History: 1977 c. 187
; 1977 c. 305
; Stats. 1977 s. 757.34.
Blank process to attorneys.
The clerks of the courts of record may deliver to any attorney of their courts, in blank, any and all processes which may be requisite for the prosecution of or carrying on any action or special proceeding in such courts, or the enforcement of any order or judgment therein. All processes, so delivered, shall be signed by the clerk officially and have the seal of the court impressed thereon and may be completed by the attorney, and shall have the same force as if the same were perfected by the clerk.
History: 1977 c. 187
; Stats. 1977 s. 757.35.
Lien on proceeds of action to enforce cause of action.
Any person having or claiming a right of action, sounding in tort or for unliquidated damages on contract, may contract with any attorney to prosecute the action and give the attorney a lien upon the cause of action and upon the proceeds or damages derived in any action brought for the enforcement of the cause of action, as security for fees in the conduct of the litigation; when such agreement is made and notice thereof given to the opposite party or his or her attorney, no settlement or adjustment of the action may be valid as against the lien so created, provided the agreement for fees is fair and reasonable. This section shall not be construed as changing the law in respect to champertous contracts.
History: 1977 c. 187
; Stats. 1977 s. 757.36.
An allegation of a retainer is not sufficient to imply an agreement for a lien; even if a written retainer agreement exists, there must be separate proof of a lien agreement. Weigel v. Grimmett, 173 Wis. 2d 263
, 496 N.W.2d 206
(Ct. App. 1992).
This section does not create an attorney's lien on settlement proceeds in the absence of a contractual lien; if the contract is breached by the attorney an alternative lien is not created. McBride v. Wausau Insurance Co. 176 Wis. 2d 382
, 500 N.W.2d 387
(Ct. App. 1993).
When action settled by parties, what proof to enforce lien.
If any such cause of action is settled by the parties thereto after judgment has been procured without notice to the attorney claiming the lien, the lien may be enforced and it shall only be required to prove the facts of the agreement by which the lien was given, notice to the opposite party or his or her attorney and the rendition of the judgment, and if any such settlement of the cause of action is had or effected before judgment therein, then it shall only be necessary to enforce the lien to prove the agreement creating the same, notice to the opposite party or his or her attorney and the amount for which the case was settled, which shall be the basis for the lien and it shall not be necessary to prove up the original cause of action in order to enforce the lien and suit.
History: 1977 c. 187
; Stats. 1977 s. 757.37.
That an insurance company knew an attorney was working on a case did not mean the insurance company had notice that the attorney had a lien. Gerald R. Turner & Assoc. S. C. v. Moriarty, 25 F.3d 1356
Consent of attorney in settlement of actions for personal injuries.
No settlement or adjustment of any action which shall have been commenced to recover damages for any personal injury or for the death as a result of any personal injury in which an attorney shall have appeared for the person or persons having or claiming a right of action for such injury or death shall be valid, unless consented to in writing by such attorney or by an order of the court in which said action is brought approving of such settlement or adjustment.
History: 1977 c. 187
; Stats. 1977 s. 757.38.
Judges may direct calendars to be printed.
The judges of the several courts of record having civil jurisdiction may, in their discretion, direct the respective clerks thereof to prepare printed calendars of the causes to be heard at the several terms, which shall be in the form and contain such matter as the judge may direct. The expense of the printing shall be paid out of the county treasury.
History: 1977 c. 187
; Stats. 1977 s. 757.39.
Any circuit judge may, whenever he or she deems it desirable, purchase or direct the clerk of the circuit court for any county in his or her circuit to purchase law books and subscribe for the periodical reports of any of the courts of the several states or territories or of the United States, for any county in his or her circuit, provided the cost of the books and reports, including pocket parts and continuing services, shall not exceed $1,500 for any county in one year, unless the board of supervisors of the county authorizes the expenditure of a larger sum. Whenever the purchase or subscription is made the clerk shall have each volume of books received stamped or branded with the name of the county and take charge of the same for the use of the courts, judges, attorneys and officers thereof. The cost of the volumes shall be paid by the county treasurer upon the presentation to him or her of the accounts therefor, certified to by the clerk of the circuit court and the circuit judge.
History: 1977 c. 187
; Stats. 1977 s. 757.40.
