75 Op. Att'y Gen. 153 (1986)
 
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Wisconsin Attorney General Opinions

Opinion # OAG 30-86,

25 August 1986

Attorneys;
Public Officials;
State Bar;

The State Bar of Wisconsin is a state agency
created by the constitutional authority of
the supreme court.

The authorized functions of the State Bar may
come under the "State Action" exemption to
the antitrust laws and the procedures
employed by the Unauthorized Practice
Committee and the Ethics Committee appear
to provide due process but specific opinions
in this regard must be given on a
case-by-case basis.

Volunteer lawyers giving free legal advice in
the "Lawyer Hotline" program are agents of
the State Bar and are entitled to common law
immunity and indemnification under section
895.46(1)(a), Stats.

FRANKLYN M. GIMBEL,
President State Bar of Wisconsin

Your predecessor requested my opinion
regarding possible liability of the State Bar
(Bar) or individual committee members because
of the "activities" of the State Bar
Unauthorized Practice of Law Committee
and the State Bar Ethics Committee
especially as it relates to antitrust
law and denial of due process.

He also sought my opinion regarding the
"activities" of the Lawyer Referral and
Information Service, more popularly known
as the "Lawyer Hotline," where volunteer
lawyers talk by telephone to members of
the public and give legal advice on
simple legal questions.

Since the "activities" are not fully
described in the opinion request in terms of
a factual setting, this opinion is limited to
activities authorized by the supreme court.

I.

Our discussion appropriately begins with
an examination of the nature of the Bar.

The Bar is an integrated bar, that is, it was
created "as a state agency to serve a public
purpose" by constitutional authority of the
supreme court.

Lathrop v. Donahue,
10 Wis.2d 230, 243,
102 N.W.2d 404 (1960), aff'd,
367 U.S. 820 (1961).

The court has the exclusive authority to
determine the functions of the Bar and
has the exclusive authority to determine
its existence or demise.

Its supervisory function over the Bar was
explained by the court in Lathrop,
10 Wis.2d at 240:

   However, as we pointed out in our
   opinion in the 1958 In re Integration
   of Bar Case, this court will exercise
   its inherent power to take remedial
   action should the State Bar engage
   in an activity not authorized by
   the rules and bylaws and not in
   keeping with the stated objectives
   for which it was created.

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The Bar's status as a state agency
was explained in
Lathrop, 10 Wis.2d at 243:

   The State Bar is a public agency the
   same as the judicial council.

   One has been created by the court and
   the other by the legislature but each
   was created by state action as a state
   agency to serve a public purpose.

It appears clear, therefore, that the
Bar is a state agency as created by
the constitutional judicial power
of the supreme court.

However, the supreme court expects
"the bar to act freely and independently
on all matters which promote the
purposes for which the bar was
integrated"
provided such acts are
"within the framework of
its rules and by-laws,"

Axel v. State Bar,
21 Wis.2d 661,
124 N.W.2d 671 (1963).

It is thus instructive to examine the
functions of the Bar as authorized by rules
and bylaws in the fields of unauthorized
practice, ethics and the "Hotline," and
then determine whether those functions are
"in keeping with the stated objectives for
which it [the Bar] was created."

Lathrop, 10 Wis.2d at 240.

The Unauthorized Practice Committee derives
its authority under Article IV, Section 10 of
the bylaws which were originally approved by
the supreme court in connection with the
official integration of the Bar.

Section 10 reads as follows:

   SECTION 10 Committee on
   Unauthorized Practice of Law.

   This committee shall keep the membership
   informed with respect to the illegal
   practice of law by unlicensed laymen,
   and shall endeavor to eliminate the
   exposure of the public to the hazards of
   unskilled and unauthorized practice of
   law by those who have not met the
   education and moral standards and who
   are not subject to the ethical standards
   or disciplinary regulation required for
   those licensed to practice the
   profession of law.

In Lathrop, 10 Wis.2d at 248, the court
explained the duties of the Committee on
Unauthorized Practice:

   Discouraging Unauthorized Practice of
   the Law. One of the standing committees
   of the State Bar is that of unauthorized
   practice of law.

   The primary purpose of such committee is
   to protect the public from incompetent
   laymen attempting to offer or perform
   legal services which they are not
   competent to render.

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   This is a constant program since
   numerous trades and occupations keep
   expanding their services and frequently
   start offering services which constitute
   the practice of the law.

