Wisconsin Lawyer | State Bar of Wisconsin

More Executive Orders, Deregulation, and Targeted Enforcement: 2025 in Review

Rebecca C. Furdek — 2026-03-09 00:00:00

Every change in presidential administration leads to shifts in regulatory and enforcement priorities, and the first year of the second Trump term did not alter that trend. While the number of notable developments in the last year could fill this entire issue, many that impact Wisconsin businesses and institutions can be grouped into three general trends: 1) increasing use of executive orders (EOs) to establish policy priorities; 2) emphasizing deregulation across federal agencies; and 3) steering white-collar enforcement toward “focus, fairness, and efficiency,” including in the hot-button areas of market integrity, healthcare, and “waste, fraud, and abuse” of federal funds. This article further explores these trends and suggests how lawyers can best assist clients in the year ahead.

Explosion of EOs

One near-seismic development in 2025 was the rapid escalation in President Trump using EOs to set federal policy. EOs are signed declarations by the president that order federal agencies to take specific actions to execute federal law, and President Trump issued a staggering 225 last year^[1] – a total already higher than in the entire first Trump term (220 EOs)^[2] and an increase of more than 1000% over 2024 levels.^[3] While some EOs were deregulatory in nature, others established sweeping administrative frameworks or were otherwise highly consequential – ranging from EOs concerning federal fund disbursement to institutions, to “diversity, equity, and inclusion” (DEI) initiatives, to specific law firms’ engagement with the federal government.

Rebecca C. Furdek, Minnesota 2015, is a partner in Husch Blackwell, Milwaukee. She is a member of the State Bar of Wisconsin’s Litigation Section and Young Lawyers Division.

Unlike legislation, EOs neither require Congressional approval nor can be overturned by Congress: Only a sitting president may overturn an existing EO through issuing another EO. However, they may be challenged – and ultimately struck down – if a court finds that the president lacked authority to issue the EO or if the EO otherwise is unconstitutional. In fact, 358^[4] lawsuits were filed in 2025 challenging presidential actions, many of which pertained to EOs. Many such challenges remain pending, with resolutions likely in 2026.

For example, on Feb. 20, 2026, the U.S. Supreme Court ruled on legal challenges brought by state attorneys general and businesses to EOs that imposed largely global “reciprocal” tariffs, as well as those specific to Canada, China, and Mexico, pursuant to the International Emergency Economic Powers Act (IEEPA).^[5]

As another example, also in February 2026, the U.S. Court of Appeals for the D.C. Circuit consolidated four pending appeals of federal district court rulings blocking enforcement of EOs targeting individual law firms.^[6] These EOs directed federal agencies to, among other things, order the suspension of security clearances for firm employees, generally refrain from hiring employees of such law firms, and scrutinize or altogether rescind governmental contracts with such firms.

A U.S. Supreme Court decision released in June 2025 drastically affected the types of challenges that may be brought in response to an EO. In Trump v. CASA, the Court ruled that with limited exceptions, federal district courts cannot generally issue universal – or nationwide – injunctions.^[7] As a result, a single federal judge is no longer empowered to halt or block enforcement of a federal policy nationwide. This decision struck a major blow to challengers of Trump administration policies seeking swift, universal relief; the Court majority highlighted that approximately 25 universal injunctions were issued in only the first 100 days of the second Trump term.^[8] The Court signaled likely limited avenues for future plaintiffs to obtain nationwide relief, such as through class actions or through the Administrative Procedure Act (APA) “set aside” mechanism.^[9] While Trump v. CASA probably is a net victory for the executive branch, actions in 2026 may shed more light on the viability of these limited, remaining avenues for individuals, businesses, and state AGs seeking to halt enforcement of an EO or a federal policy.

More broadly, the rise in EOs presents both opportunities and challenges for Wisconsin counsel and their clients. On one hand, this trend presents an increasingly fast-paced template for future administrations to follow: a president could quickly undo many such EOs and reverse course. Such policymaking via EO would lead to less long-term certainty for affected businesses and individuals, for better or for worse. Relatedly, federal policies increasingly set forth in this manner may pre-sent at first glance simple legal frameworks with which to comply but ultimately more ambiguity for those regulated. Regardless, Wisconsin attorneys should stay apprised of these federal policy directives and corresponding legal challenges as this trend continues.^[10]

Deregulation

Although some people might assume that the sharp uptick in EOs suggests increased regulation, the Trump administration has instead advanced the broad goal of agency deregulation. On Jan. 31, 2025, the White House released EO 14192, Unleashing Prosperity Through Deregulation, which requires federal agencies to identify at least 10 prior regulations for elimination for each new regulation issued, with the stated goals of lowering the $2.1 trillion annual cost of federal regulations and reducing burdens for small businesses.^[11] This EO is essentially a more aggressive version of EO 13771 in the first Trump term, which sought to eliminate two existing regulations for every new one passed.^[12]

The administration announced in December that in 2025, it finalized 646 deregulatory actions compared to only 5 regulatory actions, for a ratio of 129-1.^[16] This result reveals the volume of agency publications beyond traditional regulations, which generally require formal notice-and-comment rulemaking, including a public comment period, both to pass and to rescind. A proposed repeal of a regulation generally takes months – if not years – to effectuate.

Notably, though, a presidential memorandum issued in April 2025, Directing the Repeal of Unlawful Regulations, explicitly encouraged agencies to bypass this process when consistent with the “good cause” exception in the Administrative Procedure Act (APA).^[14] In addition, federal agencies issue a plethora of subregulatory guidance interpreting regulations. The definition of “regulation” or “rule” in EO 14192 appears to capture this subregulatory guidance by including “memoranda, administrative orders, guidance documents, policy statements, and interagency agreements.”^[15] These regulatory actions can be rapidly issued – or withdrawn – by agencies and without directly considering public input. Therefore, the December announcement suggests that many such subregulatory documents have been withdrawn, with more regulation repeals on the horizon, particularly if agencies bypass the APA process.

Attorneys should monitor proposed rules seeking to rescind or modify federal regulations, as well as the SBA’s invitation for business community input, because these may be opportune times to encourage clients to share their concerns directly or through a trade association.

Also in December 2025, the U.S. Small Business Administration (SBA) launched a Deregulation Strike Force, with the stated purpose of identifying and eliminating regulations that disproportionally increase costs for small businesses and consumers across the “housing, healthcare, agriculture, and energy” sectors.^[16] The SBA plans to “solicit[] feedback from small businesses to identify the most burdensome regulations across key industries” in 2026 and focus on cutting regulations across a range of industries, including housing and construction, healthcare, agriculture, energy, and transportation.

This deregulatory focus across agencies extends into criminal enforcement as well. EO 14294, Fighting Overcriminalization in Federal Regulations, issued in May 2025, states the premise that the “United States is drastically overregulated,” citing the 48,000 sections of the Code of Federal Regulations (CFR) exceeding 175,000 pages as an “absurd and unjust” circumstance that “can lend itself to abuse and weaponization by providing government officials tools to target unwitting individuals.”^[17] Among other things, EO 14294 provides that strict-liability offenses, which do not require the government to prove a defendant’s intent, are “generally disfavored” and should be addressed through civil or administrative enforcement. The EO also orders each agency to publish annually all enforceable criminal regulatory offenses, as well as the penalty range and corresponding mens rea standard. Further, agencies are “strongly discouraged” from engaging in criminal enforcement for offenses not on that list.

This deregulatory emphasis likely will have more effects across agencies in 2026. As noted above, federal regulations generally require a significant length of time to repeal, although subregulatory guidance might continue to be quickly withdrawn. Attorneys should monitor proposed rules seeking to rescind or modify federal regulations, as well as the SBA’s invitation for business community input, because these may be opportune times to encourage clients to share their concerns directly or through a trade association. In addition, because federal agencies will be required to make their first online posting of all criminal regulatory offenses in May 2026, it will become more important to ensure that clients are aware of federal regulations that include criminal penalties, as the added online transparency may carry a greater expectation of public awareness by the U.S. Department of Justice (DOJ) going forward.

Emphasis of “Focus, Fairness, and Efficiency” in Corporate or White-collar Enforcement

On May 12, 2025, the DOJ’s Criminal Division published a memo stating that “overbroad and unchecked corporate and white-collar enforcement burdens U.S. businesses and harms U.S. interests,” emphasizing that future enforcement would promote “focus, fairness, and efficiency” overall for companies and individuals investigated.^[18] Three such areas emerged in 2025 as particularly prominent in the corporate or white-collar enforcement space: 1) market integrity, 2) healthcare, and 3) efforts to eliminate “waste, fraud, and abuse.” Each is explored in turn.

Market Integrity. The word “tariffs” couldn’t be avoided by even the most casual news observer in 2025, as President Trump’s EOs and policy pronouncements concerning international trade have reverberated across industries. Not surprisingly, the DOJ has also emphasized international trade as part of a broader “market integrity” focus in 2025.

As perhaps the most tangible indicator of its focus, the DOJ recently consolidated resources from both the Civil and Criminal Divisions to create a new Market, Government, and Consumer Fraud Unit (MGCF Unit) within the Criminal Division’s Fraud Section, placing an even more explicitly pronounced focus on tariff- and trade-related offenses, in addition to market-related areas ranging from traditional market manipulation to artificial intelligence (AI).^[19]

In addition, in August 2025, the DOJ and the Department of Homeland Security (DHS) established a cross-agency Trade Fraud Task Force to investigate and enforce international trade-related violations.^[20] Noting that “American manufacturers and American workers are at the heart of this Administration’s trade policy,” the DOJ wrote that it “welcomes referrals and cooperation from the domestic industries that are the most harmed by unfair trade practices and trade fraud,” encouraging such submissions through its corporate whistleblower program.

Similarly, in September, the U.S. Securities and Exchange Commission (SEC) established a new Cross-Border Task Force to strengthen and enhance efforts to combat cross-border fraud harming U.S. investors, focusing “initially on investigation of potential U.S. federal securities law violations related to foreign-based companies, including potential market manipulation.”^[21]

While international in scope, this trend still affects any Wisconsin business with a broader reach in international financial markets or companies, such as manufacturers relying on imports or financial institutions engaged with foreign issuers. Counsel should ensure that affected clients prioritize maintaining robust internal controls to detect and remediate any potential problems, monitor DOJ policy updates and related executive branch actions, and in the event of a potential violation, consider voluntary self-disclosure and cooperation.

Healthcare. Healthcare has long been a top area of enforcement by the DOJ, and this past year was no different. In June 2025, the DOJ announced the largest healthcare fraud enforcement action in U.S. history, charging 324 defendants with more than $14.6 billion in alleged fraud.^[22] The named defendants included physicians, nurse practitioners, and pharmacists, among others, and represented notable cooperation among dozens of federal agencies, U.S. Attorney’s Offices, and state AG offices. Relatedly, in the most recent fiscal year, a record $5.7 billion of the $6.8 billion recovered in False Claims Act (FCA) actions (a topic covered more fully in the section below) related to healthcare, and specifically managed care, prescription drugs, and medical-necessity determinations.^[23]

DOJ initiatives and public remarks by DOJ officials have reinforced this healthcare focus. For example, in July 2025, the DOJ and the U.S. Department of Health and Human Services (HHS) announced the creation of the DOJ-HHS False Claims Act Working Group, an initiative aimed at strengthening federal government FCA enforcement in the healthcare area.^[24] In September, Matthew Galeotti, head of the DOJ’s Criminal Division, again emphasized that healthcare fraud is a key priority area, stating that the DOJ “expect[s] to see even more health care fraud-related corporate resolutions in the coming months.”^[25]

For any Wisconsin counsel with healthcare clients, particularly those interacting with federal programs such as Medicare or Medicaid, it is increasingly important to ensure that clients are aware of and comply with all current laws and regulations and maintain strong compliance programs and appropriate documentation. Counsel also should monitor federal enforcement announcements and publicly available settlements in 2026 because these may signal emerging areas of focus.

Waste, Fraud, and Abuse. The words “waste,” “fraud,” and “abuse” have formed a repeated refrain since the earliest days of the Trump administration, when the U.S. Department of Government Efficiency (DOGE) initiative was launched.^[26] Although DOGE no longer is a dominating force, the phrase and the focus remain as a key driver of federal enforcement in early 2026. Indeed, in January, a new DOJ division was formed to focus on national fraud enforcement following the initiation of federal welfare fraud investigations in Minnesota. While many details of that new division are yet to be announced, the press release accompanying the announcement (including the phrase “fraud, waste, and abuse”) indicated that it will focus on enforcing laws “targeting Federal government programs, Federally funded benefits, businesses, nonprofits, and private citizens nationwide,” including through proposing “legislative and regulatory reforms to close systemic vulnerabilities and prevent future abuses.”^[27]

Any summary of this enforcement trend requires discussion of the FCA.^[28] The FCA is a federal statute, passed in the wake of the Civil War, that imposes civil liability on entities or individuals who knowingly submit false or fraudulent claims to the government for payment – ranging from healthcare program claims and traditional defense contracts to misrepresentations in connection with obtaining government grants or funding. According to the DOJ’s most recent annual report, released in January, the FCA remains one of the DOJ’s most frequently used enforcement tools, with settlements and judgments exceeding a record $6.8 billion in the last fiscal year. Interestingly, last year’s total marked a sharp reversal of three straight years of significantly lower recoveries ranging from approximately $2 billion to $3 billion.^[29] The DOJ previewed in that report that there is likely to be an even higher volume of FCA cases in 2026.

One prominent feature of the FCA is its qui tam (whistleblower) provision, which enables private individuals, or “relators,” to file lawsuits “on behalf of” the United States, with the potential promise of enjoying a share of the proceeds when the case is ultimately resolved. However, in late 2024, in United States ex rel. Zafirov v. Florida Medical Associates LLC, a Florida federal district judge ruled that the FCA’s qui tam provisions violate Article II of the U.S. Constitution.^[30] The case is currently pending before the Eleventh Circuit Court of Appeals, and given competing judicial opinions on the issue, it is widely anticipated that the issue of qui tam constitutionality will reach the U.S. Supreme Court. Nevertheless, in the meantime, the DOJ has continued to expressly note the importance of qui tam whistleblower referrals to the DOJ’s broader enforcement goals.^[31]

While a significant amount of the DOJ’s FCA enforcement focuses on healthcare, it extends to initiatives affecting a wide range of Wisconsin businesses, from COVID-19 pandemic fraud to DEI-focused inquiries. On the pandemic fraud front, the DOJ continues to investigate alleged fraud related to Paycheck Protection Program (PPP) loans and the associated loan forgiveness process. To illustrate the magnitude of the issue, in 2023, the U.S. Government Accountability Office “flagged” 3.7 million loans as having “warning signs consistent with potential fraud,”^[32] and the SBA’s inspector general estimated that up to $200 billion in pandemic relief was issued to “potentially fraudulent actors.”^[33] In light of a 10-year statute of limitation, the DOJ has aggressively targeted alleged fraud related to pandemic-era loans, often using the FCA to do so – with hundreds of millions recovered last year alone.^[34]

As for DEI-focused inquiries, in May 2025, the DOJ announced its Civil Rights Fraud Initiative (CFRI), which will “utilize the False Claims Act to investigate and, as appropriate, pursue claims against any recipient of federal funds in knowing violation of federal civil rights laws.”^[35] Citing the U.S. Supreme Court’s decision in Students for Fair Admissions v. Harvard,^[36] which struck down race-based affirmative action programs as violating the Equal Protection Clause of the 14th Amendment to the U.S. Constitution, and EO 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity, the CFRI provides that the FCA might apply to the extent federal funding recipients falsely certify compliance with civil rights laws while knowingly “engaging in racist preferences, mandates, policies, programs, and activities, including through diversity, equity, and inclusion (DEI) programs that assign benefits or burdens on race, ethnicity, or national origin.”^[37] Recent media reports indicate that several DEI-related FCA investigations are underway. For example, a recent Wall Street Journal article indicated that the DOJ sent civil investigative demands (CIDs) to Google and Verizon and that “industries ranging from automotive and pharmaceuticals to defense and utilities” are among those being scrutinized.^[38]

This year is bound to bring continued significant focus by the federal government on identifying instances of alleged waste, fraud, and abuse nationwide. Wisconsin counsel should ensure that any clients that receive federal funds or grants – ranging from educational institutions, to manufacturers, to small businesses that previously obtained pandemic relief – review all applicable policies, practices, and documentation for potential areas of risk. In addition, as to the CFRI Initiative in particular, institutions and companies should note that the DOJ is “strongly encourag[ing] anyone with knowledge of discrimination by federal funding recipients to consider filing a qui tam action under the False Claims Act.”^[39]

Conclusion

The second Trump term started with a splash in both the federal regulatory and enforcement arenas, and so far in 2026, there are no signs of slowing down. Whether through announcing federal policies in a flurry of EOs, slashing the number of subregulatory guidance documents, or targeting enforcement in key areas, regulatory and enforcement activity is strong despite broader deregulatory goals. More defined trends likely will emerge in this second year of the second Trump term, and counsel should remain well informed of these often-rapid developments in advising clients during the year ahead.

Endnotes

1 Fed. Reg., 2025 Donald J. Trump Executive Orders, https://www.federalregister.gov/presidential-documents/executive-orders/donald-trump/2025 (last visited Feb. 17, 2026).

2 Mia Hennen, Trump Has Already Issued More Executive Orders in His Second Term than in His First, Pew Research Ctr. (Dec. 16, 2025), https://www.pewresearch.org/short-reads/2025/12/16/trump-has-already-issued-more-executive-orders-in-his-second-term-than-in-his-first/.

3 Fed. Reg., 2024 Joseph R. Biden, Jr. Executive Orders, https://www.federalregister.gov/presidential-documents/executive-orders/joe-biden/2024 (last visited Feb. 17, 2026).

4 See Erwin Chemerinsky, Looking Back at 2025: the Supreme Court and the Trump Administration, SCOTUSBlog.org (Jan. 5, 2026), https://www.scotusblog.com/2026/01/looking-back-at-2025-the-supreme-court-and-the-trump-administration/.

