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August 01, 2012

Supreme Court Orders

Review Change in State Bar Bylaw

In the matter of the petition to review change in State Bar bylaw.

Order 11-05

Pending before the court is a challenge to amendments to Article I, Section 5 of the bylaws of the State Bar of Wisconsin which concerns the arbitration process used when a member of the state bar challenges a state bar compulsory dues expenditure under SCR 10.03(5)(b)1. The State Bar board of governors approved the amendments at its meeting in April 2011.¹ On April 15, 2011, the bylaw changes were duly filed with the Wisconsin Supreme Court pursuant to SCR 10.13(2) and Article IX of the State Bar bylaws.² SCR 10.13(2) provides that:

"A petition for review of any such change in the bylaws will be entertained by the court if signed by 25 or more active members of the association and filed with the clerk of the court within 60 days after publication of notice of the change. Hearing upon such a petition will be pursuant to notice in such manner as the court directs."

On July 6, 2011, 25 active members of the State Bar of Wisconsin filed a petition with this court asking the court to review and void or amend the bylaw amendments.

The petitioners challenged the legal effect of an amendment to Article I, Section 5(b), asserting that it was inconsistent with Wis. Stat. Ch. 788 (Arbitration) by, inter alia, improperly providing for de novo judicial review of an arbitrator's decision. The petitioners asked this court to adopt proposed alternative language.

The court discussed the petition at open administrative conference on Sept. 15, 2011, and concluded the court would benefit from additional information prior to proceeding with the petition. An order directing briefing issued on Oct. 7, 2011, and the parties filed letter briefs. On Feb. 27, 2012, the court discussed the petition and voted to schedule a public hearing.

The court conducted a public hearing on the petition on Wednesday, May 16, 2012. Attorney Steve Levine presented the petition. Attorney Roberta Howell appeared on behalf of the State Bar of Wisconsin. Both speakers agreed that some of the minor technical aspects of the amendments were not controversial. The discussion focused primarily on the petitioners' assertion that the State Bar has unilaterally changed the terms of arbitration by amending Article I, Section 5 of the bylaws. Attorney Levine also reiterated the petitioners' request that the court adopt alternate amendments as set forth in the petition.

The State Bar asserted that the provision for de novo review of an arbitrator's decision is "merely an express recognition of the constitutional standard applicable to dues reduction arbitration decisions first set forth by the United States Supreme Court in Chicago Teachers Union v. Hudson, 475 U.S. 292 (1986)."

At the ensuing open administrative conference, the court discussed the matter. After some discussion about the appropriate standard of review applicable to bylaw amendments, the court concluded that even if the amendment at issue is consistent with controlling case law, the language, as drafted, is potentially confusing. The court discussed whether the amendment could be cured with a comment or notation clarifying that the language is intended to reflect controlling case law, noted that it had no objection to many of the technical aspects of the amendment, and expressly declined to adopt the petitioners' proposed language including a proposed standard of review. A majority of the court then voted to grant the petition, in part, by rejecting the State Bar bylaw amendment and to deny the petition, in part, by declining to adopt any of the alternate language suggested by the petitioners. Justice Bradley and Justice Roggensack dissented. Justice Bradley indicated she agreed the bylaw amendment was an accurate statement of the law and would deny the petition. Justice Roggensack concurred with Justice Bradley. Therefore,

IT IS ORDERED that the petition is granted in part. The amendment of Article I, Section 5 of the State Bar bylaws filed with the Wisconsin Supreme Court on April 15, 2011, is rejected by the court; and

IT IS FURTHER ORDERED that the petition is denied in part. The court declines to adopt any of the alternate language suggested in the petition.

IT IS FURTHER ORDERED that notice of the entry of this order 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 5th day of July, 2012.

By the court:

Diane M. Fremgen, Clerk of Supreme Court

¹SCR 10.13(2) provides that the provisions of the bylaws of the State Bar are subject to amendment or abrogation by resolution adopted by vote of two-thirds of the members of the board of governors, or action of the members of the association expressed through the referendum procedure defined in SCR 10.08.

²The amendment was also published in the May 2011 Wisconsin Lawyer.

Legal Services Following a Major Disaster

In the matter of the petition to create a Supreme Court Rule for legal services following a major disaster.

Order 11-07

On Aug. 31, 2011, Rod W. Rogahn, Chairperson, Board of Administrative Oversight, James M. Brennan, President, State Bar of Wisconsin, and Keith L. Sellen, Director, Office of Lawyer Regulation, filed a joint petition with the Wisconsin Supreme Court. The petition seeks to create a supreme court rule for providing legal services following the determination of a major disaster. The proposed rule was based on an ABA Model Rule which had been adopted by 13 jurisdictions when the petition was filed.

The court requested and received additional information from the petitioners by letters dated Oct. 14, 2011, and March 22, 2012. The petitioners responded, in writing, on Nov. 14, 2011, and April 11, 2012. On April 25, 2012, the court held a public hearing on the petition. Joseph E. Redding, Board of Administrative Oversight, and Keith L. Sellen, Director, Office of Lawyer Regulation, presented the petition to the court. The court also received and considered written comments from Attorney Dean Dietrich. At its ensuing open administrative conference, the court approved the petition and adopted the proposed rule, with certain technical revisions. The proposed rule is based on an ABA Model Rule so it contained general references to "the Court" or "this jurisdiction." The court changed the language to specifically refer to the Wisconsin Supreme Court and the State of Wisconsin. The court also considered whether the Clerk of Supreme Court or the Office of Lawyer Regulation would be the more appropriate place for lawyers to file the registration statement required by the rule, and determined that the statements will be filed with the Clerk of Supreme Court.