   As a result of integration the income
   from dues has enabled the State Bar to
   employ an additional lawyer on its staff
   whose major assignment is to investigate
   complaints made with respect to
   instances of unauthorized practice of
   the law, and to cause any unauthorized
   practices so discovered to be
   discontinued through persuasion
   or legal action.

Briefly stated, the committee, with the help
of the staff attorney, reviews complaints
received from the public, government
agencies, judges and attorneys concerning
unauthorized law practice.

If the committee, after investigation,
concludes that the complained of
activities are the practice of law and
unauthorized, efforts are made to secure
voluntary compliance, usually by letter.

If those efforts are successful the
matter is closed.

In those cases where compliance is not
forthcoming by "persuasion," the matter
is referred to the Board of Governors
with a recommendation for "legal
action."

Lathrop, 10 Wis.2d at 248.

If the board agrees, a request is sent
to this office for appropriate legal action.
If we agree that legal action is
justified, we determine whether to bring
a civil action or criminal action and,
if the latter, we usually refer the
matter to the district attorney of the
county involved.

Since integration, the Bar has been
involved as a complainant or party in
several cases involving the unauthorized
practice of law.

State ex rel. State Bar v. Keller,
16 Wis, 2d 377,
114 N.W.2d 796,
116 N.W.2d 141 (1962), vacated,
374 U.S. 102 (1963);

State ex rel. State Bar v Bonded Collections,
36 Wis.2d 643,
154 N.W.2d 250 (1967);

State ex rel. Baker v. County Court,
29 Wis.2d 1,
138 N.W.2d 162 (1965);

and

State ex rel. Reynolds v. Dinger,
14 Wis.2d 193,
109 N.W.2d 685 (1961).

The supreme court has recognized in those
cases that the Bar has been acting within the
delegated authority specified in Lathrop.

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The second function to be discussed is
the Ethics Committee which is also
created by the State Bar Bylaws.

Article IV, Section 5 reads as follows:

   Section 5.

   Committee on Professional Ethics.

   This committee shall formulate and
   recommend standards and methods for the
   effective enforcement of high standards
   of ethics and conduct in the practice of
   law; shall consider the "Code of
   Professional Responsibility and
   Disciplinary Rules as adopted by the
   Wisconsin Supreme Court" and the
   observance thereof, and shall make
   recommendations for appropriate
   amendments thereto.

   The committee shall have authority to
   express opinions regarding proper
   professional conduct, upon written
   request of any member or officer
   of the State Bar.

   However, the committee shall not issue
   opinions as to the propriety of past or
   present conduct of specific member
   attorneys unless requested to do so by a
   grievance committee of the State Bar or
   by the Board of Governors of the State
   Bar.

   In those latter instances of requests
   relating to a specific member, they
   shall be treated as confidential and
   shall not be open to public inspection.

   In such cases, the opinion of the
   committee shall not disclose the names
   of any parties, but such opinion shall
   be open for inspection in the same
   manner as other opinions of the
   committee.

The supreme court acquiesced in the
establishment of this committee when it
approved the bar's original bylaws.

The purpose of the committee was the
promotion of high standards of ethics
and conduct in the practice of law.

The committee is authorized to express
opinions interpreting chapter SCR 20
known as the "Code of Professional
Responsibility."

The opinions which are authorized by the
committee can interpret whether specific
conduct meets with the provisions of
chapter SCR 20.

However, as is the case with the
unauthorized practice of law, whether
certain conduct violates specific
ethical standards is, in the final
analysis, the responsibility of the
supreme court.

An opinion of the Ethics Committee to a
member or officer of the Bar serves an
advisory function but is not binding on
the Board of Attorney's Professional
Responsibility and the supreme court.

The intent is to provide guidance to the
profession and, as is explained in SCR
20.002: "The code is adopted by the Wisconsin
supreme court both as an inspirational guide
to the members of the profession and as a
basis for disciplinary action when the
conduct of a lawyer falls below the required
minimum standard stated in the disciplinary
rules."

The Ethics Committee may not, however, issue
opinions as to the propriety of past or
present conduct of an attorney unless
requested to do so by a grievance committee
of the State Bar (now called Professional
Responsibility Committee) or by the Board of
Governors.

In those cases, the request and opinion are
confidential and are not to be open to public
inspection.