5 The two cases, Learning Resources Inc. v. Trump (Tariffs), Docket No. 24-1287, and Trump v. V.O.S. Selections, Docket No. 25-250, were consolidated for briefing and oral argument under Docket No. 24-1287. See SCOTUSBlog.org, Trump v. V.O.S. Selections, https://www.scotusblog.com/cases/case-files/trump-v-v-o-s-selections/ (last visited Feb. 17, 2026) See Learning Resources Inc. v. Trump, No. 24-1287 (U.S. Feb. 20, 2026), https://www.law.cornell.edu/supct/pdf/24-1287.pdf.

6 See Emily Sawicki, Trump’s BigLaw Executive Order Appeals Consolidated, Law360 (Feb. 6, 2026), https://www.law360.com/articles/2439210?

7 Trump v. CASA Inc., 606 U.S. 831 (2025).

8 See id. at 840.

9 See id. at 849; id. at 873 (Kavanaugh, J., concurring); see also Rebecca Furdek, Will Trump v. CASA Lead to Increased State AG Multistate Investigations and Litigation?, Husch Blackwell (July 24, 2025), https://www.huschblackwell.com/newsandinsights/will-trump-v-casa-lead-to-increased-state-ag-multistate-investigations-and-litigation.

10 Several organizations and media outlets are tracking legal challenges to Trump administrative actions. See, e.g., Emma Schartz et al., The Trump Administration Has Been Sued 650 Times. Track These Cases, N.Y. Times (Feb. 18, 2026), https://www.nytimes.com/interactive/2026/us/trump-administration-lawsuits.html.

11 Exec. Order No. 14192, Unleashing Prosperity through Deregulation (Jan. 31, 2025), https://www.whitehouse.gov/presidential-actions/2025/01/unleashing-prosperity-through-deregulation/.

12 Fact Sheet: President Donald J. Trump Launches Massive 10-to-1 Deregulation Initiative (Jan. 31, 2025), https://www.whitehouse.gov/fact-sheets/2025/01/fact-sheet-president-donald-j-trump-launches-massive-10-to-1-deregulation-initiative/.

13 White House Office of Management and Budget’s Office of Information and Regulatory Affairs Releases End of Year Deregulatory Stats: Showing the Trump Administration Has Best Deregulation Year in History (Dec. 19, 2025), https://www.whitehouse.gov/briefings-statements/2025/12/32750/.

14 Presidential Memo., Directing the Repeal of Unlawful Regulations (Apr. 9, 2025), https://www.whitehouse.gov/presidential-actions/2025/04/directing-the-repeal-of-unlawful-regulations/.

15 Exec. Order No. 14192, supra note 11.

16 News Release, SBA Launches Deregulation Strike Force to Support President Trump’s Affordability Agenda, U.S. Small Bus. Admin. (Dec. 15, 2025), https://www.sba.gov/article/2025/12/15/sba-launches-deregulation-strike-force-support-president-trumps-affordability-agenda.

17 See Exec. Order No. 14294, Fighting Overcriminalization in Federal Regulations (May 9, 2025), https://www.whitehouse.gov/presidential-actions/2025/05/fighting-overcriminalization-in-federal-regulations/.

18 See Memorandum from Matthew Galeotti, U.S. DOJ (May 12, 2025), https://www.justice.gov/criminal/media/1400046/dl?inline.

19 See U.S. DOJ, Market, Government, and Consumer Fraud Unit, https://www.justice.gov/criminal/criminal-fraud/mgc-unit (updated Sept. 9, 2025).

20 Press Release, Departments of Justice and Homeland Security Partnering on Cross-Agency Trade Fraud Task Force, U.S. DOJ (Aug. 29, 2025), https://www.justice.gov/opa/pr/departments-justice-and-homeland-security-partnering-cross-agency-trade-fraud-task-force.

21 Press Release, SEC Announces Formation of Cross-Border Task Force to Combat Fraud, U.S. Sec. & Exch. Comm’n (Sept. 5, 2025), https://www.sec.gov/newsroom/press-releases/2025-113-sec-announces-formation-cross-border-task-force-combat-fraud.

22 Press Release, National Health Care Fraud Takedown Results in 324 Defendants Charged in Connection with Over $14.6 Billion in Alleged Fraud, U.S. DOJ (June 30, 2025), https://www.justice.gov/opa/pr/national-health-care-fraud-takedown-results-324-defendants-charged-connection-over-146.

23 Press Release, False Claims Act Settlements and Judgments Exceed $6.8B in Fiscal Year 2025, U.S. DOJ (Jan. 16, 2026), https://www.justice.gov/opa/pr/false-claims-act-settlements-and-judgments-exceed-68b-fiscal-year-2025.

24 Press Release, DOJ-HHS False Claims Act Working Group, U.S. DHHS (July 2, 2025), https://www.hhs.gov/press-room/hhs-doj-false-claims-act-working-group.html.

25 Acting Assistant Attorney General Matthew R. Galeotti, Remarks at the Global Investigations Review Annual Meeting (Sept. 29, 2025), https://www.justice.gov/opa/speech/acting-assistant-attorney-general-matthew-r-galeotti-delivers-remarks-global.

26 See, e.g., Exec. Order No. 14222, Implementing the President’s “Department of Government Efficiency” Cost Efficiency Initiative (Feb. 26, 2025), https://www.whitehouse.gov/presidential-actions/2025/02/implementing-the-presidents-department-of-government-efficiency-cost-efficiency-initiative/ (requiring all federal agencies to “prioritize the review of funds disbursed under covered contracts and grants to educational institutions and foreign entities for waste, fraud, and abuse”).

27 Fact Sheet: President Donald J. Trump Establishes New Department of Justice Division for National Fraud Enforcement, The White House (Jan. 8, 2026), https://www.whitehouse.gov/fact-sheets/2026/01/fact-sheet-president-donald-j-trump-establishes-new-department-of-justice-division-for-national-fraud-enforcement/.

28 31 U.S.C. §§ 3729-3733.

29 See U.S. DOJ, Fraud Statistics – Overview, https://www.justice.gov/opa/media/1424121/dl (last visited Feb. 17, 2026).

30 United State ex rel. Zafirov v. Florida Med. Assocs. LLC, 751 F. Supp. 3d 1293 (M.D. Fla. 2024).

31 See, e.g., Cormac Connor, DOJ’s Brenna Jenny Comments on Priorities for FCA Enforcement, Husch Blackwell (Feb. 6, 2026), https://www.governmentenforcementreport.com/2026/02/dojs-brenna-jenny-comments-on-priorities-for-fca-enforcement/.

32 U.S. Gov’t Accountability Off., Relief: Fraud Schemes and Indicators in SBA Pandemic Programs (May 18, 2023), https://www.gao.gov/products/gao-23-105331.

33 U.S. Small Bus. Admin., COVID-19 Pandemic EIDL and PPP Loan Fraud Landscape (June 27, 2023), https://www.sba.gov/document/report-23-09-covid-19-pandemic-eidl-ppp-loan-fraud-landscape.

34 See supra note 23 (noting that DOJ “continued to invest resources in recovering hundreds of millions of dollars lost to fraud in pandemic programs”).

35 Press Release, Justice Department Establishes Civil Rights Fraud Initiative, U.S. DOJ (May 19, 2025), https://www.justice.gov/opa/pr/justice-department-establishes-civil-rights-fraud-initiative; Memorandum from Deputy Attorney General Todd Blanche, U.S. Dep’t of Just. (May 19, 2025), https://www.justice.gov/dag/media/1400826/dl?inline.

36 600 U.S. 181 (2023).

37 See Memorandum, supra note 35.

38 Lydia Wheeler, Justice Department Using Fraud Law to Target Companies on DEI, Wall St. J. (Dec. 28, 2025), https://www.wsj.com/politics/policy/trump-doj-dei-fraud-investigations-93213d52 (behind paywall for some readers).

39 Press Release, Justice Department Establishes Civil Rights Fraud Initiative, U.S. DOJ (May 19, 2025), https://www.justice.gov/opa/pr/justice-department-establishes-civil-rights-fraud-initiative.

» Cite this article: 99 Wis. Law. 10-16 (March 2026).

As I See It | Does Governmental Immunity Relieve a Governmental Entity from Liability for a Safe Place Violation?

John A. Becker — 2026-03-09 00:00:00

The Wisconsin Supreme Court, going back almost 100 years, has held that governmental immunity does not protect a governmental entity from liability when there is a violation of the safe place statute. However, the most recent supreme court decision was in the 1960s. The most recent published Wisconsin Court of Appeals decision, from 1997, is in direct conflict with the supreme court decisions.

Safe Place Statute

Wisconsin’s safe place statute, part of Wis. Stat. section 101.11, imposes a higher duty of care on owners of places of employment and public buildings and requires owners and employers to maintain their premises as reasonably safe as possible:

John A. Becker, U.W. 1982, is a partner in Becker & French, Racine. He is a member of the State Bar of Wisconsin’s Senior Lawyers Division.

101.11(1) ... Every employer and every owner of a place of employment or a public building now or hereafter constructed shall so construct, repair or maintain such place of employment or public building as to render the same safe.

Wis. Stat. chapter 101 defines some of the key terms, including “safe” and “safety”:

101.01(13) “Safe” or “safety”, as applied to … a public building, means such freedom from danger to the life, health, safety or welfare of employees or frequenters, or the public, … as the nature of the … public building, will reasonably permit.

A violation of the safe place statute constitutes negligence.^[1]

Governmental entities (and other nonprofit entities) do not have liability under the safe place statute as owners of places of employment. That is because place of employment is defined as, “every place … where … industry, trade or business is carried on … and where any person is … employed by another for direct or indirect gain or profit.”^[2] Because governmental entities and nonprofit organizations usually do not operate for gain or profit, the premises are generally not considered to be places of employment.^[3]

Such entities, however, can be owners of public buildings under the statute. Public building is defined as “any structure … use(d) by the public or 3 or more tenants.”^[4] “Owner means any person, firm, corporation, state, county, town, city, village, school district, sewer district, drainage district and other public or quasi-public corporations ….”^[5]

Governmental Immunity

Before 1962, governmental immunity relieved governmental employees and governmental entities of liability when an employee was negligent. An exception to that rule was that liability could apply if the employee was performing a ministerial function. Holytz v. City of Milwaukee supposedly made liability the rule and immunity the exception. In Holytz, the Wisconsin Supreme Court stated the following:

“By reason of respondeat superior a public body shall be liable for damages for the torts of its officers, agents and employees occurring in the course of the business of such public body.

“Perhaps clarity will be afforded by our expression that henceforward, so far as governmental responsibility for torts is concerned, the rule is liability – the exception is immunity. In determining the tort liability of a municipality it is no longer necessary to divide its operations into those which are proprietary and those which are governmental.…

“This decision is not to be interpreted as imposing liability on a governmental body in the exercise of its legislative or judicial or quasi-legislative or quasi-judicial functions.”^[6]

Holytz was then codified in Wis. Stat. section 893.80.^[7] However, even before Holytz, when immunity was the rule and not the exception, governmental immunity did not excuse entities or their employees from complying with the safe place statute.

Governmental Immunity Before Holytz

Before Holytz, which was decided in 1962, the supreme court had consistently held that the safe place statute applied to governmental entities as owners of public buildings, and governmental immunity did not relieve them of liability for a safe place violation. The most recent supreme court case that directly addressed this issue was in 1966.^[8] The problem is that a 1997 Wisconsin Court of Appeals decision, Spencer v. County of Brown,^[9] directly contradicts the earlier supreme court decisions.

Supreme Court Decisions Before Holytz (and Spencer). The first case to directly address this issue was Heiden v. City of Milwaukee.^[10] In Heiden, the plaintiff recovered from the city of Milwaukee for a safe place violation. The plaintiff had been injured on a poorly lit stairway in a city-owned school building.

“The words of the statute are clear, plain, and unambiguous, and … are clearly applicable to a school building, owned by a city, and to a frequenter who may go in or be in such a public building ….”^[11]

“We think it clear, therefore, that the Legislature fully intended that the ‘safe place’ law should apply to cities and school districts.”^[12]

“It is our conclusion that the Legislature intended that cities and school districts, as owners of public buildings, should be subject to the ‘safe place’ statute regardless of whether at a given time they are acting in a proprietary or governmental capacity and that a city or school district may be liable to a frequenter who is injured in one of their public buildings, when such injury is proximately caused by a lack of safety, as defined by law, i. e., unsafe construction or unsafe maintenance.”^[13]

In numerous cases after Heiden, the supreme court clearly stated that the safe place statute applied to governmental entities:

“It is clear enough therefore that under the statute as construed in the Heiden case a county is liable under the safe place statute.”^[14]
“To apply the [immunity] rule as contended by the city would be to abrogate the exception provided for in this section. Such an argument was rejected in … Heiden v. City of Milwaukee ….”^[15]
“The defense of governmental function is not available under the safe place statute.”^[16]
“The safe-place statute applies to cities, regardless of whether at a given time they are acting in a proprietary or governmental capacity. This is an illustration of a statutory limitation upon the immunity of a city from liability for a tort committed in the exercise of a governmental function.”^[17]
“The immunization of municipalities from tort liability has been chipped away by a number of statutes in this state. Some examples are [Wis. Stat. sections] 101.01 and 101.06 … (safe place statute).”^[18]
“If it can be said that the appellant school district is an ‘owner’ upon the facts of this case, then it is impressed with a non-delegable duty to make the bleachers safe under [Wis. Stat. section] 101.06.”^[19]

Thus, even before Holytz, when the general rule was immunity, governmental entities were subject to potential liability for safe place violations. Holytz was meant to expand liability and make it easier to hold such entities liable for negligence. Spencer did the opposite.

Spencer v. County of Brown

In Spencer, the plaintiff was injured in a county jail. The court of appeals accepted that the jail was a public building^[20] but held that how to comply with the safe place statute was discretionary, and thus, governmental immunity relieved the county of liability for the alleged safe place violation. “[W]hile the safe-place statute imposes a duty on owners of public buildings to maintain safe place premises for employees and frequenters, the duty set forth in [Wis. Stat. section] 101.11 … does not rise to the level of imposing a ministerial duty for purposes of analyses under [Wis. Stat. section] 893.80(4).”^[21]

Spencer made the right to bring a safe-place claim against a governmental entity even more restrictive than before Holytz. How did the Spencer court come to such a conclusion despite the above supreme court cases? The reason for this can be discovered by reviewing Anderson v. City of Milwaukee^[22] and the briefs that were filed in Spencer.

Anderson Opinions. Anderson v. City of Milwaukee was decided by the court of appeals and then by the supreme court. The Spencer court referred to the cases as Anderson I (court of appeals) and Anderson II (supreme court).

In Anderson, the plaintiff fell on property owned by the city of Milwaukee. The jury returned a verdict of over $400,000. On appeal, the city argued that it was entitled to governmental immunity with respect to the negligence and safe place claim and that the $50,000 statutory cap applied to the damages.

The court of appeals affirmed the verdict. With respect to the statutory cap, the court of appeals held that the city failed to raise it as an affirmative defense and therefore waived its right to challenge that issue.

With respect to governmental immunity, the court of appeals held that the city had a ministerial duty to comply with the safe place statute. “Once the City exercised its overall discretion and decided to design and construct the farmer’s market, it had to comply with the Safe Place statute mandates.… While designing a walkway does invoke an architect’s or engineer’s professional exercise of discretion …, this creative discretion is eclipsed by the City’s ‘ministerial’ duty to comply with the safe-place statute.”^[23]

In Anderson II, the supreme court reversed on the issue of the statutory-damages limitation and held that a municipality cannot impliedly waive the statutory limit merely by failing to raise it as an affirmative defense. The supreme court held that the city waived the discretionary immunity defense by not raising it timely. The supreme court remanded the matter to the circuit court to enter judgment for the plaintiff for $50,000.

The supreme court stated, “because we conclude that the City waived the discretionary immunity defense, we do not reach the issue of whether the City has a ministerial duty to comply with the safe-place statute.” The problem is that, in a footnote to that sentence, the court stated that because “this determination is dispositive, and [because], therefore we do not reach the ministerial duty-safe place, we emphasize that our decision should not be taken as approval of the reasoning of the Court of Appeals on that issue.”^[24]

Spencer was decided after Anderson II. The Spencer court did not seem to look beyond the supreme court decision in Anderson II. Spencer interpreted Anderson II as holding that how to comply with the safe place statute is discretionary, not ministerial; therefore, governmental immunity relieved the municipality from liability for not complying with the statute.

The Spencer court said, “Based on the status of the Anderson decisions, we decline to follow Spencer’s invitation to apply the reasoning that has not been approved by our State Supreme Court though not specifically overruled …. We agree with the defendants that while the safe place statute imposes a duty on owners of public buildings to maintain safe premises for employees and frequenters, the duty set forth in [Wis. Stat. section] 101.11 … does not rise to the level of imposing a ministerial duty for purposes of analysis under [Wis. Stat. section] 893.80(4).”^[25] Spencer was the first case in which a Wisconsin appellate court held that governmental immunity relieves a municipality from complying with the safe place statute.

Also of Interest
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This is the first book to compile all the relevant governmental immunity statutes, both state and federal, in one handy resource. It includes appendices with selected statutory chapters on all types of immunity, notice procedures, and the Federal Tort Claims Act.

Required reading for plaintiffs’ attorneys and government attorneys alike, the Wisconsin Governmental Claims and Immunities Handbook is an essential resource for anyone involved with a claim against a governmental entity.

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Review of Spencer Reasoning

Why did the court of appeals in Spencer conclude that governmental immunity relieves entities from liability for a safe place violation when the supreme court said the opposite?

The eight supreme court cases cited above specifically stated that governmental immunity did not relieve a municipality from complying with the safe place statute. All the cases, except Novak, were decided before Holytz. Thus, although a municipality had general immunity for negligence before Holytz, a plaintiff could still recover against a municipality for violation of the safe place statute.

Although Holytz was meant to expand a person’s right to recover from a governmental entity, the Spencer decision is even more restrictive than the law before Holytz. This result is inconsistent with both the prior supreme court decisions and the intent of Holytz.

