MVLC LAW Brown Bag CLE Fall 2018 Brown Bag CLE Series

Transcription

1 MVLC LAW Brown Bag CLE Fall 2018 Brown Bag CLE Series Hon. Richard J. Sankovitz Milwaukee County Circuit Court

2 Online Viewers Problems streaming? Try using another browser. If slides appear small, they are also available in both handout and full slide versions on the website. Submit questions to the presenter by clicking on the speech bubble icon at the bottom of the screen. An attendance code will be read in multiple parts during the presentation. CLE credit is only available for live viewing. To be eligible for CLE credit, report all parts of the attendance code into the online attendance form within 30 minutes following the presentation.

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4 MVLC LAW Brown Bag CLE PMSA: Making the MSA more palatable by adding Pumpkin Spice Hon. Richard J. Sankovitz Milwaukee County Circuit Court

5 MVLC LAW Brown Bag CLE Ghostwriting in Clinics and Self- Help Centers: Not Dead Yet? Hon. Richard J. Sankovitz Milwaukee County Circuit Court

6 MVLC LAW Brown Bag CLE Hon. Richard J. Sankovitz Milwaukee County Circuit Court

7 MVLC LAW Brown Bag CLE Ghostwriting in Clinics and Self- Help Centers: Not Dead Yet? Hon. Richard J. Sankovitz Milwaukee County Circuit Court

8 Agenda

9 Agenda What is ghostwriting?

10 Agenda What is ghostwriting? Why permit ghostwriting?

11 Agenda What is ghostwriting? Why permit ghostwriting? Ghostwriting approved 2014

12 Agenda What is ghostwriting? Why permit ghostwriting? Ghostwriting approved 2014 Attempt to limit ghostwriting 2018

13 Agenda What is ghostwriting? Why permit ghostwriting? Ghostwriting approved 2014 Attempt to limit ghostwriting 2018 Options for dealing with limitations on ghostwriting

14 Agenda What is ghostwriting? Why permit ghostwriting? Ghostwriting approved 2014 Attempt to limit ghostwriting 2018 Options for dealing with limitations on ghostwriting Prospect for change

15 What is ghostwriting?

16 What is ghostwriting? When a lawyer assists a selfrepresented litigant ( SRL ) in drafting documents

17 What is ghostwriting? When a lawyer assists a selfrepresented litigant ( SRL ) in drafting documents without disclosing the lawyer s role to the reader

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24 Why permit ghostwriting?

25 Why permit ghostwriting? Expands access to justice

26 Why permit ghostwriting? Expands access to justice Makes it easier to recruit volunteer lawyers l Brief legal assistance Especially filling out our forms

27 Why permit ghostwriting? Expands access to justice Makes it easier to recruit volunteer lawyers l Brief legal assistance Especially filling out our forms Makes legal services more affordable l Limited scope representation

28 Why permit ghostwriting? Requiring disclosure can be a disincentive to volunteer attorneys

29 Why permit ghostwriting? Requiring disclosure can be a disincentive to volunteer attorneys l Disclosure conflict check?

30 Why permit ghostwriting? Requiring disclosure can be a disincentive to volunteer attorneys l Disclosure Prevents immediate service conflict check?

31 Why permit ghostwriting? Requiring disclosure can be a disincentive to volunteer attorneys l Disclosure Prevents immediate service l Business conflict conflict check? Risk of appearing disloyal to an unknown adversary who turns out to be a client

32 Why permit ghostwriting? Requiring disclosure can be a disincentive to volunteer attorneys l Disclosure Prevents immediate service l Business conflict conflict check? Risk of appearing disloyal to an unknown adversary who turns out to be a client l Some fear that disclosure will lead to a compelled general appearance

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34 Why permit ghostwriting? Disclosing merely that a lawyer has assisted addresses the main concerns about ghostwriting

35 Why permit ghostwriting? Disclosing merely that a lawyer has assisted addresses the main concerns about ghostwriting l Misrepresentation? l Attorney duty of candor? l Unfairness to opposing party?

36 Ghostwriting approved 2014

37 Ghostwriting approved 2014 Court unanimously approved Rules Petition 13-10

38 Ghostwriting approved 2014 Court unanimously approved Rules Petition l SCR 20:1.2(cm): Ethical to ghostwrite as long as document discloses lawyer assisted l WIS. STAT (2m): [L]awyer may... assist in drafting... [A]ttorney is not required to sign... [D]ocument must contain a statement... that This document was prepared with the assistance of a lawyer

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40 Attempt to limit ghostwriting 2018

41 Attempt to limit ghostwriting WI Act 317, effective April 18, 2018

42 Attempt to limit ghostwriting WI Act 317, effective April 18, 2018 Adds the following to (2m): l [L]awyer may... assist in drafting... [A]ttorney is not required to sign... [D]ocument must contain a statement... that This document was prepared with the assistance of a lawyer followed by the name of the attorney and the attorney s state bar number.

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44 Two options

45 Two options More cautious approach More intrepid approach

46 Two options More cautious approach: disclose name and bar number

47 Two options More cautious approach: disclose name and bar number l State Bar Ethics Counsel recommends l Recommendation based on SCR 20:8.4(f): l it is misconduct for a lawyer to: violate a statute, supreme court rule, supreme court order or supreme court decision regulating the conduct of lawyers (emphasis added by counsel)

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49 Two options More intrepid approach:

50 Two options More intrepid approach: Simple disclosure approved in the ethics rules, plus cite SCR 20:1.2(cm): l This document was prepared with the assistance of a lawyer. No further disclosure is required. See SCR 20:1.2(cm)

51 Two options More intrepid approach: Argument l Leg changed (2m), but did not change ethics rules, in particular, SCR 20:1.2(cm), which explicitly permits ghostwriting l SCR 20:8.4(f) is not conclusive; it is a general rule; when general and specific laws conflict, specific should control l No evidence S. Ct. or Leg intended violation to be misconduct

52 Prospects for change

53 Prospects for change Ghostwriting in Clinics and Self-Help Centers: Not Dead Yet

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55 Thank you!