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Finally, it should be noted that the supreme
court rejected in 1983 and again in 1985
State Bar petitions seeking the supreme
court's direct authorization of the Bar's
ethics and unauthorized practice activities.

In December of 1983, the Bar petitioned
the court to set up the State Bar as
an "official arm" of the court, acting
in a quasi-judicial capacity.

The Bar would have been "charged by the court
with the duty of advising and educating State
Bar members on matters pertaining to the
standards of professional conduct."

A reconstituted standing committee on
professional ethics would have had the
power and "responsibility" to issue
advisory opinions.

The supreme court denied the petition
by order dated February 7, 1985.

The court observed that the petition[1] was
"substantially the same" as petitions filed
by the State Bar in April of 1982, which were
denied by the court in January of 1983.

The 1985 order provided in part as follows:

   In the 1983 order, the court stated that
   it was of the opinion "that it is not
   proper for the court, as final arbiter
   in unauthorized practice of law and
   professional ethics matters, to
   participate in the giving of advisory
   opinions by State Bar committees."

   The court continued to be
   of that opinion.

   . . . The State Bar is not the proper
   entity to render formal advisory
   opinions having any binding effect for
   the reason that it neither promulgates
   the rules of professional ethics or the
   rules prohibiting the unauthorized
   practice of law nor enforces them.

   . . . The regulation of the practice
   of the law is a judicial power and is
   vested exclusively in the Supreme court,
   although we have recognized the
   Legislature's authority to place
   additional penalties upon those who
   engage in the authorized practice of the
   law . . . . Consequently, it is not
   proper that this court participate to
   any extent in the rendering of advisory
   opinions on either issue.

   Notwithstanding the State Bar's concern
   with the rules of professional ethics
   and the unauthorized practice of law and
   its desire to assist its membership in
   dealing with these matters, we decline
   to give it the authority, quasi-judicial
   or otherwise, to issue advisory opinions
   that either are binding on the court and
   its Board of Attorneys Professional
   Responsibility or are subject to review
   by the court. [2]

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The third activity on which you seek
advice is the Lawyer Referral and
Information Service, commonly
known as the "Lawyer Hotline."

You explain that the "Hotline" makes
volunteer lawyers available to talk
by telephone to members of the public
who have simple legal questions.

The service is offered totally
without charge to the caller.

If the person needs more assistance than can
be provided during a short five minute
telephone conversation, the caller is urged
to consult an attorney of his or her choice.

The volunteer lawyer does not give his or her
name to the caller and is not available to
perform services for a fee.

There is no specific bylaw or supreme court
rule which directs the Bar to provide
this service.

It was originally conceived, I understand,
by the State Bar Foundation and proved
to be an extremely popular program.

Eventually it became a joint function of the
Foundation and the Bar and is included in
the Bar budget which is submitted to the
supreme court each year for approval.

Supreme Court Rule 10.02(2)
is entitled "PURPOSES."

The last three lines of that
paragraph read as follows:

"to promote the innovation, development
and improvement of means to deliver
legal services to the people of
Wisconsin; to the end that the public
responsibility of the legal profession
may be more effectively discharged."

The functions of the "Hotline" seem to fall
within the meaning of the above purposes of
the Bar as approved by the supreme court.

That the court approves of this function is
fairly inferred from its knowledge that sums
for this function are included in the budget
and the function itself is part of an annual
report and audit provided to the court.

II.

The first question posed is whether this
office would provide legal counsel in case
of a lawsuit against the Bar and individual
lawyers performing authorized functions in
connection with these three State Bar
activities.

Historically, this office has represented the
integrated bar in connection with lawsuits
brought against the Bar, members of the Board
of Governors, and employes and agents of the
Bar when such lawsuits arise out of the
official state agency functions of the Bar.

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We will continue to provide such
representation where the law requires
that we provide the representation.

We have also provided legal services in the
form of formal and informal opinions and
consultations with members of the staff,
the board and committees in regard to the
Bar's state agency functions and will
continue to do so where appropriate.

However, we may decline to provide
representation in accordance with section
895.46(1)(a), Stats., where we conclude that
the act complained of did not grow out of or
was not committed in the course of an
individual's state agency duties or is
beyond the supreme court delegation.

Also, where the Bar has an insurance policy
covering liability asserted against the Bar,
its officers, employes or agents, we may
choose not to provide representation where
the insurance company is obliged to do
so and the claim is not in excess of
the policy limits.