A review of the briefs that were filed in the Spencer case reveals that the plaintiff in Spencer did not cite any of the above supreme court decisions that specifically stated that governmental immunity does not apply to a safe place claim. The plaintiff in Spencer only argued that Anderson II did not address the issue and the language in Anderson I was controlling.^[26]

Thus, the problem now is that there is a 1997 court of appeals decision holding that governmental immunity does apply to safe place claims, and eight supreme court decisions from 1966 and earlier that state that governmental immunity does not apply to safe place claims.

The ruling in Anderson II was based on the fact that the city did not timely raise the defense. The Anderson II court was clear that it was neither adopting nor rejecting the language in Anderson I.

After Spencer

Spencer was followed in an unpublished opinion, Larsen v. Wisconsin County Mutual Insurance Co.^[27] As in Spencer, the Larsen plaintiff did not cite any of the above supreme court cases. The plaintiff merely tried to distinguish its facts from the facts in Spencer.

This issue arose again in Rogers v. Slinger School District. In Rogers, the circuit court held that how to comply (not whether to comply) with the statute was discretionary, and therefore governmental immunity relieved a school district from complying with the safe place statute.

The supreme court chose not to accept a petition to bypass in Rogers,^[28] and the court of appeals’ hands were tied.^[29] In Wisconsin, a court of appeals does not have the authority to reverse a prior decision of another court of appeals,^[30] and a court of appeals also does not have the authority to reverse a supreme court decision.^[31]

The court of appeals in Rogers reversed the circuit court on a more limited ground. The court of appeals held that because a defect in the bleachers was known to the school district, the known-and-compelling danger was so apparent that the school district had a ministerial duty to protect people from the defect.^[32]

Because the plaintiff prevailed in the court of appeals, there was no reason to then petition the supreme court for review. Thus, there remains a clear conflict between the result reached in Spencer and the earlier supreme court decisions. Because a court of appeals cannot overrule the Spencer decision nor prior supreme court decisions, this matter can only be resolved by the supreme court.

Conclusion

Even before Holytz, when the general rule was immunity, governmental immunity did not protect a governmental entity from liability for safe place violations. Holytz was meant to expand liability. Spencer relieves a municipality from complying with the safe place statute and restricts a plaintiff’s rights even more than before Holytz.

This author hopes that the supreme court will again have the opportunity to resolve the clear conflict between Spencer and earlier supreme court decisions.

Endnotes

1 Hofflander v. St. Catherine’s Hosp., 2003 WI 77, ¶ 96, 262 Wis. 2d 539, 664 N.W.2d 545.

2 Wis. Stat. § 101.01(11).

3 There are exceptions to this rule, which will not be discussed here.

4 Wis. Stat. § 101.01(12).

5 Wis. Stat. § 101.01(10).

6 Holytz v. City of Milwaukee, 17 Wis. 2d 26, 39-40, 115 N.W.2d 618 (1962).

7 Patterman v. City of Whitewater, 32 Wis. 2d 350, 145 N.W.2d 705 (1966). The courts have been inconsistent in applying the Holytz rule and there are other issues with the courts’ current application of governmental immunity, but those are not discussed here. For further discussion, see John Becker, Figuring Out Governmental Immunity, Wis. Law., Sept. 2023.

8 Novak v. City of Delavan, 31 Wis. 2d 200, 207, 143 N.W.2d 6 (1966).

9 Spencer v. County of Brown, 215 Wis. 2d 641, 573 N.W.2d 222 (Ct. App. 1997).

10 Heiden v. City of Milwaukee, 226 Wis. 92, 275 N.W.2d 922 (1937).

11 Id. at 98.

12 Id. at 100.

13 Id. at 101.

14 Flynn v. Chippewa Cnty., 244 Wis. 455, 457, 12 N.W.2d 683 (1944).

15 Laffey v. City of Milwaukee, 8 Wis. 2d 467, 470-71, 99 N.W.2d 743 (1959).

16 Potter v. City of Kenosha, 268 Wis. 361, 371, 68 N.W.2d 4 (1955) (citing Heiden, 226 Wis. 92, and 114 A.L.R. 420).

17 Flesch v. City of Lancaster, 264 Wis. 234, 237, 58 N.W.2d 710 (1953) (citing Heiden, 226 Wis. 92, and 114 A.L.R. 420).

18 Holytz, 17 Wis. 2d at 36.

19 Novak, 31 Wis. 2d at 207 (citations omitted); see also Lawver v. Joint Sch. Dist. No. 1, 232 Wis. 608, 288 N.W. 192, 194 (1939) (citation omitted). The school district, in the exercise of a governmental function, would not be legally chargeable with negligence. Of course, the safe place statute applies to schools and school districts.

20 Spencer, 215 Wis. 2d at 649 (citing Henderson v. Milwaukee Cnty., 198 Wis. 2d 747, 543 N.W.2d 544 (Ct. App. 1995)).

21 Spencer, 215 Wis. 2d at 652.

22 Anderson v. City of Milwaukee (Anderson I), 199 Wis. 2d 479, 493, 544 N.W.2d 630 (Ct. App. 1996); Anderson v. City of Milwaukee (Anderson II), 208 Wis. 2d 18, 37, 559 N.W.2d 5 (1997).

23 Anderson I, 199 Wis. 2d at 493-94.

24 Anderson II, 208 Wis. 2d at 37.

25 Spencer, 215 Wis. 2d at 651, 652.

26 In fairness to the Spencer court, it is easy to understand how the court reached the conclusion that it did if one looks only at Anderson I and Anderson II (the only cases cited).

27 Larsen v. Wisconsin Cnty. Mut. Ins. Co., No. 2013AP2395, 2014 WL 2974214 (Wis. Ct. App. July 3, 2014) (unpublished).

28 This might have been because there were numerous other issues on appeal that did not merit supreme court review.

29 Rogers v. Slinger Sch. Dist., No. 2023AP1867, 2025 WL 865807 (Wis. Ct. App. March 19, 2025) (unpublished).

30 Cook v. Cook, 208 Wis. 2d 166, 171, 190, 560 N.W.2d 246 (1997).

31 Id. at 189.

32 Rogers, 2025 WL 865807, ¶¶ 17-20 (citing Cords v. Anderson, 259 N.W.2d 672, 80 Wis. 2d 525 (1977)).

» Cite this article: 99 Wis. Law. 18-23 (March 2026).

THC Beverages, the Farm Bill, and the Federal Register: How Hemp Slipped Into a Regulatory Gap

Trent Kubasiak — 2026-03-09 00:00:00

THC-infused beverages are now sold in bars, grocery stores, and breweries across the Midwest, often marketed as “hemp-derived” rather than containing “marijuana.” Their legal status rests on a single sentence in the 2018 Farm Bill that removed “hemp” from the federal controlled substances list.^[1] While that sentence opened a new industry of hemp-based products, what that sentence did not do was assign any single federal agency clear authority to regulate them. The result is a fast-growing consumer market governed less by formal federal rules than by guidance, warning letters, and a patchwork of state law.

For lawyers advising manufacturers, distributors, landlords, insurers, and local governments, the challenge is not simply whether THC beverages are lawful. It is understanding how federal regulatory systems behave when Congress draws a bright statutory line and agencies are left to govern the shadows around it.

The One-Line Change that Created a Market

The Agriculture Improvement Act of 2018 (the “Farm Bill”) removed hemp from the Controlled Substances Act (CSA) by defining it as cannabis containing no more than 0.3% delta-9 THC by dry weight.^[2] That statutory change did two things at once. It legalized the cultivation and sale of hemp nationwide, and it created a new category of cannabinoids that were no longer, by definition, federally controlled substances.

Trent Kubasiak, Marquette 2013, is an attorney in the First Army Office of the Staff Judge Advocate, Rock Island Arsenal, Illinois. He is a member of the State Bar of Wisconsin’s Government Lawyers Division and the Nonresident Lawyers Division board.

What it did not do was create a comprehensive regulatory framework for hemp-derived products once they enter the consumer marketplace. Congress assigned the U.S. Department of Agriculture (USDA) authority over cultivation and production. It left unresolved how ingestible hemp products designed to produce intoxicating effects would fit into existing federal food, drug, and consumer safety laws.

That omission matters. A brewery can lawfully source hemp grown under a USDA-approved plan.^[3] Whether it can legally sell a THC-infused seltzer is a different question and one that turns less on agriculture law than on how federal agencies interpret their own statutory mandates.

The Agency Triangle

Three federal agencies now occupy overlapping territory around hemp-derived THC products, each operating under a different statute and regulatory culture.

Food and Drug Administration (FDA). The FDA regulates food, beverages, and dietary supplements under the Federal Food, Drug, and Cosmetic Act. The agency has repeatedly stated that THC and cannabidiol (CBD) cannot be added to food or marketed as dietary supplements because they are active ingredients in approved or investigated drugs.^[4] Yet the FDA has not issued a comprehensive rule for hemp-derived ingestibles. Instead, it has relied primarily on guidance documents and targeted enforcement actions, including warning letters to companies making health claims.^[5]
Drug Enforcement Administration (DEA). The DEA administers the CSA and controls the scheduling of marijuana. It recognizes that “hemp,” as defined by the Farm Bill, is not a controlled substance. At the same time, the agency has taken the position that certain forms of “synthetically derived” or “converted” THC might still fall within the CSA.^[6] The DEA, however, is not structured to regulate consumer beverages or retail food products.
U.S. Department of Agriculture (USDA). The USDA oversees hemp cultivation and production plans. Once hemp leaves the field and becomes a consumer good, the USDA’s formal authority largely ends.^[7]

The practical result is a regulatory triangle with no clear center. Cultivation is federally regulated. Food safety is federally regulated. Controlled substances are federally regulated. But THC beverages sit in the seams between those regimes.

Guidance Instead of Rules

For administrative lawyers, the most striking feature of this space is not what agencies have done but what they have not done. No federal agency has completed a full notice-and-comment rulemaking to establish a national framework for hemp-derived THC beverages. There are no federal code of labeling standards, permissible dosage thresholds, or uniform manufacturing practices specific to these products.

Instead, the market is shaped by a combination of informal guidance, enforcement discretion, and state-level experimentation. The FDA’s public statements signal skepticism. The DEA’s interpretations signal caution. State regulators fill the gaps with widely varying approaches ranging from explicit authorization and licensing schemes to outright bans.^[8]

For businesses, that means compliance planning based less on settled federal rules than on regulatory signals. For lawyers, it means advising clients in an environment in which tomorrow’s enforcement theory might not look like today’s guidance document.

The Executive Signal

This regulatory hesitation contrasts sharply with how the federal system operates when political urgency runs in the opposite direction. Recent executive actions directing federal agencies to move forward with marijuana rescheduling have drawn attention to how quickly the executive branch can push agencies to act on high-profile issues.

Rescheduling under the CSA is a formal administrative process. It requires scientific and medical evaluation, a proposed rule, public participation, and a final agency determination that can be reviewed in federal court. An executive order cannot, by itself, change a drug’s legal status, but it can set priorities and timelines for the agencies that have statutory authority.

Hemp-derived THC beverages illustrate the inverse problem. Here, Congress has already acted. The statute is in place. The market is operating at scale. Yet the federal agencies with overlapping jurisdiction have not completed a formal regulatory framework. The result is a consumer industry governed more by executive signals and agency discretion than by codified rules.

The State-Federal Divide

Nowhere is this more visible than in the Midwest. States have taken sharply different paths in regulating hemp-derived intoxicants. Some have folded them into existing alcohol or cannabis regulatory systems. Others treat them as ordinary food products. Still others prohibit them altogether.

A summary illustrates the divergence:

Wisconsin generally treats hemp-derived THC products as lawful if they meet the federal hemp definition, with regulation largely occurring through consumer protection, food safety, and local licensing rather than a dedicated cannabis-style framework.^[9] Enforcement and policy guidance have been fragmented across agencies, leaving municipalities and businesses to navigate uncertainty.
Minnesota has moved toward an explicit regulatory model for “hemp-derived consumer products,” including THC beverages, establishing age limits, serving restrictions, and licensing requirements that resemble elements of alcohol regulation.^[10]
Iowa maintains a more restrictive posture, with state agencies and prosecutors taking the position that many intoxicating hemp-derived products fall outside the scope of lawful hemp and may trigger controlled substances or consumer protection concerns.^[11]
Illinois operates a mature, comprehensive cannabis regulatory regime, and tends to treat intoxicating THC products – whether marijuana derived or hemp derived – within a tightly controlled, licensed market rather than as ordinary consumer goods.^[12]

For Wisconsin lawyers, this creates practical issues that go well beyond products liability or licensing. Lease agreements, lending relationships, insurance coverage, and municipal permitting all hinge on how a product is classified. A business that is lawful under state law but operates in a gray area under federal law may face different risk assessments from national insurers or federally regulated banks.

The absence of a clear federal rule also complicates preemption analysis. Without a formal agency position adopted through rulemaking, it is harder to predict when federal law might displace or leave room for state regulatory schemes.

Administrative Law in Plain Sight

THC beverages are an unusually useful case study because the administrative law is not buried in technical rulemakings or appellate opinions. It is playing out in real time on store shelves and in city council meetings.

Congress drew a narrow statutory line by legalizing hemp defined by THC concentration. Agencies inherited the task of applying broad, older regulatory statutes to a new class of products. Some have responded with caution and guidance. Others have signaled enforcement priorities. None has yet produced a comprehensive, binding regulatory framework.

This is administrative law at its most practical: the space between what the statute clearly says and what regulated entities need to know to operate with confidence.

Why It Matters for Lawyers

For lawyers advising clients in this space, the key question is not “Is this legal today?” It is “What regulatory theory is likely to emerge tomorrow?”

A formal FDA rule could transform the market overnight. A change in DEA interpretation could affect supply chains. Congressional amendments in a future farm bill could redraw the statutory boundary altogether. Each of those developments would shift risk profiles for businesses and the legal advice that supports them.

Until then, THC beverages will continue to exist in a space shaped by informal agency action and state-level regulation rather than uniform federal rules. For lawyers, this means watching not only the headlines but also the Federal Register and the guidance documents and enforcement actions that often signal that formal rulemaking may eventually follow.

A Broader Lesson

The hemp-derived THC market highlights a broader feature of the modern regulatory state. Executive action can accelerate agency movement when political priorities demand it. Congressional action can open markets with a few lines of statutory text. But the day-to-day legal environment for businesses is often defined by what agencies choose to formalize and what they leave to discretion.

For regulatory and administrative lawyers, that gap is where most of the real work begins.

If you’d like to explore this topic in greater depth, the State Bar of Wisconsin’s Nonresident Lawyers Division is hosting speakers on this topic at the 2026 Annual Meeting & Conference. The presentation titled “An Industry in Legal Limbo: Surveying the Federal and State Landscape for THC-Infused Products” will feature legal experts who work in this field.

The 2026 Annual Meeting & Conference is June 10-12 in La Crosse. For more information and to register, visit wisbar.org/AMC.

Endnotes

1 Agriculture Improvement Act of 2018, Pub. L. No. 115-334, § 12619, 132 Stat. 4490, 5018-19 (2018) (codified at 7 U.S.C. § 1639o(1)) (removing “hemp” from the definition of marijuana under the CSA and defining hemp as cannabis containing not more than 0.3% delta-9 THC on a dry weight basis), https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title7-section1639o&num=0&edition=prelim.

2 Id.

3 USDA, Establishment of a Domestic Hemp Production Program: Final Rule, 86 Fed. Reg. 5596 (Jan. 19, 2021) (establishing federal and state/tribal plan approval system for lawful hemp production under the 2018 Farm Bill), https://www.govinfo.gov/content/pkg/FR-2021-01-19/pdf/2021-00967.pdf.

4 FDA, FDA Regulation of Cannabis and Cannabis-Derived Products, Including Cannabidiol (CBD) (content current as of July 16, 2024), https://www.fda.gov/news-events/public-health-focus/fda-regulation-cannabis-and-cannabis-derived-products-including-cannabidiol-cbd.

5 FDA, Warning Letters for Cannabis-Derived Products (content current as of Sept. 3, 2025), https://www.fda.gov/news-events/public-health-focus/warning-letters-cannabis-derived-products.

6 DEA, DEA Letter Regarding Delta-8 THC, Sept. 15, 2021, https://albop.com/oodoardu/2021/10/ALBOP-synthetic-delta8-THC-21-7520-signed.pdf; see also Implementation of the Agriculture Improvement Act of 2018, 85 Fed. Reg. 51639, 51641-42 (Aug. 21, 2020), https://www.federalregister.gov/documents/2020/08/21/2020-17356/implementation-of-the-agriculture-improvement-act-of-2018.

7 Congressional Rsch. Serv., Farm Bill Primer: Hemp Industry Support and Regulation, IF12278 (Jan. 10, 2025) (explaining USDA’s authority over hemp cultivation and production plans under the Farm Bill and noting that regulation of downstream consumer products and ingestible cannabinoids falls primarily to other federal agencies, including FDA), https://www.congress.gov/crs-product/IF12278.

8 Nat’l Conf. of State Legis., Regulating Hemp and Cannabis-Based Products (updated April 30, 2022), https://www.ncsl.org/agriculture-and-rural-development/regulating-hemp-and-cannabis-based-products; see also Congressional Rsch. Serv., Changes to the Federal Definition of Hemp: Legal Considerations (LSB11381) (Dec. 22, 2025) (explaining how the Farm Bill hemp definition interacts with cannabinoid product categories and legal uncertainty that contributes to divergent state regulation), https://www.congress.gov/crs-product/LSB11381.

9 Wis. Stat. § 94.55 (2023-24) (establishing Wisconsin’s hemp production and regulation framework administered by the Department of Agriculture, Trade and Consumer Protection (DATCP)); DATCP, Wisconsin Hemp Resources, https://datcp.wi.gov/Pages/Programs_Services/Hemp.aspx (last visited Feb. 12, 2026); Wis. DOJ, Controlled Substances: Cannabis & Food FAQs, https://www.wisdoj.gov/Pages/CriminalJusticeServices/controlled-substances.aspx (last visited Feb. 12, 2026).

