Carlton
Comment By Carlton Stansbury
Friday, October 23, 2009 at 2:29 PM
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Commentary: What bar associations should be doing
In my last column, I discussed a key criticism of bar associations: That they sometimes seem to be working counter to the interests of their members. This week’s installment will offer some positive suggestions for bar associations to improve services for their members.
Let me state off the bat that I am not anti-bar association, per se. Not at all. I’ve donated, and donate, a great deal of time to bar-related organizations, on the local, state and national level. Nor is this intended to be a thinly-veiled attack on any one person or program associated with the state or local bars.
Bar associations can do a great deal of good for their members, the courts and the public. But it bothers me – enough that I’m compelled to speak out – when they seek to serve one of those three beneficiaries at the expense of another.
With specific regard to my gripe in the last column, bar associations should require means-testing for legal clinics. Incredible as it is to believe, anyone, regardless of income and assets, can get free legal advice at the new Milwaukee Justice Center and other bar association-sponsored clinics.
There are two effects: First, the time available to assist those in need is diluted, as there is always a lack of resources; and second, lawyers who could use the revenue do not get it because advice is being given away for free, through the auspices of organizations that they may even be required to join.
As I acknowledged in the last column, most “clients” of legal clinics do not have resources to pay for legal advice. But that is not true for all of them. Bar associations that are going to offer free legal services need to differentiate between the two.
Next, bar associations need to keep abreast of breaking legal developments and be proactive. Are cases involving family law issues pending before the Wisconsin Supreme Court? Bar associations should be aware of these cases and consider whether an amicus brief is warranted.
Likewise, bar associations should monitor Wisconsin Court of Appeals opinions as they are issued. There is a period between the decision being filed and becoming final where the court can correct any errors.
Recently, in Stevenson v. Stevenson, 2009 WI App 29, the Court of Appeals changed incorrect language regarding the type of trusts involved at the suggestion of Attorney Patricia Ballman, of Quarles & Brady LLP in Milwaukee. I am proud that on occasion, I have made a similar suggestion to the court, which it heeded.
It is one thing for the bar association to summarize cases after they are published. It is quite another to ensure accuracy before they are published.
Bar associations should also defend the ability of lawyers to make a living. There are non-lawyers who provide legal forms and “information;” there have been non-lawyer mediators who advertise that they “assist” people with resolving their issues. Are they providing legal advice? Are they practicing law without a license? While the State Bar does have a committee in place that has filed petitions before the Supreme Court, isn’t there more that can be done?
One idea is to promote the use of lawyers. A pamphlet just published by the State Bar of Wisconsin Family Law Section, “Choosing a Process for Divorce,” is a fine start. But it needs to be disseminated to non-lawyers. Also, the pamphlet promotes collaborative divorce, which is fine, but it ignores cooperative divorce. The State Bar should be promoting the use of lawyers – not promoting one form of resolution while ignoring others.
Moreover, there are innumerable other areas within the family law umbrella that could use more attention from bar associations, such as:
- The performance of GALS;
- The failure of the State of Wisconsin to adequately compensate GALs; and,
- The failure of certain counties (e.g., Milwaukee) to provide adequate family court counseling services.
4 Comments on This Article
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I did not intend to state or imply in my comment that Mr. Herman is an inactive member of the bar associations. Indeed, he has spent countless hours with many organizations and his contributions are too many to count. In fact, many of his contributions he has made have been"behind the scenes" and with no fanfare. He epitomizes active membership and our profession is better due to his many contributions. My point is that changes can only happen if the members, become involved rather than t just complaining about it. I was not directing my comments to Mr. Herman personally on his level of activism. My apologies for any misunderstanding of my message.
Comment By Carlton Stansbury Friday, October 23, 2009 at 2:29 PM |
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I agree with Carlton Stansbury. Most of his points are excellent. However, he avoids the key issue - family law practitioners and the system of family law itself are for the rich. Unlike a civil trial, which ends in a judgment and perhaps an appeal, a divorce decree is often only the beginning of years of court battles when children are involved. Few businesses could afford that, divorced parents certainly cannot. Often, the wage earner can afford it and the other spouse cannot. This exacerbates the problem.
Mr. Herman's ideas on what the bar should do have merit, but are very expensive. While Mr. Herman may not be involved in the State Bar at this time, I hear he has devoted countless hours of voluntary service to the State Bar as a member of its Board of Governors and in others ways. So I think he has every right to complain. Apparently, both Messrs. Herman and Carlton have done much for the bar association. They are both to be highly commended. The best thing the bar could do is stop the encroachment of government into the lives of the citizenry. The government takes so much in taxes it leaves very little for the private sector to be able to afford $250+/hour lawyers in lawsuits that go on for years. The family law system itself is broken. Instead of creative ideas, all we hear is tax and spend. People without jobs and money cannot afford any lawyers. Family law as a whole should be revisited as the current system is broken beyond repair. Comment By Sarah Jane Friday, October 23, 2009 at 12:20 AM |
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This is in response to Attorney Gregg Herman’s two articles on what bar associations should be doing.
