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Justices question judges on limited-scope representation

Wisconsin Supreme Court justices expressed concern Friday that a rules petition pertaining to limited-scope representation would allow judges to keep attorneys on cases far longer than the attorney had agreed.

The petition, put forth by court’s Planning and Policy Advisory Committee, would clarify limited-scope representation requirements for attorneys, spelling out how and when an attorney could take on a client in a limited fashion.

Among the clarifications the petition would make is that an attorney would need to enter into a written agreement with a client before taking the case and file notices in court in order to start and terminate representation for a case.

The idea is to encourage more of this work in courts to address the growing number of indigent clients that are involved in civil cases without an attorney. The court held a public hearing on the petition Friday, but did not make a decision on whether to approve it.

During the hearing, Chief Justice Shirley Abrahmason and Justices Pat Crooks and Michael Gableman asked the supporters who testified whether judges would be able to keep an attorney on a case.

Bayfield County Circuit Judge John Anderson, who worked on a PPAC subcommittee to study the issue, said the petition is “suggesting that in the normal course of business that judges should not interfere with the withdrawal process.” However, there is nothing in the rule to keep a judge from having an attorney continue on a case.

But Milwaukee County Circuit Judge Mike Dwyer said the rule should not be dismissed because of this wrinkle. He acknowledged that “there will be abuses” and “circumstances where [limited scope] is not reasonable.

“Those things will happen, but the purpose of the rule is to encourage this,” Dwyer said, referencing the push to help more indigent clients.

Diane Diel, a former State Bar president and Milwaukee attorney who takes limited-scope cases, said that she would “take that chance” when accepting a case.

Justice David Prosser, who served as a state representative before taking the bench, wondered if a legislator who also is an attorney would be affected by the rules if they gave advice to a constituent. Anderson said he believes that the rules would apply to them, as well.

“I helped a countless number of people on various issues,” Prosser said, “And you’re saying, under your rule, I would have been subject to prosecution by the [Office of Lawyer Regulation].”

When asked by Justice Pat Roggensack about what family court proceeding would benefit the most from having attorneys, Dwyer said settlement conferences. If the rules are changed, he said, family court proceedings eventually could run smoother.

“The tradition of the delivery of the legal services system has failed in family court,” Dwyer said.

Anderson said he thinks the “proposals give our profession a pathway” to address the growing number of indigent clients.

The petition states that nonprofits and clinics that are run through law schools will not have to change the way they work. It has the support of the Access to Justice Commission and Legal Action of Wisconsin Inc.

Tom Cannon, Legal Aid Society of Milwaukee Inc.’s executive director, opposes the petition. A letter filed Monday states Cannon is concerned the petition “will be used to relieve courts and the legislature of their constitutional and moral responsibility to provide meaningful access to justice to all Wisconsin citizens.”

“Providing ‘a pinch of advice’ to such vulnerable clients is worse than useless – it is downright cruel,” the letter states.

The justices will decide the petition’s fate at a later meeting. Their next rules conference is April 4 at the Wisconsin State Library in Madison.


About Eric Heisig

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