IT IS ORDERED that, effective the date of this order, the Supreme Court Rules are amended as follows:

Section 1. SCR 23.03 of the supreme court rules is created to read:

SCR 23.03 Provision of legal services following determination of major disaster. (1) Determination of existence of major disaster. Solely for purposes of this rule, the Wisconsin Supreme Court shall determine when an emergency affecting the justice system, as a result of a natural or other major disaster, has occurred in:

(a) the State of Wisconsin and whether the emergency caused by the major disaster affects the entirety or only a part of this jurisdiction, or

(b) another jurisdiction but only after such a determination and its geographical scope have been made by the highest court of that jurisdiction. The authority to engage in the temporary practice of law in the State of Wisconsin pursuant to sub. (3) shall extend only to lawyers who principally practice in the area of such other jurisdiction determined to have suffered a major disaster causing an emergency affecting the justice system and the provision of legal services.

(2) Temporary practice in the State of Wisconsin following major disaster. Following the determination of an emergency affecting the justice system in Wisconsin pursuant to sub. (1) of this rule, or a determination that persons displaced by a major disaster in another jurisdiction and residing in Wisconsin are in need of pro bono services and the assistance of lawyers from outside of this jurisdiction is required to help provide such assistance, a lawyer authorized to practice law in another United States jurisdiction, and not disbarred, suspended from practice or otherwise restricted from practice in any jurisdiction, may provide legal services in the State of Wisconsin on a temporary basis. Such legal services must be provided on a pro bono basis without compensation, expectation of compensation or other direct or indirect pecuniary gain to the lawyer. Such legal services shall be assigned and supervised through an established not-for-profit bar association, pro bono program or legal services program or through such organization(s) specifically designated by this Court.

(3) Temporary practice in the State of Wisconsin following major disaster in another jurisdiction. Following the determination of a major disaster in another United States jurisdiction, a lawyer who is authorized to practice law and who principally practices in that affected jurisdiction, and who is not disbarred, suspended from practice or otherwise restricted from practice in any jurisdiction, may provide legal services in the State of Wisconsin on a temporary basis. Those legal services must arise out of and be reasonably related to that lawyer's practice of law in the jurisdiction, or area of such other jurisdiction, where the major disaster occurred.

(4) Duration of authority for temporary practice. The authority to practice law in the State of Wisconsin granted by sub. (2) of this rule shall end when this Court determines that the conditions caused by the major disaster in the State of Wisconsin have ended except that a lawyer then representing clients in the State of Wisconsin pursuant to sub. (2) is authorized to continue the provision of legal services for such time as is reasonably necessary to complete the representation, but the lawyer shall not thereafter accept new clients. The authority to practice law in the State of Wisconsin granted by sub. (3) of this rule shall end 60 days after this Court declares that the conditions caused by the major disaster in the affected jurisdiction have ended.

(5) Court appearances. The authority granted by this rule does not include appearances in court except:

(a) pursuant to that court's pro hac vice admission rule (SCR 10.03(4)) and, if such authority is granted, any fees for such admission shall be waived; or

(b) if this Court, in any determination made under sub. (1), grants blanket permission to appear in all or designated courts of this jurisdiction to lawyers providing legal services pursuant to sub. (2). If such an authorization is included, any pro hac vice admission fees shall be waived.

(6) Disciplinary authority and registration requirement. Lawyers providing legal services in the State of Wisconsin pursuant to sub. (2) or (3) are subject to the Wisconsin Supreme Court's disciplinary authority and the Rules of Professional Conduct for Attorneys of this jurisdiction as provided in SCR 20:8.5 of the Rules of Professional Conduct. Lawyers providing legal services in the State of Wisconsin under sub. (2) or (3) shall, within 30 days from the commencement of the provision of legal services, file a registration statement with the Clerk of Supreme Court. The registration statement shall be in a form prescribed by this Court. Any lawyer who provides legal services pursuant to this Rule shall not be considered to be engaged in the unlawful practice of law in the State of Wisconsin.

(7) Notification to clients. Lawyers authorized to practice law in another United States jurisdiction who provide legal services pursuant to this Rule shall inform clients in Wisconsin of the jurisdiction in which they are authorized to practice law, any limits of that authorization, and that they are not authorized to practice law in the State of Wisconsin except as permitted by this Rule. They shall not state or imply to any person that they are otherwise authorized to practice law in the State of Wisconsin.

ABA COMMENT: [1] A major disaster in this or another jurisdiction may cause an emergency affecting the justice system with respect to the provision of legal services for a sustained period of time interfering with the ability of lawyers admitted and practicing in the affected jurisdiction to continue to represent clients until the disaster has ended. When this happens, lawyers from the affected jurisdiction may need to provide legal services to their clients, on a temporary basis, from an office outside their home jurisdiction. In addition, lawyers in an unaffected jurisdiction may be willing to serve residents of the affected jurisdiction who have unmet legal needs as a result of the disaster or, though independent of the disaster, whose legal needs temporarily are unmet because of disruption to the practices of local lawyers. Lawyers from unaffected jurisdictions may offer to provide these legal services either by traveling to the affected jurisdiction or from their own offices or both, provided the legal services are provided on a pro bono basis through an authorized not-for-profit entity or such other organization(s) specifically designated by this Court. A major disaster includes, for example, a hurricane, earthquake, flood, wildfire, tornado, public health emergency or an event caused by terrorists or acts of war.

