Bar Meetings: Drinking Tips from an Expert [updated for the 2020 KCBA meeting]

Back in the early years of my law practice, a group of Kenosha lawyers used to gather on Wednesdays after work for the weekly Bar Meeting, i.e., a meeting of the bar at a bar.  Our group was comprised of criminal defense lawyers and others generally interested in protecting individual rights and liberties from the government’s ever-expanding reach.  (Back then I would have described this general mindset as left-leaning, but today it is probably considered right-leaning.)  Unfortunately, these meetings dwindled and eventually disappeared because, I think, lawyers began to get older and marry and do other things. 

I never understood why anyone who practiced something as addictive as criminal defense would want to go on weekend jaunts to Bed Bath & Beyond, do home-improvement projects, go on vacations, read to their children, or do whatever else married people are supposed to do.  But to each of us, his or her own, I suppose.  In any case, children get older and marriages often crumble, so maybe it’s possible to bring back the weekly Bar Meeting. 

But in the meantime, the Kenosha County Bar Association is about to have its annual bar meeting.  Alcohol will be served.  To promote a more enjoyable bar-going experience, I offer these drinking tips from a true expert on the subject, Christopher Hitchens.  From his book Hitch 22: A Memoir:

How far does the Wisconsin state bar bureaucracy reach?

After sorting through my email inbox today, I learned that the mandatory-membership Wisconsin state bar has something called a “leadership development committee.”  And for the low, low price of $300.00, Wisconsin lawyers can take part in the “G. Lane Ware Leadership Academy.”  This is the second annual gathering; the inaugural event “was a huge success!” 

Bases covered

My monthly issue of the State Bar’s Wisconsin Lawyer went in the trash a little sooner than it normally does.  It wasn’t some overused top-ten title — like, “the top ten ways to upset your judge,” or “don’t do these ten things if you want to keep your judge happy” — that turned me off.  In fact, there might have even be some good material in it.  But I wouldn’t know because I never got that far.  Instead, I was completely grossed out by the cover.  For some reason, it featured a child’s bare feet, large as life, and I just couldn’t get beyond that.  To leave this monstrosity sitting out on my coffee table — even if only to collect dust — was simply not an option.

Is the Wisconsin State Bar’s conflict of interest self-imposed?

The Irreverent Lawyer just wrote about the current bill in Arizona that would turn their bloated and pricey state bar from a mandatory organization into a voluntary one.  One of the problems with these mandatory bars, he explains, is that they have an inherent conflict of interest.  And by separating the lawyer regulation function from the trade association function (in which membership would become voluntary) the conflict of interest disappears.  That is, a voluntary bar, separated from the lawyer regulation function, would no longer be torn between serving the general public and working on behalf of its membership.  But in Wisconsin, the lawyer regulation function (OLR) is already separate from the mandatory bar (although the bar seems to keep its fingers, to some extent, in the lawyer regulation pie).  So given its separation from the OLR, why does the Wisconsin State Bar consistently work with the OLR and against its own membership?  The bar does claim to also work for its dues-paying membership, so it does operate under an obvious conflict of interest.  Yet, given its supposed independence from the OLR, it seems that the Wisconsin State Bar’s conflict of interest is self-imposed.

State Bar of Wisconsin seeks donations to honor executive director’s “service”

I recently got an email from the Wisconsin Law Foundation (an arm of the state bar) signed by the bar’s president.  The bar is seeking donations so it can host three separate send-offs to honor its retiring executive director (E.D.).  Donations correspond to increasingly hierarchical titles.  For example, a $250 donation buys me the title of American Counselor, whereas $1,000 buys me the far more prestigious title of English Barrister.  (The titles of “landed gentry” and “aristocrat” are apparently not available.)  Donors’ names, along with their newly acquired titles, will appear on the party invites for all to see.  From what I can tell, the donations fund the three retirement parties and these parties, in turn, “will focus on raising support for the good work of the Law Foundation.”  So I’m not sure if the bar will hit up the party-goers for additional donations or if there will be some sort of raffle — the email isn’t entirely clear.  Equally unclear is how much we lawyers have been paying the E.D. for his years of “service” that the bar is so eager to celebrate.    

