ETHICS 2000

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In the coming months, the state Supreme Court will consider numerous potential changes to the rules governing lawyer ethics in Wisconsin. Last month, the high court received a 141-page report from the committee it created to consider ABA Model Rule changes.

The changes range from rules that would require reporting of pro bono activities to those related to communication with clients. Due to the vast nature of the changes, the Supreme Court has chosen to discuss specific elements of the proposal during upcoming administrative conferences. The court will focus on those issues that have generated the most discussion or controversy.

During a February public hearing on Ethics 2000, Chief Justice Shirley S. Abrahamson noted the immense amount of materials submitted re-garding the Ethics 2000 proposal and the responses to it. She indicated that it would take some time for the justices to sort through all of the potential changes, especially those where the court received a significant response from the legal community.

Each time the court meets in open conference, she said the court will look at "one or more provisions that have engendered heat and light." The court plans to let people know what provisions are being considered and may allow for some public discussion of those particular issues.

"It may take take a few months to do this, but we are dealing with Ethics 2000 and it didn’t come out of the ABA until several years thereafter," Abrahamson noted wryly. "So we can refer to it as Ethics 2000 and it will be done before Ethics 3000."

The Wisconsin Ethics 2000 Committee took several hours presenting key elements of the proposal to the justices. The committee, which included lawyers and non-lawyers, spent two years reviewing potential changes to SCR 20, the Rules of Professional Conduct for Attorneys.

Four committee members highlighted elements of the proposal that had generated a lot of feedback. Many of the proposed changes dealt with communication between lawyers and the clients and communication between lawyers and the court.

Mandatory Pro Bono Reporting

A proposed change to SCR 20:6.1, which would require mandatory pro bono reporting, generated the most feedback. That proposal would narrow what activities qualify as pro bono service and would require a reporting of pro bono activities without mandating those services. The proposal would allow lawyers to make a financial contribution in lieu of providing pro bono services.

Committee member Michael K. Mc-Crystal, a Marquette Law School professor, said there would be a benefit from knowing what lawyers are doing in terms of pro bono service. He also noted that states where mandatory reporting has been implemented have seen an increase in pro bono participation by lawyers.

"We are responding to what we perceive to be a great unmet need with respect to legal services for people with limited means," McCrystal said.

Abrahamson asked why the state needed mandatory reporting when the court already had approved a $50 fee to support legal services to the poor through the Wisconsin Trust Account Foundation. McCrystal reiterated that this would provide additional information about what lawyers are doing to help the poor and would help to encourage more pro bono service.

Mequon family practitioner Valorie Kohn and Madison attorney Steven Levine with the Public Service Commis-sion both opposed mandatory reporting. Kohn expressed concerns about the onerous nature of providing 50 hours of pro bono service. While the rule would not require a lawyer to provide that much service, it sets 50 hours as a goal to which they should aspire.

"What it will create is more of an alienation on the part of attorneys toward you as a court," Kohn said.

Levine emphasized the personal nature of providing pro bono service. He described it as an act of conscience that should be done privately.

"We want to retain the dignity that every lawyer has to do pro bono or not do pro bono as a matter of conscience and not as a matter of government coercion," Levine said.

Justices indicated some opponents were concerned the definition of pro bono was too narrowly defined. They also questioned who would keep the reported information and how it would be used. The rules change does not contain any enforcement mechanism.

State Bar President Michelle Behnke indicated that the Board of Governors opposed the committee proposal establishing mandatory reporting and narrowing what constitutes pro bono activity. She noted that mandatory reporting had the potential to alienate lawyers and might negatively affect their willingness to provide pro bono services. She also noted that the State Bar will be conducting a study reviewing legal services to the poor, which board members felt would provide better information that mandatory self-reporting.

Insurance Defense Exception

Prior to the public hearing, the State Bar submitted a 20-page report with the Board of Governors’ response to the Ethics 2000 proposal. (That report document is available at www.wisbar.org/ethop/2000/.) Behnke was not allowed to review the State Bar’s position on the majority of the items in the report; however, she highlighted a few large issues.

Explaining that the Board of Governors spent several sessions reviewing dozens of significant elements within the Ethics 2000 report, she pointed to the mandatory pro bono reporting and a provision that could change the dynamics for insurance company lawyers who represent insured clients, as two topics that generated a great deal of discussion.

Several groups that represent insurance companies expressed concerns to the State Bar and later to the Supreme Court about a revision that would eliminate an insurance defense exception to the requirement that a client give informed consent to legal representation. Represen-tatives of those groups have explained that the proposed change would complicate the tripartite relationship between insurance companies, insurance defense counsel and
insured clients.

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Civil Trial Counsel of Wisconsin Secretary-Treasurer John Slein and Bernard McCartan, who spoke on behalf of the Wisconsin Insurance Alliance, told the Supreme Court the proposed change to SCR 20:1.8(f) was an attempt to fix something that was not broken. They indicated there was no problem with the existing rule. However, the change could lead to a breakdown in representation if the insured client refused to consent, when that person’s insurance policy contained an implied consent.

In addition to the insurance defense exception and mandatory pro bono reporting, Behnke also raised some concerns about a provision requiring mandatory malpractice insurance disclosure to clients. Under the proposed change, lawyers would have to tell clients up front whether they carried malpractice insurance.

Behnke said the Board of Governors raised concerns about the confusion that might create for clients, who did not understand the differences between legal malpractice insurance and the type of insurance that most of the public is familiar with.

"A mandatory disclosure obligation would not provide any substantive information to the public," Behnke told the court. "So we did not support such a rule."

The proposed rules changes cover a wide variety of issues including: limited scope of representation, written fee communication with clients, changes to the definition and responsibilities of a prosecutor, and rules related to guardians ad litem. For more information, the Ethics 2000 Committee petition is available at the court’s Web site, in Microsoft Word format.

Tony Anderson can be reached by email.