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Supreme Court Orders
The Wisconsin Supreme Court sets a public hearing for Oct.
19 to consider special responsibilities of a prosecutor concerning
trial publicity; and denies a petition, following a public hearing
on May 24, to amend certain supreme court rules regarding Board
of Bar Examiners records and multistate bar examination scores.
Special
Responsibilities of a Prosecutor
In the Matter of the Amendment of Supreme Court Rules:
SCR 20:3.6 - Trial Publicity; 20:3.8 -
Special Responsibilities of a Prosecutor
Order 97-06
At conference following the public hearing Sept. 9, 1997,
on the petition of the Wisconsin Association of Criminal Defense
Lawyers for the amendment of Supreme
Court Rule 20:3.6 concerning trial publicity, the court expressed
interest in issues involving trial publicity that have been addressed
by the U.S. Supreme Court and Rule 3.6 of the ABA Model Rules
of Professional Conduct but were not included in the rule petition.
The court determined that the petition be held in abeyance in
order that the petitioner could explore those and other issues
with the State Bar, the Board of Attorneys Professional Responsibility,
and other interested persons, including prosecutors, judges,
and the civil bar, and file a report with the court or, in the
alternative, file an amended petition proposing additional amendments
to SCR 20:3.6.
On May 14, 1999, the Wisconsin Association of Criminal Defense
Lawyers filed an amended petition proposing additional amendments
to SCR
20:3.6 and the creation of an additional provision in SCR
20:3.8 concerning special responsibilities of a prosecutor.
IT IS ORDERED that a public hearing on the amended petition
shall be held in the Supreme Court Hearing Room, 119 Martin Luther
King Jr. Blvd., Madison, Wis., on Oct. 19, 1999, at 1:30 p.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 23rd day of June, 1999.
By the court:
Marilyn L. Graves, Clerk
Amended Petition
To the Justices of the Wisconsin Supreme Court:
The Wisconsin Association of Criminal Defense Lawyers, a membership
organization of Wisconsin lawyers who defend persons accused
of criminal law violations, hereby amends its petition in this
matter, filed May 2, 1997, and petitions the Wisconsin Supreme
Court to amend SCR 20:3.6 and 20:3.8 as follows:
SCR 20:3.6 Trial Publicity
(a) A lawyer who is participating in the investigation
or litigation of a matter shall not make an extrajudicial
statement that a reasonable person would expect to be disseminated
by means of public communication if the lawyer knows or reasonably
should know that it will have a substantial likelihood of materially
prejudicing an adjudicative proceeding in the matter.
(b) A statement referred to in paragraph (a) ordinarily is
likely to have such an effect when it refers to a civil matter
triable to a jury, a criminal matter, or any other proceeding
that could result in incarceration, and the statement relates
to:
(1) the character, credibility, reputation or criminal record
of a party, suspect in a criminal investigation or witness, or
the identity of a witness, or the expected testimony of party
or witness;
(2) in a criminal case or proceeding that could result in
deprivation of liberty, the possibility of a plea of guilty to
the offense or the existence or contents of any confession, admission,
or statement given by a defendant or suspect or that person's
refusal or failure to make a statement;
(3) the performance or results of any examination or test
or the refusal or failure of a person to submit to an examination
or test, or the identity or nature of physical evidence expected
to be presented;
(4) any opinion as to the guilt or innocence of a defendant
or suspect in a criminal case or proceeding that could result
in deprivation of liberty;
(5) information the lawyer knows or reasonably should know
is likely to be inadmissible as evidence in a trial and would
if disclosed create a substantial risk of prejudicing an impartial
trial; or
(6) the fact that a defendant has been charged with a crime,
unless there is included therein a statement explaining that
the charge is merely an accusation and that the defendant is
presumed innocent until and unless proven guilty;
(c) (b) Notwithstanding paragraph (a) and (b)(1-5), a lawyer
involved in the investigation or litigation of a matter may state
without elaboration:
(1) the general nature of the claim or defense claim, offense
or defense involved and, except when prohibited by law, the identity
of the persons involved;
(2) the information contained in a public record;
(3) that an investigation of the matter is in progress, including
the general scope of the investigation, the offense or claim
or defense involved and, except when prohibited by law, the identity
of the persons involved;
(4) the scheduling or result of any step in litigation;
(5) a request for assistance in obtaining evidence and information
necessary thereto;
(6) a warning of danger concerning the behavior of a person
involved, when there is reason to believe that there exists the
likelihood of substantial harm to an individual or to the public
interest; and
(i) the identity, residence, occupation and family status
of the accused;
(ii) if the accused has not been apprehended, information
necessary to aid in apprehension of that person;
(iii) the fact, time and place of arrest; and
(iv) the identity of investigating and arresting officers
or agencies and the length of the investigation.
