1995 Chapter 757

757.22(5) (5) Any attorney who violates sub. (2), (3) or (4), and any municipal judge or court commissioner who violates or knowingly permits any such violation, may be fined not to exceed $100 for each such offense.

757.22 History History: 1977 c. 187 s. 96; 1977 c. 305 ss. 52, 64; Stats. 1977 s. 757.22.

757.22 Annotation Under (1), a judge may not draft or prepare legal papers even on a gratuitous basis. In re Van Susteren, 82 W (2d) 307, 262 NW (2d) 133.

757.22 Annotation See note to 865.065, citing 63 Atty. Gen. 55.

757.23 757.23  Court commissioner, when disqualified. A court commissioner, or any judge acting as a court commissioner, shall not act or take part in the decision of, or make any order in any matter or proceeding in which he or she is a party, or in which his or her rights would be in any manner affected by his or her decision or order thereon, or in which he or she is interested, or in which his or her law partner, or any person connected with him or her as employer, employe or clerk, or in the law business in any manner, shall be interested or appear as a party, agent, attorney or counsel. Any court commissioner or judge, acting as a court commissioner, violating this section shall forfeit $25 for each violation, and shall also be subject to removal from office.

757.23 History History: 1977 c. 187 s. 96; Stats. 1977 s. 757.23.

757.24 757.24  Liability of judicial officers. Circuit judges and court commissioners shall be held personally liable to any party injured for any wilful violation of the law in granting injunctions and appointing receivers, or for refusing to hear motions to dissolve injunctions and to discharge receivers if the motions are made in accordance with law or such rules as are promulgated by the supreme court.

757.24 History History: 1977 c. 187 s. 96; 1977 c. 449; Stats. 1977 s. 757.24.

757.25 757.25  Money in court, how deposited. The judge of any court of record on the application of a party to any action or proceeding therein who has paid $1,000 or more into court in the action or proceeding may order the money to be deposited in a safe depository until the further order of the court or judge thereof. After the money has been so deposited it shall be withdrawn only upon a check signed by the clerk of the court pursuant to whose order the deposit was made and upon an order made by the court or the judge thereof. The fee for the clerk's services for depositing and disbursing the money is prescribed in s. 814.61 (12) (a).

757.25 History History: 1977 c. 187 s. 96; Stats. 1977 s. 757.25; 1981 c. 317.

757.25 Annotation This section applies only in those instances where court order exists. 73 Atty. Gen. 3.

757.26 757.26  Court officers, liability of to arrest. The officers of the several courts of record shall be liable to arrest and may be held to bail in the same manner as other persons, except during the actual sitting of any court of which they are officers; and when sued with any other person such officers shall be liable to arrest and may be held to bail as other persons during the sitting of the court of which they are officers. No attorney or counselor may be exempt from arrest during the sitting of a court of which he or she is an officer unless he or she is employed in some case pending and then to be heard in the court.

757.26 History History: 1977 c. 187 s. 96; Stats. 1977 s. 757.26.

757.293 757.293  Trust accounts required.

757.293(1) (1) A member of the state bar shall not commingle the money or other property of a client with his or her own, and he or she shall promptly report to the client the receipt by him or her of all money and other property belonging to the client. Unless the client otherwise directs in writing, whenever an attorney collects any sum of money upon any action, claim or proceeding, either by way of settlement or after trial or hearing, he or she shall promptly deposit his or her client's funds in a bank, trust company, credit union, savings bank or savings and loan association, authorized to do business in this state, in an account separate from his or her own account and clearly designated as "Clients' Funds Account" or "Trust Funds Account", or words of similar import. The attorney, with the written consent of the client, may deposit the client's funds in a segregated client's trust account with all interest accruing thereon to the client. Unless the client otherwise directs in writing, securities of a client in bearer form shall be kept by the attorney in a safe deposit box at a bank, trust company, credit union, savings bank or savings and loan association authorized to do business in this state, which safe deposit box shall be clearly designated as "Clients' Account" or "Trust Account", or words of similar import, and be separate from the attorney's own safe deposit box.