10 Minn. Stat. § 151.72 (2025) (regulating the sale of cannabinoid products); Minn. Off. of Cannabis Management, Hemp Business Overview, https://mn.gov/ocm/businesses/resources/hemp/overview/ (last visited Feb. 12, 2026).

11 Iowa Code § 204.2 (2024) (the “Iowa Hemp Act” defining hemp and consumable hemp products); Iowa Health & Hum. Servs., Consumable Hemp, https://hhs.iowa.gov/health-prevention/consumable-hemp (last visited Feb. 12, 2026).

12 Cannabis Regulation and Tax Act, 410 Ill. Comp. Stat. §§ 705/1-1 705/999-99 (establishing Illinois’ comprehensive, statewide licensing and regulatory framework for the cultivation, distribution, and retail sale of cannabis and cannabis products); Illinois Dep’t of Fin. & Prof. Regul., Adult Use Cannabis Program, https://idfpr.illinois.gov/profs/adultusecan.html (last visited Feb. 12, 2026).

» Cite this article: 99 Wis. Law. 24-27 (March 2026).

President's Message | Challenge Your Opinions

Dan Denker Gartzke — 2026-03-09 00:00:00

Nobody gets everything right the first time, every time, and all of us should have the freedom to question and change our former opinions from time to time.

The longer I live, the more I recognize that new facts often come to light over time that can affect my opinions.

I am not the same person I was just 10 years ago, and certainly not when I was in high school in the 1970s. I think back to some of the positions I held back then, some of my statements, and question my younger self.

Dan D. Gartzke, U.W. 1986, practices family law with Boardman & Clark LLP, Madison. In addition to serving on the State Bar of Wisconsin’s Executive and Finance committees, he is a member of the Children & the Law and the Family Law sections and the Senior Lawyers Division, and is a Fellow of the Wisconsin Law Foundation.

The world is simply not the same, and new facts present new perspectives. When the underlying facts change, any thoughtful person (which I like to consider myself) will always reexamine their opinions and their beliefs. It gives us the opportunity to explore where those original opinions and beliefs came from and whether we still hold them. Sometimes reexamination establishes the desire to stick with our original opinion, but sometimes reexamination shows us that however strongly we held a belief, it no longer makes sense and we can reject it. I understand that British economist John Maynard Keynes once said, “when the facts change, I change my mind. What do you do?”

I raise this here because I am bothered by the prevalence of attempts to “cancel” or censure people for past beliefs. Cancel culture is a form of public shaming that ignores nuance and can stifle free speech.

Our civil society requires discourse and discussion. We value the free exchange of ideas and honest debate. We do not and cannot shut down or ignore someone with whom we disagree. Instead, we should seek honestly and forthrightly to engage them in discussion. Maybe we can convince them to change their mind, but maybe we are the ones who will be convinced. No one has all the answers the first time, every time.

Allow yourself to make your own mistakes and to learn from them. Just as importantly, do not cut off contact from others or cancel them just because you disagree. That is intolerance and precludes any opportunity to challenge our own opinions and either reinforce them or discard them if they are no longer valid. And it most likely will not result in the person with whom you disagree changing their mind.

We can all expand our viewpoints by hearing from others.

» Cite this article: 99 Wis. Law. 4 (March 2026).

Your State Bar | Understanding the "And"

Jill Rothstein — 2026-03-09 00:00:00

I’ve been attentive to the significance of certain words lately, and how the meaning of one word can change something entirely. It’s stemming from a review of several vendor contracts, I am certain. As lawyers, we are trained to be hyper-aware of the difference we create with “may” instead of “shall”; or the problems that will result from a missing “not.” This has made me start thinking more broadly about the significance of “and.”

Jill Rothstein, South Carolina 1996, is the executive director for the State Bar of Wisconsin.

In improvisational acting classes, students are encouraged to keep the flow going by saying, “yes, and….” The idea is to introduce an entirely open and unlimited pattern of thinking. What would happen if we thought about things more like an improv class, using the framing of “yes, and” rather than “yes, but”? I wonder, if by choosing the “yes, and,” we could strengthen connections that would help us see things differently and perhaps understand one another better.

Lawyers are trained to seek alternatives – alternate explanations, alternate solutions, ways to problem-solve by including a variety of ideas in development of sound, reasonable, equitable solutions. What would happen if we sought those alternatives, those additional factors, that could connect us to one another? How can we be more aware of the “and” in our colleagues, our clients, our opponents? Would that reframing be beneficial to our clients as we advocate for them?

What would change if we focused more on “yes, and” in our practices? What could we change if we better understand the “and”?

I have no answers here. Instead, I offer this to you as a thought exercise. I invite you to share those with me.

» Cite this article: 99 Wis. Law. 6 (March 2026).

Q&A Profile | Chad W. Koplien: Serving a Cause Bigger than Oneself

2026-03-09 00:00:00

Chad W. Koplien, Marquette 1997, serves as Chief Legal Counsel for the Wisconsin Department of Veterans Affairs (WDVA). He previously served as an administrator and prosecutor for the Wisconsin Department of Safety and Professional Services (DSPS) and practiced litigation in the private sector. He is a member of the State Bar of Wisconsin’s Government Lawyers Division and Veterans of Foreign Wars.

Beginning in 1984, Chad Koplien’s military service includes enlisted and officer positions in the Air Force and Army. He was selected as Director, Staff Judge Advocate, for Wisconsin’s deployment to Combined Joint Task Force, Horn of Africa, in support of Operation Enduring Freedom. As the highest-ranking attorney on the Africa continent at the time, Koplien managed legal personnel from the Army, Navy, and Air Force in AFRICOM joint operations. (Fun Fact: Koplien swam with the whale sharks in the Gulf of Aden off the Red Sea – his only small break from deployment.)

Prior to his military retirement in 2025 as a lieutenant colonel, Koplien served as the deputy state judge advocate, spearheaded legal operations in Wisconsin’s 2020 pandemic response, led security missions for the 2020 and 2024 national political conventions, and coordinated civil unrest missions. Serving in a variety of legal management positions, he staffed legal operations in 18 state emergencies.

Koplien is a graduate of Marquette University Law School, the Judge Advocate General’s Legal Center and School and the Air War College. He holds a certification in Nursing Home Administration from UW-Madison and is a life member of the VFW and the National Guard Association.

We asked him to describe his work.

What are your primary functions on a daily basis at the Department of Veterans Affairs?

My chief legal activities break down as follows:

General Counsel: I manage the Wisconsin Department of Veterans Affairs’ (WDVA’s) Office of Legal Counsel and am the attorney for the Office of the Secretary. My legal sandbox includes state and federal laws and regulations under Wis. Stat. chapter 45, Wisconsin Administrative Code – VA, U.S.C. title 38, 38 C.F.R., and so on.

Healthcare law: I provide legal guidance on state nursing home and long-term care regulations, compliance surveys, HIPAA privacy, and contracts for our state veterans (nursing) homes in King, Union Grove, and Chippewa Falls.

Policy, benefits, and appeals: I provide legal opinions and reviews on state and federal veterans benefits, rulemaking, interagency issues, and legislation to the Secretary, department administrators and directors, the Wisconsin Veterans Museum, the Claims Bureau, the Board of Veterans Affairs, and the Council on Veterans Programs. I adjudicate appeals of veterans benefit denials as a Class III hearings officer under Wis. Stat. chapter 227.

Records custodian and ethics counselor: As the legal records custodian, I coordinate responses to records requests in accordance with Wis. Stat. chapter 19 and provide annual ethics training to state public officials and employees. I also regularly present continuing legal education programs to our department lawyers.

You have been chief counsel for more than a decade. What do you enjoy most about the role?

Dual roles: I thoroughly enjoy my position, and it has been an honor to be appointed as chief legal, which allowed me to serve as a reserve military lawyer while still serving veterans. Collaboration with chief legal counsels, AGs in other state agencies, and state government officials is pretty cool.

Leadership: Working as a government lawyer has provided significantly more leadership opportunities than in the private sector. The WDVA has augmented my military leadership experience earned in active-duty Air Force (RED HORSE), active-duty Army, while deployed, along with and many years later as a Wisconsin Guard judge advocate.

Public servant: I have served as chief legal under four Secretaries, both a Republican and a Democratic governor, and three Adjutant Generals in the Wisconsin Guard. My role has allowed me to serve veterans in a cause bigger than myself. It has also provided me with the security of deploying in support of Operation Enduring Freedom-HOA, a tour in Bavaria, Germany, and staff Covid, political convention, and security missions, without having to worry about a job on return.

What are the biggest challenges and how has the role evolved?

The role has evolved from being a classified position as a full-time state employee to that of a Secretary-appointed position under the authority and approval of the governor.

Some prominent challenges include the significant increase in public records requests. Many requests are complex and require interagency coordination, while some generate tens of thousands of pages of records, requiring high-level attention to detail.

One of the perks is getting to attend meetings in the Governor’s Conference Room, which is historical and exquisitely decorated. I appreciate the historical significance of that room. On its ceiling are the words: “The progress of a state is born in temperance, justice and prudence,” which I find to be very wise advice. I always rub the nose of the bronze badger at the entrance for good luck.

Why did you choose the career path you did and what words of advice would you have for attorneys interested in pursuing this type of legal work?

After my enlisted service, while pursuing an MBA, a professor asked me if I ever considered law school – I loved to read, write, and argue. I hadn’t, and he inspired me to change my majors to public administration and political science and join the debate team. I interned at a district attorney’s office. At Marquette, I gravitated to the trial advocacy curriculum and moot court. By the time I graduated, I had tried both a criminal and a civil jury case.

I first cut my teeth in general practice and public defender trial work in Milwaukee, then focused on plaintiff’s and insurance defense litigation statewide. I later refined my practice to business litigation and healthcare law in Madison. Commissioning as a judge advocate in 2008-09 (Army), after my years in private practice, I found it difficult to balance military service with the 50-70-hour workweeks required for me to meet billable targets. I actively sought out a state position and was hired by the Department of Safety and Professional Services.

I am grateful to the private sector for providing exposure to a wide variety of legal issues, but I have found gratification in my public servant role. The state offers more structure, collaboration, better health insurance, work-life balance, and a pension.

If my story resonates, my advice for interested attorneys is to monitor Wisc.Jobs for state jobs and USAJOBS for federal. For new lawyers and law students, agencies are always on the lookout for interns or limited-term employees. These positions get your toe in the door for a full-time position. Finally, to any lawyer interested in becoming a judge advocate, Wisconsin Lawyer magazine frequently lists openings for that position with the Wisconsin National Guard.

» Cite this article: 99 Wis. Law. 28-29 (March 2026).

Ethics | Speaking Publicly about Client Matters: Always Be Cautious

Dean R. Dietrich — 2026-03-09 00:00:00

Question

I have heard you talk often about the importance of an attorney protecting client information but also being allowed to disclose client information if impliedly authorized to represent the client. What does that mean?

Answer

SCR 20:1.6 of the Rules of Professional Conduct provides that all information learned by the attorney during the representation from all sources is considered confidential information not subject to disclosure by the attorney. There are exceptions to this mandate of confidentiality in specific situations, such as to address a claim against the attorney by the client.

Dean R. Dietrich, Marquette 1977, with the law firm of Weld Riley S.C., Wausau, is immediate past president of the State Bar of Wisconsin and chair of the State Bar Professional Ethics Committee.

One of the most important exceptions is that an attorney may disclose information if “impliedly authorized” to accomplish the purposes of the representation. As you might suspect, there is not a clear definition of what it means to be impliedly authorized to disclose client information. I addressed the concept of being impliedly authorized in articles published in the Wisconsin Lawyer in 2010.^[1]

In the age of technology and social media, there are a lot more questions about which information the attorney may disclose as part of the representation of a client. There is still, however, no bright-line test for whether the disclosure of information about the representation is impliedly authorized. It is obvious that an attorney is authorized to disclose information when talking to opposing counsel, but it is not clear whether the attorney is impliedly authorized to disclose information when considering a response to a social media post criticizing the conduct of the client in the matter that the attorney is involved in. It is acceptable to contact the client to obtain informed consent to disclose client information in the social media situation, but often the circumstances do not afford much time to make that happen.

Attorneys should be careful to not rely too much on the impliedly-authorized exception to disclose client confidential information. Attorneys should always ask themselves whether the disclosure of information in a response is necessary to further the interests of the client and accomplish the objectives of the representation. The Rules of Professional Conduct are considered rules of reason, so the judgment of an attorney to disclose confidential information will be subject to that reasonableness standard. It is important, however, for the attorney to take the time to consider whether the release of the client information is necessary and thereby impliedly authorized under the confidentiality rule.

I wish I could give a clear answer to the question of what is the standard for recognizing impliedly-authorized circumstances. Each situation is unique. The attorney must be careful and exercise caution when deciding whether to disclose client confidential information, especially on social media platforms.

Endnotes

1 Dean R. Dietrich, “Impliedly Authorized” Disclosure of Client Information, Wis. Law. (Oct. 2010); Dean R. Dietrich, Obtain Client’s ‘Informed Consent’ to Disclose Information, Wis. Law. (Nov. 2010).

» Cite this article: 99 Wis. Law. 31 (March 2026).

Solutions | Talk Is Not Cheap: Why Communication Is the Most Valuable Service You Provide

Andrew S. Kryder — 2026-03-09 00:00:00

Sometimes as a lawyer it’s easy to fall into the routine of focusing on the work: going to court, legal drafting, filing documents, arguing motions. It can become easy to put client communication on the back burner. As lawyers, we may know a case is advancing appropriately, but if we do not communicate updates to our clients they are left to wonder what is going on. In the eyes of the client, silence doesn’t signal diligence. It signals neglect and incompetence.

Let’s take a closer look at what the Wisconsin Rules of Professional Conduct require and what can happen when lawyers fail to communicate with their clients. Then let’s review some practical strategies to keep clients informed. Lastly, let’s reshape the way we view client communications. Regular client communication should not feel like a chore; instead, view it as an opportunity. When done right, it can be easy, keep you out of sticky ethical situations, improve your client relationships, and help your business grow.

The Duty to Communicate under SCR 20:1.4

The Wisconsin Rules of Professional Conduct make client communication a professional responsibility, not an optional courtesy.^[1]

Supreme Court Rule (SCR) 20:1.4(a) provides that a lawyer must:

Promptly inform the client of any decision or circumstance requiring the client’s informed consent,
Reasonably consult with the client about the means by which the client’s objectives are to be accomplished,
Keep the client reasonably informed about the status of the matter,
Promptly comply with reasonable requests for information, and
Consult with the client about any relevant limitation on the lawyer’s conduct.

SCR 20:1.4(b) goes further, stating:

“A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”

This can require you to explain complex legal issues in an easy-to-understand way. As lawyers, we are communicators. A major part of our job is to advise and communicate legal options. This is why clients hire us: for our expertise and guidance. Communicating that advice and guidance should always be a priority at every stage of the case. Think about communication with clients at each stage of representation. How are you currently communicating with clients as they are welcomed as a new client, during the representation process, and when you conclude their legal matter? Craft standard communications for each stage that can be easily modified.

Your clients shouldn’t be left guessing about their legal matter. Whether it’s a status update on discovery, the outcome of a motion, or the implications of a legal strategy, SCR 20:1.4 requires timely, clear, and consistent communication during the entire course of representation.

When Silence Becomes a Problem

When lawyers fail to communicate, there can be severe consequences ethically, professionally, and financially. Common problems that arise from poor client communication include the following:

Andrew S. Kryder, DePaul 1998, is the founding member of the Kryder Law Group LLC, Chicago. The firm focuses on personal injury matters throughout the state. He is licensed to practice law in Wisconsin and Illinois. A different version of this article appeared in the December 2025 issue of the Illinois Bar Journal.

Disciplinary complaints. Lack of communication is one of the most common reasons clients file grievances. In fact, the 2024 Wisconsin Office of Lawyer Regulation Annual Report noted that of the 1,729 grievances received, 896 or 51.8%, were made by clients. Moreover, 14.92% of the grievances involved lack of communication.^[2] In sum, keeping clients informed not only keeps clients happy, it can greatly reduce ethical concerns.

Loss of client trust. Even when no formal grievance is filed, lack of communication diminishes client trust and confidence. Clients often equate silence with neglect. Clients hire lawyers to help with sensitive legal matters: divorce, personal injury, real estate matters, criminal defense, and business disputes. The client is relying on you as a lawyer to guide them through a difficult, often complex, situation. Without regular communication clients are left to wonder if their legal matter is being neglected and whether their interests are being protected.

Negative financial consequences. Have you ever lost a client due to poor communication? Clients who feel ignored may seek other counsel, or refuse to pay legal bills, all of which impact your firm’s bottom line. Think about how much time, energy, and resources you invest in acquiring new clients. Don’t squander your efforts because you have not thought through how to deliver regular updates. A client lost because of poor communication is almost always preventable.

Bad reviews. Have you ever received a bad review that mentions poor communication? Dissatisfied clients are often the most vocal. Once the review is posted your reputation is tarnished and it can impact your law firm’s revenue. A recent study showed that as many as 98% of consumers rely on reviews to inform their purchase decision, with some consumers listing it as the number-one factor.^[3] As a lawyer you have an ethical duty to keep your clients informed. But also, as a law firm owner, you can’t afford to have your law firm branded negatively by dissatisfied clients. You can’t prevent every bad review, but you can minimize certain types of bad reviews through regular communication.

Tips to Comply with Ethics Rules and Keep You, Your Staff, and Clients Happy

Failing to properly communicate with our clients can have many negative consequences. The good news is that good communication, done correctly, can lead to many positive things in your practice. Here are some practical solutions to improve client communication in your practice.

Set expectations early. Start by establishing a communication policy at the very beginning of your representation. Let clients know you will contact them and how often they can expect updates. Establish what types of communications are billable and how clients can reach you in emergencies. Putting these things in your engagement letter or discussing the communication schedule helps avoid misunderstandings.

Use templates for routine updates. Not every update needs to be crafted from scratch. Create email templates for common milestones like “Complaint Filed,” “Discovery in Progress,” or “Mediation Scheduled.” These can be customized swiftly and go a long way toward keeping clients updated. Or consider using AI tools to help you craft first drafts of communications. When doing so, be sure to proofread drafts thoroughly.

