“I think we are poorly organized on this board to react quickly,” said Gov. Arthur J. Harrington of the bar’s Board of Governors.
The board meets five times a year, which is at odds with the rapid approval pace of recent legislation.
In less than a month, the Republican-controlled Legislature drafted and passed sweeping tort reform laws, and changes to auto insurance coverage are forthcoming.
The State Bar opposed three elements of the tort reform bill related to higher standards for proving product liability, caps on non-economic damages in suits against long-term health care providers and stricter expert witness testimony thresholds. But the board didn’t meet until Feb. 4, and the law was enacted Feb. 1.
Respective sections of the bar can individually promote or oppose legislative proposals relevant to their practices, but lobbyists are somewhat handcuffed in their ability to present a universal stance for or against legislation unless the Board of Governors votes on it.
“That is an arcane approach given the fact we meet on a quarterly basis and this is happening as we speak,” Harrington said.
State Bar President James C. Boll has appointed a committee to determine how the bar can better mobilize to respond to pending legislation. Ideally, he said he envisions a subset of the Board of Governors having the authority to make quick decisions rather than have to run everything past the entire 53-member board.
While the Policy Committee wasn’t formed in response to the flurry of recent legislation, chair Frank D. Remington acknowledged it is good timing, given the new administration’s speed in adopting law changes relevant to the profession.
“We’re looking at whether the board should be restructured to allow it to take positions on legislation quickly, especially in light of recent developments and the pace legislation is being proposed,” he said.
Despite the bar’s pacing issues, some attorneys wonder if the Legislature is purposely trying to fly past attorneys.
“Of course they are getting ignored,” Milwaukee attorney Robert R. Henak said of the State Bar. “Governor (Scott) Walker and leaders in Legislature have wanted to get these through for a long time, so it’s a situation of ‘don’t confuse me with the facts, my mind is made up.'”
Criminal defense attorney Theodore J. Perlick-Molinari, who serves on the Board of Governors, questioned whether attorneys had become irrelevant in the current legislative process.
“Maybe it says something that they don’t care what lawyers think and they didn’t approach the State Bar to get an opinion,” he said.
Cullen Werwie, spokesman for Gov. Scott Walker, said the legal profession isn’t being targeted by the new administration and that the goal of the recent legislation is to create jobs, not punish attorneys.
But he also said none of the recent changes should come as a surprise.
“This is what the governor has been campaigning on for two years,” Werwie said. “I would argue he’s not hiding anything or doing anything unexpected.”
Boll lamented the fact that the bar as a whole had not had an opportunity to respond to some of the elements contained in the tort reform bill, but said he hasn’t gotten a sense from organization lobbyists that the Legislature has tried to exclude the bar in legislative discussions.
“There may be disagreements, but I haven’t gotten any indication that the legislature is trying be a barrier for the board,” he said.
But even if a subsection of the board is given authority to take policy positions, Perlick-Molinari questioned whether it would be able to reach a consensus on proposals as broad as tort reform.
Plaintiffs’ attorneys and the defense bar lined up on opposite sides for many of the adopted changes to product liability and health care laws included in the bill.
Perlick-Molinari said even in a group smaller than the Board of Governors, members will struggle to balance their political leanings, professional impact of any legislation and the overall interests of the bar.
“It’s going to be nearly impossible,” he said.
Jack Zemlicka can be reached at email@example.com.