Vol. 78, No. 4, April 2005

Letters

• Judiciary Should Defend Against Assault on Legal System
• Fund Grantee Critical of WisBar Article on WisTAF Assessment

Judiciary Should Defend Against Assault on Legal System

With the assault being made on our legal system by luminaries no less than that of the President of the United States, I write to inquire why officials within Wisconsin's judicial system remain silent. Critics of our courts decry a panoply of ills ranging from out-of- control juries handing out exorbitant awards to a mountain of frivolous lawsuits that are used to extort millions of dollars from nonculpable defendants. If that is the case, why is our judiciary not standing up and offering concrete solutions to these terrible problems? On the other hand, if these accusations are false or misleading, why is our judiciary not standing up and telling the public and legislature that they are being hornswoggled? I submit that the judiciary's silence is generally regarded as an admission of the charges being leveled.

As the guardians of our legal system that has come under excoriating attack, the judiciary has the obligation to either assist in fixing the problems that are asserted, or to take to the podium and pick up the pen and defend the system that has worked so well for so many for so long.

John B. Edmondson, Appleton

Fund Grantee Critical of WisBar Article on WisTAF Assessment

I write as executive director of Legal Action of Wisconsin. I am not authorized to submit these comments on behalf of the other core legal services providers who are WisTAF grantees, and I do not. In its WisBar Web site article about the WisTAF $50 attorney assessment, the State Bar makes the following statements:

"Behnke and other speakers raised the objection that by mandating lawyers to fund WisTAF, the court would take away the attorneys' freedom of choice for charitable donations and that this would establish WisTAF as the preferred funder of legal services. This could harm other legal service entities to the poor that are not funded by WisTAF, which is an important consideration given that the WisTAF board's grants committee has recently recommended completely defunding four programs that formerly received WisTAF grants.

"Representatives of remaining WisTAF grantees were prominent among speakers in favor of the petition. Representatives of Legal Action of Wisconsin, Wisconsin Judicare, ABC for Health all spoke in favor of the mandatory assessment. In fact, more representatives of grantees spoke than did WisTAF officials. Well over half of the grant amounts WisTAF has proposed to make in 2005 will go to Legal Action of Wisconsin, an agency that also receives federal funding from the Legal Services Corporation (LSC). Another 20 percent of proposed WisTAF grants this year are earmarked for Wisconsin Judicare, another entity that receives federal LSC funding."

In addition to being decidedly biased in setting forth only the testimony against the petition, the State Bar article is implicitly critical of Legal Action and other core legal services providers. These core providers are portrayed as WisTAF favorites, whose receipt of grants from WisTAF harms other legal services providers in the state. The article does not bother to set out what these providers had to say to the supreme court in favor of the petition, and in favor of WisTAF as the recipient of the assessment proceeds. Apparently, the Bar views that provider testimony as not worth conveying to its members. The article does take pains to stress that, "[i]n fact, more representatives of grantees spoke than did WisTAF officials," as though this were somehow inappropriate. The article completely fails to mention that the first and principal presenter for WisTAF was a distinguished past president of the State Bar of Wisconsin, John Skilton, and that he was speaking on behalf of "WisTAF officials." The article also fails to mention that a number of WisTAF Board members, who are also dues-paying State Bar members, were there in support of the petition. The State Bar analysis is itself curious - does the side with the most testifiers win? Or is it more important what people actually had to say?

The article emphasizes the amount of WisTAF funding that Legal Action and Wisconsin Judicare receive, then adds that we also receive LSC funding, clearly implying that we are too well-funded. Ignoring the obvious truth that we are not excessively-funded, the article leaves no room for the possibility that there might be good reasons for the degree to which WisTAF funds us, such as that Legal Action and Wisconsin Judicare are responsible for providing legal services in all 72 counties in Wisconsin and in a broad range of poverty law areas; that we have sophisticated systems to efficiently serve large numbers of clients; that annual WisTAF evaluations have concluded that we are experienced and well-run; and that WisTAF itself was created to make up for a portion of the LSC funding cuts which occurred in 1982.

The article purports to champion "other legal service entities to the poor [sic] that are not funded by WisTAF," yet it in fact opposes the attorney assessment, and thus opposes more funding for any "legal services entities to the poor." The article does not understand that, in funding, say, twice as many grantees, WisTAF would simply be creating twice as many underfunded "entities" with wasteful duplication of administration, none of which could provide adequate service. It should be remembered in this regard that the drop in WisTAF grants between 2004 and 2005 was $689,000, nearly the amount of the attorney assessment proceeds. It is not as though there is plenty to go around, and current WisTAF grantees don't need any more funds.

Finally, in singling out Legal Action and Wisconsin Judicare and ABC for Health, and by implication the other principal WisTAF grantees - the Wisconsin Coalition for Advocacy and the Legal Aid Society of Milwaukee - the State Bar article appears to forget completely that we are State Bar members, and in doing so it attacks its own. Four of the primary WisTAF grantees - Legal Action, the Wisconsin Coalition for Advocacy, the Legal Aid Society, and Wisconsin Judicare - paid nearly $30,000 in dues to the State Bar in June 2004. This sum represents the dues of 80 State Bar members, many of whom are also active on State Bar committees - that is, they help do the work of the State Bar. If this article is the kind of "member service" which we as members can expect, of what use to us is a compulsory bar association?

John F. Ebbott, executive director
Legal Action of Wisconsin Inc.

Response: The State Bar position in opposition to the WisTAF petition raised concerns about the effect on other legal service entities not because Legal Action of Wisconsin or other "core legal services providers" are favorites, but because other entities will not have the opportunity to share in the funds collected by the mandatory assessment. Likewise, lawyers may be less inclined to make voluntary charitable contributions, which once again could hurt other legal services providers who depend on voluntary contributions.

The Bar's position before the supreme court did not address the funding level of legal services entities or the effectiveness or efficiency of their work. However, it is fair to say that legal services entities are certainly not the only mechanism to address the needs of the indigent. It is only by using a variety of methods, including other nonprofit organizations, that we will effectively address the issue. The needs of the indigent will not be addressed with a "one-size-fits-all" solution.

The "attack" was not directed at any State Bar members, but rather was advocating the position that the Board of Governors and an overwhelming majority of our members saw as appropriate; a voluntary rather than mandatory assessment was the appropriate action.

Michelle A. Behnke, president
State Bar of Wisconsin

Wisconsin Lawyer