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High court to hold public hearing on bar-dues proposal

By: Erika Strebel, [email protected]//October 11, 2017//

High court to hold public hearing on bar-dues proposal

By: Erika Strebel, [email protected]//October 11, 2017//

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Steve Levine, the author of a petition that would put tougher restrictions on how the State Bar spends mandatory dues, will be making a presentation about the proposed rule change on Oct. 30 in front of the state Supreme Court. (Staff photo by Kevin Harnack)
Steve Levine, the author of a petition that would put tougher restrictions on how the State Bar spends mandatory dues, will be making a presentation about the proposed rule change on Oct. 30 in front of the state Supreme Court. (Staff photo by Kevin Harnack)

A proposal going before the Wisconsin Supreme Court later this month would put tougher restrictions on how the Wisconsin State Bar spends lawyers’ mandatory dues.

In the U.S. Supreme Court case Keller v. State Bar of California, the justices held that state bars may not use mandatory dues to pay for political purposes unless the money is put, in some way, toward regulating the profession or improving legal services. Because of that decision, the Wisconsin State Bar is now required to let lawyers choose every year to take back part of their dues. The exact amount to be refunded is calculated by tallying up the bar’s spending on lobbying and other activities that fall outside the fair uses listed in the Keller case.

Steve Levine, a lawyer out of Madison who is both a frequent critic of the bar and a former state bar president, filed the petition in April. He is proposing that the bar prepare one budget for proposed expenditures of mandatory bar dues and a separate one for voluntary bar dues.

According to Levine’s memo, mandatory dues should be used for only five purposes:

  • Preparing and participating in Supreme Court rule-change petitions;
  • administering the Wisconsin Lawyers’ Client Protection Fund;
  • administering the Wisconsin Lawyer Assistance Program, which helps lawyers with personal troubles;
  • offering legal advice to lawyers about complying with the rules of professional conduct; and
  • paying for programs approved by the high court after a hearing.

Levine has contended that the bar’s spending often oversteps the limits spelled out in both Keller and state rules. As a result, bar members might have been made to pay for speech that they either don’t agree with or which they would have prefered to not engage in.

In its last open-rules conference of their previous term, the state Supreme Court voted to send the matter to a public hearing.

PUBLIC HEARING

WHAT: Proposal for a change to state rules governing how the Wisconsin State Bar spends money raised from members’ mandatory bar dues.

WHERE: Supreme Court Hearing Room in the state Capitol

WHEN: 9:30 a.m., Oct. 30

WHO: The author of the petition, Steve Levine, will be making a presentation about the proposed rule change. Others scheduled to testify include: the Wausau attorney Dean Dietrich of Ruder Ware, Portage attorney Douglas Kammer of Kammer Law Office, Rick Esenberg of the Wisconsin Institute of Law & Liberty, State Bar President Paul Swanson, State Bar counsel Roberta Howell, and Madison attorney Michelle Behnke of Michelle Behnke & Associates.

Since then, lawyers, judges and other practitioners have weighed in on Levine’s proposal. Testimony has come so far from four opponents and two supporters.

District Four Wisconsin Court of Appeals Judge Gary Sherman, a former State Bar president, wrote that the court should reject the petition.

In a letter to the court dated Aug. 24, Sherman wrote that the bifurcated system Levine is proposing suggests that the bar is not properly using mandatory bar dues. He argued that the court’s rules are sufficient as they are now because they contain a provision that was drafted to conform with the Supreme Court’s holding in Keller.

Dean Dietrich, a lawyer at Ruder Ware in Wausau, also wrote a letter opposing Levine’s proposal, saying he doesn’t think the proposed changes are a good way to respond to the complaints Levine has about how the bar is spending mandatory dues. He also said the proposal threatens to further complicate an already complicated set of procedures.

The State Bar weighed in around the same time with a 22-page brief filed by its counsel, Roberta Howell of Foley & Lardner. Not surprisingly, it too is urging the court not to adopt Levine’s petition. Among other things, it is arguing that its current practices are already consistent with Keller.

The bar also noted that Levine’s proposal would reduce the amount of money the bar has for services it provides to the court, profession and public. Those services include the bar’s arbitration program, its lawyer hotline, its pro bono program and its free legal-research service.

Of the two letters that were filed in support of Levine’s petition, one came from the Wisconsin Institute for Law and Liberty and the other from John Edmonson of Edmonson Law Office in Appleton.

WILL is a conservative-leaning organization whose stated mission is to defend property and First Amendment and religious rights. Levine’s petition, it wrote, would further protect lawyers’ free speech and association rights.

Edmonson, in contrast, argued there have been times when the bar has  used mandatory dues for purposes not allowed under Keller or the state’s rules. He drew attention to the bar’s expenditures on a proposal to limit Wisconsin Supreme Court justices’ terms to one 16-year term, noting that he does not believe that the bar has the authority to regulate the court.

This is not the first time Levine has challenged the bar’s expenditures on lobbying and other activities.

In 2015, he and two other lawyers disputed the Keller dues rebate the bar had provided for its 2016 fiscal year. Levine and his fellow critics argued the rebate amount — $5.25 — was too low.

Specifically, they questioned the bar’s lobbying work on legislation that called for placing limits on the number of terms that state Supreme Court justices can serve, establishing a pay-progression system for district attorneys and increasing the private rate for attorneys who take State Public Defender appointments.

Also, in the bar’s 2009 and 2010 fiscal years, Levine and various other lawyers challenged its use of mandatory dues to pay for a public advertising campaign. They concurrently filed a petition for a rule change meant to place further limits on the use of the dues.

The challenge went all the way to the 7th Circuit Court of Appeals, which found in 2010 that the state’s rules for Keller dues were too narrow. The high court adopted the 7th Circuit’s holdings as well as various other changes proposed by Levine and his fellow critics.

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