757.18 History
History: 1977 c. 187 s.
96; Stats. 1977 s. 757.18.
757.19
757.19
Disqualification of judge. 757.19(1)
(1) In this section, "judge" includes the supreme court justices, court of appeals judges, circuit court judges and municipal judges.
757.19(2)
(2) Any judge shall disqualify himself or herself from any civil or criminal action or proceeding when one of the following situations occurs:
757.19(2)(a)
(a) When a judge is related to any party or counsel thereto or their spouses within the 3rd degree of kinship.
757.19(2)(b)
(b) When a judge is a party or a material witness, except that a judge need not disqualify himself or herself if the judge determines that any pleading purporting to make him or her a party is false, sham or frivolous.
757.19(2)(c)
(c) When a judge previously acted as counsel to any party in the same action or proceeding.
757.19(2)(d)
(d) When a judge prepared as counsel any legal instrument or paper whose validity or construction is at issue.
757.19(2)(e)
(e) When a judge of an appellate court previously handled the action or proceeding while judge of an inferior court.
757.19(2)(f)
(f) When a judge has a significant financial or personal interest in the outcome of the matter. Such interest does not occur solely by the judge being a member of a political or taxing body that is a party.
757.19(2)(g)
(g) When a judge determines that, for any reason, he or she cannot, or it appears he or she cannot, act in an impartial manner.
757.19(3)
(3) Any disqualification that may occur under
sub. (2) may be waived by agreement of all parties and the judge after full and complete disclosure on the record of the factors creating such disqualification.
757.19(4)
(4) Any disqualification under
sub. (2) in a civil or criminal action or proceeding must occur, unless waived under
sub. (3), when the factors creating such disqualification first become known to the judge.
757.19(5)
(5) When a judge is disqualified, the judge shall file in writing the reasons and the assignment of another judge shall be requested under
s. 751.03.
757.19(6)
(6) In addition to other remedies, an alleged violation under this section or abuse of the disqualification procedure shall be referred to the judicial commission.
757.19 Note
Judicial Council Note, 1977: Section 256.19 [757.19] has been repealed and recreated to more comprehensively set out the procedure in Wisconsin for a judge to disqualify himself or herself. The new provisions apply to courts of record and municipal courts and define those situations in which a judge should in the interest of justice disqualify himself or herself from hearing a matter. Subsection (2) (g) is a catch-all provision to be used in those situations where a particular set of circumstances dictates that a judge disqualify himself or herself.
757.19 Annotation
The new judge disqualification section contains provisions for assuring that a disqualification is timely made and also provides for waiver of a statutory disqualification upon agreement of all interested parties and the judge. Alleged violations of this section will be brought to the attention of the judicial commission for appropriate review. [Bill 74-S]
757.19 Annotation
Judges are disqualified only if they have acted as counsel for a party in the matter to be determined. Sturdevant v. State,
49 Wis. 2d 142,
181 N.W.2d 523 (1970).
757.19 Annotation
A judge who represented the defendant as counsel in another phase of a criminal matter had no power to act as judge in hearing a related postconviction motion and should have, sua sponte, disqualified himself. Rainey v. State,
65 Wis. 2d 374,
222 N.W.2d 620 (1974).
757.19 Annotation
Although the judge was apparently biased against defense counsel, the judge's refusal to recuse himself was harmless error under the facts of the case. State v. Walberg,
109 Wis. 2d 96,
325 N.W.2d 687 (1982).
757.19 Annotation
Under sub. (2) (g) the self-disqualification decision is subjective, and review is limited to determining whether the judge concluded disqualification was necessary. State v. American TV & Appliance,
151 Wis. 2d 175,
443 N.W.2d 662 (1989).
757.19 Annotation
That a judge's spouse was employed in the office of the district attorney, but had no connection to a particular case, did not require the judge's disqualification. State v. Harrell,
199 Wis. 2d 654,
546 N.W.2d 115 (1996).
757.19 Annotation
The fact that the trial judge "witnesses" the actions of the jurors, witnesses, lawyers, and parties does not transform the judge into a "material witness" under sub. (2) (b). State v. Hampton,
217 Wis. 2d 614,
579 N.W.2d 260 (Ct. App. 1998).
757.19 Annotation
A motion to vacate a supreme court decision on the grounds that a participating justice was disqualified, filed 1300 days after the decision was issued and 600 days after the facts on which the motion was based became known, was untimely and frivolous. Jackson v. Benson, 2002 WI 14,
249 Wis. 2d 681,
639 N.W.2d 545.
757.19 Annotation
Sub. (2) (g) does not require disqualification in when a person other than the judge objectively believes that there is an appearance that the judge is unable to act in an impartial manner. In re Estate of Sharpley, 2002 WI App 201, ___Wis. 2d. ___, ___ N.W.2d ___.