Delegate strategically and thoughtfully. Train paralegals or support staff to provide certain types of updates under your supervision. Clients often just want reassurance that something is happening. A five-minute call from your assistant may make all the difference and save you the time of a much longer call at some point in the future.

Schedule communication as a task. Use your case management system or calendar to set reminders for regular check-ins with each client, even if there’s no major development. A simple “just checking in” message every so often can maintain rapport and prevent grievances. A simple phone call or email demonstrates to the client that you are attentive. Moreover, proactive communications are often better received than reactive communications.

Set aside time exclusively dedicated to client communication. Sometimes lawyers postpone call backs because they feel other things take priority. If you schedule time each week for calls and correspondence it can help manage your time and improve the level of communication provided. For example, let clients know that you schedule 10-15-minute status calls each Wednesday afternoon. This conditions you to make calls during this timeframe and conditions the client to know when they can schedule time with you. You can send clients a link to your calendar, making the scheduling process effortless. This manages your time efficiently and makes your clients feel that you are accessible. Software such as Calendly is affordable and easy to implement. If you are sending access to your calendar for scheduling purposes, make sure you and your staff do not inadvertently share the names of other clients or legal matters you may be handling.

Consider using videoconference calls. Videoconference calls create a scheduled beginning and end to the meeting. This way you do not get “stuck” on a call. A videoconference call also allows you to have a better read on your client’s understanding of the conversation. You may be explaining complicated legal issues. Having the ability to see your client’s reactions can help you gauge their level of understanding and whether additional explanation is warranted.

Take credit for what you have done. Being a lawyer can sometimes be a thankless job. You know how hard you are working for clients. Why not let them know too? When you complete something on a client’s case, call and tell them. By doing so, you are fulfilling your ethical responsibility, and they will likely be grateful for the update. You may even get a thank you.

One outbound call can prevent two incoming calls. Sometimes returning calls can feel like a chore, especially when it interrupts your day. Reducing unplanned calls can reduce your reluctance to promptly return a client call. We have all experienced the client who calls multiple times a day. Each time they call their level of frustration increases. When you are finally able to take the call or return the call, tempers have heightened. Regularly scheduled outbound status calls to your clients can eliminate, or drastically reduce, this type of occurrence. Avoiding these situations saves you and your staff time and frustration.

Just make the call. Even when it is bad news. Delivering bad news is never easy. As attorneys we sometimes have to relay disappointing news. Perhaps there was an adverse ruling or a deposition did not go as planned. A natural reaction may be to delay reporting unfortunate outcomes. However, postponing these types of conversations never makes it easier. Just make the call. Be even and direct. Most times the call will go better than what you had envisioned.

Conclusion: Communication as a Cornerstone of Practice

All too often, attorneys view communication as a secondary task or a chore. View regular communication with your clients as an opportunity to build relationships. Regular communication builds trust, prevents complaints, and benefits your bottom line. Plus, you will be surprised how grateful most clients are when you keep them informed.

Endnotes

1 All current Wisconsin Supreme Court Rules are available at https://www.wicourts.gov/supreme/sc_rules.jsp (last visited Feb. 3, 2026).

2 Office of Lawyer Regulation Annual Report: FY 2023/2024 at 20-21, https://www.wicourts.gov/courts/offices/docs/olr2024fiscal.pdf (last visited Feb. 3, 2026).

3 Subhash Jha, Abhijit Biswas & Prashanth Ravula, What Consumers Find Persuasive in Online Reviews, Harv. Bus. Rev. (Feb. 18, 2025), https://hbr.org/2025/02/research-what-consumers-find-persuasive-in-online-reviews.

» Cite this article: 99 Wis. Law. 33-36 (March 2026).

Practice Pulse | Take Back Your Time: A Practical Guide to Task Tracking, Delegation, and Block Scheduling

Brent J. Hoeft — 2026-03-09 00:00:00

Have you ever ended a long day at the office thinking, I was busy every minute of the day today… and yet somehow not a single task on my list was checked off? If you have, then you are not alone. Attorneys often find themselves trapped in an unrelenting vortex of email, administrative tasks, client demands, and the occasional crisis that arrives at 4:59 p.m.

But there is good news. It is possible to reclaim control of your time and your mental well-being. Two reasonably simple techniques may help you in that reclamation: 1) task tracking with delegation and 2) block scheduling. These are not the only methods for tackling the time management issue, but they are two of my favorites, so I suggest giving them a try.^[1]

Why Time Tracking and Delegation Matter More Than You Think

Most attorneys believe they have a good general sense of how they spend their time. But then they track it and discover something shocking; for instance, they see that they’ve been spending four hours per day on email, scheduling, or administrative tasks that could easily be delegated. Even just waiting until the end of the day to track billable time has been shown to cost attorneys 10-15% of potential billable hours.^[2]

Brent J. Hoeft, Cleveland State Univ. College of Law 2006, is the State Bar of Wisconsin’s practice management advisor and manager of the Practice411™ practice management program. If you have questions about technology, practice management, or the business aspects of your practice, call (800) 957-4670 or email practicehelp@wisbar.org.

Task tracking gives you data, not assumptions. Delegation analysis gives you task clarity. Block scheduling gives you control of your daily calendar.

Together, they help you:

Identify the time wasters (hello, inbox).
Spot tasks that could be delegated to staff or automated by technology.
Free up time for attorney-only tasks such as legal analysis, client counseling, strategic planning, and revenue-generating work.
Reduce burnout by preventing constant task switching.
Build a more predictable, profitable practice.

Part 1: The Task-tracking and Delegation Exercise

This exercise takes one week. If you want to devote more than a week for more data, then try two weeks. But I would stop there or else you risk losing momentum and getting too bogged down in the process rather than the results.

Track everything you do for one full week. Yes, everything. If you open an email, note it. If you spend 10 minutes hunting for a document, write that down. If you accidentally spend 20 minutes researching the most ergonomic keyboard … well, add that too.

Tips for success:

To track this data, use a spreadsheet, notebook, or practice management software. Whatever method works better for you is the tool you should use.
Record tasks in real time if possible. Memory fades quickly and we are not great at recreating in hindsight how we spend our time.
Include small tasks because they do add up; although the task may have been small, the mental toll transitioning to that task and back is a much higher cost. Again, think of that email notification that interrupts you that you know the answer to so you stop what you are doing to answer the email and then switch back to the original task at hand. The cost of switching is not just the five minutes it took you to review, think, and reply. You need to consider the mental toll of allowing the small interruptions to occur multiple times every day.

This exercise is a no-judgment zone. This is data gathering, not self-flagellation.

See the accompanying chart as an example of what a log should include.

Task	Description	Start Time	End Time	Duration	Code/Category
Enter what the task is	Enter a brief description	Time Started	Time ended	How many minutes?	• “Delegate” (can be delegated to tech or staff) • “Attorney” (can be delegated to another attorney) • “Me” (cannot be delegated to anyone else; requires you specifically)

Code each task using three categories. After the end of each day (or at the end of the week if you prefer), think about the tasks and label each task with one of the following:

The Delegate category are tasks that can be delegated to staff or technology. These tasks do not require legal judgment, or they require only limited oversight and could be delegated to a legal assistant, paralegal, receptionist, or automation tools.

Examples include the following:

Entering deadlines into a calendar
Sending routine followup emails
Creating standard documents or first drafts from templates
Scanning, filing, or organizing digital documents
Updating social media, marketing, and website(s)

The Attorney category are any tasks involving legal analysis, strategic decision-making, complex client counseling, court appearances, or drafting, reviewing, or signing certain documents. These tasks require an attorney but do not specifically require you. Obviously if you are the only attorney in the firm or there is no other attorney to reasonably delegate the task to, then this category merges with the next.

The Me category are tasks that are attorney level and also uniquely yours to do because they require certain expertise whether because of the client relationship, a supervisory obligation, or some other ethical requirement.

Keep in mind: The Me category should contain only things that you must do, not things that you will do yourself because it seems easier or faster to do so. Only tasks that truly require you, and only you, get this label.

Analyze your week. At the end of each day or if you prefer when your week is complete, tally up the numbers and determine:

Total hours
Hours by category or code
Percentage of time spent on delegable work (the sum of categories 1 (Delegate) and 2 (Attorney))

If your numbers are large, do not be alarmed. Again, data not judgment here.

Now ask yourself:

What would my practice look like if I gained 5-10 hours every week?

Which tasks caused stress or time (or both) but added no real value?

Which tasks could be easily done by staff members or technology with a checklist, template, or software?

This is when change begins to take shape.

Part 2: Delegation – Turning Data and Insight into Action

Now that you know how you spend your time, you can reassign tasks.

Delegation is a skill that needs to be developed. Ineffective delegation can cost your firm revenue and growth.^[3] Understanding different mindsets and approaches to delegation is important.^[4] The most straightforward strategy is to implement task-based delegation.^[5] The first step is identifying what to delegate, and the next step is identifying to whom tasks should be delegated.^[6] The list of daily tasks that can be delegated might be extensive. Trying to delegate all the tasks at once might be too big a project in and of itself. I recommend starting with the tasks that consume the most time, are least complex, are repetitive, or have an obvious technology or staff solution.

These might include the following:

Scheduling and intake
Billing and time entry
Drafting routine letters
Opening and closing files
Formatting documents
Entering data into case management systems
Updating social media, marketing, or websites

Build systems to support delegation. Sometimes people don’t delegate tasks because they think that it would be easier or quicker to do the tasks themselves than to train someone else to do them. To effectively delegate tasks you will need to get the instructions, formats, or processes out of your head and into a format that someone can repeatedly visit for a refresher.^[7] To assist with the delegated tasks, you will need to create things such as checklists, written workflows, screen recordings of processes, templates for documents and emails, and standardized naming conventions.

Having these tools easily accessible reduces errors, increases efficiency, builds trust with staff members, and prevents repeated requests from staff members that you show (or re-show) them how something is done.

Use technology wisely. Lawyers sometimes shy away from using technology as a solution to task delegation because they don’t think of themselves as being tech savvy. However, you don’t need to become a tech wizard; rather, you need to be competent in the use of specific tools that reduce work that doesn’t require deep thinking.

There are many options available to learn software and technology. Software companies have demonstrations, walk-throughs, and customer service videos available for you to watch online. Technology reviewers provide more information and details about products than you could have ever known to ask about. There are online forums of users asking and answering about common issues with programs, and artificial intelligence (AI) tools that can access the entirety of the internet to assist you with information and learning. There are many low-cost and no-cost opportunities to learn.

Some common technology software solutions to think about and investigate are the following:

Practice management software – These systems are affordable, user friendly, and capable of being your entire law office back end as well as part of the client-facing front end. These systems have features such as client filing system, document storage, calendar, time and billing, client portals, document automation, basic accounting, and more.^[8]

Automated appointment scheduling – Implementing online calendar and scheduling is a great way to save administrative time. These systems work from your custom availability set in your work calendar and allow clients and potential clients to schedule appointments during specific times you have made available. These systems reduce the back and forth and can be set up to provide auto-reminders about appointments, which reduce the number of no-shows.^[9]

Document automation tools – Software to create smart forms and templates, along with client questionnaires for automation of document creation, can substantially reduce errors and time to generate first drafts of documents. Many practice management systems offer basic document automation tools and more advanced document automation as an add on.^[10]

AI assistants for drafting, summarizing, or legal research – These tools are built for legal professionals specifically and are grounded in the libraries of trusted legal research companies. They increase productivity while decreasing research and summarization time.^[11]

Voice-to-text tools – If you are a slow typer but much better at dictation, then you should investigate using the built-in dictation tools inside of Word or look at a stand-alone program.^[12]

These are just a few suggestions for types of tools. There are many more beyond those mentioned so take some time to investigate these and other available solutions. Your future self will thank you.

Block Scheduling – Take Back Control of Your Schedule

Once you clean up your task list and determine what can be delegated, block scheduling will help you control your calendar instead of reacting to it. It reduces stress, protects focus, and keeps the practice running smoothly.

Think of block scheduling as grouping similar work into protected time blocks so you’re not constantly switching between tasks.^[13]

Key benefits of block scheduling are that it:

Reduces cognitive switching costs,
Helps you stay proactive instead of reactive,
Ensures important work is scheduled, and
Creates predictable routines.

Here is an easy way to implement block scheduling. First, identify your work categories. These are unique to you and your practice. But some common ones for attorneys include:

Email and other types of communication
Client work
Administrative tasks
Billing and financial review
Business development
Court and meeting time
Deep work and focused drafting

It is just as important to identify when you work best. Do not schedule deep, focused work for the time of day when you’re typically most tired. Instead, schedule staff meetings or work that doesn’t require concentration during those times. If you are not a morning person and it takes you some time to get your brain firing on all cylinders, then do not schedule your deep work first thing in the morning.

Assign time blocks. Now let’s look at what a block schedule for a workday might look like. Here is an example:

8:00-9:00 a.m.: Administrative tasks and delegation review

9:00-10:00 a.m.: Email and communication (return phone calls)

10:00-Noon: Deep work and drafting or client meetings

Noon-1:00 p.m.: Lunch or working lunch – emails and communication

1:00-2:00 p.m.: Meet with staff

2:00-4:00 p.m.: Client legal work or client meetings

4:00-5:00 p.m.: Email and communication

5:00-5:30 p.m.: Daily debrief and block planning for next day

Protect the blocks. Treat these blocks like appointments with your most important client – your future self. Everyone should understand that these blocks should not be interrupted unless there is a true emergency that needs immediate attention.

Adjust weekly. Your schedule should evolve based on your workload changes, court schedules, staff availability, and so on. Block scheduling is a system, not a prison. Planning your block for the week should be flexible and realistic. You should also revisit your weekly plan as your week progresses. Be consistent yet allow yourself a degree of flexibility with these block plans.

Be sure to leave enough buffer time for unexpected issues and allow flexibility to address truly urgent matters. Know yourself – do not schedule demanding work during your low-energy times. If you know that you are always tired after lunch, then return phone calls and email during that period rather than blocking that time for drafting or other deep-focus work.

Final Thoughts: Your Time Is Your Most Valuable Asset

Time is the one thing we cannot make more of or get back once it is gone. Solo and small-firm attorneys wear many hats, but not every hat has to sit on your head at the same time, and not every hat needs to be designed to fit only you. Task tracking shows where your time is going. Delegation frees up hours for meaningful legal work (or for going home before dark). Block scheduling helps you stay focused and intentional on the intended tasks.

You might not need a bigger firm. You might not need a clone. You might just need better systems and to hold yourself accountable to those systems.

Start with one week of tracking. Then delegate and hold yourself accountable to your block schedule each week. The results will speak loudly. Maybe even loudly enough that your future practice will thank you.

Endnotes

1 Univ. of Georgia Extension, Time Management: 10 Strategies for Better Time Management, Field Report C1042 (2024), https://fieldreport.caes.uga.edu/publications/C1042/time-management-10-strategies-for-better-time-management/; see also upGrad, Top Time Management Techniques and Tools for 2025: Features and Benefits (Aug. 22, 2025), https://www.upgrad.com/blog/time-management-techniques-and-tools/; Safe Productivity Team, Time Management Strategies: 15 Proven Techniques for Maximum Productivity (Sept. 24, 2025), https://safeproductivity.org/guides/time-management-strategies/.

2 Tom Boster & Scott Brenann, Why Poor Timekeeping Could Be Costing Your Firm (And How to Fix It), Legal Management (June 2021), https://www.alanet.org/legal-management/2021/june/columns/why-poor-timekeeping-could-be-costing-your-firm-and-how-to-fix-it.

3 Eliot Gattegno, Athena, & Nadav Klein, The Art of Delegation, Insead Knowledge (Jan. 13, 2025), https://knowledge.insead.edu/leadership-organisations/art-delegation.

4 Id.

5 Id.

6 Univ. of Minn. Off. of Hum. Res., Delegation – Quick Guide to Delegation, https://hr.umn.edu/supervising/resources/Delegation.

7 Id.

8 For a list of practice management software providers, see the State Bar of Wisconsin’s Member Discount Page, https://www.wisbar.org/aboutus/membership/membershipandbenefits/Pages/Case-Management-Software.aspx.

9 Some available options are Calendly, https://calendly.com; Microsoft Bookings (included with Microsoft365 Business Basic or higher); and Acuity, https://acuityscheduling.com.

10 There are also a couple stand-alone document automation programs, like Clio Draft, https://www.clio.com/draft; Gavel, https://www.gavel.io; and several products from TheFormTool, https://theformtool.com/software-comparison.

11 See, for example, Clio Work, https://www.clio.com/work/ai-legal-research; vLex Vincent, https://vlex.com/vincent; Thomson Reuters CoCounsel Legal, https://legal.thomsonreuters.com/en/products/cocounsel-legal; Lexis Nexis Protégé, https://www.lexisnexis.com/en-us/products/protege.page.

12 One such program is Nuance’s Dragon Legal, https://dragon.nuance.com/en-us/dragon-legal.

13 Todoist, Time Blocking – Your Complete Guide to More Focused Work (2025), https://www.todoist.com/productivity-methods/time-blocking; see also Cool Timer, The Science Behind Effective Time Blocking Strategies (Jan. 21, 2024), https://cool-timer.com/blog-pages/science-behind-time-blocking.

» Cite this article: 99 Wis. Law. 37-41 (March 2026).

Technology | AI and Expert Witnesses: Not Replacement But a Strategic Imperative

Michael C. Maschke, Sharon D. Nelson & John W. Simek — 2026-03-09 00:00:00

Lawyers have long known that expert testimony can make or break a case. Whether the issue concerns damages, causation, medical matters, engineering analysis, or economic modeling, experts provide the specialized knowledge courts rely on. Artificial intelligence (AI) has now entered this space, not as a replacement for experts but as a tool reshaping how expert testimony is analyzed, prepared, and challenged.

To be clear, no AI system is about to take the stand. What AI can do, and already does, is change the mechanics of how expert evidence is reviewed and tested. Used thoughtfully, AI offers real strategic advantages. Used carelessly, it can undermine credibility and, in some cases, lead to the exclusion of crucial testimony.

