Lowering the Bar
How Wisconsin's Biggest Organization for Lawyers is Ruining Their Public Image

What’s wrong with lawyer jokes?  Lawyers don’t think they’re funny and no one else thinks they’re jokes.

This sentiment was recently echoed by Attorney Douglas Kammer, a candidate for president of the Wisconsin State Bar Association. In a statement to fellow Bar members in March 2008 Kammer wrote:

"The bar has lost sight of its mission. In a cloud of vague gabble about the “public interest” the Bar has become an embarrassment to its members.

Decent, honest lawyers are guilty by association. Is the bar going to solve this problem? Not in a pig’s eye! The Bar doesn’t have the will or the tools to even address the issue. Rather they sit in their inverted shot-glass in Madison and aggrandize the other insiders in the club while discussing how to protect the public from—you guessed it—lawyers.[i]"

It is a little known fact that Wisconsin lawyers, unlike any other group of professionals except public school teachers, are compelled by state law to pay dues to an association. Kammer is campaigning on a platform to make membership in the State Bar voluntary because he believes it will force the Bar to be more responsive to its members. He cites the fact that the voluntary Bar in Illinois has a 70% participation rate and provides a variety of impressive member services to support his theory.

The Wisconsin Bar became mandatory in 1956 and was briefly abolished in 1988 as the result of a lawsuit brought by Attorney Steven Levine of the Public Service Commission.  Federal Judge Barbara Crabb entered a declaratory judgment abolishing the mandatory bar. Crabb’s ruling was then reversed on appeal, and Bar leadership successfully petitioned the Supreme Court to reinstate the mandatory bar in 1992.

The U.S. Supreme Court has determined that a mandatory bar is not unconstitutional as long as members can opt out of political advocacy with which they disagree, and the Bar association advances the state interests of “regulating the legal profession and improving the quality of legal service available to the people of the state.” 496 U.S. 1 (1990)[ii]

Each spring, Bar members are presented with two or three candidates for president who are hand-picked by the Bar’s nominating committee. Candidates who wish to self-nominate must obtain 100 signatures from current Bar members. Steven Levine made headlines again in 2005, when he became the first self-nominating candidate to be elected president of the Wisconsin Bar Association.

Levine’s campaign promised to explore a return to the voluntary Bar, but the executive committee of the Board of Governors refused to even place discussion of the mandatory bar on the Board’s agenda. At the same time State Representative Sheryl Albers proposed a constitutional amendment[iii] prohibiting a mandatory Bar. Albers resolution passed out of committee, but died without further action before the close of the legislative session.

Mandatory Dues and Mission Creep

Douglas Kammer is not the first attorney to propose elimination of Wisconsin’s mandatory bar, but his case is a timely one.  Kammer’s remarks come on the heels of a contentious Board of Governors[iv] meeting during which Bar President Thomas Basting was roundly criticized for creating the Wisconsin Judicial Campaign Integrity Committee (WJCIC) allegedly to monitor the activity of candidates and other organizations during the April 2008 state Supreme Court election.

Without the requisite advice and consent of the Board set forth in the Bar’s bylaws, Basting created the WJCIC and unilaterally made all appointments to the committee. The Bar’s bylaws[v] state, “Creation or abolition of a special committee by the President is subject to review and approval by the Board of Governors.”

Not only did Basting ignore the Bar’s guidelines and procedures for creation of special committees, he appointed several people to the WJCIC who are not members of the Bar while using membership dues and Bar employees to develop and maintain a website,[vi] support all committee activities, and issue public statements for the committee. In addition, Basting, two non-Bar members of the WJCIC, and a Bar employee traveled to a seminar in Dallas to learn about similar committees in other states. A full accounting of expenses related to the WJCIC has yet to be disclosed.

At the Bar Board of Governors meeting in late February, Governor Michael Morse was clearly concerned about the potential fallout of a Bar-sponsored committee seeking to regulate speech in campaigns. “I think this sets us on a dangerous path if we are to be creating committees of this type with non-members who are approving or regulating or influencing speech,” Morse said.  Other board members joined Morse in expressing concerns but action was tabled so as not to undermine Basting before the April election.

To say that Basting talked out of both sides of his mouth when depicting the WJCIC is putting it mildly. The press statement[vii] announcing the WJCIC was titled: “Citizen committee will promote sound standards for 2008 state Supreme Court election campaign.”   The document listed Thomas Solberg, State Bar of Wisconsin, as the contact and included the disclaimer: “A project of the Wisconsin Bar Association.”

This duality allowed Basting to claim WJCIC members were ordinary citizens using free speech to protest advertising they found misleading or distasteful, while its affiliation with the Bar gave Basting access to vast financial and human resources, and the ability to insinuate that the committee’s opinions were coming from the official organization charged with regulating lawyers and removing the bad actors from its ranks.

Basting stacked the committee with people who shared his ultimate goal—to retain Justice Louis Butler on the Supreme Court—making it unpopular, if not down right untenable for his opponent or the dreaded third party groups to discuss Butler’s judicial activism. In this vein the WJCIC’s very existence is at best offensive and at worst an egregious abuse of a quasi-public agency entity to further the cause of the very special interest it represents.