[2] Under paragraph [(1)(a),] this Court shall determine whether a major disaster causing an emergency affecting the justice system has occurred in this jurisdiction, or in a part of this jurisdiction, for purposes of triggering paragraph [(2)] of this Rule. This Court may, for example, determine that the entirety of this jurisdiction has suffered a disruption in the provision of legal services or that only certain areas have suffered such an event. The authority granted by paragraph [(2)] shall extend only to lawyers authorized to practice law and not disbarred, suspended from practice or otherwise restricted from practice in any other manner in any other jurisdiction.

[3] Paragraph [(2)] permits lawyers authorized to practice law in an unaffected jurisdiction, and not disbarred, suspended from practice or otherwise restricted from practicing law in any other manner in any other jurisdiction, to provide pro bono legal services to residents of the affected jurisdiction following determination of an emergency caused by a major disaster; notwithstanding that they are not otherwise authorized to practice law in the affected jurisdiction. Other restrictions on a lawyer's license to practice law that would prohibit that lawyer from providing legal services pursuant to this Rule include, but are not limited to, probation, inactive status, disability inactive status or a non-disciplinary administrative suspension for failure to complete continuing legal education or other requirements. Lawyers on probation may be subject to monitoring and specific limitations on their practices. Lawyers on inactive status, despite being characterized in many jurisdictions as being "in good standing," and lawyers on disability inactive status are not permitted to practice law. Public protection warrants exclusion of these lawyers from the authority to provide legal services as defined in this Rule. Lawyers permitted to provide legal services pursuant to this Rule must do so without fee or other compensation, or expectation thereof. Their service must be provided through an established not-for-profit organization that is authorized to provide legal services either in its own name or that provides representation of clients through employed or cooperating lawyers. Alternatively, this court may instead designate other specific organization(s) through which these legal services may be rendered. Under paragraph [(2),] an emeritus lawyer from another United States jurisdiction may provide pro bono legal services on a temporary basis in this jurisdiction provided that the emeritus lawyer is authorized to provide pro bono legal services in that jurisdiction pursuant to that jurisdiction's emeritus or pro bono practice rule. Lawyers may also be authorized to provide legal services in this jurisdiction on a temporary basis under Rule 5.5(c) of the Rules of Professional Conduct.

[4] Lawyers authorized to practice law in another jurisdiction, who principally practice in the area of such other jurisdiction determined by this Court to have suffered a major disaster, and whose practices are disrupted by a major disaster there, and who are not disbarred, suspended from practice or otherwise restricted from practicing law in any other manner in any other jurisdiction, are authorized under paragraph [(3)] to provide legal services on a temporary basis in this jurisdiction. Those legal services must arise out of and be reasonably related to the lawyer's practice of law in the affected jurisdiction. For purposes of this Rule, the determination of a major disaster in another jurisdiction should first be made by the highest court of appellate jurisdiction in that jurisdiction. For the meaning of "arise out of and reasonably related to," see Rule 5.5 Comment [14], Rules of Professional Conduct.

[5] Emergency conditions created by major disasters end, and when they do, the authority created by paragraphs [(2)] and [(3)] also ends with appropriate notice to enable lawyers to plan and to complete pending legal matters. Under paragraph [(4),] this Court determines when those conditions end only for purposes of this Rule. The authority granted under paragraph [(2)] shall end upon such determination except that lawyers assisting residents of this jurisdiction under paragraph [(2)] may continue to do so for such longer period as is reasonably necessary to complete the representation. The authority created by paragraph [(3)] will end [60] days after this Court makes such a determination with regard to an affected jurisdiction.

[6] Paragraphs [(2)] and [(3)] do not authorize lawyers to appear in the courts of this jurisdiction. Court appearances are subject to the pro hac vice admission rules of the particular court. This Court may, in a determination made under paragraph [(5)(b),] include authorization for lawyers who provide legal services in this jurisdiction under paragraph [(2)] to appear in all or designated courts of this jurisdiction without need for such pro hac vice admission. If such an authorization is included, any pro hac vice admission fees shall be waived. A lawyer who has appeared in the courts of this jurisdiction pursuant to paragraph [(5)] may continue to appear in any such matter notwithstanding a declaration under paragraph [(4)] that the conditions created by major disaster have ended. Furthermore, withdrawal from a court appearance is subject to Rule 1.16 of the Rules of Professional Conduct.

[7] Authorization to practice law as a foreign legal consultant or in-house counsel in a United States jurisdiction offers lawyers a limited scope of permitted practice and may therefore restrict that person's ability to provide legal services under this Rule.

[8] The ABA National Lawyer Regulatory Data Bank is available to help determine whether any lawyer seeking to practice in this jurisdiction pursuant to paragraphs [(2)] or [(3)] of this Rule is disbarred, suspended from practice or otherwise subject to a public disciplinary sanction that would restrict the lawyer's ability to practice law in any other jurisdiction.