Bill would protect free speech on UW campuses

I used to think that the only constitutional rights in danger were those associated with criminal law.  A classic example is the Fourth Amendment.  When a defendant moves to suppress physical evidence (typically a small amount of marijuana) in a criminal case that was set in motion by an illegal search, courts will bend over backwards to find that no Fourth Amendment violation occurred.  And even when they are forced to concede that the defendant’s rights were, in fact, violated, they insanely conclude that the defendant is not entitled to suppression of the illegally obtained evidence.  (For more on this mind-boggling state of affairs, see this article.)

State Bar of Wisconsin to the rescue!

Donald Trump recently criticized a federal judge by calling him a “so-called judge” and arguing that the judge’s suspension of Trump’s executive order put the country at risk.  So of course, the Wisconsin State Bar’s “52-member Board of Governors” had to swing into action and adopt “a unified statement” to protect the federal judiciary from the impact of free speech.  Personally, I have no opinion as to whether Trump’s criticism is accurate, but I have serious problems with our state bar — an organization that we Wisconsin lawyers are forced to join and fund — making this so-called unified statement.

An open letter to our next state bar president

I recently received a mailing from Jon P. Axelrod who is running for state bar president.  He provides a bullet-point list of some things he wants to accomplish.  I have an opinion on three of those things.  First, Axelrod wants to “provid[e] money to forgive student loans” to encourage law school graduates to practice in “underserved areas of Wisconsin.”  I’m not sure where this money would come from, but this debt-forgiveness frolic had better not be funded by our bar dues.  As the Irreverent Lawyer has shown us, Wisconsin’s state bar bureaucracy is already one of the most expensive in the country.  Also, there’s simply no need to encourage new lawyers to take jobs.  There is a glut of lawyers in Wisconsin already, and they’re scrambling to find work. Only 64 percent of UW grads and 62 percent of MU grads from the class of 2015 found long-term, full-time legal jobs.  

State bar confuses silence with loyalty (again)

The state bar has run an on-line article about our rule petition to change SCR 1.9 so that Wisconsin attorneys can exercise our basic free speech rights with regard to public information about our former clients' cases.  You can find our petition and supporting documents here.  You can find the state bar's article here.  And reproduced below is my comment to the article:

This [state bar] article demonstrates that Rule 1.9 is so unclear, even the state bar ethics committee can't tell us what it means. In addition to the discussion of all of the possibilities of what it might mean, Tim Pierce even gets part of it wrong. For example, the article states (quoting Tim Pierce from the earlier oral arguments on the rule petition) that informed consent does not have to be in writing. Well, wait until you are in front of the OLR for a violation. Here's what the Wisconsin comment to Rule 1.9 reads: "The Wisconsin Supreme Court Rule differs from the Model Rule in requiring informed consent to be confirmed in a writing signed by the client." 

State Bar News

Here are three pieces of bar related news for The Dog's readers.  FIRST, the ABA is pushing to make state bar exams uniform.  This would allow lawyers to more easily move from state to state to find jobs.  Unfortunately, newly licensed lawyers would know even less about their specific state's law than they currently do -- and that's bad news for would-be clients.

SECOND, our state bar here in Wisconsin opposes our proposed change to ethics rule 1.9 -- color me surprised.  Our bar collects our dues and is supposed to be working for us, yet has chosen to "protect" the public from lawyers' discussion of public information, rather than protecting our basic free speech rights.  If the Wisconsin bar has its way, we lawyers will still be prevented from talking about even the public aspects (e.g., published appellate court decisions) of our former clients' cases -- also known as our cases.  This is clearly unconstitutional, but our bar and other mandatory bars love to be perceived as protecting the public at its lawyer-members' expense.

