April 19, 2021 – The State Bar of Wisconsin’s Board of Governors last Friday discussed a proposal to require at least two of 30 CLE credits per reporting period on topics of racial bias and other issues that promote education on diversity, equity, and inclusion.
The board took no action on the proposal from the State Bar’s CLE Committee, but engaged in lengthy discussion for the second consecutive board meeting.
The CLE Committee made its recommendation in consultation with the State Bar’s Racial Justice Leadership Group, established last year to explore actions to address racial inequality in the legal system and improve diversity, equity, and inclusion (DEI).
Board members generally agreed that education on these topics is needed, and related DEI programming should be eligible for CLE. Others questioned whether it should be mandatory. Any changes to CLE requirements must be approved by the supreme court.
Immediate Past President Jill Kastner said other Midwestern state bars either have mandatory diversity, inclusion and equity CLE or are considering it.
“When you look at what a lot of other trade organizations, other professional groups and businesses are doing, diversity and inclusion is simply the new norm,” Kastner said.
“The legal profession in Wisconsin is a little behind in not having that diversity, equity, and inclusion training. Today, we want to build on our previous discussions.”
Mandatory or Not?
Nonresident Lawyer Division (NLRD) representative Anu Chudasama (Minneapolis) said the NLRD board supports mandatory CLE for diversity, equity, and inclusion (DEI).
In Minnesota, DEI credits are mandatory for lawyers, Chudasama noted, and the requirement has sparked engaging DEI programming there.
Michael Yang, the Wisconsin Asian American Bar Association liaison to the board, noted recent violence and discrimination against Asian-Americans.
“One of the first steps is simply recognizing that we all have bias,” Yang said. “It is fundamentally a part of who we are. Evidence-based training can help us dispel bias.”
Dist. 12 Gov. Jane Bucher (Monroe), said DEI credits should be mandatory based on her personal knowledge as a public defender in rural counties.
“Giving people the tools to effectively react to discrimination in a way that’s productive and reshapes a person’s viewpoint is reason enough to support this,” she said.
Dist. 9 Gov. Sam Wayne (Madison) said training on DEI issues will make people better lawyers. “It touches on everyone’s practice, whether they think so or not,” he said.
Alexander Lodge, the Wisconsin Association of African-American Lawyers (WAAL) liaison to the board, said WAAL supports the mandatory DEI component for various reasons, including the ability to attract and retain quality and diverse legal talent.
“There’s a business case for diversity,” said Lodge, who notes that clients of large law firms (he worked at one) have diversity requirements among legal teams, and as an in-house attorney, there is pressure to look for legal providers that are diverse.
“If we want diverse talent, we have to be competent and inclusive, and trained up on these issues in order to diversify our bar. If we want to be a state that is competing for diverse talent, we are going to have to meet the mark.”
Dist. 9 Gov. Mitch, a U.W. Law School professor, echoed that sentiment. “We are trying to recruit the best and brightest, the future members of the bar,” Mitch said.
He said the highest achievers have a choice of law schools, and they are looking at these issues, asking what states are doing to address diversity and inclusion. “We will lose some of the best and brightest if we don’t adopt these kinds of measures,” he said.
Senior Lawyers Division (SLD) representative Jean Baker said the SLD board discussed the issue but could not reach consensus on the mandatory aspect.
“There was absolutely a commitment to diversity and bias training, but it was the mandatory nature that seemed to divide us,” Baker said.
Others voiced concerns about mandatory CLE. “I think the training is important and critical,” said Dist. 11 Gov. Johanna Kirk (Superior). “But it should not be mandatory.”
Kirk mentioned studies that conclude mandatory bias training is not working. “I think we should think creatively about how to incentivize members to take them instead,” she said.
The board took no action on the proposal for mandatory CLE on diversity, equity, and inclusion, but is expected to vote on it at the next board meeting in June. Any proposed change to CLE requirements would require approval from the state supreme court.
Board Adopts Policy Positions Related to Racial Justice
The board adopted two policy positions related to racial justice, recommended by the board’s Policy Committee and the Racial Justice Leadership Group.
The first policy relates to police reform:
- Law Enforcement Reform – The State Bar supports efforts to address racial injustice and improve the justice system, including through policing reforms and citizen engagement with law enforcement. The State Bar supports increased training for law enforcement on the appropriate use of force including de-escalation and preservation of life, a statewide model for use of force standards and their enforcement, annual reporting of use of force incidents, and the public posting of use of force policies by law enforcement agencies. The State Bar supports additional funding for communities to establish community policing efforts for better community interactions and to better mediate conflicts between citizens and law enforcement.
The second policy updates and amends an existing policy on racial profiling:
- Profiling and Collection of Demographic Data – The State Bar of Wisconsin opposes discrimination of any form in the justice system, including profiling on the basis of sex, race, color, religion, ancestry, national origin, ethnic group identification, age, disability, medical condition, genetic information, marital status, sexual orientation, gender expression, or gender identity. The State Bar supports the collection and dissemination of demographic data on persons interacting with law enforcement in the justice system by appropriate agencies, and encourages the consideration of such data by decision makers in the system. (See also Law Enforcement Reform Policy)
The board discussed these policy positions at a prior meeting, and voted to adopt the policies at its meeting last Friday.