757.293(2) (2) A member of the state bar shall maintain and preserve for at least 6 years complete records pertaining to client's funds or assets received by him or her which are required to be distributed or segregated by sub. (1). The records shall include his or her trust fund checkbooks and the stubs or copies thereof, statements of the account, vouchers and canceled checks or share drafts thereon or microfilm copies thereof and his or her account books showing dates, amounts and ownership of all deposits to and withdrawals by check or share draft or otherwise from the accounts, and all of the records shall be deemed to have public aspects as related to such member's fitness to practice law. Upon request of the board of attorneys professional responsibility, or upon direction of the supreme court, the records shall be submitted to the board for its inspection, audit, use and evidence under such conditions to protect the privilege of clients as the court may provide. The records, or an audit thereof, shall be produced at any disciplinary proceeding involving the attorney wherever material. Failure to produce the records shall constitute unprofessional conduct and grounds for disciplinary action.

757.293(3) (3) A member of the state bar of Wisconsin shall file with the state bar annually, with payment of the member's state bar dues or upon such other date as approved by the supreme court, a certificate stating whether the member is engaged in the private practice of law in Wisconsin and, if so, the name of each bank, trust company, credit union, savings bank or savings and loan association in which the member maintains a trust account, safe deposit box, or both, as required by this section. A partnership or professional legal corporation may file one certificate on behalf of its partners, associates, or officers who are required to file under this section. The failure of a member to file the certificate required by this section is grounds for automatic suspension of the member's membership in the state bar in the same manner as provided in section 6 of rule 2 of the Rules of the State Bar of Wisconsin for nonpayment of dues. The filing of a false certificate is unprofessional conduct and is grounds for disciplinary action. The state bar shall supply to each member, with the annual dues statement or at such other time as directed by the supreme court, a form on which the certification must be made and a copy of this section.

Effective date note History: Sup. Ct. Order, 48 W (2d) vii (1970); Sup. Ct. Order, 74 W (2d) ix, xvii (1976); 1977 c. 187 s. 96; 1977 c. 272; Stats. 1977 s. 757.293; Sup. Ct. Order, eff. 1-1-80; 1981 c. 319; 1983 a. 369; 1991 a. 221.

Effective date note NOTE: The Sup. Ct. Order dated 12-11-79, eff. 1-1-80, states in section 5 that this section is repealed as an equivalent provision is contained in the Supreme Court Rules. See SCR 20:1.15. Section 757.293 is shown as affected by ch. 319, laws of 1981, 1983 Wis. Act 369 and 1991 Wis. Act 221.

757.293 Annotation The issuance by an attorney of 49 checks drawn upon his clients' trust account within a 13-month period—some for personal purposes or for loans to others, and all dishonored by the bank for lack of sufficient funds—constituted unprofessional conduct for which he is suspended from the practice of law for one year and ordered to pay up to $500 of the costs of this proceeding. State v. Stoveken, 68 W (2d) 716, 229 NW (2d) 224.

757.295 757.295  Barratry.

757.295(1) (1)  Soliciting legal business. Except as provided under SCR 20.08, no person may solicit legal matters or a retainer, written or oral, or any agreement authorizing an attorney to perform or render legal services.

757.295(2) (2) Solicitation of a retainer for an attorney. Except as provided under SCR 20.08, no person may communicate directly or indirectly with any attorney or person acting in the attorney's behalf for the purpose of aiding, assisting or abetting the attorney in the solicitation of legal matters or the procurement through solicitation of a retainer, written or oral, or any agreement authorizing the attorney to perform or render legal services.

757.295(3) (3) Employment by attorney of person to solicit legal matters. Except as provided under SCR 20.08, no attorney may employ any person for the purpose of soliciting legal matters or the procurement through solicitation of a retainer, written or oral, or of any agreement authorizing the attorney to perform or render legal services.

757.295(4) (4) Penalty. Any person guilty of any violation of this section shall be imprisoned not more than 6 months or fined not exceeding $500.