THIRD, Wisconsin's mandatory bar can get away with taking our money and then working to violate our basic constitutional rights because it's an entrenched bureaucracy that we are forced to join.  But the bar ought to rethink its position, because it might not enjoy this insanely privileged status forever.  In Arizona, for example, the Irreverent Lawyer is leading a movement to dismantle the mandatory bar and turn it into a voluntary organization.  If he is successful, their state bar bureaucracy would shrivel up faster than a grape in the southwest desert summer sun.   (That is, few lawyers would join if they're not forced to do so.)  Good luck, Irreverent One!  Why don't you take care of business in Arizona, and then come to Wisconsin and take on our mandatory bar?  Knightly offers his assistance in the fight for freedom of speech and freedom of association.            

“I think I’m dead, therefore I exist”

Some blogs get a lot of praise and even make a lot of money by simply linking to -- and, despite copyright laws, sometimes actually reprinting -- the writing of other blogs and websites.  The Legal Watchdog, on the other hand, consists nearly entirely of original work.  But every once in a while I come across a flurry of other articles, blog posts, and podcasts that I simply must share with The Dog’s readers.  Let’s begin out west, and the state of their state bars.  As the Irreverent Lawyer tells us, there is evidence that Cal Bar is a “bloated, arrogant, oblivious and unresponsive” bureaucracy.  (I’ve previously written about the Golden State here and here.)  So when the AZ Bar wanted to remake itself, where did it look for guidance?  You guessed it: Goin’ back to Cali.  Read the Irreverent One’s sharp, biting, entertaining, and comically illustrated post, “State auditor slams the Cal Bar . . .”

ABA and Wisconsin Bar combine efforts to solve lawyers’ problems (but not really)

Many new law grads are saddled with staggering debt loads and have limited job prospects.  While six-figure debt is now commonplace, just over half of new law grads have been able to land full-time, long-term employment as lawyers.  And, thanks to the bimodal salary distribution, most of those “lucky” new lawyers aren’t even paid enough to make a dent in their student loans.  On the other hand, for established, practicing lawyers, things aren’t much better: fees have been stagnant or even falling — not only in real dollars, but often in nominal dollars as well.  But don’t worry.  A grinning bureaucrat from the ABA teamed up with the Wisconsin Bar to discuss the “great opportunities facing lawyers today.”  That’s funny; I thought we “faced” obstacles but were “presented with” opportunities.  But I’m not writing this to nitpick word choice, so let’s get to the real question: what exactly are these “great opportunities”?

California Bar outdoes Wisconsin Bar with mandatory pro bono requirement

The Wisconsin Bar recently conducted a dues-funded study demonstrating the obvious: (1) many new lawyers were drowning in debt and couldn’t find law-related jobs; and (2) many of these new lawyers were afraid to hang their own shingle because they were never trained to practice law and feared committing malpractice.  I then mocked the Wisconsin Bar when, shortly after its study, it sent out an unrelated email suggesting that new lawyers reduce their anxieties by doing unpaid legal work for real clients.  But as clueless as the Wisconsin Bar was, the California Bar may have just topped it.

State Bar Bureaucracy: An Obvious Conflict of Interest?

Throughout my legal career — including at Quarles & Brady, as a solo practitioner, and especially as a writer — I’ve pondered a wide variety of “conflict of interest” scenarios.  And while attorneys are conditioned to run scared from any situation that could conceivably be construed as a conflict, there is one huge conflict of interest sitting right under our noses.

The mandatory, integrated state bar is such an obvious conflict that it needs little explanation.  In a nutshell, the bar forces attorneys to become members, takes their dues money, and then actively works for “the public” and against its membership.  Some state bar associations still pretend to serve their membership, when actually they are nothing more than Great Public Protection Perpetual Motion Machines: “The [attorney] members of the State Bar might still be stakeholders in the discipline system but that stake has shrunk to the size of the steak you order in a trendy restaurant, the one hiding under a stalk of asparagus.”  But as the Irreverent Lawyer informs us, some state bars might do away with this pretense altogether.  The State Bar of Arizona, for example, proposes clarifying the issue as follows: You, attorney, must join our ranks and pay your annual dues, and we will serve you only if it doesn’t conflict with our “mission . . . primarily to protect and to serve the public[.]”