Section 2. SCR 20:5.5 of the Supreme Court Rules is amended to add the following comment:

WISCONSIN COMMENT: Lawyers desiring to provide pro bono legal services on a temporary basis in the State of Wisconsin when it has been affected by a major disaster, when they are not otherwise authorized to practice law in the State of Wisconsin, as well as lawyers from a jurisdiction affected by a major disaster who seek to practice law temporarily in this jurisdiction, but who are not otherwise authorized to practice law in the State of Wisconsin, should consult Supreme Court Rule 23.03.

IT IS FURTHER ORDERED that the Comments to SCRs 20:5.5 and 23.03 are not adopted, but will be published and may be consulted for guidance in interpreting and applying the rule.

IT IS FURTHER ORDERED that notice of these amendments of the supreme court rules 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 5th day of July, 2012.

By the court:

Diane M. Fremgen, Clerk of Supreme Court

Legal Competence Requirements of Graduates of Law Schools in Other Nations

In the matter of the petition to amend Supreme Court Rule 40.02(2) and to create Supreme Court Rules 40.055 and 40.14(3)(i) relating to the legal competence requirements of graduates of law schools in other nations; fees.

Order 11-08

On Nov. 18, 2011, the Board of Bar Examiners (BBE), by its director, Jacquelynn Rothstein, filed a petition with the Wisconsin Supreme Court. The petition requested the court amend Supreme Court Rule (SCR) 40.02(2) and create SCRs 40.055 and 40.14(3)(i) to establish criteria whereby eligible graduates of law schools from other nations would be permitted to sit for the Wisconsin bar examination.¹

The court conducted a public hearing on the petition on Wednesday, May 16, 2012. BBE Director Jacquelynn Rothstein presented the petition to the court. John Ohnesorge, Director, East Asian Legal Studies Center, University of Wisconsin, joined by Attorney Eric W. Ibele and Jason Smith, Graduate Programs Director, requested the court consider some amendments to the BBE's petition. Attorney Daniel Shneidman also requested some changes to the petition, as drafted.

At its ensuing open administrative conference, the court discussed the petition. The court was favorably disposed to the petition. The proposed rule is modeled, in part, upon New York's rule, 22 NYCRR 520.6, allowing graduates of foreign law schools to sit for that state's bar examination on certain conditions. The applicable conditions depend in part upon whether the applicant obtained his or her law degree in a nation whose jurisprudence is based on the principles of the English common law.

The court expressed concern that the rule, as proposed, would be extremely restrictive and recommended the BBE consult with and consider the recommendations made by the representatives of the U.W. Law School and by Attorney Shneidman. The issues raised by interested parties and by the court include:

(1) Whether a legal practice experience requirement is necessary, especially under the mechanism applicable to applicants who have completed an L.L.M. degree that meets certain requirements;

(2) Whether having individuals be licensed to practice law in their own "home" country is necessary;

(3) Whether individuals who come from common-law jurisdictions, but who do not meet the full criteria under the proposed rule may apply to take the Wisconsin bar upon completion of a qualifying L.L.M. degree;

(4) Whether it is acceptable to permit individuals to complete some or all of their L.L.M. coursework outside of the United States (under the proposed rule, none of the L.L.M. coursework may be completed outside of the United States);

(5) Whether the proposed rule should contain a provision limiting individuals from sitting for the bar exam if their country of origin prevents graduates of U.S. law schools from sitting for that country's qualifying legal practice examination; and

(6) Whether Wisconsin ethics provisions should be a requirement of the L.L.M. program.

The court voted unanimously to return the matter to the BBE for further development, including consideration of these issues. Upon resubmission the court will consider a revised petition in an open administrative conference.

At open administrative conference on June 28, 2012, a majority of the court voted to publish this order in the official publication of the State Bar of Wisconsin and in the official state case law reporter, Wisconsin Reports, but not in the official state newspaper. Chief Justice Abrahamson would have published it in the official state newspaper, as well.

IT IS ORDERED that this petition is returned to the Board of Bar Examiners for further development as set forth herein.

IT IS FURTHER ORDERED that notice of this order shall be given by a single publication of a copy of this order in an official publication of the State Bar of Wisconsin, as well as publication in the official state case law reporter, Wisconsin Reports.

Dated at Madison, Wis., this 5th day of July, 2012.

By the court:

Diane M. Fremgen, Clerk of Supreme Court

¹This petition was developed and filed in response to an order from the court. On April 1, 2008, the BBE filed rule petition 08-09 asking the court to create rules to permit graduates of law schools in other nations to take the Wisconsin bar examination. Following a public hearing the court issued an order returning the matter to the BBE for further development and, in the interim, the court directed the BBE to consider granting permission to graduates of foreign law schools to sit for the Wisconsin bar examination under its waiver provision (SCR 40.10) and to assess their qualifications for doing so under a "totality of the circumstances" approach. S. Ct. Order 08-09 (April 29, 2009).

Inadvertent Disclosure of Protected or Privileged Information

In the matter of the petition to amend Wis. Stats. §§ 804.01, 805.07, and 905.03 relating to inadvertent disclosure of protected or privileged information.

Order 12-03

On Feb. 20, 2012, the Wisconsin Judicial Council, by Attorney April Southwick, filed a petition asking the court to create Wis. Stat. §§ 804.01(7), 805.07(2)(d) and 905.03(5), and to amend Wis. Stat. § 804.01(2)(c). The proposed amendments are intended to resolve uncertainty in the courts about the effect of certain disclosures of communications or information protected by the lawyer–client privilege or as work product; specifically those disputes involving inadvertent disclosure and subject matter waiver

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 Wednesday, Sept. 19, 2012, 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 once each week for three consecutive weeks, 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 3rd day of July, 2012.

