arbitration and a Fee Arbitration
Response Form upon the law firm, if any, with which a lawyer?party is
associated. If the respondent is a lawyer, the respondent shall set forth
in the response the name of any other lawyer or law firm who the lawyer
claims is responsible for all or part of the client's claim. Within [five]
days of receipt of the response, the Fee Arbitration Program shall serve
on the lawyer(s) or law firm(s) named in the Response a copy of the Petition
for Arbitration and a Fee Arbitration Response Form for completion. Within
[twenty] days after service, the lawyer(s) or law firm(s) may file the
completed Fee Arbitration Response Form with the Fee Arbitration Program
which shall forward a copy to all other parties.
D. Failure of a Lawyer Respondent to Respond. Failure of a lawyer respondent
to file the Fee Arbitration Response Form shall not delay the scheduling
of a hearing; however, in any such case the panel may, in its discretion,
refuse to consider evidence offered by the lawyer which would reasonably
be expected to have been disclosed in the response.
E. Client Consent Required. If a lawyer files a Petition for Arbitration
the arbitration shall proceed only if the client files a written consent
with [thirty] days of service of the Petition.
F. Settlement of Disputes. If the dispute giving rise to the Petition
for Arbitration has been settled, upon reasonable confirmation of that
settlement, the matter shall be dismissed by the Fee Arbitration Program
or by the panel if one has been assigned.
G. Appointment of Panel. The Fee Arbitration Program shall, within [ten]
days after receipt of the Petition for Arbitration, appoint a panel and
mail to the parties written notification of the name(s) of the panel member(s)
assigned to hear the matter.
Commentary: The fee arbitration process begins with
the filing of a Petition of Arbitration on a form approved by the Fee
Arbitration Program. The respondent has twenty days after service to return
the Fee Arbitration Response Form. The process is commenced either unilaterally
by a client or by the lawyer with the client's consent. If it is initiated
by the client, participation is mandatory on the part of the lawyer.
The Fee Arbitration Program is designed to be simple and fast. Consequently,
most cases should be concluded in an average of six months.
If a lawyer fails to timely file a Fee Arbitration Response Form,
the hearing will nonetheless be held in the normal course and the panel
may, in its discretion, refuse to consider evidence offered by the lawyer
which would reasonably be expected to have been disclosed in the Response.
This is not intended as a default procedure. It will still be necessary
for the panel to determine the reasonableness of the fee.
The Fee Arbitration Program must serve a copy of the Petition and
the Fee Response Form on the law firm, if any, of which a lawyer is a
member. The purpose of this rule is to assure that where a law firm is
due a fee, or is obligated therefor, the law firm will have notice of
the arbitration and an opportunity to participate.
SCR 14.05. Hearing
A. Notice of Hearing. The panel shall set the date, time and place for
the hearing. The panel shall send notice of the hearing to the parties
not less than [thirty] but no more than [sixty] days in advance of the
hearing date, unless otherwise agreed by the parties.
B. Representation by Counsel. Any party may be represented by counsel.
C. Recording of Proceedings. A party to the proceedings may make arrangements
to have the hearing reported at the party's own expense, provided notice
is given to the other parties and the panel at least [five] days prior
to the scheduled hearing. If a party orders a transcript, that party shall
provide a copy of the transcript to the panel free of charge. Any other
party is entitled at his or her own expense to acquire a copy of the transcript
by making arrangements directly with the reporter. A panel, in its discretion,
may make arrangements to have a hearing recorded and the parties may obtain
a copy at their own expense.
D. Continuances. For good cause shown, a panel may continue a hearing
upon the request of a party or upon the panel's own motion.
E. Oaths and Affirmations. The testimony of witnesses shall be by oath
or affirmation.
F. Panel Quorums. All three arbitrators shall be required for a quorum
where the panel consists of three members. A panel of three arbitrators
shall act with the concurrence of at least two arbitrators.
G. Appearance; Failure of a Party to Appear. Appearance by a party at
a scheduled hearing shall constitute waiver by said party of any deficiency
with respect to the giving of notice of hearing. The panel may proceed
in the absence of any party or representative who, after due notice, fails
either to be present or to obtain a continuance. A decision shall not
be made solely on the default of a party. The panel shall require parties
who are present to submit such evidence as the panel may require to issue
a decision.
