|“Simply throwing money at the problem is not the answer. We need strong leadership to take the Bar in the direction necessary to see to it that citizens aren’t denied justice simply because they are poor.”
Thomas J. Basting Sr.
Among the top issues facing state bar associations nationwide is the provision of civil legal services to the poor.
That’s according to the two Madison lawyers who are vying for the job of president-elect of the State Bar of Wisconsin for the upcoming 2006-07 term.
Both candidates, Thomas J. Basting Sr. of Brennan, Steil & Basting S.C. and Kent I. Carnell of Lawton & Cates S.C., are anxiously anticipating a report from a group charged by the bar to examine the issue. Dubbed the "Access to Justice Committee," it is chaired by Milwaukee County Circuit Court Judge Richard Sankovitz, and its formation came in response to an order from the Wisconsin Supreme Court in January 2005 requiring all active bar members to pay a $50 assessment for civil legal services to the poor. The Wisconsin Trust Account Foundation (WisTAF) petitioned for the order.
Candidate Carnell serves as chair of the State Bar Board of Governors, which is still considering additional responses to that order an order the Board of Governors opposed, and which has drawn vocal criticism from some bar members, both before and after its promulgation.
Because it’s a "legal matter," as a current bar leader, Carnell cannot comment on the bar’s proposed courses of action.
He can state, however, that clearly, the delivery of legal services to the poor is a serious problem for the legal system and society as a whole. He also predicts that the Board of Governors would likely use any suggested courses of action from the Access to Justice Committee and follow up with the Supreme Court. He hopes that it will suggest ways other than assessments upon lawyers to ameliorate the problem. The Access to Justice Committee’s report will probably be concluded at year’s end.
"I’m committed to seeking solutions to serve the legal needs of the poor. Both our legal system and society will benefit from new ideas and solutions to this problem."
|“I’m committed to seeking solutions to serve the legal needs of the poor. Both our legal system and society will benefit from new ideas and solutions to this problem.”
He says. "I look forward to working with the Supreme Court, lawyers and others to improve justice for all people no matter what their level of income."
Candidate Basting, similarly, hopes the report will offer solutions to the problem. He observes, "As lawyers, we need to recognize that we have a sworn obligation to address the need for access to justice for all of our fellow citizens. Simply throwing money at the problem is not the answer. We need strong leadership to take the Bar in the direction necessary to see to it that citizens aren’t denied justice simply because they are poor."
He adds, however, that he hopes the current bar leadership will not attempt to seek any legal redress against the high court related to the WisTAF assessment. "It would be a serious mistake," says Basting. "The bar needs to forge stronger relationships with the court, and enlist its help with the problem not create an adversary situation."
Supporters of the Mandatory Bar, Public Image Campaign
The candidates’ near mirror-image positions on the WisTAF assessment aren’t their only similarities.
Both are litigators. Both have spent significant time in law-firm management, helping to build successful medium-sized firms. Both have lengthy records of service to both their community and their profession.
And, both disagree with the bar’s current president-elect, Steven Levine, on an issue he made the centerpiece of his campaign one year ago: exploring a change in the bar’s organization, from the current mandatory bar to a voluntary bar.
Carnell reminds that the bar, a creation of the Supreme Court, could only be reorganized as a voluntary association by that body, and he does not think the justices are inclined to the change. But more importantly, he says, one of the central functions of the bar is to provide service to its members. A number of bar service areas have been expanded recently, including a new law office management program. He states, "If we have a voluntary bar, it will be smaller, there will be less money, and we won’t be able to offer these kinds of services. And I think in today’s world, it’s important to offer these services, especially for small-firm lawyers who can’t afford to hire consultants."
For his part, Basting says the mandatory bar has worked well. He also doesn’t see the high court embracing change on that issue anytime soon.
"I know Steve [Levine], although not well. I know he has his opinion on the topic, and that he has been a government lawyer for most, if not all, of his career. He looks at it differently, and I can understand where he’s coming from, although I disagree with him," says Basting. "The bar can have an honest debate on the issue, but when the smoke clears, I believe that my position in support of the mandatory bar will prevail. And the reason is that lawyers, in my opinion, benefit much more from a mandatory bar in the area of CLE and the numerous other services a mandatory bar is able to offer to its members."
