Board opposes fee rules change

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The State Bar of Wisconsin Board of Governors gave a resounding “no” to a controversial measure designed to curb fee-related ethics complaints at its Sept. 20 meeting in Madison.

The proposal, from the Wisconsin Courts Fee Arbitration Study Committee, calls for ethics rule revisions so that, for clients they do not regularly represent, and when it is anticipated that the fees will be $1,000 or more, attorneys must provide a written estimate of the total fees, as well as subsequent written revisions if the initial estimate becomes substantially inaccurate.

Currently, Supreme Court Rule 20:1.5 recommends but does not require a written fee agreement, except for contingent fees.
State Bar President R. George Burnett, of Liebmann, Conway, Olejniczak & Jerry in Green Bay, told Wisconsin Law Journal after the meeting that the governors fell into two general camps while debating the merits of the proposal.

“The first camp believes that, while this proposal is not appropriate for a wide variety of reasons, it would behoove the board to re-examine sec. 1.5 of the Code and consider the imposition of some sort of rule requiring written fee agreements,” Burnett said. “The board didn’t endorse written fee agreements, but it did indicate a willingness to continue to look at the issue.

“The second camp expressed concern about any disciplinary rule that requires putting fee agreements in writing as a disciplinable offense,” he continued. “There are many situations in the practice of law where you cannot accurately estimate fees. So this rule, that really requires a lawyer to engage in speculation, is not a public service. It’s more likely to mislead clients.”

He added that from the Fee Arbitration Committee’s report, typically only .1 percent of lawyer grievances have been fee-related — so statistically, the rule does not appear to be warranted.

Further, according to Burnett, the proposal is “fraught with ambiguity.” What is a “reasonable” fee estimate? When is that estimate untimely? Who is a “regularly-represented” client? When does an estimate become “substantially inaccurate,” as to require a modified estimate?

Moreover, when talking about an estimate, the public tends to think of this sum as they would when getting a car repair; they think of a flat sum and not a penny more. Lawyers, meanwhile, tend to think of an estimate as a “forecast,” rather than a not-to-exceed number.

Finally, the rule would create an added administrative burden on lawyers, he said.

The governors also discussed a competing draft proposal from the Wisconsin Supreme Court’s Ethics 2000 Committee. That group is tentatively calling for a requirement that all fee agreements be in writing, except those with regularly-represented clients or for minor representations costing less than $500.

The board ultimately voted 31-1 to oppose the Fee Arbitration Committee’s proposal. With regard to the Ethics 2000 draft proposal, Burnett explained that since it wasn’t the group’s final position, the board as a whole was unwilling to take a stand on it.

The lone dissenter was Nonresident Lawyers Division representative Paul E. Conrad of the U.S. Army Office of the Judge Advocate General in Rosslyn, Va.

"My concern was that the public might perceive this vote as that the bar is basically uninterested in being more cooperative with consumers — the board is hostile to any changes — and I don’t think that’s the way the majority of the governors feel. I think a lot of people would’ve supported the Ethics 2000 proposal, had it been a final recommendation," Conrad said. "As it is, it looks like the bar doesn’t agree with anything but doesn’t have an alternative."

Three governors also abstained from the vote. They were: State Bar Treasurer Dean R. Dietrich of Ruder, Ware & Michler LLSC in Wausau and Dist. 9 Gov. Earl H. Munson Jr. of the Boardman Law Firm LLP in Madison, both Ethics 2000 Committee members; and Dist. 10 Gov. Robert W. Swain Jr. of Peterson, Berk & Cross S.C. in Appleton, a member of the Fee Arbitration Study Committee.

The high court will conduct a hearing on the Fee Arbitration Study Committee’s proposal on Oct. 22. Burnett will be there to communicate the bar’s opposition to it, and to ask the court that before it take up any other similar proposals from the Ethics 2000 group, it gives the bar a chance to deliberate and weigh in on that as well.

Also planning to attend the hearing is Donald J. Christl, of the Milwaukee branch of Reinhart Boerner Van Deuren S.C. Christl chairs the Fee Arbitration Study Committee.

“I can tell you from my discussions with the membership when I have been attending various bar association meetings, that this is a proposal with which the membersh
ip is quite concerned. I would be quite surprised if we found many members who support it,” Burnett commented.

Jane Pribek can be reached by email.