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.
When a judge previously acted as counsel to any party in the same action or proceeding.
When a judge prepared as counsel any legal instrument or paper whose validity or construction is at issue.
When a judge of an appellate court previously handled the action or proceeding while judge of an inferior court.
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.
When a judge determines that, for any reason, he or she cannot, or it appears he or she cannot, act in an impartial manner.
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.
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.
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
In addition to other remedies, an alleged violation under this section or abuse of the disqualification procedure shall be referred to the judicial commission.
Judicial Council Note, 1977: Section 256.19 [757.19] has been repealed and recreated to more comprehensively set out the procedure in Wisconsin for a judge to disqualify himself or herself.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.
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]
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
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
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
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
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), 95-0152
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
Sub. (2) (g) does not require disqualification 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
, 257 Wis. 2d. 152, 653 N.W.2d 124
When analyzing a judicial bias claim, there is a rebuttable presumption that the judge was fair, impartial, and capable of ignoring any biasing influences. The test for bias comprises two inquiries, one subjective and one objective, either of which can violate a defendant's due process right to an impartial judge. Actual bias on the part of the decision maker meets the objective test. The appearance of partiality can also offend due process. Every procedure that would offer a possible temptation to the average person as a judge not to hold the balance nice, clear, and true between the state and the accused, denies the latter due process of law. State v. Gudgeon, 2006 WI App 143
, 295 Wis. 2d 189
, 720 N.W.2d 114
Absent a pervasive and perverse animus a judge may assess a case and potential arguments based on what he or she knows from the case in the course of the judge's judicial responsibilities. Opinions formed by the judge on the basis of facts introduced or events occurring in the course of current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. State v. Rodriguez, 2006 WI App 163
, 295 Wis. 2d 801
, 722 N.W.2d 136
A court's rejection of a plea does not in and of itself become a “personal interest in the outcome of the matter," and sub. (2) (f) is not implicated. State v. Conger, 2010 WI 56
, 325 Wis. 2d 664
, 797 N.W.2d 341
In this case, when the judge served as both the presiding judge in the drug court program in which the defendant participated and as the sentencing judge in the defendant's criminal case, the defendant met his burden to demonstrate objective judicial bias based on the combined effect of 1) the judge's comments indicating he had determined before the sentencing-after-revocation hearing that the defendant would be sentenced to prison if he did not succeed in drug court; and 2) the judge's dual role as the presiding judge in the drug court proceedings and as the judge who sentenced the defendant after the revocation of his probation. State v. Marcotte, 2020 WI App 28
, 392 Wis. 2d 183
, 943 N.W.2d 911
In lieu of exclusive reliance on a judge's personal inquiry, or on appellate review of the judge's determination respecting actual bias, the due process clause has been implemented by objective standards that do not require proof of actual bias. In defining these standards, the U.S. Supreme Court has asked whether, under a realistic appraisal of psychological tendencies and human weakness, the interest poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented. Caperton v. A.T. Massey Coal Co., 556 U.S. 868
, 129 S. Ct. 2252
, 173 L. Ed. 2d 1208
There is a serious risk of actual bias, based on objective and reasonable perceptions, when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent. The inquiry centers on the contribution's relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect the contribution had on the outcome of the election. Whether campaign contributions were a necessary and sufficient cause of a judge's victory is not the proper inquiry. Due process requires an objective inquiry into whether the contributor's influence on the election under all the circumstances would offer a possible temptation to the average judge to lead the judge not to hold the balance “nice, clear, and true." Caperton v. A.T. Massey Coal Co., 556 U.S. 868
, 129 S. Ct. 2252
, 173 L. Ed. 2d 1208
Under the due process clause, there is an impermissible risk of actual bias when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendant's case. Williams v. Pennsylvania, 579 U.S. 1
, 136 S. Ct. 1899
, 195 L. Ed. 2d 132
Step One to Recusal Reform: Find an Alternative to the Rule of Necessity. Croy. 2019 WLR 623.
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.
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.
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.
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.
Any attorney who violates sub. (2)
, 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.
History: 1977 c. 187
; 1977 c. 305
; Stats. 1977 s. 757.22.
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
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.
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.
History: 1977 c. 187
; Stats. 1977 s. 757.23; 1997 a. 27
; 2001 a. 61
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.
History: 1977 c. 187
; 1977 c. 449
; Stats. 1977 s. 757.24; 2001 a. 61
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)
History: 1977 c. 187
; Stats. 1977 s. 757.25; 1981 c. 317
This section has two prerequisites for a fee under s. 814.61 (12) (a): 1) a party to the action has paid at least $1000 into court; and 2) the same party has obtained from the judge an order directing the clerk of court to deposit the money in a safe depository. HSBC Realty Credit Corp. v. City of Glendale, 2007 WI 94
, 303 Wis. 2d 1
, 734 N.W.2d 874
This section applies only in those instances when a court order exists. 73 Atty. Gen. 3
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.
History: 1977 c. 187
; Stats. 1977 s. 757.26.
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.
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.
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.
Sup. Ct. Order, 48 Wis. 2d vii (1970); Sup. Ct. Order, 74 Wis. 2d ix, xvii (1976); 1977 c. 187
; 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
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
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. State v. Stoveken, 68 Wis. 2d 716
, 229 N.W.2d 224
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.
(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.
(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.
Any person guilty of any violation of this section shall be imprisoned not more than 6 months or fined not exceeding $500.
History: 1977 c. 187
; 1977 c. 273
; 1977 c. 447
; Stats. 1977 s. 757.295; 1985 a. 135
; 1997 a. 35
An agreement that a non-attorney would solicit clients for an attorney, in violation of this section, in exchange for payment of 25 percent of the attorney's fee, in violation of s. 757.45, was unenforceable on the grounds of unjust enrichment or restitution. Abbott v. Marker, 2006 WI App 174
, 295 Wis. 2d 636
, 722 N.W.2d 162
Solicitation may be barred even though “speech" is component of that activity. Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447
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.
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.
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.
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.
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
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 this section 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
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), 98-1076
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
No exception was found under this section to permit an attorney unlicensed in this state to represent a person at a peer review hearing at which representation by legal counsel was allowed. Seitzinger v. Community Health Network, 2004 WI 28
, 270 Wis. 2d 1
, 676 N.W.2d 426
A nonlawyer personal representative of an estate may not represent the interests of the estate in a mortgage foreclosure proceeding and may not commence an appeal from a mortgage foreclosure. Accordingly, the notice of appeal filed by the nonlawyer personal representative in this case was ineffective to initiate a valid appeal on behalf of the estate. Ditech Financial, LLC v. Estate of Stacey, 2018 WI App 18
, 380 Wis. 2d 447
, 909 N.W.2d 180
Officers and employees of a bank are not illegally practicing law by filling out lease forms 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.
Drafting of articles of incorporation constitutes the practice of law within meaning of sub. (2). 65 Atty. Gen. 173.
Sub. (2) is inapplicable to practice in federal courts. United States v. Peterson, 550 F.2d 379
Nonlawyer Practice: An Expanding Role. Tenenbaum. Wis. Law. Nov. 1994.
The Unauthorized Practice of Law: Court Tells Profession, Show Us the Harm. Zilavy & Chevrez. Wis. Law. Oct. 2005.
When Nonlawyers “Represent" LLCs. Mehl. Wis. Law. Mar. 2009.
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.
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).