What we are seeing is not an AI takeover of expert witnesses but a supplemental model in which lawyers and experts use AI to amplify insight and scrutiny.

AI as a Litigation Multiplier

One of the most powerful uses of AI in expert work is large-scale review. Expert reports, deposition transcripts, prior testimony, data tables, and technical literature can now be analyzed at a scale no human team could reasonably manage. AI tools can flag internal inconsistencies, identify conflicts with prior opinions, and surface alternative explanations that might otherwise go unnoticed.

Michael C. Maschke is the president and chief executive officer of Sensei Enterprises Inc. He is an EnCase Certified Examiner (EnCE), a Certified Computer Examiner (CCE #744), an AccessData Certified Examiner (ACE), a Certified Ethical Hacker (CEH), and a Certified Information Systems Security Professional (CISSP). He is a frequent speaker on IT, cybersecurity, and digital forensics, and he has coauthored 14 books published by the American Bar Association.

Sharon D. Nelson is the co-founder of and consultant to Sensei Enterprises Inc. She is a past president of the Virginia State Bar, the Fairfax Bar Association, and the Fairfax Law Foundation. She is a coauthor of 18 books published by the American Bar Association.

John W. Simek is the co-founder of and consultant to Sensei Enterprises Inc. He holds multiple technical certifications and is a nationally known digital forensics expert. He is a coauthor of 18 books published by the American Bar Association.

This changes the dynamic in the war room. Instead of spending countless hours on review, lawyers can focus on interpretation, judgment, and strategy. AI does all the heavy lifting, and lawyers can decide what matters.

Sharpening the Edge on Cross-Examination

AI is also being used to simulate adversarial questioning. By feeding an expert’s report and prior statements into a model configured to challenge assumptions and probe weaknesses, lawyers can pressure-test testimony before it ever reaches the courtroom.

This does not replace traditional mock examinations. It enhances them. Experts can refine responses, anticipate lines of attack, and identify weak points early. On the flip side, lawyers challenging opposing experts can use AI to synthesize prior testimony and technical literature into focused lines of cross-examination that expose contradictions or unsupported assumptions.

Translation, Accessibility, and Persuasion

Expert testimony often fails not because it is wrong but because it is incomprehensible. AI can help translate dense technical analysis into language that judges and juries can understand.

Used properly, AI can help recast complex engineering conclusions into practical explanations, distill economic models into plain language, and highlight the core takeaways without distorting substance. This is not about dumbing things down. It is about effective communication.

Lawyers who can present expert findings clearly and persuasively will always have an advantage over those who bury the factfinder in technical jargon.

Hallucinations and Overreliance Are Real Risks

The risks of AI use are not hypothetical. Courts have already rejected expert submissions that included AI-generated citations or analyses that did not exist. In those cases, the very tool meant to improve efficiency became a source of false information because it was not adequately supervised.

This is a cautionary tale every litigator should internalize. AI can generate content that looks plausible but is not real. A human must still verify every citation, dataset, and conclusion. The duty to ensure accuracy has not changed.

Ethics and Best Practices

AI is not a magic solution. Responsible use in expert work requires structure and discipline.

Lawyers should clearly document how AI tools were used in preparation or review of expert testimony. Experts should receive guidance on avoiding hallucinatory content and ensuring that all conclusions are independently validated. Confidential data must be protected, and sensitive material should not be fed into tools that lack appropriate safeguards.

Transparency also matters. As courts become more familiar with AI, judges may expect disclosure when AI plays a meaningful role in expert analysis. That expectation is not about discouraging the use of AI. It is about maintaining trust in the reliability of evidence.

The Bottom Line

AI is not replacing expert witnesses, but it is transforming how expert testimony is handled in litigation. Lawyers who use AI thoughtfully can review more material, prepare more effectively, and present complex ideas more clearly.

Those who ignore it risk falling behind. Those who misuse it risk harming their cases and their credibility.

At its best, AI turns overwhelming volumes of information into actionable insight. At its worst, it turns fiction into fact. The difference is human oversight, and that responsibility still rests squarely with the lawyer.

» Cite this article: 99 Wis. Law. 43-44 (March 2026).

Final Thought | Women's History Month: Reframing the "Fight" for Equal Opportunity as a Collaboration

Lauren Maddente — 2026-03-09 00:00:00

Women’s History Month can have the most impact when we not only remember those who came before us but contemplate how we can build on their progress. For generations, women worked and sacrificed to improve the financial and personal conditions of women in many fields – science, medicine, business … and law. Early trailblazers’ strides proved what was possible, totally changing the way that women work and live.

Lauren E. Maddente, Marquette 2016, practices with Fox O’Neill & Shannon SC, Milwaukee. She is the current president of the Association for Women Lawyers and a member of the State Bar of Wisconsin’s Business Law, Litigation, and Real Property, Probate & Trust Law sections.

Law was once completely male-dominated with enormous entry barriers. Historically, women used their voices and intellect to fight blatant, sexist discrimination. Before advancing to U.S. Supreme Court justice, for example, Ruth Bader Ginsberg fought tirelessly to guarantee freedom from sex discrimination, contributing to and winning landmark cases including Reed v. Reed and Frontiero v. Richardson.

Charlotte E. Ray, applying under the name C.E. Ray, successfully fought to get into law school when women were openly discouraged from applying. Ray became the first African American woman lawyer in the U.S. and the first woman admitted to the D.C. bar.

Lavinia Goodell, Wisconsin’s first female attorney, fought to overcome discriminatory practices after the Wisconsin Supreme Court denied her bar admission based on gender. She fought to introduce and pass a law prohibiting that very conduct.

Despite graduating at the top of her law school class, Sandra Day O’Connor was rejected for attorney openings and only offered secretarial positions. She persisted until she was hired as a deputy county attorney. In 1981, the U.S. Senate unanimously confirmed her appointment as the first woman Supreme Court justice.

The progress made in the decades since Goodell’s bar admission has been significant. According to the ABA’s National Lawyer Population Survey, resident active female lawyers in the U.S. increased from 34.7% in 2015 to 41.3% in 2025 alone. While that statistic reflects tremendous growth, many do not consider the fight over.

But should it be? And is achieving an equal percentage of legal representation necessarily “winning?”

More women have a seat at the table. Now that we are here, perhaps it is time to reframe the fight for women’s equality in our profession.

Ruth Bader Ginsberg, Charlotte E. Ray, Lavinia Goodell, and Sandra Day O’Connor did not fight so that we could, or would, fight forever. Now that women are a substantial presence and a significant asset in the legal field, maybe it is time to recharacterize the “fight” for equal rights and equal opportunity as a collaboration. How can we work together to promote equal rights and equal opportunity?

We have not stopped and should never stop efforts to build community, work together, and improve workplace conditions. That means remembering our history but viewing it with a generosity of spirit that drives us to welcome all people into our tent.

In my years working with the Association for Women Lawyers, I have seen our members do just this in ways big and small.

All professional organizations should consider that perhaps less focus on the fight, and more focus on collaboration, will ratify and continue our predecessors’ hard work.

» Cite this article: 99 Wis. Law. 56 (March 2026).

Briefly

2026-03-09 00:00:00

Spotlight
Ukrainian Athlete Banned from Winter Games in Italy

One of the disputes arising from the 2026 Winter Olympic Games in Italy was the case of Ukrainian skeleton racer Vladyslav Heraskevych, who had planned to compete wearing a helmet honoring Ukrainians killed in the war with Russia.

Moments before Heraskevych was set to compete, the president of the International Olympic Committee informed him that he could not race. Olympic rules bar athletes from engaging in political speech.

Meanwhile, Russia (as a country) has faced suspension from the Olympic Games for nearly a decade, first for its state-sponsored doping program.

In 2023, the International Olympic Committee again suspended Russia because the Russian Olympic Committee “had moved … to incorporate sports bodies from four Ukrainian regions that it occupies, a breach of Olympic rules on territorial integrity.”

Under that indefinite ban, Russian athletes can still compete under the banner of “individual neutral athletes,” and did so in Italy last month.

Sources: New York Times; International Olympic Committee

On the Radar
Wisconsin Supreme Court Candidates to Debate on March 25

Candidates running for the Wisconsin Supreme Court in the April 7 election, Maria Lazar and Chris Taylor, will engage in a debate on March 25 from 7 p.m. to 8 p.m. at the Lubar Center at Marquette University.

Matt Smith and Gerron Jordan of WISN 12 will moderate the debate.

How to watch: It will be livestreamed on wisn.com and on WISN 12’s free streaming app.

It will also be aired at WISN 12 in southeastern Wisconsin as well as at partner stations in Green Bay (WBAY), Madison (WKOW), Wausau (WAOW), Eau Claire (WQOW), and
La Crosse (WXOW).

Source: Associated Press

Got a Nugget to Share?

Send your ideas for interesting facts, trends, tips, or other bits and bytes to wislawmag@wisbar.org, or comment below.

From the Archives
The First Women Judges in Federal Court

In 1928, President Calvin Coolidge appointed Genevieve Rose Cline to the U.S. Customs Court. She was the first woman to serve on the federal bench.

In 1934, President Franklin D. Roosevelt appointed Florence Allen to the U.S. Court of Appeals for the Sixth Circuit. She was the first woman to serve as an Article III judge.

In 1949, President Harry S. Truman appointed Burnita Shelton Matthews as the first woman to serve as a U.S. district judge.

As of Aug. 1, 2024, 33% of Article III judges were women.

Sources: U.S. Courts; ABA Profile of the Legal Profession 2024.

By the Numbers
63

The number of circuit court judges that Wisconsin Gov. Tony Evers has appointed over seven years in office, as of Jan. 5, 2026. He also appointed six judges to the Wisconsin Court of Appeals.

The governor may temporarily appoint judges to fill vacancies until an election is held.

Source: Isthmus

Did You Know?
Sans Serif Takes the Lead

Under 2025 Wisconsin Act 72, effective Dec. 11, 2025, all legal notices required to be published in newspapers must be published in a sans serif typeface. Under prior law, legal notices were required to be published in Arial typeface.

The Wisconsin Newspaper Association supported the change, stating in legislative documents that “some newspapers are now struggling to meet the Arial requirement because of the layout and design platform that they use” and the “Arial typeface in some instances is no longer available to the newspaper.”

Source: Wisconsin Legislature

» Cite this article: 99 Wis. Law. 8 (March 2026).

Snapshot

2026-03-09 00:00:00

Welcome new lawyers. In January, 19 new lawyers took the oath of admission in the Wisconsin Supreme Court Hearing Room. Photo: Shannon Green

MBA Judges Night. Last month, the Milwaukee Bar Association (MBA) held its annual Judges Night at The Grain Exchange in Milwaukee. In this photo, Emil Ovbiagele, immediate past president of the MBA, engages with Ryan Billings (left), immediate past president of the State Bar, and Jonathan Gruhl (right) of Gruhl Law Firm. Ovbiagele is also a member of the State Bar’s Board of Governors. Photo courtesy of the MBA.

New milestone. Former State Bar Executive Director Larry Martin (right) celebrates with Wisconsin Law Foundation President Francis Deisinger (center) and State Bar Executive Director Jill Rothstein (left) as Martin’s donation helps take the Foundation corpus over the $4 million mark. Martin, who retired last year, was instrumental in the fundraising efforts leading to the milestone. Photo: Shannon Green

Leading the way. The 2026-27 Class of the State Bar’s G. Lane Ware Leadership Academy had its second session Jan. 16-17, at the State Bar Center in Madison. Photo: Kara Olson

Save the date. The State Bar’s 2026 Annual Meeting & Conference (AMC) will take place June 10-12 at the La Crosse Center in La Crosse. Last year, Wisconsin Attorney General Josh Kaul (photo, above) was one of the AMC’s featured speakers, and Bucky and the University of Wisconsin Marching Band made an appearance.

» Cite this article: 99 Wis. Law. 9 (March 2026).

Supreme Court Digest

Daniel D. Blinka & Thomas J. Hammer — 2026-03-09 00:00:00

Criminal Procedure

Search and Seizure – Private Search Doctrine

State v. Gasper, 2026 WI 3 (filed Jan. 14, 2026)

HOLDING: The Fourth Amendment was not implicated in this case because the private search doctrine applied.

Prof. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.

Prof. Thomas J. Hammer, Marquette 1975, is an emeritus professor of law and the former director of clinical education at Marquette University Law School, Milwaukee.

SUMMARY: Law enforcement officers obtained a warrant for Gasper’s cell phone after the National Center for Missing and Exploited Children (NCMEC) forwarded a CyberTipline report (which included a single, flagged, 16-second video) from Snapchat to the Wisconsin Department of Justice (DOJ). No person at Snapchat or NCMEC viewed the contents. Instead, Snapchat scanned its platform and identified the video file it flagged as known CSAM (child sexual abuse material) using a hash-based scanning program. [A hash value is a string of characters obtained by processing the contents of a given computer file and assigning a sequence of numbers and letters that correspond to the file’s contents (see ¶ 7 n.8).]

“The flagged video was first viewed by a person when an employee of the DOJ did so without a warrant. Then the CyberTip with the flagged video was forwarded to local law enforcement who also viewed the video without obtaining a warrant” (¶ 2).

Gasper (the defendant) was charged with 10 counts of possessing child pornography and nine counts of child exploitation based on the content on the cell phone. The defendant moved to suppress this evidence on the basis that it was obtained in violation of his Fourth Amendment rights. He relied entirely on the argument that the government exceeded Snapchat’s private search because a person in the government was the first to open and view the video and did so without a warrant (see ¶ 5).

The circuit court granted the motion to suppress. In a published opinion, the court of appeals reversed the circuit court. See 2024 WI App 72.

In a majority opinion authored by Justice Ziegler, the supreme court affirmed the court of appeals. It concluded that the private search doctrine applied in this case. “While the private search doctrine most often involves a person who has seen the evidence and then turns it over to law enforcement, the doctrine itself does not require that a person actually view the evidence. Whether a Snapchat employee viewed the video or not is of no moment to the private search doctrine, because the private search doctrine allows the government to review what a private actor has already searched, so long as there is a virtual certainty that its search will disclose nothing more of significance than what the private party search revealed” (¶ 40).

In concluding that the private search doctrine applied in this case, the majority indicated that “[i]t is undisputed that Snapchat performed a private search when it scanned and flagged the single, 16-second video as CSAM. The government did not exceed the scope of Snapchat’s search when it viewed the video because any expectation of privacy Gasper may have had in the video was frustrated by the private search, and there was virtual certainty that law enforcement would not find anything of significance beyond what the private search revealed. As a result, the Fourth Amendment is not implicated” (¶ 52).

Justice Ziegler, author of the majority opinion, also filed a concurrence. Justice Dallet filed a concurring opinion that was joined in part by Justice Crawford. Justice Hagedorn filed a concurring opinion that was joined by Chief Justice Karofsky and Justice Protasiewicz. Justice Crawford filed an opinion concurring in part and dissenting in part that was joined in part by Justice Dallet.

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» Cite this article: 99 Wis. Law. 46 (March 2026).

Court of Appeals Digest

Daniel D. Blinka & Thomas J. Hammer — 2026-03-09 00:00:00

Criminal Law

Domestic Abuse Repeater Statute – Calculation of Eligibility

State v. Ricketts, 2026 WI App 4 (filed Dec. 9, 2025) (ordered published Jan. 28, 2026)

HOLDING: The defendant’s prior record qualified him as a “domestic abuse repeater.”

SUMMARY: Under Wis. Stat. section 939.621, a defendant qualifies as a “domestic abuse repeater” if, during the 10-year period preceding the commission of an offense, the defendant “was convicted on 2 or more separate occasions” of certain crimes involving domestic abuse. See § 939.621(1)(b) (¶ 1). If a person who is a domestic abuse repeater “commits an act of domestic abuse, as defined in § 968.075(1)(a) and the act constitutes the commission of a crime, the maximum term of imprisonment for that crime may be increased by not more than 2 years.” In addition, this penalty increase “changes the status of a misdemeanor to a felony” (¶ 6) (citation omitted).

The issue in this appeal concerned the interpretation of the statutory phrase “was convicted on 2 or more separate occasions.” The circuit court interpreted this phrase to mean that the defendant’s prior convictions for domestic abuse offenses must arise out of “two separate incidents”; in other words, there must be two “separate dates of offense.” Because the defendant in this case was convicted of two prior domestic abuse offenses that arose out of the same incident and had a single offense date, the court concluded that he did not qualify as a domestic abuse repeater. The circuit court therefore granted a defense motion to strike the domestic abuse repeater enhancer (see ¶ 1).

In an opinion authored by Judge Hruz in this interlocutory appeal, the court of appeals reversed. The court concluded that “a person is a domestic abuse repeater if he or she was convicted of two or more qualifying domestic abuse offenses during the requisite statutory time period, regardless of whether those convictions arose out of the same incident, had the same offense date, or occurred during the same court appearance. Consistent with [State v.] Wittrock [119 Wis. 2d 664, 350 N.W.2d 647 (1984)] and [State v.] Hopkins [168 Wis. 2d 802, 484 N.W.2d 549 (1992)], what matters is the quantity of the defendant’s prior domestic abuse crimes, not the time of commission or the time of conviction” (¶ 37). In Wittrock and Hopkins, “the supreme court interpreted nearly identical language in the closely related general repeater statute” (Wis. Stat. § 939.62) (¶ 30).

The defendant’s record as described above qualified him as a domestic abuse repeater. Accordingly, the court of appeals reversed the circuit court’s order striking the domestic abuse repeater enhancer from the charges in this case, and it remanded the matter to the circuit court for further proceedings consistent with this opinion (see ¶ 53).

Evidence

Experts – Compensation – Disqualification

Kyllonen v. Artisan & Truckers Cas. Co., 2026 WI App 2 (filed Dec. 10, 2025) (ordered published Jan. 28, 2026).

HOLDING: It was reversible error to exclude expert testimony by the plaintiff’s treating physicians.

Prof. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.

Prof. Thomas J. Hammer, Marquette 1975, is an emeritus professor of law and the former director of clinical education at Marquette University Law School, Milwaukee.