Law library; Milwaukee County. 757.41(1)
The county board of any county having a population of 250,000 or more may acquire by gift, purchase or otherwise, a law library and law books, and shall house the law library and additions in the courthouse or in suitable quarters elsewhere, and may make, and enforce by suitable penalties, rules and regulations for the custody, care and preservation of the books and other property contained in that library. The county board shall provide reasonable compensation for the law librarian and such assistants as are necessary for the proper care and maintenance of the library. Except as provided in sub. (2)
, the librarian and assistants shall be appointed as the county board determines, under ss. 63.01
. The librarian shall perform all of the duties imposed by s. 757.40
upon the clerk of the circuit court of the county in which the library is located and that clerk has no responsibility under s. 757.40
. The purchase of additional law books, legal publications, periodicals and works of reference for the library may be directed by each of the circuit judges of the county under s. 757.40
. The library shall be kept open every day throughout the year, except Sundays and holidays, for such hours as the county board directs, but the county board may determine by ordinance that the library be closed on Saturdays. Attorneys and the general public shall be permitted to use the books in the library in the building housing the library under rules and regulations adopted by the county board.
In any county with a population of 500,000 or more, the librarian shall be appointed in the unclassified service by the county executive, subject to confirmation by the county board. The librarian may be dismissed at any time by the county executive with the concurrence of a majority of the members-elect of the county board or by a majority of the members-elect of the county board with the concurrence of the county executive. If the county executive vetoes an action by the county board dismissing the librarian, the county board may override the veto by a two-thirds vote of its members-elect. Assistants shall be appointed as the county board determines, under ss. 63.01
History: 1971 c. 111
; 1977 c. 187
; Stats. 1977 s. 757.41; 1987 a. 48
Sharing of compensation by attorneys prohibited.
It is unlawful for any person to divide with or receive from, or to agree to divide with or receive from, any attorney or group of attorneys, whether practicing in this state or elsewhere, either before or after action brought, any portion of any fee or compensation, charged or received by such attorney or any valuable consideration or reward, as an inducement for placing or in consideration of having placed, in the hands of such attorney, or in the hands of another person, a claim or demand of any kind for the purpose of collecting such claim, or bringing an action thereon, or of representing claimant in the pursuit of any civil remedy for the recovery thereof; but this section does not apply to an agreement between attorneys and counselors at law when associated in the conduct of legal matters to divide between themselves the compensation to be received. Any person violating this section shall be fined not to exceed $500 or imprisoned not to exceed 6 months.
History: 1977 c. 187
; Stats. 1977 s. 757.45.
An agreement that non-attorney would solicit clients for an attorney in violation of s. 757.295 in exchange for payment of 25% of the attorney's fee in violation of s. 757.45 was unenforceable on grounds of unjust enrichment or restitution. Abbott v. Marker, 2006 WI App 174
, 295 Wis. 2d 636
, 722 N.W.2d 162
Reporter not to take statements of injured persons.
No phonographic reporter for any court of record in the state of Wisconsin or any of his or her assistants may be employed by any person or corporation to take the statement of any injured or other person in any way relating to the manner in which the person was injured or killed or the extent of personal injuries, and any reporter or assistant violating this section shall be removed and shall not be permitted to testify in any court concerning any such statement taken in violation of this section. The taking, transcribing or reporting testimony given by deposition or otherwise according to law, is not prohibited by this section.
History: 1977 c. 187
; Stats. 1977 s. 757.46.
Taxes of this state enforced in other states. 757.47(1)(1)
The courts of this state shall recognize and enforce the liability for taxes lawfully imposed by the laws of any other state which extends a like comity in respect of the liability for taxes lawfully imposed by the laws of this state, and the officials of such other state are authorized to bring action in the courts of this state for the collection of such taxes. The certificate of the secretary of state of such other state that such officials have the authority to collect the taxes sought to be collected by such action shall be conclusive proof of that authority.
The attorney general is empowered to bring action in the courts of other states to collect taxes legally due the state.
The term "taxes" as herein employed shall include:
Any and all tax assessments lawfully made whether they be based upon a return or other disclosure of the taxpayer, upon the information and belief of the taxing authority, or otherwise.
Any and all penalties lawfully imposed pursuant to a taxing statute.
Interest charges lawfully added to the tax liability which constitutes the subject of the action.
History: 1977 c. 187
; Stats. 1977 s. 757.47.
Guardian ad litem must be an attorney. 757.48(1)(a)
Except as provided in s. 879.23 (4)
, in all matters in which a guardian ad litem is appointed by the court, the guardian ad litem shall be an attorney admitted to practice in this state. In order to be appointed as a guardian ad litem under s. 767.407
, an attorney shall have completed 3 hours of approved continuing legal education that relates to the functions and duties of a guardian ad litem under ch. 767
and that includes training on the dynamics of domestic violence and the effects of domestic violence on victims of domestic violence and on children. In order to be appointed as a guardian ad litem under s. 54.40 (1)
, an attorney shall have complied with SCR chapter 36
The guardian ad litem shall be allowed reasonable compensation for his or her services such as is customarily charged by attorneys in this state for comparable services. If the court orders a county to pay the compensation of the guardian ad litem, the amount ordered may not exceed the compensation paid to private attorneys under s. 977.08 (4m) (b)
. If the attorney of record is also the guardian ad litem, the attorney shall be entitled only to attorney fees and shall receive no compensation for services as guardian ad litem.