Another gem from the state bar

The state bar has been serving up a lot of softballs.  Its most recent came in the form of an email, asking me to donate thirty minutes of my time for its latest dues-funded project: a survey on how to improve law schools.  “This survey,” the bar promises me, will “undoubtedly advance the profession.”  That’s a bold claim, and one that I seriously doubt.  But I might have participated were it not for an even bolder claim: the bar tells me to donate my time because “educating tomorrow’s lawyers is a shared responsibility.”

I’m pretty sure that’s not true.  Instead, I’m pretty sure that law professors are responsible for “educating tomorrow’s lawyers.”  Let’s take a look at some numbers to support my novel claim: 

Wisconsin state bar discourages free speech

I was just thinking that I haven’t written a judge-bashing blog post in quite a while.  And then, out of the blue, I got a call from criminal defense lawyer and free speech advocate Terry W. Rose, telling me about an outrageous opinion piece in the November issue of Wisconsin’s state bar magazine.  This piece, subtitled “never provide information in blog posts . . . that criticizes judges,” is especially alarming because it was written by a lawyer and, worse yet, the vice chair of our state bar professional ethics committee.  Essentially, the opinion piece makes two claims.  Its first claim pertains to lawyers discussing cases in which they are, or have been, involved as counsel.  (I’ve already written about that tandem of bizarre ethics rules in an earlier blog post and in a forthcoming law review article.)  And its second claim — the claim I want to address in this post — is that ethics rules 20:8.2 and 20:8.4(c) “make it very clear that a lawyer may not criticize a judge in most circumstances and doing so could result in significant sanctions.”

The problem with continuing legal education (and how to fix it)

I recently attended a day-long continuing legal education (CLE) program as part of my 30 CLE hours that are required every two-year reporting period. It may have been the "longest" eight hours I've experienced since becoming a lawyer — although one speaker’s informative, dynamic, and even inspiring presentation on defending domestic violence cases salvaged the day from complete and utter disaster. Many of the remaining presentations, however, fell into one of the following categories:

California State Bar Serves Up Delicious Irony

"This is delicious!"

Lawyer ethics rules — particularly those regarding confidentiality — are supposed to protect clients.  But sometimes the bureaucrats are so obsessed with giving the impression that they are protecting the public that they actually lose sight of that goal.  For example, when doing research for a new law review article, I came across several articles discussing the California Bar’s “Formal Opinion 1986-87.”  This opinion is now quite old, but it is so absurd that it is still being discussed and debated in legal publications as recently as 2013.  In short, the opinion deals with California’s version of the bizarre ethics rule that prohibits an attorney from revealing any information relating to the representation of a client.  And the word “information” includes not only confidential client communications and other secrets, but all information, including information that is widely and publicly available.  (If you are a Wisconsin lawyer and think this is ridiculous, you might be surprised to learn that we, along with most states, have similarly absurd rules in the form of SCRs 1.6 and 1.9.)

State Bar Associations: Everything to Everyone?

I wrote in an earlier post how I never really gave much thought to our state’s mandatory bar association. All I really knew was that I had to cut them a pretty big check each year in order to keep my law license. Sure, I realized that I wasn’t getting anything of value for the payout, but I really didn’t care enough to give it a second thought—until I started reading The Irreverent Lawyer, a blog that places state bar associations, mandatory CLEs, and related topics squarely within its crosshairs of criticism. And because of this, I’m now far more sensitive to the absurdity that is our state bar association.

Introducing The Irreverent Lawyer

I am pleased to introduce Legal Watchdog readers to The Irreverent Lawyer—a gun-slinging civil attorney out west who brilliantly criticizes, among other things, mandatory state bar associations and continuing legal education (CLE) requirements.  (And he does it with wonderfully illustrated posts.)  Now, I always knew that, notwithstanding my state bar’s hyper-positive spin, I wasn’t getting anything for my nearly-$500 check that I sign every year.  And I always knew that after taking most CLEs I was frustrated and drained of money, time, and energy.  But I was never angry about any of this until I started reading some of his posts.