Mr. Herman poses the following question: what can bar associations do to better to serve its members? He concludes in his next column that bar associations should start by not harming their members. He poses a good question, and concludes with an undeniably good answer. He and I disagree, however, as to how he arrived at the answer. As a matter of full disclosure, I was in leadership positions of both the State Bar of Wisconsin Family Law Section and the Wisconsin Chapter of American Academy of Matrimonial Lawyers during the time period Mr. Herman faults with both organizations. I am the author of the chair’s column in the Wisconsin Journal of Family Law referenced by Mr. Herman, and I helped co-author the “Choosing a Divorce Option” pamphlet published by the State Bar Family Law Section also referenced by Mr. Herman. I was also the individual that accused Mr. Herman of publicly flogging his colleagues. We have collegially agreed to disagree. The first implication of Mr. Herman’s column is that bar associations’ central purpose is to help lawyers make money. Such a purpose is, at best, only one of several reasons for a bar association. Helping the members practice professionally and ethically is certainly another purpose. Indeed SCR 20:6.1 encourages lawyers privileged with a license to practice law to contribute to those who are in need. In fact, this is a time-honored tradition of our profession to encourage pro bono work. My experience is that the self-help clinics do not give free legal advice, but aid the consumer in completing forms and answering procedural questions. If it is true that the public is fleeing lawyers in droves and actually obtaining free legal service provided by bar associations, then the public isn’t seeing the value of lawyers. The central premise of my four columns in the Wisconsin Journal of Family Law was to suggest that a decline in the use of lawyers may be the result of the public not appreciating the value of lawyers. I gave some ideas on how the state bar, lawyers themselves, and the judiciary could work together to solve the problem. I did not exhort pro bono service to the exclusion of other efforts to provide value to the public. The fourth column suggested that providing pro bono services is one way to increase a lawyer’s value to the public. If lawyers are seen as having value, people won’t avoid them and seek free legal service. If that is what is happening, then it is the lawyer’s fault rather than the bar associations’ fault. Lawyers need to take individual responsibility for the public’s perception. The bar associations, as one of its many member services, should help show value of lawyers to the public, but the responsibility does not rest solely on the bar associations. Bar associations’ efforts to reach out to those members of the public who need the legal services increase the value of lawyers, and consequently, increase business for lawyers. The second claim is that the bar associations have not done enough for the profession. Mr. Herman is critical of the family law section’s efforts to publish a brochure on divorce options. However, the brochure encourages the use of lawyers, and thousands of copies are in fact being distributed to the public. Collaborative Law cannot proceed without two lawyers. The purpose was to promote lawyers rather than a process. The Wisconsin Chapter of the AAML has submitted three amicus briefs in the last five years, involving hundreds of unbillable time to help improve the law for families. Another example he cites involves “corrections” to the Stevenson v. Stevenson case. What is not mentioned is that the letter to the court of appeals was, indeed, from the State Bar Family Law Section. Attorney Patricia Ballman approached the section with a concern she identified. She and I worked on the letter together, the section board voted to approve the letter, and it was sent under the section’s letterhead. We worked collaboratively under tight deadlines. The board appreciated Ms. Ballman’s invaluable contribution. She made a contribution as a member of the bar association through one of its sections. In order for a bar association to meet the needs of the members, the members have to participate. Attorney Ballman is only one example of the hundreds of dedicated lawyers who volunteer thousands of hours to enhance the profession through participation in bar associations. A member who does not participate in the organization simply cannot criticize it for what it does or does not do. A bar association is only as good as its active members. The so-called harm claimed by Mr. Herman can be remedied by members educating the public on their value, and lawyers actively participating in improving the bar associations’ work. This responsibility rests with each of us individually, and we cannot shift the blame elsewhere. Carlton D. Stansbury Burbach & Stansbury S.C., Milwaukee Comment By Carlton Stansbury Thursday, October 22, 2009 at 12:59 PM |
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These are good ideas. But how to pay for them? I suggest a two-year surcharge on family law practitioners, GALs and family court judges. Family law, unlike criminal law, is a private matter. As such, those involved should sacrifice a little to make the system better.
From what I understand, many family law attorneys want retainers in the $10,000 to $25,000 range ad then charge between $225 and $400/hour. Many GALs make $250/hour. Family court judges only work 10 months a year. Why should the public pay for private disputes? As one commentator recently noted, family law lawyers have priced themselves out of the range of what the public can afford. Comment By Sarah Jane Thursday, October 22, 2009 at 8:24 AM |
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