Obviously, each case would be
considered on its own merits.

In those situations where there is a claim
for declaratory and/or injunctive relief
based on allegations of unconstitutionality
of statutes or rules administered by the Bar,
we have and will continue to provide legal
representation without cost where
appropriate.

This position, of course, assumes that this
office does not have a more compelling duty
not to provide such representation in a
particular case.

For instance if it was determined by this
office that the Bar, its officers, employes
or agents had exceeded the authority
delegated by the supreme court and our advice
to cease such conduct was ignored we would
probably seek supervisory action against the
Bar in the supreme court.

Moreover, this office's duty to enforce the
antitrust laws, see secs. 133.17, 165.065,
Stats., might compel this office to act to
remedy violations of the antitrust laws.

III.

The next question is in regard to possible
antitrust actions being successfully
maintained against the Bar because
of the operation of the Unauthorized
Practice and Ethics Committees.

No specific cases are mentioned, but your
predecessor indicates that

several observers have voiced concern
that the activities of these two
committees as presently constituted
might raise antitrust law or
constitutional due process of law
problems.

There is no further elaboration as to what
the "observers" contend is the antitrust
danger as the committees are presently
constituted.

Assuming that the contention is that the
committees could potentially participate in
anti-competitive activities, the question is
whether the delegation from the supreme court
described above is adequate to provide
blanket "state action" antitrust immunity
within the meaning of
Parker v. Brown, 317 U.S. 341 (1943).

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Any analysis of the state action doctrine
must revolve around the two-pronged test
articulated by a unanimous court in
California Liquor Dealers Ass'n v. Midcal
Aluminum, Inc., 445 U.S. 97 (1980).

Midcal provided that for the
immunity to apply

(1) the state must have clearly articulated
    and affirmatively expressed a state
    policy compelling the displacement
    of competition in the area of
    the economy at issue, and

(2) the state must actively supervise
    this displacement.

Although Midcal's teaching appears
superficially straightforward, reconciling
it with three other Supreme Court decisions
dealing with state action immunity in the
context of state bar activities is no mean
feat.

For example, both prongs of the Midcal test
appear to have been diluted in

Hoover v. Ronwin,
104 S.Ct. 1989 (1984),

and

Bates v. State Bar of Arizona,
433 U.S. 350 (1977).

In neither Hoover nor in Bates did the state
supreme court in question "compel" the
specific conduct at issue.

In Hoover, the Bar committee appointed by the
supreme court was not compelled to adopt the
grading system it adopted.

The plaintiff's primary claim against the
committee was that it had adopted a

grading scale on the February
examination with reference to the number
of new attorneys it thought desirable,
rather than with reference to some
"suitable" level of competence.

104 S.Ct. at 1994.

The plaintiff claimed that the state action
doctrine did not apply because the supreme
court had not directed the committee

to artificially reduce the
number of lawyers in Arizona.

Id. at 1999.

The Court rejected plaintiff's argument
stating that it largely ignored the facts
surrounding the delegation of authority by
the Arizona Supreme Court to the committee
and, most importantly, the fact that the
Arizona Supreme Court retained ultimate
authority to grant or deny admission to
the practice of law in the state.

Id. at 1999-2000.

In Bates v. State Bar Arizona, 433 U.S. 350
(1977), the Court found that the state action
exemption was applicable because the Arizona
Supreme Court had in effect ratified and
adopted the State Bar rule limiting
advertising by attorneys.

The plaintiff argued that because the state
bar had not been compelled to recommend the
advertising rule to the Arizona Supreme
Court, the Court should follow
Cantor v. Detroit Edison Co.,
428 U.S. 579 (1976), and
reject state action immunity.

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The Court, however, found state action
immunity and distinguished Cantor on the
basis that a "utility could not immunize
itself from Sherman Act attack by embodying
its challenged practices in a tariff approved
by a state commission."

Bates at 360.

In addition to not being required to file the
challenged practices in a tariff, the Court
held that the state commission had never
passed on the challenge practices, and hence,
there could be no antitrust immunity.

Id.

In short, the court in Bates held that the
advertising restriction was the action of the
court and the mere fact that it was adopted
without compulsion was not significant.

Similarly, it does appear to be fatal to a
claim of state action immunity that the state
has not clearly articulated and affirmatively
expressed a state policy to replace
competition with regulation as it relates to
a specific action by a state agency.

