Lawyers can expect to find an additional fee of $50 on their annual dues statements starting this year. The state Supreme Court approved a petition last week that would use the assessment to help fund civil legal services for the poor.
Indicating the need for leadership on the issue of funding legal services to the poor, the court in a 5-2 vote approved a plan to use the anticipated $850,000 that the fee would generate to supplement the funding generated by interest on lawyer trust accounts (IOLTA). Justice Patience D. Roggensack moved to approve the petition during a Jan. 12 administrative session. Justices Jon P. Wilcox and David T. Prosser Jr. opposed the motion.
After experiencing a significant decrease in IOLTA dollars during the past few years, the Wisconsin Trust Account Foundation (WisTAF), which administers those funds, approached the court with the petition. Money generated from IOLTA dropped from a high of $2.1 million in 2001 to $869,308 last year.
I think this petition cries out for leadership from somebody, Rog-gensack said. Everybody sees the problem. There wasnt anybody pro or con who didnt see the problem of legal services being grossly underfunded.
Roggensack and the other justices acknowledged that the issue of funding civil legal services to the poor was not just a lawyers problem. The majority court modified the petition to include a study of alternate sources of funding and to encourage the bar to bring the issue to the governor and the Legislature. Roggensack had originally suggested the idea of a three-year sunset provision, however, that did not appear in the motion eventually adopted by the court.
The courts approval came despite a State Bar recommendation that the $50 assessment be voluntary rather than mandatory. During a November 2004 meeting the State Bar Board of Governors decided to ask the court to eliminate the mandatory component of the petition. In addition, the board agreed that the State Bar should study potential long-term solutions to the issue of funding legal services to the poor.
Wilcox agreed with Roggensack that a need exists; however, he disagreed with the mandatory nature of the assessment. Instead, he indicated the court should allow lawyers to step up and help voluntarily as the State Bar had requested.
I dont think this is the answer, he explained. I think substantial funding needs to come from other sources.
Prosser also raised concerns about lawyers being forced to give money to an organization that might distribute them to agencies, whose missions the lawyers disagreed with. Another concern of Prossers addressed the fact that there was no stopping point for determining an appropriate amount for lawyers to pay. He noted that a compelling argument could always be made about the existing need for financial support, but that money would not provide the complete answer.
I would have a problem with saying the ethical obligation of the attorney is to pay $50 to a particular group that will dole out grants to organizations that have made their case, Prosser said. He later stated, Im not going to be voting to extract money from every member of the State Bar and then say I have no control over where that money goes.
He also observed that as lawyers are asked to pay more each year to maintain their law licenses, those who are not actively practicing might be more likely to go inactive and avoid paying bar dues and all the related fees.
Bridging the Gap
The justices who supported the petition recognized the fee would not solve the problem of funding legal services. However, they referred to it as a way to bridge the immediate gap in WisTAF funding. They also indicated it was a way to show those outside the legal community how serious the need is.
Justice Louis B. Butler Jr. stressed the importance of not letting the issue of funding legal services end with the $50 assessment. He encouraged the court to set a two- or three-year plan that would give the State Bar time to take some action and develop a study looking at what might be done to develop additional avenues of funding. He also emphasized the importance of getting the Legislature involved in the issue.
What we have here is a serious problem that cries out for a solution, Butler said. He went on to state, I think we want to be careful not to send the message that the court is going to handle this problem and the other groups dont have to get involved the Legislature doesnt have to get involved, the bar doesnt have to get involved.
He also pointed out the potential problems of going ahead with a voluntary fee. If we put [this] off for a couple of years you are going to have legal services agencies in this state fall by the way side, you are going to see more people not represented, you are going to see an immediate problem that is going to have a ripple effect.
Justice N. Patrick Crooks, who seconded the motion to approve the petition, also stressed the importance of sending a message that funding legal services to the poor is not just a problem for lawyers and that the Legislature has a real role to play in addressing the problem. At the same time, he observed that it was important for the court and members of the legal community to take a leadership role.
I think the proposal is consistent with the duties of attorneys, Crooks observed. I think its also consistent with the purpose of the State Bar of Wisconsin.
I see this as the very core of what we are about and why we regulate lawyers, Justice Ann Walsh Bradley said, noting that lawyers have special obligations associated with the privilege of practicing law.
Wilcox and Prosser raised concerns about the court moving too quickly to approve the petition. As well meaning as this may be, I believe it is a rather drastic move, Wilcox said.
f Justice Shirley S. Abrahamson noted that if the $50 assessment were going to be in place in time for the next dues statement, the court needed to have its plan in place by March. Summarizing the courts motion, Abrahamson said that in addition to the $50 fee, the court would look to the State Bar to develop its study, working with WisTAF, the law schools and legal aid groups throughout the state. She said the court was acting in a manner that would advance the administration of justice.
We recognize that the needs far exceed the amount of money that will be raised by this, Abrahamson said. But it is an opportunity to bring the back the funding to what it had been under IOLTA.
This is an issue for all the people of the state and all the people of the state benefit from the administration of justice if it is done well, fairly and impartially.
She also noted that the court expects the bar to continue working with the Legislature to develop a statewide solution to the problem of funding legal services to the poor.
Prior to the courts administrative session, the justices listened to more than two hours of testimony from people supporting and opposing the WisTAF petition.
Supporters stressed the importance of providing equal justice under the law. They noted the courts obligation to help administer the judicial system and administer access to justice for those who could not afford lawyers.
Responding to a question from the court, John Skilton, who served as WisTAFs legal counsel and brought the petition, indicated there was no guarantee that the court would not face a legal challenge if it imposed the $50 fee. However, the felt it was a defensible position.
Opponents of the mandatory fee included State Bar President Michelle Behnke. She brought the State Bars request that the fee be voluntary rather than mandatory.
Behnke indicated that the State Bar recognized the need, but did not believe a mandatory assessment was the solution. She added that an opt-out plan would allow lawyers to give thoughtful consideration of whether to pay the $50 or cross it out.
Behnke and other opponents ex-pressed concerns about sending a message to legislators and the public that they did not have to do anything because the courts and lawyers would address the issue.
Madison attorney Steven Levine also supported the State Bars position. He warned of potential legal challenges if the court were to adopt the WisTAF petition.
Levine noted that assessing a mandatory fee and giving it to WisTAF to distribute to a variety of legal service providers would take from lawyers the ability to choose how to donate their own money.
The Supreme Court eventually approved the WisTAF petition 5-2 and instructed court staff to draft an order consistent with that position.
Tony Anderson can be reached by email.