Bar member Thomas Jones articulated this view in a letter to the Wisconsin Lawyer magazine, writing:

My bar dues help finance this political gambit. This bad idea is a restriction of campaign free speech and an attempt to ensure that Justice Butler keeps his job and keeps on delivering goods to the leftist trial bar, the guys who now own our state bar and are buying the judges they like.

A report[viii] issued by the Wisconsin Club for Growth revealed the partisan make up of the WJCIC:

The newly created, Wisconsin Judicial Campaign Integrity Committee (WJCIC) trumpets itself as a citizen committee “protecting fair and impartial courts.” The committee is neither fair, nor impartial. Committee Chairman and State Bar President Thomas Basting, a trial lawyer who has done criminal defense work, also calls the group non-partisan, yet nearly all of its members have ties to Governor Jim Doyle and the Democratic Party—including Basting.  Doyle appointed Louis Butler to the Supreme Court in 2004 and recently hosted[ix] a high dollar fundraiser for Butler's campaign.”

The WJCIC crafted a vaguely worded advertising agreement[x] for Supreme Court candidates and used committee members and the media to pressure them into signing it.

Among other things, the agreement asserted:

• The omission of relevant information could make an otherwise truthful statement either misleading or unfair.

• Judicial candidates—and their supporters—should focus their campaign messages on the candidates' record of public service and similar judicial qualifications, rather than signaling how they or their opponents are likely to rule on matters that could come before the court.

According to Basting:

It is essential for voters to understand that judges are different than other elected officials, such as county board members, legislators and governors,” Basting stressed. “Other elected officials represent various constituencies and advocate policy goals, but the role of judges in our system of government is to fairly and impartially apply the rule of law—in other words, to “call the balls and strikes.” This means that the standards voters typically use when deciding who to cast their ballots for simply do not apply to judges

It also means that judicial candidates—and their supporters—should focus their campaign messages on the candidates’ record of public service and similar judicial qualifications, rather than signaling how they or their opponents are likely to rule on matters that could come before the court.

Of course not all attorneys are so eager to place judges above the law. Attorney Mike Dean of First Freedoms Foundation writes:

That view of a judge's responsibility is now so widely held—at least among the legal community whose power it enhances—that it is considered not just respectable but downright enlightened by comparison with the earthbound view that judges, like the rest of us, ought to adhere to the plain words of the law.

In an editorial opposing efforts to abandon judicial elections in favor of a so called “merit selection” process, Dean concludes:

It is precisely because the expansionist concept of judging is markedly less popular among those who are neither judges nor entertaining the prospect of becoming judges that Butler will be available for other employment come summer.

Another group of attorneys publicly urged Judge Gableman and Justice Butler not to sign the advertising agreement, saying it was improper for the Bar to be involved in the WJCIC’s efforts.

In a guest editorial in the Milwaukee Journal Sentinel,[xi] the attorneys wrote:

It would be a bitter irony for the state Constitution to grant residents the right to choose judges while the state's leading lawyers' organization tried to restrict dissemination of speech that would inform that right.

If enacted into law by the Legislature, the pledge would be constitutionally dead on arrival. In 2002, the U.S. Supreme Court held that prohibiting judicial candidates from discussing disputed political and legal issues violates the First Amendment. The court noted that the public should have the information necessary to properly exercise the franchise: Where a state “chooses to tap the energy and the legitimizing power of the democratic process” by electing its judges, free speech by participants in that process must be allowed.

While Justice Butler was quick to sign on the dotted line, his opponent, Judge Michael Gableman, viewed the agreement and the committee itself with a healthy dose of skepticism. After the Wisconsin Club for Growth released a series of committee emails containing partisan references and harsh personal attacks on Gableman supporters, Judge Gableman told the committee he would not sign the agreement.

The emails not only revealed the truly biased and partisan nature of the group, but also showed that Basting had made a number of false and misleading statements during a press interview. Basting later addressed the inconsistencies in his statements with more inconsistencies. The media apparently didn’t mind being lied to by the spokesperson for judicial integrity, and thus assisted Basting as he continued to push the WJCIC’s agenda throughout the election.

Since Justice Butler’s defeat in April, the WJCIC has turned its efforts to pushing the regulation of speech in judicial elections and promoting new rules of disclosure to prevent Justice-Elect Gableman from participating in important cases before the court. Aiding and abetting the Bar in their latest quest to stomp out free speech and protect activist judges is the ultra liberal Brennan Center for Law. The Brennan Center leases its credibility from New York University Law School and is funded by billionaire and left wing activist George Soros.

The Bar’s mission has also crept into the liberal social arena in the form of the Wisconsin Trust Account Foundation (WISTAF) assessment, an annual $50 tax on attorneys, imposed by Chief Justice Abrahamson’s Court to fund an array of social programs. The WISTAF[xii] board which administers the funds, reports to the Supreme Court, and its members are appointed by Chief Justice Abrahamson and the Wisconsin Bar president.