SUMMARY: The plaintiff brought a personal-injury lawsuit for injuries suffered in a car accident. The trial judge ruled that the plaintiff’s treating physicians were precluded from testifying by Wis. Stat. section 907.02(2). Following a trial, the plaintiff appealed the judge’s pretrial ruling.

The court of appeals reversed, and granted a new trial on the issue of damages, in an opinion authored by Judge Grogan. The court held that the trial judge misinterpreted Wis. Stat. section 907.02(2), which provides that “the testimony of an expert witness may not be admitted if the expert witness is entitled to receive any compensation contingent on the outcome of any claim or case with respect to which the testimony is being offered” (¶ 12). The three physicians had treated the plaintiff for his injuries. The plaintiff’s counsel had promised to “protect” the physicians’ claims to payments for providing medical services.

The court carefully construed the terms “compensation” and “contingent” while also considering the context in which they are used in Wis. Stat. section 907.02(2). “Stated otherwise, to preclude an expert witness from testifying under § 907.02(2), there must be an agreement that the expert witness is exchanging the testimony for payment for the testimony itself that will only occur if the lawsuit resolves in the proponent’s favor” (¶ 21).

The “broad reading” urged by the defense would lead to an “absurd and unreasonable result because doing so would necessarily exclude the testimony of any treating doctor who provided medical treatment to a plaintiff based solely on the fact that outstanding bills remained for that medical service. Under such a broad interpretation, any service provider’s outstanding bills could constitute ‘compensation’ that is ‘contingent’ on the outcome of a case if a successful outcome would ultimately increase the party’s ability to satisfy [the party’s] financial obligations for the non-testimonial services rendered. Thus, whether an expert witness could testify would turn on whether a party proponent had the ability to pay for non-testimonial related services incurred prior to trial” (¶ 22).

The letter by the plaintiff’s lawyer functioned as a “medical lien.” It did not waive the plaintiff’s responsibility for the medical bills. Nor was there an agreement that these physicians would be paid a contingent fee only if they testified at trial (see ¶ 24). “Put simply, the fact that Kyllonen’s success at trial may ultimately have impacted his ability to pay his outstanding medical bills did not transform his financial obligations into contingency payments or contingent compensation within the meaning of Wis. Stat. § 907.02(2)” (¶ 26).

Torts

Products Liability – Warnings – Misuse – “Sham” Affidavit

Aker v. Good Sportsman Mktg. LLC, 2026 WI App 3 (filed Dec. 4, 2025) (ordered published Jan. 28, 2026)

HOLDING: Disputed issues of material fact foreclosed summary judgment in this products-liability case.

SUMMARY: Aker was seriously injured while hunting in a tree stand when the safety-harness system failed. He sued the manufacturer. The circuit court granted summary judgment in favor of the defendants.

The court of appeals reversed in an opinion authored by Judge Graham. “Aker was injured when the buckle release loop on the subject harness system broke … because Aker misused the harness system by [incorporating a carabiner]…. The instructions for the subject harness system … explained how to properly connect the harness to the subject tree strap, but Aker did not review those instructions…. There were no warnings on the subject tree strap itself that would have alerted Aker that the buckle release loop was not intended for carabiner attachment and was not strong enough to bear his weight” (¶ 29).

The defense contended that the plaintiff’s misuse of the harness was not reasonably foreseeable. The court disagreed. “[F]or purposes of reasonable foreseeability, the issue here is whether the defendants could have foreseen that a consumer might misuse the subject harness system by attaching a carabiner to the buckle release loop. A … jury could determine that it was foreseeable that some potential users might misuse the subject harness system in this manner” (¶ 40).

Nor did it matter whether the plaintiff’s decision to use a carabiner stemmed from his experience with a tree strap made by other manufacturers: “a jury could conclude that the defendants should have foreseen that the buckle release loop … presented a hidden hazard to consumers” (¶ 42).

The court then rejected the contention that the plaintiff’s later affidavit on this point, which differed from his deposition, violated the “sham affidavit rule.” The differences reflected only an “evolution in Aker’s understanding [that] readily explain the slight differences between the affidavit and the deposition testimony” (¶ 47).

Two other points merit mention here. First, this was not an “extreme case” in which the record showed that the plaintiff’s conduct was so unreasonable and dangerous that his contributory negligence precluded judgment against the defendants (¶ 56).

Second, the plaintiff’s claims were not precluded by Wis. Stat. section 895.047(1)(d) or the case law on strict products liability because of the “change” made by the plaintiff (¶ 57). “Here, … the carabiner did not fail and it was not the aspect of the subject harness system that allegedly made it ‘dangerously defective.’ Instead, … the buckle release loop on the tree strap … was dangerous because it did not contain a warning to alert the user that it was not intended to be used with a carabiner or to bear weight. This aspect of the subject harness system indisputably existed at the time the product ‘left the manufacturer’s control’” (¶ 62).

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» Cite this article: 99 Wis. Law. 47-48 (March 2026).

Lawyer Discipline

2026-03-09 00:00:00

The Office of Lawyer Regulation (OLR), an agency of the Wisconsin Supreme Court, provides these summaries. The OLR assists the court in supervising the practice of law and protecting the public from misconduct by lawyers. The OLR has offices at 110 E. Main St., Suite 315, Madison, WI 53703; toll-free (877) 315-6941. Find the full text of these summaries at wicourts.gov/olr.

Disciplinary Proceeding Against Bryant H. Klos

On Jan. 7, 2026, the Wisconsin Supreme Court publicly reprimanded Bryant H. Klos and ordered him to pay the cost of the disciplinary proceeding, which totaled $8,378.50. Disciplinary Proc. Against Klos, 2026 WI 1.

In 1990, a woman died, leaving a life interest in various assets to her husband. In 2007, the husband died. In December 2010, Klos filed a petition for special administration, to open a probate matter to disburse the assets that had been part of the husband’s life estate. The court appointed the wife’s nieces as special administrators.

Between the time of the filing and August 2013, little activity occurred on the case, apart from the court issuing several notices to close the estate and Klos filing several petitions to extend the time to close the estate.

In September 2013, the court issued an order approving the heirs’ agreement as to how the assets should be divided. Klos worked on the matter in fits and stops between then and September 2023, at which time the Office of Lawyer Regulation (OLR) filed a complaint alleging Klos had violated SCR 20:1.3 regarding his handling of the estate. The estate remains open as of the writing of this summary.

The parties entered into a stipulation in which Klos pled no contest to a single count of a violation of SCR 20:1.3 and the parties agreed that certain mitigating and aggravating factors should be considered when determining sanctions. The OLR sought a 60-day suspension. Klos argued a public reprimand was appropriate. The referee assigned to handle the matter issued a report concluding there was an adequate factual basis to accept Klos’ no-contest plea and recommended Klos be publicly reprimanded.

While the court found the OLR’s pursuit of a 60-day suspension was “not unreasonable,” it concluded a public reprimand was appropriate in this matter. The court specifically noted two mitigating factors: lack of prior discipline and lack of financial motive. Although Klos argued that his early acceptance of responsibility warranted a reduction in the amount of costs he should be ordered to pay, the court found no exceptional circumstances to justify a departure from the general rule in SCR 22.24.

Klos had no prior discipline.

Public Reprimand of Joseph F. McDonald

The Office of Lawyer Regulation (OLR) and Joseph F. McDonald entered into an agreement for the imposition of a public reprimand, pursuant to SCR 22.09(1). A Wisconsin Supreme Court-appointed referee approved the agreement and issued the public reprimand on Dec. 29, 2025, pursuant to SCR 22.09(3).

The public reprimand is the result of McDonald’s misconduct in two client matters. In the first matter, McDonald represented the plaintiff in a defamation and invasion-of-privacy action. The lawsuit named three defendants. One of the defendants was dismissed after the court found there was no vicarious liability for the actions of the other defendants. McDonald violated SCR 20:1.1 when he 1) failed to properly determine the filing deadline to reply to the remaining two defendants’ counterclaims, resulting in default judgment; 2) failed to submit evidence in opposition to the defendants’ motion for summary judgment; 3) submitted evidence that was not newly discovered in support of a motion to vacate summary judgment; and 4) failed to file a brief or submit evidence in support of a motion to vacate default judgment.

In the second matter, McDonald represented a client who had pled guilty to criminal trespass and aggravated battery with intention to cause great bodily harm and was being sued by the victim. McDonald failed to timely file an answer to the complaint, in violation of SCR 20:1.3. He also placed an advanced payment of fees into his business account without providing the notices required under SCR 20:1.5(g)(2) upon termination of the representation. McDonald filed a motion to withdraw from the case without giving reasonable notice to the client, in violation of SCR 20:1.16(d). Finally, McDonald violated SCR 20:3.3(a)(1) when he misrepresented in a brief the date to which the court had previously granted an extension of time to file a brief.

McDonald had no prior discipline.

» Cite this article: 99 Wis. Law. 50 (March 2026).

Members Only

2026-03-09 00:00:00

New Hires, Promotions, Partners

Marisa M. Andersen, Marquette 2025, has joined Pruitt, Ekes & Geary S.C., Racine, as an associate. The firm focuses exclusively on representing cities, villages, and towns in all facets of municipal law.

Virginia Bartelt, U.W. 1983, Lindsey Cobbe, U.W. 2010, and Ashleigh Hacker, U.W. 2018, have joined Boardman Clark LLP, Madison. Bartelt practices primarily in the areas of trust and estates, real estate, and business. Her clients include a wide variety of individuals, families, real estate investors, and business owners. Cobbe and Hacker are members of the firm’s Family Law Practice Group. Cobbe focuses on divorce litigation and mediation, child custody and physical placement matters, and financial issues, including child support, maintenance, and property division. She also drafts marital property agreements (prenuptial and postnuptial agreements) and cohabitation agreements. Hacker represents clients through all aspects of divorce litigation and in child custody, child support, and maintenance cases. She has extensive experience working with business valuations, complex financial assets, intrastate jurisdictional issues, and Hague Convention matters and also represents clients in appellate cases.

Barry J. Boline, Drake 1994, has returned to private practice and has joined Burbach & Stansbury S.C., Milwaukee, after serving nearly 14 years as a full-time family court commissioner. With more than 32 years of experience in family law, he offers mediation, arbitration, trial co-counsel, and appellate services and provides practical, efficient dispute resolution and strategic legal support at the trial and appellate levels.

Abbey Bowen, Marquette 2017, has joined Wessels & Liebau LLC. Her practice focuses on elder law, estate planning, guardianship and protective placements, special needs planning, and probate and trust administration. Wessels & Liebau LLC is dedicated to serving elder law and special needs planning clients throughout southeastern Wisconsin, with offices in Mequon and Sheboygan.

Jane H. Christopherson, Marquette 2010, has joined Levine Law LLC, Milwaukee, a boutique litigation firm handling criminal defense, personal injury, and civil litigation matters. Her practice focuses mainly on criminal defense matters throughout Wisconsin while also assisting with various civil matters.

Nicholas Burkett, Marquette 2017, and Robb Evans, U.W. 2017, have been promoted from associate to partner with DeWitt LLP. Burkett practices in DeWitt’s Green Bay office, and Evans is based in its Madison office.

Burkett focuses on business law, advising clients on a wide range of matters including entity formation, contract drafting and negotiation, mergers and acquisitions, owner buyouts, real estate transactions, and general corporate governance. Before joining DeWitt, Burkett gained experience practicing in the Green Bay area.

Evans is a member of the Business practice group. He frequently serves as outside general counsel to start-up businesses and has extensive experience with mergers and acquisitions, entity formation, corporate governance, contract drafting, and negotiation. He assists business owners with succession planning and ownership transitions to family members or third-party buyers and counsels clients on real estate matters regarding purchase and sale, leasing, and land use of real property.

Matt Klos, U.W. 2016, and Emily Iverson, U.W. 2021, have become partners of Hale, Skemp, Hanson, Skemp & Sleik, La Crosse. Olivia Hefty, U.W. 2025, has joined the firm as an associate.

Charles Jaskolski, U.W. 2023, has joined Jaskolski & Jaskolski SC, Milwaukee, as a third-generation associate attorney in the family law firm. He is admitted to practice in Wisconsin, Illinois, Minnesota, South Dakota, North Dakota, and Montana; the U.S. District Courts for the Districts of Montana, North Dakota, South Dakota, and Minnesota, the Eastern and Western Districts of Wisconsin, and the Northern District of Illinois; and the U.S. Court of Appeals for the Seventh Circuit. Jaskolski previously practiced at Meagher & Geer PLLP, Chicago, advising clients and litigating significant insurance coverage disputes.

Robin Lehninger, Minnesota 2015 magna cum laude, has been elected as a member of Dykema. Lehninger, based in the Milwaukee office, advises clients on mergers and acquisitions, capital markets transactions, strategic partnerships, and governance matters, with a focus on healthcare- and technology-related deals. As a member of the firm’s capital markets team, she advises clients on capital raise transactions from early-stage funding to public offerings. Her practice also involves representation of clients across the healthcare industry on strategic transactions.

Jim Bedore, Georgetown 1985, has rejoined Reinhart Boerner Van Deuren s.c. as of counsel in the Corporate Law and Securities practices and is based in Milwaukee. Bedore, an attorney with Reinhart from 1985 to 2018, returns to the firm after serving as executive vice president, secretary, and general counsel of NCR Corporation. He advises clients on corporate and securities matters, including mergers and acquisitions, public and private securities offerings, private equity transactions, and other financing arrangements. He frequently works with companies on securities compliance, corporate governance, responding to shareholder activism, shareholder engagement, and executive compensation.

Matt Ackmann, Marquette 2016, Tomás Clasen, U.W. 2018 cum laude, and Joia Wodarczyk, U.W. 2018, have been elected shareholders of Reinhart. Ackmann is in the Trusts and Estates Practice in the Milwaukee office, focusing primarily on estate and tax planning for business owners and wealthy families.

Clasen is in the Real Estate Practice in the Milwaukee office and counsels clients on complex commercial real estate matters, including purchasing and sales, leasing, entitlements, construction law, tax incremental financing, and conventional financing. He has extensive experience working with municipalities on land use entitlements and zoning issues. He also handles licensing work in the food and beverage arena, helping businesses secure beer and liquor licenses through state and local agencies.

Wodarczyk is in the Real Estate Practice in the Madison office, assisting clients in all aspects of commercial real estate development. She is experienced in acquisitions and dispositions, land use, zoning and entitlements issues, public and private financing, and leasing and in collaborating with opposing counsel and municipalities to move deals forward efficiently.

Elise Braunel, Marquette 2025 cum laude, and Sadie Hobbs, Marquette 2024 cum laude, have joined Reinhart as associates, both in the Milwaukee office. Braunel, with the Trust and Estates Practice, focuses on estate plans for high-net-worth individuals, families, and business owners and assists clients with probate avoidance; trust funding and beneficiary designations; trustee, beneficiary, and personal representative representation; and general tax planning and compliance. Hobbs, with the Litigation Practice, represents clients in commercial and competition law and product liability, safety, and recalls.

Reese M. Sarnowski, Florida 2025, has joined Davczyk & Varline LLC, Wausau, as an associate focusing on insurance coverage, products liability, premises liability, automobile accidents, and catastrophic loss.

Mergers, Relocations, New Offices

Latrice Knighton, U.W. 2002 (formerly Latrice Pinson), has launched Valor Divorce Firm PLLC, a family law firm based in North Carolina. Knighton focuses her practice on divorce, child custody, child support, alimony, and property division matters. She is licensed to practice law in both North Carolina and Wisconsin and brings more than 14 years of experience in family law.

Nowlan Law, a Wisconsin-based full-service law firm with a long-standing commitment to public service and advocacy, has partnered with Wisconsin Property Taxpayers (WPT). WPT is a statewide organization dedicated to protecting property owners through education, oversight, and responsible government policy. As part of the collaboration, Nowlan Law serves as a legal resource for WPT members across a broad range of practice areas, including business and corporate law, real estate law, estate planning, agricultural law, mediation and arbitration, family law, civil litigation, landlord and tenant law, and more. This legal support will help advance WPT’s mission to educate, inform, and advocate for property owners throughout Wisconsin.

Authors, Speakers

Authors of the recently revised Anderson on Wisconsin Insurance Law (State Bar of Wis. 10th ed. 2026) are the following: Brian D. Anderson, Ohio Northern 2010, Everson Law Firm, Green Bay; Caleb R. Gerbitz, Mitchell Hamline 2020, and David W. McCormack, Marquette 2021, Meissner Tierney Fisher & Nichols S.C., Milwaukee; Joshua S. Greenberg, Marquette 2020, and David J. Turek, Marquette 2002, Gass Turek LLC, Milwaukee; Erik M. Gustafson, Marquette 2017, von Briesen & Roper S.C., Milwaukee; John P. Pinzl, U.W. 2015, von Briesen & Roper S.C., Madison; Andrew B. Hebl, Michigan State 2008, Boardman Clark LLP, Madison; Melita M. Mullen, U.W. 2012, Bell, Moore & Richter S.C., Madison; Patrick S. Nolan, Marquette 1997, and Alexandra W. Shortridge, Marquette 2014, Quarles & Brady LLP; and Monte E. Weiss, Case Western Reserve 1991, Weiss Law Office S.C., Mequon.

Jerome Grzeca, managing partner of Grzeca Law Group, Milwaukee, spoke at the AILA Midyear Conference on Jan. 23, 2026, in Costa Rica. He served as a discussion panelist for “Agency Enforcement Beyond ICE.” Grzeca advises employers across the hospitality, manufacturing, and professional services sectors on strategic immigration planning, workforce mobility, and securing employment-based visas for critical talent. His practice guides companies through complex visa and permanent residence processes with an emphasis on efficiency, compliance, and long-term workforce strategy.

Migena Vula, U.W. 2025, Reinhart Boerner Van Deuren s.c., Madison, authored the recently revised Real Estate Transactions System (State Bar of Wis. 10th ed. 2026).