Last year, Levine additionally criticized the effectiveness of the bar’s "Branding the Profession" public image campaign. Both men seeking the president-elect spot this year beg to differ.
asting supports the campaign. "The Wisconsin Manufacturers & Commerce are taking out billboards that bash ‘trial lawyers.’ But that phrase has always been puzzling to me, because all of us who litigate, on both the plaintiff or defense side, are trial lawyers, and to vilify all who litigate as the cause of all problems in our society is wrong.
"So I think the bar needs to take a leadership role. We need a better dialog with these groups. Let’s not condemn each other. The same goes for the medical profession. We need to mend some relationships and I do think the image campaign is helping to further that goal."
Carnell echoes those sentiments. "Lawyers almost every day get a bad rap in the news media. It’s easy for politicians and the media to blame lawyers for lots of things, and much of it is unfair. Lawyers, for the most part, do good legal work, and they are involved in their communities in various ways. And I think the public should understand that. They need to know about the value of lawyers."
He adds, on a related note, that he is very concerned about what he sees as escalating attacks on the independence of the judiciary. "Lawyers need to support a judge’s duty to make decisions based on the law and the Constitution and support our country’s foundation of three equal branches of government," he urges.
Presidential Initiatives Focus on the Future
With regard to presidential initiatives, Carnell says that handling the issues that are already on the table should occupy him. He notes, however, that as bar president, he’d make keeping an eye on the future of legal practice a top priority. New challenges to the legal profession are constantly arising, such as recent efforts by the Federal Trade Commission to regulate lawyers via the Gramm-Leach-Bliley Act. Although that issue seems to be resolved, new ones are always surfacing, he reminds.
Lawyers should be able to rely on their bar leaders to be watchful of such new developments and take appropriate action, so they can go on practicing law.
"I think it’s important for the bar and specialty bars to get together on some of these issues, so we are all on the same page when they come up," he says. "The bottom line has to be, how lawyers can best serve the public, and how we can all work together for the common good of the legal system."
Basting, in a similar vein, says his ideas for presidential initiatives, while still in the early stages of development, would focus on education to help bar members with change.
First, he says the demographics of the legal profession are changing. "Baby Boomers" lawyers his age and younger will be approaching retirement soon and will need guidance on how to do that, and what they can do with their time afterward. If elected, he would work with the bar’s Senior Lawyers Division to help with that.
Second, Basting, who serves as vice-chair to the Wisconsin Supreme Court’s Ethics 2000 Committee, says a number of significant ethics rules changes are probably on the way. If elected, he will work to establish education and other support systems to help deal with those changes. One of the rules changes on the way is a requirement that lawyers use written fee agreements for representations where the total fees will exceed $1,000. Another significant impending rules change will be procedures to allow limited screening with regard to conflicts of interest.
Basting says he considered a run for State Bar president several years ago, but was too busy to pursue it. The situation is different now. Just last month, he stepped down from an active full-time practice at his firm, to part-time mediation with Midwest Mediation and to remain on as a part-time consultant to his firm.
"I’m at a point now in my career where I have much more time. I’ve got the energy, and I can literally devote much more time to bar activities than I ever could in the past. I think that’s a plus for me that I’m at a point in my life now where I can think about giving something back substantially, to a profession that’s been very, very good to me," he says.
This is perhaps the only noteworthy difference between these candidates. Carnell says, if elected, he would not be able to devote quite as much time to the bar. Rather, he would likely follow the lead of several recent bar presidents who have donated approximately half of their workdays to bar business and half to their practices. He couldn’t leave his clients mid-stream, nor would he want to do that but he will get the job of bar president done through self-organization and effective scheduling.
Plus, it keeps him closer to the issues in practicing law, he notes.
He says, "I’ve been a practicing lawyer for 35 years. I know a lot of lawyers. I’ve practiced all over the state. And now, being on board of Governors, I think I have a feel for the issues. I’m a person who listens and tries to bring consensus, and I always try to keep the big-picture in mind."
When talking about the issues, the two candidates cannot currently point to any significant differences between them, although maybe they’ll find a few once they make a few joint visits to local bar meetings in the coming weeks. They anticipate an extremely friendly campaign.
Voting begins in April and will be completed on the 28th. The term of office begins July 1.