At one level, it is clear that the State of
Wisconsin through both the Legislature and
the Supreme Court has clearly articulated and
affirmatively expressed a state policy to
replace open competition in the market for
legal services with barriers to entry in the
practice of law (e.g., penalties for
practicing without a license, Section 757.30,
Stats.) and ethical constraints on how those
competing in the market operate their
practices (e.g., authorization of Article IV,
Section 5, of the State Bar Bylaws creating
the Committee on Professional Ethics).

Hoover, Bates and Goldfarb v. Virginia State
Bar, 421 U.S. 773 (1975), collectively
suggest further that where a state bar or
state bar committee acts to effect a state
supreme court's policies on setting
appropriate limits on competition among those
seeking to provide legal services to the
public, the court will find those actions
which are in furtherance, to some unclear
degree, of those policies to be exempt.

The issue, of course, is to what degree must
the supreme court "guide" or "direct" the
actions of the bar for the exemption to
apply.

On this point, the contrast between Hoover
and Goldfarb is instructive.

In Goldfarb,

state law did not refer to lawyers'
fees, the Virginia Supreme Court rules
did not direct the State Bar to supply
fee schedules, and the Supreme Court
rules did not approve the fee schedules
established by the State Bar.

Hoover, 104 S.Ct. at 2001 n. 32.

Consequently, even though the Virginia State
Bar was a state agency, the Court concluded
that the actions of the State Bar were not
immune under the state action doctrine.

Although no state law or supreme court
directive told the Arizona Bar committee what
its grading formula ought to be, the Court in
Hoover impliedly held that the grading
formula adopted was "consistent enough" with
the general policy of limiting admission to
the market for legal services to those
reaching a certain degree of competence.

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In short, when one attempts to reconcile
Goldfarb with Bates and Hoover, the test
that emerges is no longer one of the
traditional two-prong test of "compulsion"
and "clearly articulated and affirmatively
expressed state policy."

Rather, it seems that the exemption applies
if a Bar or Bar committee acts pursuant to or
consistent with the state supreme court
guidelines Ä even if much discretion is left
to the Bar committee (e.g.. Hoover), even if
the Supreme Court did not initiate the action
(e.g., apparently in Bates), and even if the
court did not specify in detail how the Bar
committee should carry out its functions
(e.g., Hoover).

Where the State Bar acts on its own without
any guidelines from the state supreme court,
state action immunity will not apply even
though the actions of the State Bar are
arguably consistent with the general policy
of the state supreme court to temper
competition among lawyers (e.g., Goldfarb).

Ultimately, the dividing line between
Goldfarb, on the one hand, and Hoover and
Bates, on the other hand, seems to hinge on
the specific activity of the Bar or Bar
committee involved in light of the specific
directions given by the state supreme court.

For example, in Goldfarb, the State Bar had
issued two ethical opinions indicating that
the fee schedules could not be ignored.

421 U.S. at 777.

Arguably, the fee schedules could be
rationalized as consistent with some state
supreme court policy affecting competition.

Whether or not the activity of the Bar is
connected enough to supreme court guidelines
and directives would seem to be an issue that
has to be decided on a case-by-case basis
with reference to the specific setting of the
Bar activity.

However, this dependency on the facts of the
specific situations creates considerable
confusion in dealing with the question of
whether state action immunity is available
for all actions of the two Bar committees at
issue.

Simply stating that the committees are acting
"within their authority" does not resolve the
question.

For example, in Goldfarb the Supreme Court
had delegated to the State Bar the
"authority" to regulate the legal profession.

But the Court determined that that was
not enough direction to activate state
action immunity with regard to
the adoption of fee schedules.

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If the Virginia Supreme Court had articulated
a general policy that attorneys should price
their services in a "reasonable manner,"
would that have been sufficient to give the
State Bar state action immunity to adopt a
specific fee schedule? What if the Bar had
asked the Virginia court for more explicit
authorization and had been rejected as was
the case with the Wisconsin Bar? My reading
of these cases suggests that the answer to
these questions in the context of the state
action doctrine are largely factual and ought
to be dealt with on a case-by-case basis.

Hence, although I tend to believe that much
of what the two State Bar committees in this
case do may fall within the state action
exemption, I share what I think is the Bar's
concern that there may be situations where
the actions of either committee may not be
within the immunity.