Board Approves FY 2022 Budget
The board approved a budget for fiscal year 2022 (July 1, 2021 to June 30, 2022), recommended unanimously by both the State Bar’s Executive and Finance committees.
The budget of $12.14 million includes a 3 percent, or $8 membership dues increase. Currently, membership dues for full-dues paying members is $260 annually. The last dues increase was $2, approved in 2019 for FY 2020. There was no dues increase in current FY 2021 (July 1, 2020 to June 30, 2021).
Although the Finance Committee had recommended a $4 increase for FY 21, the board opted to use its reserves to fill a deficit during the 2020-2021 pandemic year.
The use of reserve funds is typically an extraordinary measure, and use of reserve funds was not a desired nor best-practices option to balance the FY 22 budget.
In the last six fiscal years (FY 16 to FY 21), State Bar dues increased by $6 from $254 to $260 for full-dues paying members, which corresponds to a $1 dues or about a 0.4 percent average increase every year during that period. Those increases did not keep pace with annual inflation for the same period, which has averaged about 1.5 percent.
The State Bar projects that it will end the current fiscal year with a surplus. Dist. 2 Gov. Nick Zales (Milwaukee) moved to eliminate the dues increase and Dist. 2 Gov. Margaret Hickey (Milwaukee) moved to reduce the proposed increase to $5 instead of $8. Both motions failed.
Dist. 14 Gov. Sherry Coley, chair of the Finance Committee, explained that post-pandemic expenses (such as costs related to in-person events/meetings and volunteer mileage/travel reimbursements) will quickly return to normal levels.
In addition, about 58 percent of the year-end projected surplus is investment income, which is driven by the volatility of the market. In other words, the market could take a downward turn, quickly changing the year-end financial picture.
Coley noted that filling gaps with reserve funds would simply defer dues increases while depleting reserves intended for extraordinary circumstances or capital investments.
Reserves also supply the added benefit of investment income, helping to further sustain the State Bar’s annual revenue stream, Coley noted.
State Bar Executive Director Larry Martin noted that the State Bar now offers a prepayment installment plan to spread dues and assessment payments over six months. In addition, members experiencing financial difficulties can submit a Hardship Waiver Application.
The State Bar Board of Governors, in consultation with the Finance and Executive committees, annually considers membership dues in achieving a balanced budget after a stringent review of all State Bar activities, programs, and services to ensure their continued value and relevancy to the members.
This includes alignment with the organization’s strategic plan, as well as: reviewing State Bar activities for appropriateness, effectiveness, and efficiency; providing value to members and financial sustainability for the organization; and assuring an ongoing commitment to being good stewards of members’ dollars.
Membership dues account for approximately 45 percent of the State Bar’s annual revenue. Registrations and sales of State Bar of Wisconsin PINNACLE® books, seminars, and other products represent approximately 37 percent of State Bar revenues, with the remaining revenue from advertising and sponsorship sales, LRIS registrations, and other miscellaneous sources.
Board Adopts Proposed Ethics Rules Petition on Conflicts
The board adopted a proposed petition to amend rules applicable to the way conflicts are imputed in the State Public Defender’s Office and the Federal Defender Services of Wisconsin under Wisconsin Supreme Court Rules (SCRs) 20:1.10 and 20:1.11.
Current rules govern the process for determining conflicts and screening when a lawyer has formerly served as or currently serves as a public officer or employee of the government – typically representing government entities (such as cities) or agencies – rather than individuals, such as persons charged with crimes.
“As such, the current SCR 20:1.11(f) is not a good fit for public defender’s offices and neither the committee nor the public defender’s office believed that the application of SCR 20:1.11(f) to public defender’s offices was appropriate,” according to a communication from Professional Ethics Committee Chair Ben Kempinen.
“The proposed petition seeks to treat public and federal defender’s offices as private law firms, with an exception that would permit former client conflicts to be screened off.”
Kempinen noted that the proposed petition will be submitted by the State Bar’s Professional Ethics Committee and the State Public Defender as co-petitioners upon the board’s approval.
He said other government lawyers, including prosecutors, attorneys general, and municipal lawyers, have not objected to the proposal. The proposed rule change will be submitted to the Wisconsin Supreme Court for approval.
Board Adopts Self-Help Repossession Policy
The board adopted a new policy related to self-help repossession to replace an original policy, deemed out-of-date by the Policy Committee.
The proposed policy states that “the State Bar opposes attempts to weaken protections for consumers in the judicial system provided by the Wisconsin Consumer Act concerning repossession.”
The final board meeting of the fiscal year will take place at the State Bar of Wisconsin Annual Meeting & Conference, June 9-11, a virtual event this year.
Upon request, interested members may obtain a copy of the minutes of each meeting of the Board of Governors. For more information, contact State Bar Executive Coordinator Jan Marks byemailor by phone at (608) 250-6106.