Bar Public Image debate reopens

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Three Wisconsin attorneys are asking the 7th Circuit Court of Appeals to revisit its decision which determined that the State Bar of Wisconsin’s use of mandatory dues to fund the Public Image Campaign did not violate the First Amendment.

In a motion for rehearing filed last month, Jon E. Kingstad, Steven A. Levine and James S. Thiel argued that the question of whether the bar’s campaign was intended to improve the quality of legal services should have been remanded to an arbitrator and not answered by the court.

In Kingstad v. State Bar of Wisconsin, No. 09-4080 (7th Cir., Sept. 9, 2010), (http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=09-4080_002.pdf) the court held that expenditures made by a mandatory bar association must be “germane” to improving legal services, and the $97,000 spent by the bar in 2007 enhancing the image of lawyers was intended to improve legal services.

But the plaintiffs-appellants said that the court “erroneously decided” the second issue and asked that it be remanded to the arbitrator, who in his initial decision, expressed “doubts” as to the germaneness of the Public Image Campaign.

“I think he did more than express doubt and if he were to decide the case, he could decide against the bar,” Levine said. “The court was not supposed to decide the issue and if it found that the arbitrator made an error, they are supposed to send it back to him for a decision.”

The bar launched its Public Image Campaign in 2002, and the initiative featured television commercials of lawyers performing community projects and pro bono work.

In 2007, the bar spent $97,886 of mandatory dues on the campaign, or about $5.16 per member. The plaintiffs unsuccessfully challenged those expenditures in arbitration in 2008 and filed suit in state court. The bar removed the action to federal court, where U.S. Magistrate Judge Stephen L. Crocker affirmed the arbitrator’s decision.

The 7th Circuit also affirmed on appeal in September.

In their motion, the plaintiffs-appellants said the court cited no precedent for its authority to decide an issue presented to an arbitrator and violated Wis. Stat. 788.10(2).

The law authorizes a reviewing court that finds an arbitrator exceeded his or her authority to remand to the arbitrator, not decide the issue itself.

Attorney Howard A. Pollack is a past president of the 7th Circuit Bar Association and said while the plaintiffs-appellants may make a “good argument,” historically the court rarely grants motions for rehearing.

Absent a change in the law since a decision or a glaring misapplication of the facts, Pollack said petitioners face an uphill battle.

“Those motions are tough sells if nothing else has changed,” he said.

Pollack also noted that the court is not required to request a response from the bar. Given that the motion was filed on Sept. 22 and no such request has been made, he said that probably doesn’t bode well for the petitioners.

“Unless one of the judges on the panel wants it, that’s a pretty good sign the motion will be denied,” Pollack said.

Levine took a more optimistic view and suggested the absence of action from the court as a positive sign.

“Obviously, they are looking at it,” he said.

Even if the court denies the motion, the Wisconsin Supreme Court currently has before it a petition by the same plaintiffs to amend SCR 10.03(5)(b)1, and limit the use of bar funds. The petition is being held in abeyance and has not been scheduled for a public hearing.

Jack Zemlicka can be reached at [email protected].