H. Waiver of Personal Appearance. Any party may waive personal appearance
and submit testimony and exhibits by written declaration under oath to
the panel. Such declarations shall be filed with the panel at least [ten]
days prior to the hearing. If all parties, in writing, waive appearances
at a hearing, the matter may be decided on the basis of written submissions.
If the panel concludes that oral presentations are necessary, the panel
may schedule a hearing.
I. Telephonic Hearings. In its discretion, a panel may permit a party
to appear or present witness testimony at the hearing by telephonic conference
call. The costs of the telephone call shall be paid by the party.
J. Stipulations. Agreements between the parties as to issues not in
dispute and the voluntary exchange of documents prior to the hearing are
encouraged.
K. Evidence. The panel shall accept such evidence as is relevant and
material to the dispute and request additional evidence as necessary to
understand and resolve the dispute. The Wisconsin rules of evidence need
not be strictly followed. The parties shall be entitled to be heard, to
present evidence and to cross-examine parties and witnesses. The panel
shall judge the relevance and materiality of the evidence.
L. Subpoenas. Upon request of a party and for good cause shown, or on
its own initiative, the panel may issue subpoenas for witnesses or documents
necessary to a resolution of the dispute. The requesting party shall be
responsible for service of the subpoenas.
M. Reopening of Hearing. For good cause shown, the panel may reopen
the hearing at any time before a decision is issued.
N. Death or Incompetency of a Party. In the event of death or incompetency
of a party, the personal representative of the deceased party or the guardian
or conservator of the incompetent may be substituted.
O. Burden of Proof. The burden of proof shall be on the lawyer to prove
the reasonableness of the fee by a preponderance of the evidence.
Commentary: The goal of these rules is to provide a
setting for hearings that is informal yet fair. To that end, the panel
has discretion to grant postponements but need not permit the process
to be subverted by unexcused absences. The panel will receive the evidence
and testimony offered and judge its relevance and materiality. While the
hearing may be conducted informally, witnesses should be required to testify
under oath.
There is no provision for formal discovery; however, the panel has
the power of subpoena, subject to rules of relevancy and materiality.
The burden of proof in fee arbitration is on the lawyer to prove
the reasonableness of the fee by a preponderance of the evidence. This
is consistent with SCR 20:1.5, which provides that a lawyer's fee shall
be reasonable.
The panel may consider evidence relating to claims of malpractice
and professional misconduct, but only to the extent that those claims
bear upon the fees, costs, or both to which the lawyer is entitled. The
panel may not award affirmative relief in the form of damages for injuries
underlying any such claim.
SCR 14.06. Decision
A. Form of Decision. The panel's decision shall be in writing and shall
include a clear statement of the amount in dispute, whether and to whom
monies are due, and a brief explanation of the decision.
B. Issuance of Decision. The decision should be rendered within [thirty]
days of the close of the hearing or from the end of any time period permitted
by the panel for the filing of supplemental briefs or other materials.
The arbitrator or panel chair shall forward the decision to the Fee Arbitration
Program which shall serve a copy of the decision on each party to the
arbitration.
C. Modification of Decision.
(1) On application to the panel by a party to a fee dispute, the panel
may modify or correct a decision if:
(a) there was an error in the computation of figures or a mistake
in the description of a person, thing, or property referred to in
the decision;
(b) the decision is imperfect in a matter of form not affecting
the merits of the proceeding; or
(c) the decision needs clarification.
(2) Any party may file an application for modification with the panel
within [twenty] days after service of the decision and shall serve a
copy of the application on all other parties. An objection to the application
must be filed with the panel within [ten] days after service of the
application for modification.
(3) An application for modification shall not extend the thirty day
time period to seek trial de novo under these rules.
D. Retention of Files. The Fee Arbitration Program shall maintain all
fee arbitration files for a period of [three] years from the date a decision
is issued.
Commentary: In order to bring a final and speedy conclusion
to fee disputes, the decision of the panel is required to be in writing
and should be rendered within thirty days. Discretion to extend the time
period for unusually complicated or difficult matters should be provided.
SCR 14.07. Effect of Decision:
Enforcement
A. Compliance with Decision.
(1) Where the parties have agreed to be bound by the arbitration or
have settled the dispute, the parties shall have [thirty] days from
service of the written decision or the date the stipulation of settlement
is signed by the parties to comply with the decision or settlement.