(c) Notwithstanding paragraph (a), a lawyer may make a
statement that a reasonable lawyer would believe is required
to protect a client from the substantial undue prejudicial effect
of recent publicity not initiated by the lawyer or the lawyer's
client. A statement made pursuant to this paragraph shall be
limited to such information as is necessary to mitigate the recent
adverse publicity.
(d) No lawyer associated in a firm or government agency
with a lawyer subject to paragraph (a) shall make a statement
prohibited by paragraph (a).
Rule 3.8 Special Responsibilities of a Prosecutor
The prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the prosecutor
knows is not supported by probable cause;
(b) make reasonable efforts to assure that the accused has
been advised of the right to, and the procedure for obtaining,
counsel and has been given reasonable opportunity to obtain counsel;
(c) not seek to obtain from an unrepresented accused a waiver
of important pretrial rights, such as the right to a preliminary
hearing;
(d) make timely disclosure to the defense of all evidence
or information known to the prosecutor that tends to negate the
guilt of the accused or mitigates the offense, and, in connection
with sentencing, disclose to the defense and to the tribunal
all unprivileged mitigating information known to the prosecutor,
except when the prosecutor is relieved of this responsibility
by a protective order of the tribunal;
(e) exercise reasonable care to prevent investigators, law
enforcement personnel, employees or other persons assisting or
associated with the prosecutor in a criminal case from making
an extrajudicial statement that the prosecutor would be prohibited
from making under Rule 3.6; and
(f) except for statements that are necessary to inform
the public of the nature and extent of the prosecutor's
action and that serve a legitimate law enforcement purpose, refrain
from making extrajudicial comments that have a substantial likelihood
of heightening public condemnation of the accused.
This amended petition aims, among other things, to resolve
First Amendment concerns raised in Gentile v. State Bar of
Nevada, 501 U.S. 1030 (1991). There, a lawyer who sought
to protect his client from the adverse publicity surrounding
a criminal investigation by disclosing limited rebuttal information
was disciplined for violating the trial publicity rule. He defended,
claiming First Amendment protection for his speech and compliance
with the existing rules.
As a result of the Supreme Court's split decision in
Gentile and the confusion over the interplay between the
need for client protection, a fair trial, and the free speech
rights of lawyers, ABA Model Rules 3.6 and 3.8 were amended in
1994 to their current form to include the provisions which are
the subject of this amended petition. The amendments were cosponsored
by the ABA Standing Committee on Ethics and Professional Responsibility
and the ABA Section of Criminal Justice.
Addition of the requested provisions will bring Wisconsin's
own professional responsibility rules on trial publicity in SCR
20:3.6 and 20:3.8 into conformity with the current ABA Model
Rules and the comparable rules of other states that have adopted
the 1994 ABA amendments.
Dated at Milwaukee, Wis., this 29th day of April, 1999.
Ellen Thorn, President
Wisconsin Association of Criminal Defense Lawyers
James A. Walrath, Past President
Wisconsin Association of Criminal Defense Lawyers
Board
of Bar Examiners Records
In the Matter of the Amendment of Supreme Court Rules:
Board of Bar Examiners Records, Transfer of
Multistate Bar Examination Scores - SCR 40.12,
(Proposed) SCR 30.03, (Proposed) SCR 40.04(2)(b)
Order 98-09
The court held a public hearing May 24, 1999, on the petition
of Steven Levine seeking the amendment of the Supreme Court Rules
to repeal the provision, SCR
40.12, making application files of the bar admission applicant
and all bar examination materials confidential, to create a rule
making all records of the Board of Bar Examiners subject to the
Wisconsin public records law, and to permit an applicant for
bar admission on examination to use the score obtained on a multistate
bar examination previously taken in another jurisdiction within
five years of the application in place of repeating the multistate
portion of the Wisconsin bar examination, provided the score
on the previously taken examination was equal to or better than
the minimum passing score in Wisconsin for the same year in which
that examination was taken. The court has considered the presentations
at that public hearing and the materials filed with the court
in the matter.
At conference following the public hearing, the court determined
that the interest in the information contained in the bar admission
application records of the Board of Bar Examiners can be satisfied
by having the Board provide a statistical information sheet to
be submitted with but not be a part of the bar admission application.
The information set forth on the statistical information sheet
would be available for public inspection. Accordingly, the court
directed the Board of Bar Examiners to provide the court a list
of the information that would be solicited on the statistical
information sheet.
IT IS ORDERED that the petition is denied.
IT IS FURTHER ORDERED that notice of the court's decision
in this matter 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 7th day of July, 1999.
By the court:
Cornelia G. Clark
Chief Deputy Clerk
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