Vol. 77, No. 8, August 2004

The Perfect Storm

by Michelle A. Behnke

Barely a month after my swearing in, I got word that WisTAF (the Wisconsin Trust Account Foundation) had filed a petition asking the Wisconsin Supreme Court to assess each active lawyer in Wisconsin $50 to be used to fund civil legal services for indigent persons. WisTAF's petition cites the prolonged decline in interest rates and changes in the nature and use of trust accounts as two of the reasons for seeking the assessment. WisTAF also asserts that efforts to get voluntary contributions from lawyers have been largely unsuccessful. [Editor's Note: Read the WisTAF petition and comment on the issue:
www.wisbar.org/newscenter/feature/2004/0722.html.]

A few short weeks later, I received a draft of the Ethics 2000 report. The Ethics 2000 Commission (appointed by the supreme court to review the Wisconsin Supreme Court Rules of Professional Conduct) will recommend to the supreme court that the Rules of Professional Conduct be amended to include a requirement that lawyers report their pro bono service hours on an annual basis and strive to give 50 hours of pro bono legal service annually or the equivalent monetary contribution.

No one will argue that providing civil legal services is not important and necessary to the workings of our judicial system, and no one will argue that lawyers do not have a special obligation to assist those who cannot afford legal representation. But what many lawyers are likely to argue about is how we achieve adequate funding for civil legal services. People also are likely to argue over how much pro bono service currently is being provided by lawyers and whether pro bono legal services should be mandatory or voluntary. Still others may debate whether additional pro bono services will adequately address the systemic problems or whether money is the answer. Of course people also may argue over who should be making funding decisions with money that is collected from lawyers. With all this arguing, the stage is set for the perfect storm.

When I was sworn in, I suggested to the members that I wanted to use my time this year to have candid conversations and mutual conversations from which we could all take away a deeper understanding of the promise of the law and the prospects for our profession. I also said that I wanted to have purposeful conversations that propel us to action. I said that I wanted it to be more than just talking for talking's sake. I said that I wanted the discussion to produce real and lasting results. Well, now is the time to start talking.

I believe that we need to get beyond the visceral reaction to anything mandatory and talk about solutions and alternatives. We must explore the likelihood of obtaining funds from the various funding sources. We need to talk about the role of pro bono in meeting civil legal service needs and our commitment to pro bono service. A simple yes or no vote won't really address these issues. Our discussions need to be deeper, and our discussions must be more creative. Above all, I hope that our discussions are civil and productive.

Communicating is what we do as lawyers. Now is the time to communicate on these important issues. As thoughts and ideas come to you please share them with your board of governors representative. Write a letter to the editor. Share your thoughts with me when I come to your local bar association meeting. You may have a new way of looking at an issue or a novel solution. We need everyone.

What is the solution to low interest rates? How do we get the larger society to contribute to the funding of civil legal services? How do we meet the pro bono needs? Who should decide how funds are distributed? How does individual choice fit into this picture? I don't know, but I hope you'll participate in the discussion.

Wisconsin Lawyer