ETHICS
2000
Court
considers changes to lawyer ethics rules
By
Tony Anderson
Wisconsin Law Journal
March
16, 2005
In
the coming months, the state Supreme Court will consider numerous potential changes
to the rules governing lawyer ethics in Wisconsin. Last month, the high court
received a 141-page report from the committee it created to consider ABA Model
Rule changes.
The
changes range from rules that would require reporting of pro bono activities to
those related to communication with clients. Due to the vast nature of the changes,
the Supreme Court has chosen to discuss specific elements of the proposal during
upcoming administrative conferences. The court will focus on those issues that
have generated the most discussion or controversy.
During
a February public hearing on Ethics 2000, Chief Justice Shirley S. Abrahamson
noted the immense amount of materials submitted re-garding the Ethics 2000 proposal
and the responses to it. She indicated that it would take some time for the justices
to sort through all of the potential changes, especially those where the court
received a significant response from the legal community.
Each
time the court meets in open conference, she said the court will look at "one
or more provisions that have engendered heat and light." The court plans
to let people know what provisions are being considered and may allow for some
public discussion of those particular issues.
"It
may take take a few months to do this, but we are dealing with Ethics 2000 and
it didn't come out of the ABA until several years thereafter," Abrahamson
noted wryly. "So we can refer to it as Ethics 2000 and it will be done before
Ethics 3000."
The
Wisconsin Ethics 2000 Committee took several hours presenting key elements of
the proposal to the justices. The committee, which included lawyers and non-lawyers,
spent two years reviewing potential changes to SCR 20, the Rules of Professional
Conduct for Attorneys.
Four
committee members highlighted elements of the proposal that had generated a lot
of feedback. Many of the proposed changes dealt with communication between lawyers
and the clients and communication between lawyers and the court.
Mandatory
Pro Bono Reporting
A
proposed change to SCR 20:6.1, which would require mandatory pro bono reporting,
generated the most feedback. That proposal would narrow what activities qualify
as pro bono service and would require a reporting of pro bono activities without
mandating those services. The proposal would allow lawyers to make a financial
contribution in lieu of providing pro bono services.
Committee
member Michael K. Mc-Crystal, a Marquette Law School professor, said there would
be a benefit from knowing what lawyers are doing in terms of pro bono service.
He also noted that states where mandatory reporting has been implemented have
seen an increase in pro bono participation by lawyers.
"We
are responding to what we perceive to be a great unmet need with respect to legal
services for people with limited means," McCrystal said.
Abrahamson
asked why the state needed mandatory reporting when the court already had approved
a $50 fee to support legal services to the poor through the Wisconsin Trust Account
Foundation. McCrystal reiterated that this would provide additional information
about what lawyers are doing to help the poor and would help to encourage more
pro bono service.
Mequon
family practitioner Valorie Kohn and Madison attorney Steven Levine with the Public
Service Commis-sion both opposed mandatory reporting. Kohn expressed concerns
about the onerous nature of providing 50 hours of pro bono service. While the
rule would not require a lawyer to provide that much service, it sets 50 hours
as a goal to which they should aspire.
"What
it will create is more of an alienation on the part of attorneys toward you as
a court," Kohn said.
Levine
emphasized the personal nature of providing pro bono service. He described it
as an act of conscience that should be done privately.
"We
want to retain the dignity that every lawyer has to do pro bono or not do pro
bono as a matter of conscience and not as a matter of government coercion,"
Levine said.
Justices
indicated some opponents were concerned the definition of pro bono was too narrowly
defined. They also questioned who would keep the reported information and how
it would be used. The rules change does not contain any enforcement mechanism.
State
Bar President Michelle Behnke indicated that the Board of Governors opposed the
committee proposal establishing mandatory reporting and narrowing what constitutes
pro bono activity. She noted that mandatory reporting had the potential to alienate
lawyers and might negatively affect their willingness to provide pro bono services.
She also noted that the State Bar will be conducting a study reviewing legal services
to the poor, which board members felt would provide better information that mandatory
self-reporting.
Insurance
Defense Exception
Prior
to the public hearing, the State Bar submitted a 20-page report with the Board
of Governors' response to the Ethics 2000 proposal. (That report document is available
at www.wisbar.org/ethop/2000/.) Behnke was not allowed to review the State Bar's
position on the majority of the items in the report; however, she highlighted
a few large issues.
Explaining
that the Board of Governors spent several sessions reviewing dozens of significant
elements within the Ethics 2000 report, she pointed to the mandatory pro bono
reporting and a provision that could change the dynamics for insurance company
lawyers who represent insured clients, as two topics that generated a great deal
of discussion.
Several
groups that represent insurance companies expressed concerns to the State Bar
and later to the Supreme Court about a revision that would eliminate an insurance
defense exception to the requirement that a client give informed consent to legal
representation. Represen-tatives of those groups have explained that the proposed
change would complicate the tripartite relationship between insurance companies,
insurance defense counsel and insured clients.
Civil Trial
Counsel of Wisconsin Secretary-Treasurer John Slein and Bernard McCartan, who
spoke on behalf of the Wisconsin Insurance Alliance, told the Supreme Court the
proposed change to SCR 20:1.8(f) was an attempt to fix something that was not
broken. They indicated there was no problem with the existing rule. However, the
change could lead to a breakdown in representation if the insured client refused
to consent, when that person's insurance policy contained an implied consent.
In
addition to the insurance defense exception and mandatory pro bono reporting,
Behnke also raised some concerns about a provision requiring mandatory malpractice
insurance disclosure to clients. Under the proposed change, lawyers would have
to tell clients up front whether they carried malpractice insurance.
Behnke
said the Board of Governors raised concerns about the confusion that might create
for clients, who did not understand the differences between legal malpractice
insurance and the type of insurance that most of the public is familiar with.
"A
mandatory disclosure obligation would not provide any substantive information
to the public," Behnke told the court. "So we did not support such a
rule."
The
proposed rules changes cover a wide variety of issues including: limited scope
of representation, written fee communication with clients, changes to the definition
and responsibilities of a prosecutor, and rules related to guardians ad litem.
For more information, the Ethics 2000 Committee petition is available at the court's
Web site, in Microsoft
Word format.
Tony
Anderson can be reached by email.
