Voluntary bar movement stuck in limbo

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The State Bar is operating in a gray area, a past leader of the group alleges, until it defines its role more clearly.

Doug Kammer, past State Bar president and an outspoken critic of what he perceives to be the bar’s lack of transparency, said he is hopeful the state Supreme Court will take on a recent petition by Madison attorney Steve Levine to make the bar voluntary. The court’s consideration could help define some long-debated issues surrounding the bar’s role in the state, he said.

Kammer suggested the court will take Levine’s petition and others that may offer alternative plans for the organization, because it offers the court opportunity to improve the overall transparency of the bar. The bar should not be allowed to pretend it is neither a public agency nor government body, he said.

Kammer’s comments echo years of debate on whether the bar should remain mandatory, as determined by the Supreme Court in 1956.

A petition filed in February to make the bar voluntary awaits consideration by the state Supreme Court. The State Bar’s Board of Governors opted not to take a position on the petition at its April meeting in Green Bay.

The board voted 40-4 against taking a position on Levine’s proposal, a move board member Nick Zales called a mistake.

He voted in the minority and said the board had a duty to take a stance, although he said he has his doubts the court will take up the petition.

“If it does, it will ask the State Bar what its position is and at that time the Board of Governors would likely take a position,” he said. “I wanted the Board to take a position at our meeting in Green Bay, but there was very little support for that.”

Membership status has been at issue for more than half a century. Thirty-two years after the bar was first made mandatory, a federal district court declared the mandate unconstitutional in 1988. That decision was overturned in 1992, and the Wisconsin Supreme Court reinstated the mandatory bar.

The Board of Governors last June failed to endorse by one vote a planned petition to the Supreme Court seeking a review of the organization’s membership status, essentially ending the discussion at the board level.

Levine’s February petition cited a 2008 State Bar membership survey in which 57 percent of members surveyed supported a voluntary bar and noted that since 2005, three of the last six presidents of the State Bar, including Levine, have supported abolition of the mandatory bar.

If the state’s high court does decide to take Levine’s voluntary bar petition, board member Nate Cade said he thinks there will be counter petitions filed as a result, including one of his own.

Cade is considering an alternative petition with the court, he said, seeking an expansion of the bar’s responsibilities to potentially include governance of Continuing Legal Education, discipline and admissions, to further justify the bar’s mandatory status.

If the court opts not to schedule a public hearing on Levine’s petition, however, Cade said there would be no need to upset the status quo.

Whatever the decision on the bar’s mandatory status, Kammer said he would be surprised if the bar remains exactly as it is now.

“If mandatory supporters think they can tread water and this will go away,” he said, “they are deluding themselves.”

Jack Zemlicka can be reached at [email protected].