757.22
757.22
Judge not to act as attorney, etc.; attorneys not to have office with judge. 757.22(1)
(1) No judge, while holding office, may be in any manner engaged or act as attorney or counsel; and no judge or his or her clerk or any person employed by the judge in or about his or her office, court commissioner or other judicial officer shall be allowed to give advice to parties litigant in any matter or action pending before the judge or officer, or which the judge has reason to believe will be brought before him or her for decision, or draft or prepare any papers, including wills, or other proceedings relating to any such matter or action except when expressly authorized by law; and no court commissioner or other judicial officer may be allowed to demand or receive any fees or compensation for services as such commissioner or judicial officer, except those expressly authorized by law, upon penalty, for any violation hereof, of removal from office.
757.22(2)
(2) No practicing attorney may hold office in the office of the clerk of any court in which he or she practices nor may he or she hold office in the same room with a judge.
757.22(3)
(3) No practicing attorney may have his or her office in the same room with any district attorney, municipal judge or court commissioner, unless he or she is a partner of the district attorney, municipal judge or court commissioner, in which case he or she shall not practice as an attorney before the municipal judge or court commissioner nor act as attorney in any case in which it is the duty of the district attorney to appear or prosecute for the state; except that the law partner of any district attorney may, at the request of the district attorney, without fee or compensation therefor, assist the district attorney in the prosecution of any case on the part of the state.
757.22(4)
(4) No law partner of any district attorney may act as a municipal judge or court commissioner in any case in which the state may be a party or defend in any court any person charged with any offense, or appear in any civil action against the state in which it is the duty of the district attorney to prosecute or appear for the state.
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 sub. (1), a judge may not draft or prepare legal papers even on a gratuitous basis. In re Van Susteren,
82 Wis. 2d 307,
262 N.W.2d 133 (1978).
757.22 Annotation
A probate registrar is an official of the court. An attorney who serves as probate registrar is prohibited from practicing law in the court. 63 Atty. Gen. 55.
757.22 Annotation
757.23
757.23
Court commissioner, when disqualified. A municipal, circuit, or supplemental 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, employee or clerk, or in the law business in any manner, shall be interested or appear as a party, agent, attorney or counsel. Any municipal, circuit, or supplemental 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;
1997 a. 27;
2001 a. 61.
757.24
757.24
Liability of judicial officers. Circuit judges and circuit and supplemental court commissioners shall be held personally liable to any party injured for any willful 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;
2001 a. 61.
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 AnnotationThis 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 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 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 Wis. 2d vii (1970); Sup. Ct. Order, 74 Wis. 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;
2001 a. 103.
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 Wis. 2d 716,
229 N.W.2d 224 (1975).
757.295(1)(1)
Soliciting legal business. Except as provided under
SCR 20:7.1 to 20:7.5, 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 20:7.1 to 20:7.5, 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 20:7.1 to 20:7.5, 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;
1997 a. 35.
757.295 Annotation
Solicitation may be barred even though "speech" is component of that activity. Ohralik v. Ohio State Bar Assn.
436 U.S. 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, circuit or supplemental 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 Annotation
When the record did not indicate that a tenant union provided inadequate, unethical, or complex legal advice to tenants, the tenant union information service was protected by free speech guarantees. Hopper v. Madison,
79 Wis. 2d 120,
256 N.W.2d 139 (1977).
757.30 Annotation
A nonlawyer may not sign and file a notice of appeal on behalf of a corporation. To do so constitutes practicing law without a license in violation of s. 757.30 and voids the appeal. Requiring a lawyer to represent a corporation in filing the notice does not violate constitutional guarantees of equal protection, due process or the right of any suitor to prosecute or defend a suit personally. Jadair Inc. v. United States Fire Insurance Co.
209 Wis. 2d 187,
561 N.W.2d 718 (1997).
757.30 Annotation
Section 799.06 (2) authorizes a non-lawyer employee to represent a party to a small claims action at the appellate as well as trial court level and is an exception to the rule stated in Jadair. Holz v. Busy Bees Contracting, Inc.
223 Wis. 2d 598,
589 N.W.2d 633 (Ct. App. 1998).
757.30 Annotation
A nonlawyer's questioning of a witness on the state's behalf at a John Doe hearing, even if constituting the unauthorized practice of law, did not require exclusion of the testimony at trial. State v. Noble, 2002 WI 64,
253 Wis. 2d 206,
646 N.W.2d 38.
757.30 Annotation
Officers and employees 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 AnnotationSub. (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 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).
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 Insurance Co.
176 Wis. 2d 382,
500 N.W.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.