If the statutes do not specify how the fee of the guardian ad litem is paid, the ward shall pay such fee. The court may, however, in cases involving real or personal property in which the ward claims or may have a right or interest, order payment out of such property.
No guardian ad litem may be permitted to receive any assets or income of his or her ward, nor may any bond be required of a guardian ad litem, but all assets or income of the ward may be paid or delivered to the ward's guardian of the estate, subject to the exceptions of s. 54.12
No person shall be appointed guardian ad litem for a plaintiff without the written consent of the person appointed.
See s. 879.23 (4)
for parent as guardian in probate matters.
See SCR 35.015
for education requirements.
Comment of Judicial Council, 1971: A guardian ad litem shall: (1) Be an attorney and be allowed reasonable compensation as is customarily charged by attorneys for comparable services. If the attorney of record is also the guardian ad litem, only one fee is allowed. (2) Be compensated by the ward or out of the ward's property. (3) Not be permitted to receive any money or property of the ward. (4) Not be appointed for a plaintiff without the appointed person's consent. Subsection (1) is in present law; subs. (3) and (4) are the same as present law. [Re Order effective July 1, 1971]
Sub. (1) (a) is void as an unconstitutional violation of the separation of powers. It interferes with the judiciary's exclusive authority to regulate the practice of law. Fiedler v. Wisconsin Senate, 155 Wis. 2d 94
, 454 N.W.2d 770
The courts' power to appropriate compensation for court-appointed counsel is necessary for the effective operation of the judicial system. In ordering compensation for court ordered attorneys, a court should abide by the s. 977.08 (4m) rate when it can retain qualified and effective counsel at that rate, but should order compensation at the rate under SCR 81.01
or 81.02 or a higher rate when necessary to secure effective counsel. Friedrich v. Dane County Circuit Ct. 192 Wis. 2d 1
, 531 N.W.2d 32
Guardian ad litem for persons not in being or unascertainable.
In any action or proceeding the court may appoint a guardian ad litem for persons not in being or presently unascertainable, if the court has reason to believe that such appointment is necessary to protect the interests of such persons.
Sup. Ct. Order, 50 Wis. 2d vii (1971); 1977 c. 187
; Stats. 1977 s. 757.52; 1985 a. 29
s. 3202 (23)
; 1993 a. 326
Comment of Judicial Council, 1971: Guardian ad litem for unborn child. (Clarification) [Re Order effective July 1, 1971]
Retention and disposal of court records. 757.54(1)(1)
Except as provided in sub. (2)
, the retention and disposal of all court records and exhibits in any civil or criminal action or proceeding or probate proceeding of any nature in a court of record shall be determined by the supreme court by rule.
Except as provided in par. (c)
, if an exhibit in a criminal action or a delinquency proceeding under ch. 938
includes any biological material that was collected in connection with the action or proceeding and that is either from a victim of the offense that was the subject of the action or proceeding or may reasonably be used to incriminate or exculpate any person for the offense, the court presiding over the action or proceeding shall ensure that the exhibit is retained until every person in custody as a result of the action or proceeding, or as a result of commitment under s. 980.06
that is based on a judgment of guilty or not guilty by reason of mental disease or defect in the action or proceeding, has reached his or her discharge date.
The court shall ensure that an exhibit to which par. (b)
applies is retained in an amount and manner sufficient to develop a deoxyribonucleic acid profile, as defined in s. 939.74 (2d) (a)
, from the biological material contained in or included on the exhibit.
Subject to par. (e)
, the court may destroy an exhibit that includes biological material before the expiration of the time period specified in par. (b)
if all of the following apply:
The court sends a notice of its intent to destroy the exhibit to all persons who remain in custody as a result of the criminal action, delinquency proceeding, or commitment under s. 980.06
and to either the attorney of record for each person in custody or the state public defender.
No person who is notified under subd. 1.
does either of the following within 90 days after the date on which the person received the notice:
Submits a written request for retention of the exhibit to the court.
No other provision of federal or state law requires retention of the exhibit.
A notice provided under par. (c) 1.
shall clearly inform the recipient that the exhibit will be destroyed unless, within 90 days after the date on which the person receives the notice, either a motion for testing of the exhibit is filed under s. 974.07 (2)
or a written request for retention of the exhibit is submitted to the court.
