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Board of Governors opts to hold attorney hiring discussion behind closed doors (UPDATE)

By: Eric Heisig//April 24, 2014//

Board of Governors opts to hold attorney hiring discussion behind closed doors (UPDATE)

By: Eric Heisig//April 24, 2014//

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The State Bar’s Board of Governors is scheduled to hold a discussion in closed session concerning the bar’s decision to hire an attorney to represent the organization in front of the state Supreme Court.

The BOG then will decide what to release publicly.

The decision to close that portion of the meeting – which will take place Saturday in La Crosse – was made by BOG Chairwoman Sherry Coley, according to an email attributed to her that was sent to BOG members Thursday, a copy of which was forwarded to the Wisconsin Law Journal.

Bar spokeswoman Andrea Gage said the decision to close that portion of the meeting is not finalized, however, as the BOG will vote on it at the meeting, which is scheduled to start Friday afternoon.

According to Coley’s email, she “considered past procedures and reviewed our bylaws” before making the decision to close the discussion. The email did not specify which bylaws and past procedures to which she referred, though Gage said the discussion may address past litigation in which the bar was involved.

Coley, of Godfrey & Kahn SC, did not immediately return a message left Thursday afternoon.

The pending discussion was sparked by an email sent to former State Bar Assistant Executive Director Lynda Tanner by BOG member Steve Levine, who questioned why the bar spent $27,688 to hire Bobbi Howell of Foley & Lardner LLP to defend a bylaw in front of the state Supreme Court. That bylaw, as well as a corresponding rules petition, would have, in part, given the BOG power to remove a governor.

Levine challenged the petition with one of his own, in opposition of the bylaw.

Bar President Patrick Fiedler has said he hired Howell at the request of bar Executive Director George Brown.

The court unanimously decided earlier this month that the BOG should, as written, not have that power, mainly because there was a clause in the BOG’s newly passed bylaws that said a member could be removed if he or she “engages in conduct which is contrary to the best interest of the State Bar.” Justice David Prosser said that the court would be “insane” to approve the BOG’s petition as is.

According to Coley’s email, BOG members will be provided with Howell’s invoice, as well as “a summary providing past background and protocols, and detailed expenditures since 2009 on outside counsel.” Brown also will brief the board on the process, according to the email, “and then address the more recent questions and expenditures arising from the petition hearing …”

According to Coley’s email, “Knowing that fiscal responsibility is of high importance to our greater membership, the Board will discuss and decide the information that will become publicly available. I anticipate we will vote on a statement or release (of sorts) that will become public and will address the process used in hiring outside legal counsel.”

Levine, who will not be at this weekend’s meeting, said he was angered by Coley’s decision. He said he thinks the push to close the discussion was made to spare the bar from embarrassment.

“There is no excuse for them to close this at all,” Levine said.

For some BOG members, though, getting information about the hiring of outside counsel is enough, even if it is in closed session.

BOG members Nilesh Patel and Nick Zales both said they do not feel it is improper to talk about the issue in closed session.

Patel, of Mahadev Law Group LLC, said he feels it is appropriate to close the discussion in order to discuss legal strategy.

“The spirit of how we run our meetings are close to open meetings,” Patel said, “but there isn’t precedent saying we’re bound by open meetings laws. This doesn’t fit squarely into the list of exceptions, but then again that law doesn’t apply.”

The bar is set up as a quasi-governmental body that performs a function – i.e. the regulation of lawyers in Wisconsin – that the courts system would otherwise have to do. However, the bar does many other things that don’t qualify as government functions.

Bob Dreps, a Godfrey & Kahn attorney who has represented the Wisconsin Newspaper Association, in a previous interview said that unlike government entities, the State Bar is not subject to open records and open meetings laws and would most likely prevail if anyone attempted to sue for access to financial information.

“In the end, it’s not that directly tied to government,” Dreps told the Wisconsin Law Journal in 2011. “There are no government officials who run it. Regulating the State Bar is a function of the state Supreme Court, and the bar certainly cooperates in that, but in many respects it’s adversarial to the Supreme Court.”

Zales said that, in the end, he is just happy to receive information regarding Howell’s hiring. He said he sent emails to bar leadership earlier this week, yet received no response until Thursday.

He also said he has strong objections to paying Howell more than $27,000, and likened the bar’s strategy with the rules petition to using “a sledgehammer on a flea.”

“One of the problems with the Board of Governors is that some of the members think it’s nothing,” Zales said. “But to 80 percent of our members, that’s half a year’s pay.”

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