MANDATORY BAR

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Daniel W. Hildebrand

As the song goes, "Everything old is new again."

The question of whether Wisconsin’s bar should be a mandatory or voluntary organization is old. But the next push for a voluntary bar would bring a new and different outcome, if State Bar President-elect Steven A. Levine, of the Public Service Commission in Madison, has his way.

The State Bar of Wisconsin has been a mandatory organization for all lawyers wishing to practice in the state since 1956. In 1988, Levine brought a lawsuit which resulted in Western District of Wisconsin Federal District Court Judge Barbara Crabb entering a declaratory judgment abolishing the mandatory bar. That ruling was reversed by the Seventh Circuit Court of Appeals. In 1992, bar leaders petitioned for reinstatement of the mandatory bar. The Wisconsin Supreme Court granted the petition.

Dissenting from that decision was (now) Chief Justice Shirley S. Abrahamson. She is the only justice from the early 1990s who remains on the high court.

"Today we have an almost entirely different court, as well as different bar members," Levine told Wisconsin Law Journal. He added that new lawyers especially might be inclined to question the merits of a mandatory bar.

After Levine is sworn in as bar president next year, he would like to conduct a referendum of bar members on the issue of a mandatory versus a voluntary bar association.

He would also like bar members to weigh in on the issue of whether active members should be required to pay $50 annually for civil legal services to the poor. That order was entered by the Wisconsin Supreme Court in January, at the request of the Wisconsin Trust Account Foundation (WisTAF).

Levine had proposed the idea of a referendum on the mandatory bar in recent years to various members of the State Bar Board of Governors, but "the idea went nowhere. So I see my running for bar president, and election, as a proxy on the issue."

Levine is not inclined to appoint a committee to study the mandatory bar issue, he says, because the idea "has already been studied to death."

“We are a profession, and as such, lawyers are in a position of public trust. We’re currently failing in that duty." John S. Skilton

Depending upon the outcomes of the referenda Levine proposes, he says the next steps might be petitions from the State Bar asking the state high court for deunification on a 10-year trial basis, as well as an end to the $50 assessment.

A Voluntary Bar:

More Responsive to Members?

Madison lawyer Catherine J. Furay, of Murphy & Desmond S.C., served on the Board of Governors in 1991 when it held a lengthy and emotional debate on whether to petition for reinstatement of the mandatory bar. She ultimately came down in the minority; the board voted 26-14 in favor the mandatory bar petition.

"It’s a difficult issue, and it’s not as easy for me now as it was back then," she says. What swayed her into the voluntary bar camp then was the way the bar had accentuated its focus on member service during its voluntary years, with very positive results.

Former State Bar president Gary E. Sherman, of the Fairview Law Office in Port Wing, agrees. Sherman also served as a governor back then, and voted for retaining the voluntary bar.

During the voluntary years, a remarkable percentage — about 85 percent of the state’s lawyers — remained as members, he says. "I favored the voluntary bar at that time because in order to maintain that high level of membership, the bar had gone to great lengths to ensure it was satisfying its membership, with polls, focus groups, etc."

But Furay and Sherman admit that a voluntary bar has its downsides. For starters, Sherman says that with a voluntary bar, a fair amount of time, energy and money would have to be put forth for annual membership recruitment efforts — and these resources could instead be put forth for more public or member service.

In addition, on some level, he agrees with former Justice William Bablitch’s concurrence, in In the Matter of the State Bar of Wisconsin, 169 Wis.2d 21 (1992).

Bablitch wrote that the legal profession, as a unified bar, speaks with one strong voice to policymakers, bringing expertise that nobody else does. "I’m now a policymaker, and I do appreciate that input," Sherman says. He was elected to the Wisconsin Assembly in 1998, representing the 74th District.

That voice might be weaker if it weren’t representing all of the state’s lawyers, Furay suggested. While the bar would enjoy much greater freedom in its lobbying, its influence might be diminished if it were to lose a sizeable portion of its membership — most likely nonresident lawyers, government lawyers and some solos and small-firm lawyers.

She further wonders who, if anyone, would represent before the Supreme Court the group of "authorized practitioners" who leave the bar. In addition, the bar currently has appointment powers to a number of significant bodies, such as the Board of Bar Examiners and the Judicial Council. It’s unknown whether these powers would remain if the bar were voluntary.

