Bar to oppose mandatory WisTAF assessment

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“We should stand up to our constituents. We understand the scope of the problem. It should be mandatory because we need the money.” Daniel L. Shneidman Governor

The Wisconsin State Bar’s Board of Governors voted last Friday to oppose a petition filed in the Wisconsin Supreme Court by The Wisconsin Trust Account Foundation (WisTAF) that would tax every attorney $50 to support WisTAF.

However, the governors did approve supporting a voluntary, two-year $50 opt-out contribution on attorney’s annual dues forms. The money would go to WisTAF to support legal services organizations, and to study the need for future funding of legal services.

The discussion was held in response to a June 2 petition by Wis-TAF to the Supreme Court, requesting a mandatory fee. The Court will hold public hearings on the petition on Jan. 12, 2005.

WisTAF administers client trust accounts, and distributes the interest earned in such accounts to an assortment of legal services groups. With steep declines in interest rates over recent years, the amount of money available annually for distribution has been decimated.

The governors received enormous input from its membership on the petition, with 22 members of the bar supporting the petition, and 163 opposed to it. In order for the bar to take a position on a Supreme Court petition, board rules require that the Governors agree with a 60 percent supermajority. There was significantly more support for the WisTAF proposal among the governors than within the bar itself.

While the board ultimately did approve language supporting a voluntary assessment, it was able to do so only after hours of debate during which the board was unable to muster the requisite 60 percent supermajority for any proposal, either in support of a mandatory tax, or a voluntary one. Only after parliamentary procedure was abandoned, and informal proceedings instituted could the board reach agreement.

Early in the discussion, Governor Kent I. Carnell proposed language to support the mandatory fee with a two-year sunset provision, with part of the funds going to study need for funding, and part of it going to WisTAF for distribution to legal organizations.

Carnell argued, "Voluntary looks good to members, but to the public and the Supreme Court, it looks bad. Just following what our members say is not leadership."

However, Governor Kenneth A. Knudson quickly and successfully moved to amend the proposed language to make the assessment voluntary, instead of mandatory. Nevertheless, the debate over whether the board should support a voluntary or mandatory assessment continued for hours.

Treasurer Dean R. Dietrich and Governor Paul R. Norman both opposed the voluntary assessment on practical grounds, pointing out that, if the assessment were voluntary, there would not be enough money to fund a study, much less distribute any of it. Norman argued, "We can all contribute voluntarily anyway. We will probably end up in the hole [if it is voluntary only]."

Norman also argued that a voluntary assessment would make the bar look ineffectual, and that supporting only voluntary contributions would be a "copout" worse than doing nothing. Norman stated that he appreciates that supporting mandatory assessments would be a "courageous stand," but argued, "I don’t believe it would create a financial hardship to any attorneys."

Governor Daniel L. Shneidman acknowledged the overwhelming opposition to mandatory fees by the bar membership, but supported the mandatory assessment anyway, arguing that the need to take a leadership position outweighed the opposition by the membership.

“When we go to the Supreme Court, we are certifying that our membership agrees with what we are saying. We can’t do that [if we support a mandatory assessment].” R. George Burnett Past President

Shneidman argued, "We should stand up to our constituents. We understand the scope of the problem. It should be mandatory because we need the money, but we should allow for Keller objections." Under the U.S. Supreme Court’s decision in Keller, attorneys can reduce their contributions based on objections to its use for political purposes.

Governor Elizabeth G. Rich also supported a mandatory assessment, arguing, "Access to justice is a lawyer problem. It looks bad for the profession if we don’t support the mandatory language. We accepted this calling with its unique privileges and burdens. $50 per year is a minimal amount to ask of us."

Governor Deborah M. Smith, noting that the Wisconsin Law Foundation raises only about $32,000 per year via voluntary contributions on the dues assessments, compared with the roughly $800,000 that a mandatory assessment would raise, argued, "Voluntary ain’t going to make it."

At the opposite end of the spectrum was Secretary Gretchen Viney. Viney, who is a founding member of WisTAF, and a former president of WisTAF, stated, "I am as opposed as I can be. WisTAF has forgotten its moderate roots. I’m really angry that WisTAF has put us in this position. We worked really hard to build bridges [with WisTAF]. They are now gone, with them saying that unless we are f
or this proposal, we are opposed to legal services for the poor."

Governor Grant F. Langley concurred, stating, "The WisTAF board has insulted us by going this route [direct petition to the Supreme Court without any input from the bar]."

Governor Linda U. Burke also agreed with Viney, stating, "Our members will see [the two-year sunset] as a disingenuous ploy. They will assume it will become mandatory after two years."

Past President R. George Burnett spoke at length against a mandatory fee, stating, "Our membership chafes at the notion of anything mandatory. We have had nine challenges since World War II to mandatory membership. This takes it one step further. Assessing the membership and giving money to others will inspire another decade of legal challenges. I don’t want to put this organization at the forefront of those challenges."

Addressing concerns that supporting only voluntary contributions would look bad to the Supreme Court, Burnett noted, "When we go to the Supreme Court, we are certifying that our membership agrees with what we are saying. We can’t do that [if we support a mandatory assessment]."

The impasse was finally broken when parliamentary procedure was abandoned, and Secretary Viney proposed simply polling the governors to find out how many would not support a mandatory assessment under any circumstance. With 29 members stating they would oppose any mandatory fee, and only 11 in support of mandatory fees, it was clear that the Bar could not support the WisTAF petition, and the board changed its objective to finding some language in support of a voluntary fee that could garner the support of 60 percent of the Governors.

The board soon approved the following language, substantially proposed by Governor James L. Dunlop: "The State Bar of Wisconsin acknowledges the societal problems of access to justice. While the State Bar opposes the petition as filed and a mandatory assessment, we support a two-year $50 opt-out contribution to WisTAF and a study by the State Bar to address these needs and their future funding."

The proposed language was approved by a vote of 34-7, with the following governors favoring a mandatory assessment: Dietrich, Carnell, Norman, Rich, Schneidman, Smith, and Jo A. Swamp.

In other business, the Board elected Edward A. Hannan as a delegate to the ABA House of Delegates, and voted to oppose seeking a compromise with medical records providers over the amount they can charge for non-certified medical records not needed for trial.

The board also heard a presentation by Attorney Tamara B. Packard, urging that the bar take a public position opposing any amendment to the Wisconsin Constitution that would bar recognition of same-sex marriages.

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The proposed amendment, which may appear on the ballot before the voters next spring, reads, "Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state."

Packard argued that the constitutional amendment, if adopted, would usurp the power of the judiciary, and limit, rather than protect, the rights of citizens.

Packard argued that the amendment "directly contradicts principles of the constitution that the judiciary is a co-equal branch of government. The State Bar should, and has an obligation to, work to prevent the amendment from occurring."

Packard also asserted, "We should give our court system an opportunity to deal with this issue. The court system gives people the opportunity to think through this stuff."

David Ziemer can be reached by email.