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State Bar will investigate legality of fee

State Bar Motion
The motion approved Friday by the State Bar Board of Governors by a 24-17 vote states:
“The State Bar of Wisconsin officers are directed to obtain counsel and obtain a legal opinion from said counsel as to the legality of the Supreme Court Order approving the WisTAF Petition (Petition 04-05) to impose a $50 mandatory assessment annually against every active State Bar member and its potential impact on the status of the bar.”

The State Bar of Wisconsin Board of Governors has decided to enlist counsel to review the legality of the state Supreme Court’s decision to assess lawyers $50 annually. In a 24-17 vote Friday, the board agreed to have legal counsel look at the court’s ability to impose a mandatory fee to support legal services to the poor and to consider the impact of that action on the status of the bar as a mandatory organization.

Gov. John P. Macy, of Arenz, Molter, Macy & Riffle SC in Waukesha, brought the motion as a special action item in response to the Supreme Court’s Jan. 12 action. Macy expressed disappointment with the Supreme Court’s decision and cited the need to be accountable to members as State Bar representatives.

“I want to leave here today being able to tell my constituents that we are at least looking at the issue,” Macy said.

He maintained that no other state had taken this particular approach to funding legal services to the poor; therefore, this required some review to determine its validity.

“We are lawyers,” Macy said. “Our constituents are lawyers. Don’t we have an obligation to at least find out if the action of the Supreme Court is legal?”

Macy’s original proposal was limited to a review of the legality of the fee. However, Treasurer Dean R. Dietrich, of Ruder Ware in Wausau, asked the bar to include a review of the decision’s impact on the bar’s status.

“Does this action by the Supreme Court put us at risk of losing our mandatory status?” he asked. “If that is a potential outcome here, we have a fiduciary duty to take a look at this from a legal standpoint.”

Gov. G. Jeffrey George, of Moen Sheehan Meyer Ltd. in La Crosse, indicated he originally opposed the motion and perceived it as throwing down a gauntlet.

However, after inclusion of the language to review the State Bar’s status as a mandatory bar, George said he thought that was important information the state Supreme Court might like to have as well.

Several board members maintained their opposition to the motion. Gov. Kent I. Carnell, of Lawton & Cates SC in Madison, indicated he was not pleased by a mandatory fee, however, he expressed concern about the direction Macy’s motion would take the State Bar.

“Where this motion is going — it doesn’t say it so far, but where it leads — is an action against the Supreme Court, challenging what they did,” Carnell predicted. “I think this body has no business challenging the Supreme Court.”

He noted that challenges would likely come from individual lawyers opposed to the plan. Gov. Daniel L. Shneidman, of Shneidman Law in Milwaukee, agreed with that observation.

“We are an organization under direct supervision — we were created by the Supreme Court,” Shneidman said, expressing concerns about the impact it would have on the board’s relationship with the court. “We are going to sue the person that created us?”

The board’s adopted motion did not include any provision about moving beyond a legal review of the situation at this point.

Past President R. George Burnett, of Liebmann, Conway, Olejniczak & Jerry SC in Green Bay, admitted he shared the other governors’ disappoint, however, he did not see the motion as an appropriate response at this time. He noted that the constitutional concerns over free speech and free association have been entwined in the litigation over a mandatory bar in Wisconsin for 30 years. He also indicated the bar should wait to get more feedback from members before making such a strong move.

Finally, he said, “We need to look at how this is going to be perceived by the public at large and our members. This move is going to be perceived as an effort by the State Bar to explore litigation against the Supreme Court by allegations that the Supreme Court exceeded its power. That is a very, very serious step.”

The State Bar had supported an alternate proposal for a voluntary, opt-out fee, but had opposed imposing the mandatory fee. That action came during the November Board of Governors meeting.

State Bar President Michelle A. Behnke, a Madison sole practioner, presented the group’s position to the justices during a public hearing on the matter Jan. 12.

Behnke acknowledged the problem of funding legal services to the poor. However, she described it as a societal problem that would not be solved by the $50 fee. She encouraged the court to let lawyers decide for themselves whether to put $50 toward WisTAF. Behnke also expressed concerns about the negative impact the mandatory fee would have on pro bono service or other contributions by lawyers.

Following nearly two and a half hours of testimony during the public hearing and an hour of discussion during an administrative conference, the court decided 5-2 to support a mandatory $50 fee for lawyers. The majority of the court expressed the need to take a leadership role on the issue of providing legal services to the poor.

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Board members expressed frustration that the Supreme Court did not accept the State Bar’s recommendation of a voluntary fee.

“I like many of you [am] extremely disappointed that the Supreme Court gave such short shrift to our opinion,” Macy told the board Friday.

Carnell, who attended the Supreme Court sessions, challenged that characterization of the court’s action. “I think to say the Supreme Court gave short shrift to our position is inaccurate,” he said. “I think they considered it seriously —they disagree with it.”

Several board members expressed concerns about spending money for the legal analysis. Gov. Deborah M. Smith, of the State Public Defender’s office, said, “I would be personally embarrassed if we spent one nickel of State Bar money to oppose something that is going to generate funds for legal services to the poor.”

Following approval of the Macy’s motion, Smith brought her own motion requiring the bar to seek pro bono representation rather than paying for legal services. That motion was defeated 37-4. Another motion by Shneidman to delay moving forward until the next meeting when the board could see what else had taken place was defeated by a similar margin.

– Tony Anderson

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Tony Anderson can be reached by email.

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