(2) Where there is no agreement to be bound by the arbitration, any
party is entitled to a trial de novo if sought within thirty days from
service of the written decision, except that if a party willfully fails
to appear at the arbitration hearing, that party shall not be entitled
to a trial de novo. The determination of willfulness shall be made by
the court. The party who failed to appear at the arbitration shall have
the burden of proving that the failure to appear was not willful. In
making its determination, the court may consider any findings made by
the arbitrators on the subject of a party's failure to appear. If a
trial de novo is not sought within 30 days, the decision becomes binding.
B. Trial De Novo.
(1) If there is an action pending, the trial de novo shall be initiated
by filing a rejection of arbitration award and request for trial in
that action within 30 days from service of the written decision.
(2) If no action is pending, the trial de novo shall be initiated
by the commencement of an action in the court having jurisdiction over
the amount in controversy within thirty days from the service of the
written decision.
(3) The party seeking a trial de novo shall be the prevailing party
if that party obtains a judgment more favorable than that provided by
the arbitration award, and in all other cases the other party shall
be the prevailing party. The prevailing party may, in the discretion
of the court, be entitled to an allowance for reasonable attorney's
fees and costs incurred in the trial de novo, which allowance shall
be fixed by the court. In fixing the attorney's fees, the court shall
consider the decision and determinations of the arbitrators, in addition
to any other relevant evidence.
(4) Except as provided in this rule, the decision and determinations
of the arbitrators shall not be admissible in any action or proceeding
and shall not operate as collateral estoppel or res judicata.
C. Petition to Confirm, Correct, or Vacate the Decision.
(1) If a civil action has been stayed pursuant to these rules, any
petition to confirm, correct, or vacate the decision shall be filed
with the court in which the action is pending, and shall be served in
accordance with Wisconsin's statutes and rules of civil procedure.
(2) If no action is pending in any court, the decision may be confirmed,
corrected, or vacated by petition to the court having jurisdiction over
the amount of the decision, in accordance with Wisconsin's statutes
and rules of civil procedure.
(3) A court confirming, correcting or vacating a decision under these
rules may award to the prevailing party reasonable fees and costs including,
if applicable, fees or costs on appeals incurred in obtaining confirmation,
correction or vacation of the award. The party obtaining judgment confirming,
correcting, or vacating the decision shall be the prevailing party except
that, without regard or consideration of who the prevailing party may
be, if a party did not appear at the arbitration hearing in the matter
provided by these rules, that party shall not be entitled to attorney's
fees or costs upon confirmation, correction, or vacation of the award.
Commentary: Thirty days is considered a reasonable time
period in which to expect the parties to comply with the decision. The
thirty days begins to run when the decision in the fee arbitration process
is served on the parties or when a settlement agreement is signed.
The Fee Arbitration Program itself has no authority to enforce a
decision. Either party may use the summary action mechanisms which are
provided in Wisconsin to obtain a judgment consistent with the panel's
decision as expeditiously as possible.
Reasonable fees and costs may be awarded to the prevailing party
in an action to confirm, correct or vacate a panel decision, unless the
prevailing party failed to appear at the arbitration hearing in the manner
provided in the rules. This exception should encourage full participation
of the parties in the arbitration proceeding.
Every jurisdiction is encouraged to consider developing means of
assisting clients in enforcing decisions. Some jurisdictions use a panel
of pro bono lawyers to assist the clients in obtaining civil judgments.
Some jurisdictions refer lawyers who fail to comply with a decision or
judgment to an appropriate agency for administrative, nondisciplinary
action such as that used in the jurisdiction for failure to comply with
mandatory continuing legal education requirements or failure to pay registration
fees.
SCR 14.08. Confidentiality
A. Confidentiality of Proceedings. Except as may be otherwise necessary
for compliance with these rules or to take ancillary legal action with
respect thereto, all records, documents, rules, proceedings and hearings
pertaining to the arbitration of any dispute under these rules shall be
confidential and will be closed to the public, unless ordered open by
a [court of general jurisdiction] upon good cause shown, except that a
summary of the facts, without reference to the parties by name, may be
publicized in all cases once the proceeding has been formally closed.