By the court:

Diane M. Fremgen, Clerk of Supreme Court

Petition

The Judicial Council respectfully requests that the Supreme Court adopt the following rules:

SECTION 1. 804.01 (2) (c) of the statutes is amended to read:

804.01 (2) (c) Trial preparation: materials. 1. Subject to par. (d) a party may obtain discovery of documents and tangible things otherwise discoverable under par. (a) and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including an attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and that the party seeking discovery is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. This protection is forfeited as to any material disclosed inadvertently in circumstances in which, if the material were a lawyer-client communication, the disclosure would constitute a forfeiture under s. 905.03(5). This protection is waived as to any material disclosed by the party or the party's representative if the disclosure is not inadvertent.

JUDICIAL COUNCIL NOTE: Sub. (2) (c) is amended to make explicit the effect of different kinds of disclosures of trial preparation materials. An inadvertent disclosure of trial preparation materials is akin to an inadvertent disclosure of a communication protected by the lawyer-client privilege. Whether such a disclosure results in a forfeiture of the protection is determined by the same standards set forth in Wis. Stat. § 905.03(5). A disclosure that is other than inadvertent is treated as a waiver. The distinction between "waiver" and "forfeiture" is discussed in cases such as State v. Ndina, 2009 WI 21, ¶¶ 28-31, 315 Wis. 2d 653.

SECTION 2. 804.01 (7) of the statutes is created to read:

804.01 (7) Recovering Information Inadvertently Disclosed. If information inadvertently produced in discovery is subject to a claim of privilege or of protection as trial preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved.

JUDICIAL COUNCIL NOTE: Sub. (7) is modeled on Fed. R. Civ. P. 26(b)(5)(B), the so-called "clawback" provision of the federal rules. The Committee Note of the federal Advisory Committee on Civil Rules regarding the 2006 Amendments to the Federal Rules of Civil Procedure (regarding discovery of electronically stored information) is instructive in understanding the scope and purpose of Wisconsin's version.

SECTION 3. 805.07 (2) (d) of the statutes is created to read:

805.07 (2) (d) If information inadvertently produced in response to a subpoena is subject to a claim of privilege or of protection as trial preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved.

JUDICIAL COUNCIL NOTE: Sub. (2) (d) is modeled on Fed. R. Civ. P. 45(d)(2)(B), which was amended in 2007 to adopt the wording of Rule 26(b)(5)(B), the so-called "clawback" provision of the federal rules.

SECTION 4. 905.03 (5) of the statutes is created to read:

905.03 (5) Forfeiture of Privilege

(a) Effect of inadvertent disclosure. A disclosure of a communication covered by the privilege, regardless of where the disclosure occurs, does not operate as a forfeiture if:

1. the disclosure is inadvertent;

2. the holder of the privilege or protection took reasonable steps to prevent disclosure; and

3. the holder promptly took reasonable steps to rectify the error, including, if applicable, following the procedures in s. 804.01(7).

(b) Scope of forfeiture. A disclosure that constitutes a forfeiture under sub. (a) extends to an undisclosed communication only if:

1. the disclosure is not inadvertent;

2. the disclosed and undisclosed communications concern the same subject matter; and

3. they ought in fairness to be considered together.

JUDICIAL COUNCIL NOTE: Sub. (5) is modeled on subsections (a) and (b) of Fed. R. Evid. 502. The Statement of Congressional Intent and the Committee Note of the federal Advisory Committee on Evidence Rules regarding Rule 502 are instructive, though not binding, in understanding the scope and purposes of those portions of Rule 502 that are borrowed here.

Attorneys and those who work with them owe clients and their confidences the utmost respect. Preserving confidences is one of the profession's highest duties. Arguably, strict rules about the consequences of disclosing confidences, even inadvertently, may serve to promote greater care in dealing with privileged information. However, precaution comes at a price. In the digital era, when information is stored, exchanged and produced in considerably greater volumes and in different formats than in earlier eras, thorough pre-production privilege review often can be prohibitively expensive. Most clients seek a balanced approach.

The various approaches available are discussed in the Advisory Committee Note and in Harold Sampson Children's Trust v. Linda Gale Sampson 1979 Trust, 2004 WI 57, ¶¶ 28-32, nn. 15-17, 271 Wis. 2d 610. Sub. (5) represents an "intermediate" or "middle ground" approach, which is also an approach taken in a majority of jurisdictions. Clients and lawyers are free to negotiate more stringent precautions when circumstances warrant.

Sub. (5) is not intended to have the effect of overruling any holding in Sampson. Sampson holds that a lawyer's deliberate disclosure, without the consent or knowledge of the client, does not waive the lawyer-client privilege. Neither subpart of sub. (5) alters this rule. Sub. (5)(a) shields certain inadvertent disclosures but does not disturb existing law regarding deliberate disclosures. Deliberate disclosures might come into play under sub. (5)(b), which provides that, when a disclosure is not inadvertent, a privilege forfeiture under sub. (5)(a) may extend to undisclosed communications and information as well. However, such an extension ensues only when fairness warrants. Fairness does not warrant the surrender of additional privileged communications and information if the initial disclosure is neutralized by the Sampson rule.