WISTAF has funneled[xiii] more than half a million dollars to the American Civil Liberties Union (ACLU) to bring lawsuits against the state on behalf of prisoners at the Supermax Prison. So while Attorney General J.B. Van Hollen, along with every other Wisconsin lawyer paid for the ACLU to bring lawsuits against the state, taxpayers paid Van Hollen and the Department of Justice to defend the state.

Attorney Mark Schlei, a vocal critic of the tax put it this way:

Imagine the government telling you that you must not only belong to an organization but must pay a tax to support charities it selects for you, all of which you might otherwise object to. Imagine a liberal attorney being forced to contribute to the National Right to Life Committee.

Schlei also contends the State Bar payroll is three times larger than necessary to fulfill its mission.

While it takes 31 state employees to license and regulate attorneys, the bar has grown to 91 employees, ostensibly to provide “member services” but in reality serving as a private bureaucracy for the Abrahamson court.

Thousands Forced to Belly Up to the Bar

The State Bar boasts 22,776 members,[xiv] 15,768 of whom are Wisconsin residents.  18,576 members pay full annual membership dues of $447, for a total of more than $8.3 million. Remaining members pay reduced membership based on estimated “non-chargeable” activities.

Supreme Court rules define non-chargeable activities as political or ideological activities that are not reasonably intended for the purpose of regulating the legal profession or improving the quality of legal services. While the Bar employs five full-time lobbyists who advocated for the passage or defeat of over 74 bills[xv] in this legislative session alone, the Bar’s Board of Governors determined that only $95,696 or $5.15 per member can be attributed to non-chargeable activities.

The Bar’s legislative activity runs the gambit from opposing caps on non-economic damages (pain and suffering) in medical malpractice lawsuits; to opposing legislation permitting schools to fire or refuse to hire unpardoned felons; and requiring payday loan companies to be licensed by the state. Whether or not you agree with the principles behind any of these bills, it is difficult to see how they relate to regulating the legal profession or improving the quality of legal service. Yet it is quite clear that the Bar seeks to expand the pocketbooks of practicing attorneys at the expense of everybody else.

The Bar also lobbies the Supreme Court on administrative rules governing the practice of law in Wisconsin. If adopted, the rule could make simple real estate and banking transactions much more costly for consumers and businesses. Last year the court agreed to review the Bar’s proposed rules defining legal activity in Wisconsin. Coincidentally, Justice Butler’s campaign received nearly $12,000; most of which came from lawyers, the same day the Bar submitted its petition for review.

The draft rule provoked a sharply worded memo[xvi] from the U.S. Department of Justice:

The broad, general definition proposed by the petition therefore would likely force Wisconsinites to hire a lawyer to provide a host of services where legal expertise should not be necessary. . . .

Through legislation and the poorly publicized, obscure rulemaking process, the Bar seeks to require us to hire an attorney for transactions we now happily complete without one.

Population Control Needed?

When there are too many policemen, there can be no liberty.

When there are too many soldiers, there can be no peace.

When there are too many lawyers, there can be no justice.

Lin Yutang (1895-1976), Chinese-American writer, translator, and editor.

So do we really need lawyers to explain the pitfalls of not completing a home inspection on time, or are there just too many lawyers in Wisconsin to keep them all busy? This is an excellent question considering, at the same time the Bar was lobbying the court to require us to hire more lawyers, they were roaming the halls of the Capitol looking for a million dollar handout to help poor and middle-income people pay lawyers they otherwise might not have needed.

Governor Doyle and the Democratic state Senate included the million dollar grant in their 2007-2009 budgets, but the Republican Assembly took an entirely different approach to solving the state’s legal problems.  Representative Frank Lasee[xvii] of Green Bay convinced his colleagues to eliminate the state subsidy to the UW Law School.

The Republican proposal would have gradually eliminated the $7 million tax subsidy, requiring law students to pick up an additional $5,000 a year for their tuition.  “When we have an overabundance of attorneys already, there's no point in subsidizing the education of more attorneys,” Lasee said.

UW Law School officials balked at the notion that Wisconsin has too many lawyers.  While the national average is approximately one lawyer for every 300 people, Wisconsin has only one lawyer for every 350 people. 

Still, when it comes to a proposal to kill the state law school subsidy, one can make a strong case for self defense. As I like to put it:  Give a man a lawyer and you feed him for life.  Give a man a law degree and he’ll take the food off your table and sue you for giving him heartburn.

The dues paying member of the Wisconsin Bar in my house has asked me to concede that lawyers can be good and that they are the often the first people we turn to when we run into trouble.  Agreed, but we’d all be less likely to ever need a lawyer if there weren’t so many of them in the first place.

Meanwhile disillusioned members of the Wisconsin Bar have reason to hope. On April 25, 2008, Douglas Kammer became the second self-nominating candidate in Bar history to be elected president. He will serve on the Executive Committee as president-elect for one year and take over as president in 2009.

With a slate of newly elected officers and governors, and a receptive President-Elect, now is the time for all good lawyers to rise up and make their voices heard!

 

Deb Jordahl is a Madison, Wisconsin, conservative strategist and consultant.