[For example, what if the Unauthorized
Practice Committee decides a particular use
of paralegals by an aggressive firm
constitutes "unauthorized practice" in the
absence of any specific supreme court policy
thereby dampening the use of paralegals? Or
what if the Ethics Committee rules that such
use of paralegals is unethical?] My concern
in this regard is not tied to any specific
fact pattern, but rather relates to my
conclusion that ironclad guarantees are
impossible in the face of a rather unsettled
situation caused by three supreme court
opinions within the last ten years which are
more than a little difficult to
reconcile.[3] I suggest that if you have
specific actions that either of the two
committees intends to take that may be a
cause for concern, that you frame those
questions to us for an opinion on the state
action doctrine at that time.

IV.

The next question relates to the likelihood
of success of a claim against the Bar or
individual committee members based on denial
of property without due process of law.

Due process is one of those terms in the law
which is not easily defined except as it
applies to specific situations.

The constitutional provision, of course,
prohibits denial of life, liberty and
property without due process.

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To find a violation of due process where it
concerns property, we have to determine first
that it is property within the constitutional
meaning, that there was a deprivation, and
that the process afforded did not meet
constitutional standards.

The United States Supreme Court pointed out
in Board of Regents v. Roth, 408 U.S. 564
(1972), in a case arising out of the
University of Wisconsin-Oshkosh, that a
nontenured professor whose one-year
appointment was not renewed had no property
interest in reappointment.

The Court pointed out that property interests
do not arise under the constitution: "Rather,
they are created and their dimensions are
defined by existing rules or understandings
that stem from an independent source such as
state law Ä rules or understandings that
secure certain benefits and that support
claims of entitlement to those benefits."

Board of Regents v. Roth, 408 U.S. at 577.

Frankly, it is difficult to identify property
interests that might be affected by the
Unauthorized Practice Committee in the
abstract.

It would be difficult to show "entitlement"
and, therefore, difficult to show a property
interest in the unauthorized practice of law.

However, if the committees acted against
other professionals, e.g., public accountants
or paralegals, a protectible property
interest may be a present.

Again, it is difficult to answer the question
you pose in the abstract.

Perhaps a more useful way to approach this
question is with regard to the overall
process of initiating unauthorized practice
investigations and the prosecution thereof,
whether civil or criminal which I outlined
above.

The Bar committees, in carrying out its
unauthorized practice functions, merely
requests this office to initiate the
complaint process.

This office decides whether to initiate an
action and the type of action.

In the case of the Ethics Committee which
deals with licensed attorneys who have a
property interest in the license, there
appears to be no due process problem in
connection with the issuance of requested
opinions relating to future conduct.

In the case of opinions relating to past or
present conduct being investigated by a
professional responsibility committee
(formerly grievance committee of the State
Bar) or by the Board of Governors, there
would appear to be a property interest
involvement which would require appropriate
due process at some stage prior to any
sanctions.

But if such opinion led to a hearing before a
professional responsibility committee, and
subsequently before the Board of Attorneys
Professional Responsibility in accordance
with chapter SCR 22, the procedures afforded
before those two bodies appear to provide
adequate due process.

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If the Board of Governors reported directly
to the Board of Attorneys Professional
Responsibility concerning ethical conduct,
again it appears that due process would be
provided by a hearing before the Board of
Attorneys Professional Responsibility and
ultimately consideration by the supreme
court.

Disciplinary Proceedings Against Eisenberg,
117 Wis.2d 332, 336 (1984).

V.

The final question relates to whether
indemnification would be available from the
state if a successful claim were made against
the Bar, the board, members of the committees
and the volunteer lawyers operating the
"Hotline," assuming that "all action was in
good faith and within the parameters
established by State Bar Rule and Bylaw."

Your question apparently assumes that
liability has been established or is
conceded.

There are, of course, defenses which should
be considered whenever claims for money
damages are made against the state, its
agencies, officers and agents.

One of these defenses, the immunity afforded
public officers with respect to the
performance of their official functions,
deserves some discussion.

This common law immunity has been recognized
by our supreme court as protecting
individuals who perform governmental
functions from substantive liability for
damages.

The court listed the public policy
considerations for such immunity in Lister v.
Board of Regents, 72 Wis.2d 282, 299, 240
N.W.2d 610 (1976).