In judging whether the holder of the privilege or protection took reasonable steps to prevent disclosure or to rectify the error, it is appropriate to consider the non-dispositive factors discussed in the Advisory Committee Note: (1) the reasonableness of precautions taken, (2) the time taken to rectify the error, (3) the scope of discovery, (4) the extent of disclosure, (5) the number of documents to be reviewed, (6) the time constraints for production, (7) whether reliable software tools were used to screen documents before production, (8) whether an efficient records management system was in place before litigation; and (9) any overriding issue of fairness.

Measuring the time taken to rectify an inadvertent disclosure should commence when the producing party first learns, or, with reasonable care, should have learned that a disclosure of protected information was made, rather than when the documents were produced. This standard encourages respect for the privilege without greatly increasing the cost of protecting the privilege.

In judging the fourth factor, which requires a court to determine the quantity of inadvertently produced documents, it is appropriate to consider, among other things, the number of documents produced and the percentage of privileged documents produced compared to the total production.

In assessing whether the software tools used to screen documents before production were reliable, it is appropriate, given current technology, to consider whether the producing party designed a search that would distinguish privileged documents from others to be produced and conducted assurance testing before production through methods commonly available and accepted at the time of the review and production.

Sub. (5) employs a distinction drawn lately between the terms "waiver" and "forfeiture." See State v. Ndina, 2009 WI 21, ¶¶ 28-31, 315 Wis. 2d 653.

Out of respect for principles of federalism and comity with other jurisdictions, sub. (5) does not conclusively resolve whether privileged communications inadvertently disclosed in proceedings in other jurisdictions may be used in Wisconsin proceedings; nor whether privileged communications inadvertently disclosed in Wisconsin proceedings may be used in proceedings in other jurisdictions. Sub. (5) states that it applies "regardless of where the disclosure occurs," but to the extent that the law of another jurisdiction controls the question, it is not trumped by sub. (5). The prospect for actual conflicts is minimized because sub. (5) is the same or similar to the rule applied in the majority of jurisdictions that have addressed this issue. If conflicts do arise, for example, because a rule dictates that a disclosure in a jurisdiction other than Wisconsin should be treated as a forfeiture in Wisconsin, or that a disclosure in Wisconsin should be treated as a forfeiture in a jurisdiction other than Wisconsin, a court should consider a choice-of-law analysis. See Beloit Liquidating Trust v. Grade, 2004 WI 39, ¶ 24-25, 270 Wis. 2d 356.

The language of sub. (5) also differs from the language of Rule 502 in a way that should not be considered material. Sub. (5) applies to a privileged "communication." Rule 502 applies to a privileged "communication or information." The reason for the difference is that sub. (5) is grafted onto sub. (2), which states the general rule regarding the lawyer-client privilege in terms of "communications" between lawyers and clients, not "communications and information." Sub. (5) follows suit. This different language is not intended to alter the scope of the lawyer-client privilege or to provide any less protection against inadvertent disclosure of privileged information than is provided by Rule 502.

The Wisconsin Judicial Council respectfully requests that the Court publish the Judicial Council Notes to proposed Wis. Stats. §§ 804.01 (2) (c), 804.01 (7), 805.07 (2) (d), and 905.03 (5).

Conclusion

For more than a decade, litigants and courts have confronted an increase in discovery of electronically stored information, as well as rising discovery costs. The proposed rules are intended to reduce the risk of forfeiting the attorney-client privilege or the attorney work product protection during discovery. The rules are also intended to reduce the economic burden on litigants that can result from conducting an exhaustive review of information that will be produced in discovery by protecting them against forfeiture by inadvertent disclosure of privileged information.

Therefore, the Wisconsin Judicial Council respectfully urges this Court to amend Wis. Stats. §§ 804.01, 805.07 and 905.03.

Dated Feb. 20, 2012.

Respectfully submitted,

April M. Southwick, Wisconsin Judicial Council

Record Retention and Electronically or Optically Stored Records

In the matter of the petition to amend Supreme Court Rules 72.01, 72.03, 72.04, and 72.05, and Wis. Stat. §§ 801.17, 807.06, and 809.15 relating to record retention and electronically or optically stored records.

Order 12-05

On May 3, 2012, A. John Voelker, Director of State Courts, filed a petition on the recommendation of the Records Management Retention Subcommittee requesting the court amend Supreme Court Rules (SCRs) 72.01, 72.03, 72.04, and 72.05 relating to record retention and the destruction of electronically or optically stored documents. The petition also requests changes to Wis. Stat. §§ 801.17, 807.06, and 809.15 relating to electronically scanned documents.

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 Wednesday, Sept. 19, 2012, 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.

Dated at Madison, Wis., this 3rd day of July, 2012.

By the court:

Diane M. Fremgen, Clerk of Supreme Court

Petition

The Director of State Courts, on the recommendation of the Records Management Retention Subcommittee, hereby petitions the court to make amendments to Supreme Court Rules 72.01, 72.03, 72.04, and 72.05 relating to record retention and the destruction of electronically or optically stored documents. Additionally, the Director of State Courts petitions the court to amend Wis. Stat. §§ 801.17, 807.06, and 809.15 relating to electronically scanned documents. This petition is made pursuant to the court's rulemaking authority under Wis. Stat. §751.12 and its administrative authority over all courts conferred by Article VII, §3 of the Wisconsin Constitution.