757.295 History History: 1977 c. 187 s. 96; 1977 c. 273, 357; 1977 c. 447 ss. 190, 210; Stats. 1977 s. 757.295; 1985 a. 135.

757.295 Annotation See note to art. I, sec. 3, citing In Re Primus, 436 US 412 (1978).

757.295 Annotation Solicitation may be barred even though "speech" is component of that activity. Ohralik v. Ohio State Bar Assn. 436 US 447 (1978).

757.30 757.30  Penalty for practicing without license.

757.30(1) (1) Every person, who without having first obtained a license to practice law as an attorney of a court of record in this state, as provided by law, practices law within the meaning of sub. (2), or purports to be licensed to practice law as an attorney within the meaning of sub. (3), shall be fined not less than $50 nor more than $500 or imprisoned not more than one year in the county jail or both, and in addition may be punished as for a contempt.

757.30(2) (2) Every person who appears as agent, representative or attorney, for or on behalf of any other person, or any firm, partnership, association or corporation in any action or proceeding in or before any court of record, court commissioner, or judicial tribunal of the United States, or of any state, or who otherwise, in or out of court, for compensation or pecuniary reward gives professional legal advice not incidental to his or her usual or ordinary business, or renders any legal service for any other person, or any firm, partnership, association or corporation, shall be deemed to be practicing law within the meaning of this section.

757.30(3) (3) Every person who uses the words attorney at law, lawyer, solicitor, counselor, attorney and counselor, proctor, law, law office, or other equivalent words in connection with his or her name or any sign, advertisement, business card, letterhead, circular, notice, or other writing, document or design, the evident purpose of which is to induce others to believe or understand the person to be authorized to practice law or who in any other manner represents himself or herself either verbally or in writing, directly or indirectly, as authorized to practice law in this state, shall be deemed to be purporting to be licensed to practice law as an attorney within the meaning of this section.

757.30(4) (4) No person shall practice law in this state under any other given name or any other surname than that under which originally admitted to the bar of this or any other state, in any instance in which the board of bar examiners shall, after a hearing, find that practicing under the changed name operates to unfairly compete with another practitioner or to mislead the public as to identity or to otherwise result in detriment to the profession or the public. Any person violating this subsection shall be subject to the penalty provided in sub. (1). This subsection does not apply to a change of name resulting from marriage or divorce.

757.30 History History: 1977 c. 26; 1977 c. 187 s. 96; Stats. 1977 s. 757.30; 1979 c. 98; 1991 a. 32, 39; 1993 a. 490.

757.30 Annotation See note to Art. I, sec. 3, citing Hopper v. Madison, 79 W (2d) 120, 256 NW (2d) 139.

757.30 Annotation Officers and employes of a bank are not illegally practicing law where they fill out lease forms which have been designed and prepared by the attorney representing the owner of the property being leased under a property management agreement between the owner and the bank. 60 Atty. Gen. 114.

757.30 Annotation Drafting of articles of incorporation constitutes the practice of law within meaning of (2). 65 Atty. Gen. 173.

757.30 Annotation Sub. (2) is inapplicable to practice in federal courts. United States v. Peterson, 550 F (2d) 379.

757.30 Annotation Nonlawyer Practice: An Expanding Role. Tenenbaum Wis. Law. Nov. 1994..

757.34 757.34  Attorney not to be bail, etc. No attorney practicing in this state shall be taken as bail or security on any undertaking, bond or recognizance in any action or proceeding, civil or criminal, nor shall any practicing attorney become surety on any bond or recognizance for any sheriff, constable, clerk of court or municipal judge.

757.34 History History: 1977 c. 187 s. 96; 1977 c. 305 s. 64; Stats. 1977 s. 757.34.

757.35 757.35  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.

757.35 History History: 1977 c. 187 s. 96; Stats. 1977 s. 757.35.

757.36 757.36  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.