   These considerations have been variously
   identified in the cases as follows:

   (1) The danger of influencing public
       officers in the performance of their
       functions by the threat of lawsuit;

   (2) the deterrent effect which the threat of
       personal liability might have on those
       who are considering entering public
       service;

   (3) the drain on valuable time caused by
       such actions;

   (4) the unfairness of subjecting officials
       to personal liability for the acts of
       their subordinates; and

   (5) the feeling that the ballot and removal
       procedures are more appropriate methods
       of dealing with misconduct in public
       office.

This common law immunity is available only
where the act complained of was within the
scope of the official authority of the
individual and in line with official
duty and involves the exercise of
some discretion and judgment.

75 OAG 153 154 157 160 163 166
           155 158 161 164 167
           156 159 162 165 168

The negligent performance of purely
ministerial duties would not entitle the
individual to common law immunity.

There are various other exceptions to the
rule which are determined by judicial
balancing of the need of public officers to
perform their functions freely against the
right of an aggrieved party to seek redress.

The question of indemnification of volunteer
lawyers who perform services in connection
with the operation of the "Hotline" involves
a determination as to whether such volunteers
are agents of the state within the meaning of
section 895.46(1)(a).

That statute provides in part:

Agents of any department of the state
shall be covered by this section while
acting within the scope of their agency.

A similar question was raised in regard to
the members of the professional
responsibility committees appointed by the
Bar who assist the Board of Attorneys
Professional Responsibility in the
investigation of lawyer conduct.

I concluded in an unpublished opinion,
OAG 48-78, that the committee members are
"public officers" within the meaning of
then Sections 895.45 and 895.46.

At that time, the statute covered agents of
any department of the state where there was a
written agreement entered into prior to the
occurrence of any act.

Chapter 20 of the Laws of 1981 adopted the
present language in regard to agents which
eliminates the requirement of a written
agreement.

If the volunteer members of the professional
responsibility committees are considered to
be "public officers," one might argue that
"Hotline" volunteers are "agents."

If so, indemnification would be appropriate
subject to the limitations set out in section
895.46(1)(a) and subject to the limitations
of section 893.82.

However, this issue may be moot given that
Article VII of the bylaws of the Bar provides
for indemnification of officers, employes and
agents of the Bar and subsection 5
specifically authorizes the Bar to purchase
and maintain insurance on behalf of any
"State Bar Person" against any liability
incurred in any capacity as a "State Bar
Person."

Article VII, section 1
defines a "State Bar Person."

I understand that the Bar has errors and
omissions insurance to cover the general
liability of officers, committees, employes
and agents of the Bar.

Indemnity under section 895.46 would be
available only to the extent that such
liability is not covered by any insurance
which might be applicable, including such
person's own malpractice liability insurance.

75 OAG 153 154 157 160 163 166
           155 158 161 164 167
           156 159 162 165 168

Section 893.82 contains both a notice of
claim requirement and a limitation of damages
provision which apply to state officers,
employes or agents.

Section 893.82(3) provides that a claimant
must serve the attorney general with notice
of claim within 120 days of the event causing
the injury.

The amount recoverable by any person is
limited by section 893.82(6) to $250,000 and
no punitive damages may be recovered.

The notice of claim and limitations on
damages statutes do not apply to civil rights
actions brought under 42 U.S.C. Section 1983.

Doe v. Ellis,
103 Wis.2d 583,
309 N.W.2d 375 (Ct. APP. 1981);

Thompson v. Village of Hales Corners,
115 Wis.2d 289,

340 N.W.2d 704 (1983).

BCL: KJO


[1]

In the matter of the amendment of SCR Chapter
10 State Bar Rules (February 7, 1985).


[2]

Id. at 1-2.


[3]

Note that the vote in Goldfarb was 8-0, the
vote in Bates was 9-0 on the state action
issue (5-4 on the first amendment issue),
and in Hoover the vote was 4-3 with two
abstentions and a vigorous dissent by
Justice Stevens.

The fact that Justice Rehnquist voted with
the majority in both Bates and Goldfarb,
while abstaining in Hoover, together with
O'Connor's addition to the court after Bates
and Goldfarb and her abstention in Hoover,
makes it even more difficult to predict how
the court would decide future such state
action cases.

75 OAG 153 154 157 160 163 166
           155 158 161 164 167
           156 159 162 165 168