The Mandatory Bar:

Public Service Predominates

Daniel W. Hilde-brand made the case before the high court when the bar presented its petition for reunification back in 1992. He was, and is, a mandatory bar proponent.

"The State Bar had engaged in extensive study and debate, before taking the position that a mandatory bar was the best means to accomplish the end called for in SCR 10.01(2), ‘to promote the public interest by maintaining high standards of conduct in the legal profession’ and ‘to aid in the efficient administration of justice.’

The Supreme Court agreed," he said.

"Some view the bar solely as a trade association for the purpose of improving the lot of lawyers. I disagree, and I think the majority of State Bar members disagree as well. They’re supportive of the bar and its activities, and they believe the bar has helped improve the ability of lawyers in this state to render excellent legal services to clients, while operating in an ethical and efficient way."

Hildebrand, of DeWitt, Ross & Stevens S.C. in Madison, cautioned that Levine’s election should not be viewed as a mandate for a voluntary bar because, although he did receive the most votes, it was a three-way race and the other two candidates garnered a sizeable portion as well.

In addition, Levine likely attracted some votes from attorneys solely on the basis of his opposition to the WisTAF assessment, said Hildebrand and Sherman.

Sherman wonders if some lawyers who saw a vote for Levine as a vote for a voluntary bar realize that their assessments for the Office of Lawyer Regulation, the Client Security Fund and now WisTAF will remain; their annual bar dues checks don’t all go straight into State Bar coffers.

Sherman is an outgoing member of the WisTAF Board, who says he supported the petition for the assessment, but only because he saw no alternative. "I don’t favor dunning lawyers individually. It’s congres
s’s job, or the legislature’s, to fund civil legal services. But we ran out of options, and the Supreme Court realized that," he says.

Leading the charge for the WisTAF assessment was John S. Skilton. In the late 1980s and early 1990s, Skilton also led the team of lawyers from the Madison office of Foley & Lardner that represented the bar association in the litigation brought by Levine. He also served as bar president from 1995-96.

Now with the Madison branch of Heller, Ehrman, White & McAuliffe, Skilton found himself opposing Levine again in January, when he represented WisTAF before the Wisconsin Supreme Court.

Skilton says that the courts have ruled on the constitutionality of mandatory bar associations, so he predicts that facet of the issue isn’t likely to resurface.

Further, in his opinion, the question of a mandatory versus a voluntary bar isn’t the central issue facing the state’s lawyers. Rather, what now needs to be resolved is whether lawyers have professional obligations to serve the poor which they must fulfill, or whether that is a matter of choice. To his way of thinking, the attorneys’ oath settles that question, by placing a duty upon lawyers to serve the public. "To me, the idea that lawyers can do whatever they want is offensive. We are a profession, and as such, lawyers are in a position of public trust. We’re currently failing in that duty," he opined.

In the mid-’90s, Skilton chaired a bar commission on the delivery of legal services that concluded that there exists a significant need for civil legal services to the poor. He later was a founding member of the Equal Justice Foundation, which sought financial and service contributions from lawyers to meet that need.

"We found there are many lawyers who were heroic in that enterprise, who do a great deal of pro bono, and don’t work for a lot of money or get much credit. We also found that many lawyers don’t fall into that category. They weren’t getting the job done," he said.

WisTAF’s petition hasn’t been popular with many lawyers, he acknowledges. "But it’s been worth fighting for, and taking a few punches along the way," he said.

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Skilton emphasized that he has no ax to grind against Levine, nor vice versa. "This issue is bigger than Steve and I. Free speech is the order of the day. He’s entitled to his agenda, and I’m entitled to my opinion too," he said. "The real irony is, for the seven years or so that we were litigating the integrated bar, Steve was the ‘outsider’ and I was the ‘insider.’ Now those roles have reversed."

For his part, Sherman said Levine, or any bar president, can’t change the bar into a voluntary organization on his own. But Levine is personable and should be able to build coalitions. Sherman predicted he will be treated well during his tenure. And while he will undoubtedly learn a lot during his year as president, he also comes to the job well prepared; as a litigant opposing the bar, he gained sizeable knowledge about the bar’s operations.

He concluded, "No matter which side you come down on, it doesn’t hurt one bit to re-examine this every 10 years or so. Even if we decide to stay mandatory, at least we can say we’re voluntarily doing so."

Click here for Part 2.