757.36 History History: 1977 c. 187 s. 96; Stats. 1977 s. 757.36.

757.36 Annotation An allegation of a retainer is not sufficient to imply an agreement for a lien; even where a written retainer agreement exists, there must be separate proof of a lien agreement. Weigel v. Grimmett, 173 W (2d) 263, 496 NW (2d) 206 (Ct. App. 1992).

757.36 Annotation 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 Ins. Co. 176 W (2d) 382, 500 NW (2d) 387 (Ct. App. 1993).

757.37 757.37  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.

757.37 History History: 1977 c. 187 s. 96; Stats. 1977 s. 757.37.

757.37 Annotation 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 (1994).

757.38 757.38  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.

757.38 History History: 1977 c. 187 s. 96; Stats. 1977 s. 757.38.

757.39 757.39  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.

757.39 History History: 1977 c. 187 s. 96; Stats. 1977 s. 757.39.

757.40 757.40  Law library. 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.

757.40 History History: 1977 c. 187 s. 96; Stats. 1977 s. 757.40.

757.41 757.41  Law library; Milwaukee county.

757.41(1) (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 to 63.17. 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.

757.41(2) (2) 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 to 63.17.

757.41 History History: 1971 c. 111; 1977 c. 187 ss. 96, 135; Stats. 1977 s. 757.41; 1987 a. 48.

757.45 757.45  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.

757.45 History History: 1977 c. 187 s. 96; Stats. 1977 s. 757.45.

757.46 757.46  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.

757.46 History History: 1977 c. 187 s. 96; Stats. 1977 s. 757.46.

757.47 757.47  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.

757.47(2) (2) The attorney general is empowered to bring action in the courts of other states to collect taxes legally due the state.

757.47(3) (3) The term "taxes" as herein employed shall include:

757.47(3)(a) (a) 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.

757.47(3)(b) (b) Any and all penalties lawfully imposed pursuant to a taxing statute.

757.47(3)(c) (c) Interest charges lawfully added to the tax liability which constitutes the subject of the action.

757.47 History History: 1977 c. 187 s. 96; Stats. 1977 s. 757.47.

757.48 757.48  Guardian ad litem must be an attorney.

757.48(1) (1) 

757.48(1)(a) (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. 767.045, an attorney shall have completed 3 hours of approved continuing legal education relating to the functions and duties of a guardian ad litem under ch. 767.

757.48(1)(b) (b) 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.

757.48(2) (2) 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.

757.48(3) (3) No guardian ad litem may be permitted to receive any money or property of his or her ward, nor may any bond be required of a guardian ad litem, but all money or property of his or her ward may be paid or delivered to a general guardian of his or her property subject to the exceptions of s. 880.04.

757.48(4) (4) No person shall be appointed guardian ad litem for a plaintiff without the written consent of the person appointed.

757.48 History History: Sup. Ct. Order, 50 W (2d) vii (1971) 1971 c. 211; 1977 c. 187 s. 96; 1977 c. 299, 447; Stats. 1977 s. 757.48; 1987 a. 355; 1993 a. 16; 1995 a. 27.

757.48 Cross-reference Cross-reference: See s. 879.23 (4) for parent as guardian in recitrobate matters.

757.48 Annotation 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]

757.48 Annotation Sub. (1) (a) is void as unconstitutional violation of separation of powers; it interferes with judiciary's exclusive authority to regulate practice of law. Fiedler v. Wisconsin Senate, 155 W (2d) 94, 454 NW (2d) 770 (1990).

757.48 Annotation 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 W (2d) 1, 531 NW (2d) 32 (1995).

757.52 757.52  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.

757.52 History History: Sup. Ct. Order, 50 W (2d) vii (1971); 1977 c. 187 s. 96; Stats. 1977 s. 757.52; 1985 a. 29 s. 3202 (23); 1993 a. 326.

757.52 Cross-reference Cross-reference: Compare s. 701.15 concerning guardians in trust matters.

757.52 Annotation Comment of Judicial Council, 1971: Guardian ad litem for unborn child. (Clarification) [Re Order effective July 1, 1971]

757.54 757.54  Retention and disposal of court records. 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.