B. Confidentiality of Information. A lawyer may reveal information relating
to the representation of the client to the extent necessary to establish
his or her fee claim. In no event shall such disclosure be deemed a waiver
of the confidential character of such matters for any other purpose.
Commentary: SCR 14.8.B. is consistent with SCR 20:1.6.
or its equivalent, which permits limited disclosure of otherwise confidential
information only "to the extent reasonably...necessary to establish a
claim or defense...in a controversy between the lawyer and the client...."
SCR 14.09. Immunity
A. Parties and Witnesses. Parties and witnesses shall have such immunity
as is applicable in a civil action in the jurisdiction.
B. Fee Arbitration Program; Arbitrators; Staff. Members of the Fee Arbitration
Program, panels and staff shall be immune from suit for any conduct in
the course and scope of their official duties.
SCR 14.10. Service
A. Method. Service on any party other than a lawyer or law firm shall
be by personal delivery, by any person authorized by the Chair of the
Fee Arbitration Program, or by deposit in the United States mail, postage
paid, addressed to the person on whom it is to be served at his or her
office or home address as last given to the Fee Arbitration Program.
B. Official Address of Lawyer. Service on an individual lawyer shall
be at the latest address shown on the official membership records of the
State Bar of Wisconsin. Service on a law firm shall be at the address
as shown in the Petition for Arbitration Form unless the law firm designates
a lawyer to be responsible for the arbitration, in which case, service
shall be at the designee's latest address shown on the official membership
records of the State Bar of Wisconsin. Service shall be in accordance
with SCR 14.10.A. above.
C. Service on Represented Parties. If either party is represented by
counsel, service shall be on the party as indicated in SCR 14.10.A. and
14.10.B., and on the counsel at the latest address shown on the official
membership records of the State Bar of Wisconsin.
D. Completion of Service. The service is complete at the time of deposit.
The time for performing any act shall commence on the date service is
complete and shall not be extended by reason of service by mail.
Chief Judge
Additional Authority
In the Matter of the Amendment of SCR 70.21 - Additional Authority
of the Chief Judge
Order 00-17
The court, on its own motion, and after an open conference on the matter
on Oct. 23, 2000, has determined that it is advisable to amend current
SCR 70.21 dealing with the statutory authorities of chief judges. The
court concludes that such amendments are necessary to conform SCR 70.21
to the new duties imposed by 1999 Wisconsin Act 149, which created Wis.
Stat. § 48.07(5), effective on May 25, 2000, and 1997 Act 84, which created
Wis. Stat. § 343.44(2)(d), effective on Aug. 1, 2000, and existing statutes
and procedures.
SECTION 1. IT IS ORDERED that, effective on
the date of this order, 70.21(3), (4), (5) and (7) of the supreme court
rules are amended to read:
. . .
70.21 (3) Section 48.04 (1): approval of
appointment of clerk of court for juvenile matters.
(4) Section 48.06(1)(a)2., governing intake and court services for
child welfare matters under chapter 48 of the statutes, and section
938.06(1)(a)2. of the statutes, governing intake and court services
for juvenile matters under chapter 938 of the statutes: policy formulation
and supervision of court services related to juvenile matters in counties
with a population of 500,000 or more.
(5) Sections 48.06(2)(a) and 938.06(2)(a): approval of
circuit judge's policy governing juvenile intake workers in counties
with a population of less than 500,000.
. . .
(7) Sections 48.067 (6) and (9) and 938.067
(6) and (9): guidance and request assistance of juvenile
intake workers.
. . .
SECTION 2. IT IS FURTHER ORDERED that, effective
on the date of this order, 70.21(7q) and (10q) of the supreme court rules
are created to read:
70.21(7q) Section 48.07(5): recognize and obtain the services
of a court-appointed special advocate program for proceedings under section
48.13 of the statutes.
. . .
(10q) Section 343.44(2)(d): adoption of
sentencing guidelines for convictions resulting from violations for operating
while suspended, revoked, ordered out-of-service or disqualified.
. . .
SECTION 3. IT IS FURTHER ORDERED that, effective
on the date of this order, 70.21(20c) of the supreme court rules is repealed.
IT IS FURTHER ORDERED that notice of this amendment of the supreme court
rules shall 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 18th day of Dec., 2000.
By the court:
Cornelia G. Clark, Clerk
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