The Director of State Courts petitions for amendments to the following Supreme Court Rules and Wisconsin Statutes:

Section 1. SCR 72.01(6) is amended to read:

(6) Lien claims. A statutory lien filed for services performed or materials provided: until satisfaction or expiration of the lien or entry of judgment, whichever occurs first 30 years after the date of filing the lien claim with the clerk of circuit court, except as provided in subs. (6ag) and (6b).

Section 2. SCR 72.01(32) is amended to read:

(32) Guardianship case files. (a) All papers deposited with the register in probate in adult guardianship proceedings commenced under chs. 54 or 55, stats., or ch. 880, 2003 stats.: 7 years after termination of guardianship.; except 75 years after termination of guardianship if there was a firearm restriction ordered in the case.

(b) All papers in juvenile guardianship proceedings commenced under chs. 48 or 54, stats., or ch. 880, 2003 stats.: 7 years after the juvenile's 18th birthday.; except 75 years after termination of guardianship if there was a firearm restriction ordered in the case.

Section 3. SCR 72.01(33) is amended to read:

(33) Guardianship court record. (a) A history and index for adult guardianship proceedings commenced under chs. 54 or 55, stats., or ch. 880, 2003 stats.: 7 years after termination of guardianship.; except 75 years after termination of guardianship if there was a firearm restriction ordered in the case.

(b) A history and index for juvenile guardianship proceedings commenced under chs. 48 or 54, stats., or ch. 880, 2003 stats.: 7 years after the juvenile's 18th birthday.; except 75 years after termination of guardianship if there was a firearm restriction ordered in the case.

Section 4. SCR 72.01(34) is amended to read:

(34) Guardianship minute record. (a) A brief statement of in-court proceedings for adult guardianships commenced under chs. 54 or 55, stats., or ch. 880, 2003 stats., generally maintained in the case file: 7 years after termination of guardianship.; except 75 years after termination of guardianship if there was a firearm restriction ordered in the case.

(b) A brief statement of in-court proceedings for juvenile guardianships commenced under chs. 48 or 54, stats., or ch. 880, 2003 stats.: 7 years after the juvenile's 18th birthday.; except 75 years after termination of guardianship if there was a firearm restriction ordered in the case.

Section 5. SCR 71.02(38) is amended to read:

(38) Mental health case files. All papers deposited with the clerk of circuit court or register in probate in proceedings commenced under ch. 51, stats.: 7 years after entry of final order.; except 75 years after termination of commitment if there was a firearm restriction ordered in the case.

Section 6. SCR 72.01(39) is amended to read:

(39) Mental health court record. A history and index of proceedings commenced under ch. 51, stats.: 7 years after entry of final order.; except 75 years after termination of commitment if there was a firearm restriction ordered in the case.

Section 7. SCR 72.01(40) is amended to read:

(40) Mental health minute record. A brief statement of in-court proceedings commenced under ch. 51, stats., generally maintained in the case file: 7 years after entry of final order.; except 75 years after termination of commitment if there was a firearm restriction ordered in the case.

Section 8. SCR 72.01(42m) is amended to read:

(42m) Juvenile delinquency, juveniles in need of protection and services and children in need of protection and services case files. Except as provided in sub. (24), all papers deposited with the clerk of circuit court, register in probate, or clerk of court for juvenile matters in proceedings commenced under ch. 48 or 938, stats.: 4 years after the 18th birthday of the juvenile or child; except 75 years after the adjudication of the juvenile or child if he or she was adjudicated delinquent for committing an act that would be punishable as a felony if committed by an adult.; except 75 years after the adjudication of the juvenile or child if he or she was adjudicated delinquent for committing an act that would be punishable as a misdemeanor if committed by an adult and there was (1) a firearm restriction imposed or (2) there was a requirement that the juvenile or child register with the Wisconsin Department of Corrections Sex Offender Registry.

Section 9. SCR 72.01(43) is amended to read:

(43) Juvenile court record. A history and index of proceedings commenced under ch. 48 or 938, stats.: 4 years after the 18th birthday of the juvenile or child; except 75 years after the adjudication of the juvenile or child if he or she was adjudicated delinquent for committing an act that would be punishable as a felony if committed by an adult.; except 75 years after the adjudication of the juvenile or child if he or she was adjudicated delinquent for committing an act that would be punishable as a misdemeanor if committed by an adult and there was (1) a firearm restriction imposed or (2) there was a requirement that the juvenile or child register with the Wisconsin Department of Corrections Sex Offender Registry.

Section 10. SCR 72.01(44) is amended to read:

(44) Juvenile minute record. A brief statement of in-court proceedings in actions commenced under ch. 48 or 938, stats., generally maintained in the case file: 4 years after the 18th birthday of the juvenile or child; except 75 years after the adjudication of the juvenile or child if he or she was adjudicated delinquent for committing an act that would be punishable as a felony if committed by an adult.; except 75 years after the adjudication of the juvenile or child if he or she was adjudicated delinquent for committing an act that would be punishable as a misdemeanor if committed by an adult and there was (1) a firearm restriction imposed or (2) there was a requirement that the juvenile or child register with the Wisconsin Department of Corrections Sex Offender Registry.

Section 11. SCR 72.01(46) is amended to read:

(46) Criminal and juvenile delinquency case exhibits, paper, and non-paper. One year after the time for appeal has expired, For the length of time that the underlying case is retained pursuant to this rule, or, if shorter, until the sentence or juvenile adjudication is completed, if the clerk can confirm the completion, provided that return of the exhibit has been offered to the proffering party.

