Supreme Court holds public hearings for client protection fund fee increase, judicial code updates

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The Wisconsin Supreme Court is considering petitions to increase to the annual assessment for the Wisconsin Lawyer’s Fund for Client Protection and update the state’s Code of Judicial Conduct.

The state Supreme Court held virtual public hearings for Rule Petitions 19-23 and 19-25 on Tuesday.

Increasing fee for client protection fund

Rule Petition 19-25, filed in December 2019, asks the high court to increase the State Bar of Wisconsin’s annual assessment for the Wisconsin Lawyers’ Fund for Client Protection from $20 to $25.

Benjamin Kurten, the chair of the fund, said the committee is seeing larger and more frequent claims. The increase, which would be the first since fiscal year 2013, would help pay eligible claims on a timely basis and build up a reserve.

“We don’t want the fund to become a priority race,” Kurten said. “We also want to minimize the time that claimants have to wait.”

A memo submitted with the petition said the average annual claims paid for fiscal year 2013 through fiscal year 2019 was $423,775. The committee anticipated approving two claims totaling $294,186 against a single attorney in 2020, which would hamper the fund’s ability to build a reserve account.

Kurten on Tuesday said there are already nearly $600,000 in requests, including multiple claims exceeding $100,000 against a Milwaukee personal injury attorney. He anticipated more claims coming in from the attorney’s clients as the word spread about the fund.

“While we’re happy with that and we’re here to serve the public, it has caused some strain on our financial resources,” Kurten said.

Justice Brian Hagedorn asked how the fund handles large claims. Kurten said there is a per-claim limit of $150,000. If the committee has several large competing claims, the fund will pay one first and then tell the other claimants that they will receive a payment the next year.

“While the people are happy to hear they’re going to get reimbursed, having to wait another year or another six months to get reimbursed can be very difficult and frustrating for them,” Kurten said.

Proposed judicial conduct changes

Rule Petition 19-23 asked the court to make several changes to Supreme Court Rule 60.04 to improve the integrity of the judiciary and to bring Wisconsin’s Code of Judicial Conduct in line with national standards.

The Hon. D. Todd Ehlers, the chair of the Judicial Conduct Advisory Committee, filed the petition in November 2019. He said the Committee of Chief Judges identified three areas of the rule that could be improved to align with the American Bar Association’s Model Code of Judicial Conduct.

The first would amend the text of SCR 60.04 to remove a line that reads “A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity and shall require similar conduct of lawyers, staff, court officials, and others subject to the judge’s direction and control.”

The JCAC recommended creating a standalone provision that would use the same language as 60.04, but it would apply to judges acting in all of their official capacities.

“The JCAC does not believe judges should limit their responsibility to be patient, dignified or courteous the time they spend on the bench,” Ehlers said, “but as representatives in this state, (they) should be acting in those manners whether on the bench, in their offices or at court-related committee meetings.”

The petition would also add an anti-retaliation provision and modify SRC 60.04(2)(a) to require cooperation among judges by changing “should” to “shall.”

Justice Annette Ziegler asked if there was concern about judicial conduct that caused the need for the changes. She thought “should” promoted more collaboration than “shall.”

Ehlers and Chief Judge Barbara H. Key said there were some problems around the state with municipal judges not cooperating with staff or the system, including in Key’s Fourth Judicial District.

“It’s trying to address issues throughout the state in other districts as well,” Key said. “We tried to be very cognizant of the fact that we did not want to be overreacting because of one case. That’s the last thing we want to do.”

Justices Ziegler and Hagedorn asked about the need to add the anti-retaliation language, as there were other remedies for that behavior, and if there would be any untended consequences in doing so.

Key said while it was up to the state Supreme Court to determine if there would be unintended consequences, there had been multiple instances of bad behavior and codifying the language would illustrate the judiciary’s stance as a state.

The state Supreme Court will meet in closed conference to discuss both petitions. Follow @“WLJreporter”