If, after providing notice under par. (c) 1.
of its intent to destroy an exhibit, a court receives a written request for retention of the exhibit, the court shall ensure that the exhibit is retained until the discharge date of the person who made the request or on whose behalf the request was made, subject to a court order issued under s. 974.07 (7)
, (9) (a)
, or (10) (a) 5.
, unless the court orders destruction or transfer of the exhibit under s. 974.07 (9) (b)
or (10) (a) 5.
Sup. Ct. Order, 136 Wis. 2d xi (1987); 2001 a. 16
; 2005 a. 60
The supreme court shall determine, by rule, the civil and criminal actions and proceedings which shall be reported.
History: 1981 c. 353
In any criminal action or proceeding the court may order, and when required by s. 973.08
the court shall order, a transcript of the testimony and proceedings to be made and certified by the reporter and filed with the clerk of court. Certified duplicates of transcripts prepared in compliance with s. 973.08
shall be filed with the warden or superintendent of the institution to which sentenced persons have been committed. The cost of the transcript is prescribed in s. 814.69 (1)
. In case of application for a pardon or commutation of sentence the duplicate transcript shall accompany the application.
Except as provided in SCR 71.04
(4), every reporter, upon the request of any party to an action or proceeding, shall make a typewritten transcript, and as many copies thereof as the party requests, of the testimony and proceedings reported by him or her in the action or proceeding, or any part thereof specified by the party, the transcript and each copy thereof to be duly certified by him or her to be a correct transcript thereof. For the transcripts the reporter is entitled to receive the fees prescribed in s. 814.69 (1) (b)
History: 1977 c. 187
; Stats. 1977 s. 757.57; 1979 c. 32
s. 92 (4)
; Sup. Ct. Order, eff. 1-1-80; 1981 c. 317
; 1987 a. 403
; 1995 a. 27
; 2001 a. 16
Effective date note
This section was repealed by Sup. Ct. Order dated 12-11-79, eff. 1-1-80. Subsequent legislative acts repealed and recreated subs. (2) and (5) and repealed subs. (3), (7) and (8). See SCR ch. 71
Judicial administrative districts.
The state is divided into judicial administrative districts for the purpose of administering the court system. Each district includes all the circuit courts within the district. The judicial administrative districts are as follows:
The 1st district consists of Milwaukee County.
The 2nd district consists of Kenosha, Racine and Walworth counties.
The 3rd district consists of Jefferson, Ozaukee, Washington and Waukesha counties.
The 4th district consists of Calumet, Fond du Lac, Manitowoc, Sheboygan and Winnebago counties.
The 5th district consists of Dane, Green, Lafayette and Rock counties.
The 6th district consists of Adams, Clark, Columbia, Dodge, Green Lake, Juneau, Marquette, Portage, Sauk, Waushara and Wood counties.
The 7th district consists of Buffalo, Crawford, Grant, Iowa, Jackson, La Crosse, Monroe, Pepin, Pierce, Richland, Trempealeau and Vernon counties.
The 8th district consists of Brown, Door, Kewaunee, Marinette, Oconto, Outagamie and Waupaca counties.
The 9th district consists of Florence, Forest, Iron, Langlade, Lincoln, Marathon, Menominee, Oneida, Price, Shawano, Taylor and Vilas counties.
The 10th district consists of Ashland, Barron, Bayfield, Burnett, Chippewa, Douglas, Dunn, Eau Claire, Polk, Rusk, St. Croix, Sawyer and Washburn counties.
History: 1977 c. 449
; Sup. Ct. Order, 84 Wis. 2d xiii (1978); Sup. Ct. Order, eff. 1-1-80; 1981 c. 317
; 1995 a. 225
Recovery of legal fees paid for indigent defendants.
Whenever a county or the state has paid for legal representation of an indigent defendant and the county board or the department of justice so requires, the clerk of the court where representation for the indigent was appointed shall prepare, sign and record in the office of the register of deeds a certificate stating the name and residence of the indigent beneficiary, the amount paid by the county or the state for his or her legal representation, the date when paid, the court and county in which the case was heard and such other information as the county board directs. If a certificate is recorded within 6 months after payment is made by the county or the state it may, within the time after the recording provided by s. 893.86
, commence an action to recover from the indigent defendant, or his or her estate if the action is commenced within the time set for filing claims by creditors, the amount paid by the county or the state for his or her legal representation. In any such action ss. 859.02
, so far as applicable, may be pleaded in defense. The claim shall not take precedence over the allowances in ss. 861.31
. The district attorney or the department of justice, as applicable, shall commence and prosecute all actions and proceedings necessary under this section to make the recovery when it appears that the indigent defendant or his or her estate is able to pay the claim.
Recovery of legal defense fees from indigent defendants is discussed. James v. Strange, 407 U.S. 128