Divided court approves new GAL requirement

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“It’s not an onerous situation imposed upon attorneys who engage in this behavior. We’ve considered that already with the appointment of guardians ad litem for children.” Hon. James Mason, Wood Court Circuit Court

A divided state Supreme Court has initially approved a plan requiring lawyers serving as guardians ad litem for adults to focus some of their continuing legal education in that specific area.

Following a public hearing on the issue earlier this month, the justices voted 4-3 in favor of Petition 03-03, requiring GALs serving adults in Chapter 51, 55 or 880 proceedings to focus six of their CLE credits during a given reporting period on GAL education. The petition to create Supreme Court Rule Chapter 36 sets a maximum of 30 hours of GAL education related to those chapters or adult representation issues.

The new rule would not require lawyers to take additional CLE credits beyond the 30 already established for a two-year reporting period. The approved petition establishes education guidelines for GALs of adults in the same way that SCR Chapter 35 established educational guidelines for GALs serving children when it was adopted in 1997.

Supporters of the petition noted that the same efforts to provide competent GALs for children should be used to provide them for adults. They pointed to the complex nature of issues facing adults who need a GAL to look out for their interests. Proponents also noted the lack of control those adults have in the assignment of a GAL.

Opponents viewed the move as a step toward requiring lawyers to specialize or be certified in particular areas of practice. Concerns were raised over a slippery slope moving CLE in that direction. Those opposed to the proposal also noted the growing challenges general practitioners face in trying to meet required CLE credits in the areas of ethics, GAL representation of children and now GAL representation of adults. At the same time, generalists might want to further their education in personal injury, family, real estate or a variety of other practice areas.

Special Needs — Special Training

Wood County Circuit Court Judge James Mason presented the petition to the court on behalf of the Judicial Council during the Oct. 1 public hearing. Mason noted that adults subject to Chapter 51, 55 or 880 petitions were just as limited in their ability to deal with matters as were children in Chapter 767 matters.

Given that GALs of adults deal with a broad range of things including issues such as medication, medical care, mental condition and placement in addition to the law, Mason said it was important to ensure that they had training in those areas.

“It’s not an onerous situation imposed upon attorneys who engage in this behavior,” Mason told the justices. “We’ve considered that already with the appointment of guardians ad litem for children.”

Supporters also pointed to the vulnerable nature of adults who need the courts to appoint a GAL. They noted an often limited capacity to understand what was taking place and the lack of control over who would represent their interests.

Madison lawyer James A. Jaeger, of the firm Hill, Glowacki, Jaeger & Hughes LLP, said, “We have to put our eye on what is most important here. That is the needs of a very vulnerable population. A population who doesn’t go out and hire their guardians ad litem.”

“I do think that this is a step toward specialization. While I fully agree with … concerns about the people that these lawyers represent being particularly vulnerable, I think many people before the legal system are vulnerable.” Justice Patience D. Roggensack Wisconsin Supreme Court

State Bar President R. George Bur
nett expressed the Board of Governors’ support for the petition. Burnett, of the Green Bay firm Liebmann, Conway, Olejniczak & Jerry SC, made it very clear that the bar leadership’s position was not an endorsement of specialization.

“The reason the bar supports this petition is the very unique position of the guardian ad litem in the administration of justice,” Burnett said.

Slippery Slope Toward Specialization

Despite those assurances, opponents of the petition continued to raise questions about taking another step toward specialization.

Justice Patience D. Roggensack said, “I do think that this is a step toward specialization. While I fully agree with … concerns about the people that these lawyers represent being particularly vulnerable, I think many people before the legal system are vulnerable.”

Justices Roggensack, Jon P. Wilcox and David T. Prosser Jr. voted against the petition, citing concerns about the slippery slope toward specialization or certification.

They also expressed concerns about the impact on general practice attorneys, particularly those in rural counties, who would have 15 of their 30 credits in a given reporting period tied up.

Justice Diane S. Sykes made a motion to adopt the petition, which was seconded by Justice N. Patrick Crooks. Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley also supported the petition. Abrahamson and Bradley had supported the 1997 petition regarding GALs for children.

“I think the need for it has been demonstrated,” Sykes said. “I think the slippery slope argument about this being a step toward certification or subcertification within the legal profession is not present in a way that we should be alarmed about.”

Although she eventually voted to approve the petition, Abrahamson acknowledged, “I’m worried about a piecemeal chipping at the continuing legal education, so that we have keep having specialty requirements to where people have no choices if they want to stay at a minimum of 30 credits. They don’t have the opportunity to open their minds and practices to new areas.”

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Bradley noted that she was not concerned about a slippery slope leading toward specialization because the court had control over future changes to CLE requirements.

“If we don’t want it to happen, it won’t happen,” she said, noting the unique nature of this situation.

During the public hearing, Burnett noted that if judges have problems finding lawyers who have undergone the requisite training, to serve as GALs, but who have people they know are competent, they do have the discretion to waive the rule.

Roggensack is writing a dissent in the matter, which will come back to the court for review before the adopted rule is published. There is the potential at that time for the court to adopt the dissent as the majority position, rejecting the petition.

Tony Anderson can be reached by email.