Section 12. A Comment to SCR 72.01(46) is created to read:

COMMENT: "Exhibits," as referenced in SCR 72.01(45) and (46), refers to exhibits that are submitted to the court during a trial or hearing and are marked with an official exhibit sticker. Under this rule, "exhibits" does not refer to documents that are attached to pleadings or other filings submitted to the court. Documents falling into the latter category are retained pursuant to the retention rule applicable to the court record.

Section 13. SCR 72.01(46r) is created to read:

(46r) Criminal case exhibits for sexually violent person commitments under ch. 980, stats. For the length of time that the underlying case is retained pursuant to this rule.

Section 14. SCR 72.01(58) is amended to read:

(58) Oaths of office. Oaths of office required to be filed with the clerk of circuit court by county officials and municipal judges: 7 years after expiration of term.

Section 15. SCR 72.01(60) is amended to read:

(60) Naturalization records. Records of applications for U.S. citizenship and proceedings to grant U.S. citizenship: Transfer custody to the Wisconsin State Historical Society of Wisconsin.

Section 16. SCR 72.03(3) is amended to read:

(3) Any record of a court that has been electronically or optically stored and preserved in accordance with SCR 72.05 may be destroyed in accordance with SCR 72.02(1) and (2) one year after entry of a final order in the action for which the record is maintained or one year after filing for records not specifically related to court actions. 48 hours after the record has been electronically or optically stored. A clerk of circuit court is not required to provide notice of destruction to the State Historical Society of Wisconsin when the record has been electronically or optically stored. Notice of destruction to the State Historical Society of Wisconsin is required when the electronically or optically stored record will be destroyed once the retention period under SCR 72.01 has expired.

Section 17. SCR 72.03(4) is created to read:

(4) Provided that they have been offered to the proffering party, exhibits, as defined in SCR 72.01(45) and (46), of a documentary nature that are electronically or optically stored may be destroyed 180 days after entry of a final order or judgment, unless the time for appeal has been extended under ss. 809.107, 809.30, or 809.32, stats. In the event of an extension, electronically or optically stored exhibits may be destroyed 30 days after the post-termination or post-conviction deadline has expired.

Section 18. SCR 72.04 is amended to read:

SCR 72.04 Offer of title to historical society State Historical Society of Wisconsin. The custodian of the court record, prior to its destruction under this chapter, shall give at least 60 days' notice of such destruction in writing to the historical society State Historical Society of Wisconsin, which may preserve any records it determines to be of historical interest. Notice is not required for any records for which destruction has previously been approved by the historical society State Historical Society of Wisconsin or in which the historical society State Historical Society of Wisconsin has indicated, by blanket waiver, that it has no interest for historical purposes.

Section 19. SCR 72.05(3) is amended to read:

(3) Electronically or optically stored records with historical or research value beyond the retention periods specified in SCR 72.01 shall be protected from destruction or media deterioration and transferred to the sState hHistorical sSociety of Wisconsin in a computer-industry-accepted standard universal format, together with technical documentation.

Section 20. 801.17(9)(c) of the statutes is amended to read:

801.17(9)(c) The clerk of court may maintain the official court record in electronic format or in a combination of electronic and nonelectronic formats. Documents filed by traditional methods shall be electronically scanned and made part of the official record. The clerk of court may discard the paper copy immediately, notwithstanding SCR 72.03 (3) pursuant to SCR 72.03(3). If a document submitted by traditional methods is not of sufficient graphical quality to be legible when electronically scanned into the electronic filing system, the clerk shall maintain the document in paper format.

Section 21. Comment, 2008, paragraph 6 to 801.17 of the statutes is amended to read:

SCR 72.03 (3) provides that even when the clerk of court has electronically stored a court file, the clerk may not destroy the paper file until one year after entry of a final order in the case the time specified in SCR 72.03(3) has expired. In contrast, the electronic filing rule anticipates that there may not even be a paper file for the case, so the clerk should be allowed to discard the paper copy as soon as it is electronically scanned and the clerk has confirmed that the electronic copy is legible, complete, and properly saved to the file.

Section 22. 807.06 of the statutes is renumbered 807.06 (intro.):

807.06 (intro.) Copy of paper may be used, when.

Section 23. 807.06 of the statutes is renumbered 807.06(1):

807.06(1) If any original paper or pleading be lost or withheld by any person the court may authorize a copy thereof to be filed and used instead of the original.

Section 24. 807.06(2) of the statutes is created to read:

807.06(2) The clerk of circuit court may electronically scan any paper or pleading, as permitted by SCR 72.05, and may discard the original paper or pleading pursuant to SCR 72.03(3). If the original is discarded, the electronically scanned document constitutes the official court record.

Section 25. 809.15(1)(b) of the statutes is amended to read:

809.15(1)(b) The clerk of the trial circuit court may request by letter permission of the court to substitute a photocopy for the actual paper or exhibit filed in the trial circuit court. A photocopy does not include a document that the clerk of the circuit court has electronically scanned into the court record as permitted under SCR 72.05.

Section 26. 809.15(1)(c) of the statutes is created to read:

809.15(1)(c) For purposes of preparing the record on appeal, if the original record has been discarded, as permitted by SCR 72.03(3), the electronically scanned document constitutes the official court record. The clerk of circuit court shall assemble a paper record pursuant to sub. (2).

Respectfully submitted:

A. John Voelker, Director of State Courts

Wisconsin Lawyer