Authors of the recently revised The Law of Damages in Wisconsin (State Bar of Wis. 10th ed. 2026) are the following: Allen A. Arntsen (retired), U.W. 1981, and Matthew D. Lee, Alabama 2006, Foley & Lardner LLP, Madison; Ryan Bald, Duquesne 2024, Sherry D. Coley, Marquette 2003, and Tiffany E. Woelfel, U.W. 2016, Amundsen Davis LLC, Green Bay; Melinda A. Bialzik, Harvard 1999, and Lance E. Duroni, Marquette 2019, Kohner, Mann & Kailas S.C., Milwaukee; Derek W. Brown, U.W. 2018, Eisenberg Law Offices, Madison; Keith A. Bruett, Marquette 1998, and Patrick S. Nolan, Marquette 1997, Quarles & Brady LLP, Milwaukee; and Robert C. Burrell, Iowa 1971, Borgelt, Powell, Peterson & Frauen S.C., Milwaukee.

Also, James R. Clark, U.W. 1971, and Matthew Kass, Marquette 2023, Foley & Lardner LLP, Milwaukee; Andrew J. Clarkowski, U.W. 1995, and Justin H. Lessner, Chicago-Kent 2006, Axley Brynelson LLP, Madison; Matthew J. Cornetta, Iowa 2001, Ruder Ware L.L.S.C., Eau Claire; Kyle W. Engelke, U.W. 2013, and Clementine Uwabera, Florida State 2014, Stafford Rosenbaum LLP, Madison; Brandon J. Evans, George Mason 2005, Kendricks Bordeau P.C., Marquette, Mich.; and Matthew R. Falk, U.W. 1994, Falk Legal Group, Milwaukee.

Also, Isabelle L. Faust, Marquette 2018, and Joseph P. Trevino, Marquette 2012, Amundsen Davis LLC, Milwaukee; Stephanie L. Finn, U.W. 1991, Herrick & Hart S.C., Eau Claire; Matthew V. Fisher, Minnesota 2009, and Carly Swinick, Marquette 2017, Stafford Rosenbaum LLP, Milwaukee; Stephen L. Fox, Marquette 1992, and Kent A. Tess-Mattner, Marquette 1980, Schmidt, Rupke, Tess-Mattner & Fox S.C., Brookfield.

Also, Robert L. Gegios, U.W. 1981, Gegios Law, Milwaukee; Kurt A. Goehre, U.W. 2009, Conway, Olejniczak & Jerry S.C., Green Bay; Thomas Gonzalez, U.W. 1998, Scopelitis, Garvin, Light, Hanson & Feary PC, Milwaukee; Erik G. Hassell, Notre Dame 2019, von Briesen & Roper s.c., Milwaukee; Ann S. Jacobs, U.W. 1992, Jacobs Injury Law S.C., Milwaukee; Sarah F. Kaas, Drake 1996, and Paul A. Kinne, U.W. 1993, Gingras, Thomsen & Wachs, Madison.

Also, Eric W. Lengell, Marquette 2007, and Gary S. Stanislawski , Marquette 1997, Zilske Law Firm S.C., Brookfield; Kristen E. Lonergan, U.W. 2010, Crooks Law Firm S.C., Wausau; Thomas J. Lonzo, U.W. 1989, The Rose Group, Milwaukee; Theodore V. Lyons Jr., U.W. 1978, Meier, Wickhem, Lyons & Schulz S.C., Janesville; Melita M. Mullen, U.W. 2012, Bell, Moore & Richter S.C., Madison; and Jacqueline C. Nuckels, Marquette 2004, Nuckels Law LLC, Oconomowoc.

Also, Daniel A. Peterson, Minnesota 2012, Zimmer & Rens LLC, Brookfield; David J. Pliner, U.W. 1989, Baker Sterchi Cowden & Rice LLC, Madison; Terrence M. Polich, U.W. 1998, Lawton & Cates S.C., Madison; Benjamin R. Prinsen, U.W. 2009, Kravit, Hovel & Krawczyk s.c., Milwaukee; Elizabeth D. Reeths, U.W. 2011, Kramer Shull Reeths LLP, Wausau; Noah B. Relles, Univ. of California Berkeley 2016, Kasieta Legal Group, Madison; and Brian A. Schuk, Marquette 2001, Schuk Law LLC, Lake Geneva.

Also, Allison V. Shepard, Marquette 2013, Shepard Law S.C., Eau Claire; Isaiah Z. Simons, Marquette 2024, and David J. Turek , Marquette 2002, Gass Turek LLC, Milwaukee; Jacob A. Sosnay, John Marshall 2006, Meissner Tierney Fischer & Nichols SC, Milwaukee; Katherine D. Spitz, Notre Dame 2007, Spitz Mediation Services LLC, Pewaukee; Susan R. Tyndall, Marquette 1985, Habush, Habush & Rottier S.C., Waukesha; and Samantha J. Wood, U.W. 2013, Lindner & Marsack S.C., Milwaukee.

Awards, Degrees, Honors

Nicole M. Madden, U.W. 2025, and Rachel Seifert, Marquette 2025, have been commissioned as first lieutenants in the U.S. Army Judge Advocate General (JAG) Corps. Originally from Arcadia and Pepin, respectively, they completed basic training at Fort Benning in Georgia and officers’ school in Charlottesville, Virginia. They are currently stationed at Fort Bliss in El Paso, Texas.

In Memoriam

John M. Bjelajac, U.W. 1973, Racine, Feb. 28, 1948 – Nov. 18, 2025.

Robert P. Burke, North Dakota 1967, Madison, Dec. 10, 1941 – June 24, 2025.

Nicholas E. Fairweather, Case Western Reserve 2000, Madison, April 28, 1974 – Jan. 5, 2026.

Hon. Daniel L. La Rocque, Marquette 1962, Madison, July 11, 1936 – Dec. 29, 2025.

Arthur M. Moglowsky, U.W. 1962, Mequon, May 15, 1937 – Dec. 25, 2025.

Paul A. Nikolay, Marquette 1984, Harshaw, Dec. 14, 1958 – Dec. 13, 2025.

James G. Sisolak, U.W. 1954, Brookfield, July 14, 1930 – Feb. 17, 2023.

Mark S. Stern, U.W. 1976, Bayside, Jan. 17, 1951 – July 29, 2025.

Steven C. Wimmer, Ohio Northern Univ. 1985, Waukesha, Aug. 7, 1957 – Jan. 8, 2026.

Hon. Edward F. Zappen Jr., Marquette 1973, Wisconsin Rapids, Nov. 9, 1942 – Nov. 19, 2025.

David K. Ziemer, William & Mary 1991, Casper, Wyo., Dec. 17, 1966 – Dec. 31, 2025.

How to Place your Announcement

If you have moved, become a partner or an associate, or received a promotion or an award, let us know! Writing guidelines are available here. Questions? Email us or call (608) 250-6127.

Email announcements to: MembersOnly@wisbar.org. Notices about State Bar members in good standing are printed as space is available, and subject to editing.

Ineligible announcements: Talks, speeches (unless they are of national stature), honors from other publications (including “Best of...,” “Rising star...,” and other lists), and political announcements are not accepted as announcements.

Photo placement: Submit a professional-quality photo with your announcement. If the photo is used, the State Bar will issue an invoice for $35 per photo. Please acknowledge the photo placement fee in your submission. Group photos and photos copied from websites are not accepted. High-resolution electronic photos are preferred to ensure high-quality production. Images should be sized at least 4”x6”, with a resolution no less than 150 dpi, although 300 dpi is preferred. Print photos will not be returned.

Deadline: Submit announcements by the first of the month preceding publication. For example, to place an announcement in the November issue, it must be received before October 1. Email to: MembersOnly@wisbar.org. Include your State Bar membership number.

» Cite this article: 99 Wis. Law. 51-53 (March 2026).

Wisconsin's Northern Border Conflict Revisited

Douglas H. Frazer — 2026-02-05 00:00:00

Statehood arrived in Wisconsin in 1848, but it was not until 1926 that the U.S. Supreme Court settled the border with Michigan. Wisconsin prevailed in that action.^[1] A century later, it is worth revisiting the origins of the case and the case itself – as both an interesting part of state history and an illustration of the challenging nature of boundary controversies.

“Boundary disputes,” observed Wisconsin historian Louis P. Kellogg, “have ever constituted a fruitful source of contention between men and nations.”^[2] Kellogg’s remark was a generalized thought in the narrower context of the disputed Michigan-Wisconsin boundary, but the notion is familiar to practicing attorneys. Boundary disputes are common: between private property owners, local governments, states, or nations. Often the problem arises from erroneous descriptions or surveys. But the resolution of such disputes does not necessarily turn on technical matters – other factors may come into play.

Antecedents to the Dispute

At the conclusion of the French and Indian War (1754-63), France ceded to England the land between the Ohio and Mississippi Rivers, which later became known as the Northwest Territory. In 1784, Thomas Jefferson issued a report to the Confederation Congress (this being before the adoption of the U.S. Constitution) in which he proposed that the new government eventually divide the region into states.

Douglas H. Frazer, Northwestern 1985, is a partner at DeWitt LLP in its Metro Milwaukee office.

In 1787, the Confederation Congress enacted the Northwest Ordinance.^[3] The law authorized the establishment of three to five states in the Northwest Territory and described the terms of territorial administration and the requirements for state formation.

Congress admitted Ohio into the Union in 1803. There was a problem. The Northwest Ordinance described the southern border of what became Michigan. The line ran from the southernmost point of Lake Michigan due east to Lake Erie.^[4] Depending on the land survey, the mouth of the Maumee River and the future city of Toledo might turn out to be not in Ohio. Ohio attempted to overcome the problem by describing a different border in its congressionally approved constitution, the easterly point of which met Lake Erie just north of Toledo (the “most northerly cape of the Miami [Maumee] Bay, after intersecting the due north line from the mouth of the Great Miami [Maumee] River…”).^[5] The southern boundary of the Michigan Territory, established in 1805, described a line consistent with that prescribed in the Northwest Ordinance – putting Toledo in Michigan.^[6] Michigan refused to relinquish jurisdiction of what became known as the Toledo Strip.

The matter came to a head in 1835 when Michigan made its bid for statehood. Ohio and Michigan dispatched their militias to the Strip. Confrontation, arrests, a stabbing, and much saber rattling ensued. Congress, siding with Ohio, was content to hold hostage Michigan statehood until Michigan agreed to the “corrected” boundary.^[7]

As a sweetener, Congress offered Michigan the “western” upper peninsula – three quarters of the upper peninsula land mass that seemed to belong to what would become Wisconsin.^[8] Michigan accepted.

The Wisconsin Wedge map. According to Michigan, the disputed Wisconsin Wedge – about 235,000 acres – and part of the iron-rich Gogebic Range, belonged to Michigan. Wisconsin Historical Society, used with permission.

The Survey

Wisconsin gained territorial status in 1836. In that year, Congress adopted an act that described the Wisconsin-Michigan boundary with the Montreal, Brule, and Menominee Rivers as the boundaries. The Montreal River flows into Lake Superior. The Brule River is the principal tributary of the Menominee River. The Menominee River flows into Green Bay.

The Montreal River was thought to originate at Lac Vieux Desert (Lake of the Desert). The Brule River headwater was unknown, so the description read “to the head of said river nearest to the Lake of the Desert.”

As such, the map and the resulting boundary description presumed a nearly continuous waterway separating the two states.

Efforts to survey this border languished until the War Department’s Bureau of Topographical Engineers assumed responsibility. The bureau assigned the surveying task to Captain Thomas Jefferson Cram, a West Point-educated officer. His counterpart was Douglass Houghton, a physician, scientist, and Michigan’s first state geologist.^[9]

In 1840, Cram and Houghton led the boundary survey team up the Menominee River and fixed the Brule River’s source at Brule Lake. To the northwest at Sandy Lake, about 8 miles from Lac Vieux Desert, the Chippewa (Ojibwe) appeared, told the team it was encroaching on its territory, insisted the team “could be allowed to go no farther towards the setting of the sun into the Ka-ta-kit-te-kon (Chippewa) country,” and told the team to turn back.^[10] Chief Ca-sha-o-sha arrived the next day. Through amiable negotiation, Cram purchased for “presents” a right-of-way through Chippewa country to the Montreal River. All future surveyors were also to provide such gifts for passage. The parties memorialized this “treaty” on a piece of birchbark.

Cram and Houghton determined that Lac Vieux Desert was not the source of the Montreal River but of the Wisconsin River.^[11] From Lac Vieux Desert, however, Cram and Houghton could not continue “on account of having reached a point beyond which the description of the boundary ceases to be in accordance with the physical character of the country.”^[12]

The survey team returned to the Upper Peninsula in 1841. Cram identified the Montreal River’s east channel as the “main channel” and fixed its headwaters at the junction of “two inconsiderable streams not more than 20 to 30 feet wide called Balsam and Pine Rivers.” Cram designated this point astronomical station no. 2: it marked the western end of the straight line measured from Lac Vieux Desert.^[13]

Wisconsin’s impending statehood occasioned an updated survey. In April 1847, the Government Land Office hired William A. Burt for the task. Burt and his party met the Chippewa at the headwaters of Brule River (the location marking the eastern point of the land border between Wisconsin and Michigan). The Chippewa brought with them the 1840 birchbark treaty.

A change of circumstance had intervened. In 1842, the U.S. had acquired this territory – in fact much of northern Wisconsin and the western Upper Peninsula – in the Treaty of La Pointe, but this Chippewa band appeared unaware. Not to delay matters, Burt again “made treaty” and presented gifts of tobacco and other supplies. A tamarack tree blaze marked the spot. (The “Treaty Tree” has not survived – it has been replaced by a historical marker and stone boundary monument.) Burt’s border survey ratified the Cram-Houghton survey, including its designation of the junction of the Pine and Balsam Rivers as the border terminus on the Montreal River.

The Cram-Houghton tree blaze memorialized a “treaty” to allow a boundary survey team right-of-way through Chippewa country to the Montreal River. It is the piece of a birch tree, originally on the shore of Trout Lake in Vilas County, about 10 miles north of Minocqua, on which Cram and Houghton scratched out a surveyor’s mark (blaze). It bears their names and the date “Aug 11, 1841.” Wisconsin Historical Society, museum object number 1977.97, used with permission.

The Boundary Described

Wisconsin’s 1848 Constitution mirrored the boundary established by Cram and Houghton and confirmed by Burt:

“From the ‘mouth of the Menominee River; thence up a channel of said river Brule River; thence up said last-mentioned river to Lake Brule; thence along the southern shore of Lake Brule in a direct line to the center of the channel between middle and south islands, in the Lake of the Desert; thence in a direct line to the headwaters of the Montreal River, as marked upon the survey made by Captain Cramm; thence down the main channel of the Montreal River to the middle of Lake Superior….’”^[14]

The Dispute

But all was not settled. Michigan did not abandon the notion that Cram had incorrectly determined the headwaters of the Montreal River. The Montreal River forks into a western and eastern branch about 18 miles from its mouth. Given that both branches were of relatively equal depth, which one was the river? Cram had surveyed along the eastern branch. Michigan maintained the western branch was the main channel with its headwaters at Island Lake.

According to Michigan, the disputed Wisconsin Wedge – about 235,000 acres – belonged to Michigan. This land was part of the Gogebic Range – by then recognized as a significant iron-mining region and a forest-rich area ripe for timber production.

Despite the uncertainty, Wisconsin continued to administer its boundaries as fixed by the Montreal’s eastern branch, including what became the city of Hurley and the town of Presque Isle.

There the matter rested until Michigan adopted a new constitution in 1908. That document described the border consistent with Michigan’s original position: a boundary that would follow “the westerly branch of the Montreal River.”

The dispute, dormant for so long, was joined. Michigan sent representatives to Wisconsin to propose a joint commission for the adjudication of the boundary but could not interest state officials. As far as Wisconsin was concerned, the eastern branch of the Montreal River as surveyed by Cram was the true border.

The Burt treaty tree marked the spot where William Burt “made treaty” with some Ojibwe Tribe members in 1847. The tamarack tree no longer exists. Burt’s border survey ratified the Cram-Houghton survey. Wisconsin Historical Society, WHIW014F4F, used with permission.

The Dispute Reaches the U.S. Supreme Court

In 1923, to settle the matter, Michigan filed an original-jurisdiction action^[15] before the U.S. Supreme Court. The Court’s roster included some particularly famous members: William Howard Taft, Oliver Wendell Holmes Jr., Louis Brandeis, and Harlan Fiske Stone. Taft assigned the opinion to Justice George Sutherland who, on March 1, 1926, delivered the unanimous opinion of the Court.^[16]

The Court concluded that Congress understood the east branch to be the upper portion of the Montreal River. The Court, however, declined to base its holding on this finding. Rather, the Court observed that when admitted to statehood, Wisconsin possessed the area, and the state continued to be in possession of the area in dispute and had exercised dominion over it. “That rights of the character here claimed,” stated the Court, “may be acquired on the one hand, and lost on the other, by open, long-continued, and uninterrupted possession of territory, is a doctrine not confined to individuals, but applicable to sovereign nations as well…. That rule is applicable here, and is decisive of the question in respect of the Montreal river section of the boundary in favor of Wisconsin.”^[17]

Border survey 1928 mile zero marker. Photo: Bill Kralovec, used with permission.

Conclusion

In the end, Michigan’s evidence did not carry the day. The decision turned not on technical issues – the accuracy of survey or description – but on pragmatic principles akin to laches and reliance.

Finally, there is the question of whether Michigan fully accepted the decision. Some doubt exists. The historical record reflects that in 1963 Michigan again adopted a new constitution. The document omitted a boundary description.

Endnotes

1 Michigan v. Wisconsin, 270 U.S. 295 (1926).

2 Louis Kellogg, The Disputed Michigan-Wisconsin Boundary, Wis. Mag. of Hist., vol. 1, no. 3 (March 1918).

3 An Ordinance for the Government of the Territory Northwest of the River Ohio, 1 Stat. 50 (1787).

4 Id art. 5.

5 Ohio Const. of 1802, art. VII.

6 Act to Divide the Indiana Territory into Two Separate Governments, ch. 5, sec. 1, 2 Stat. 309 (1805).

7 Evan Andrews, The Toledo War: When Michigan and Ohio Nearly Came to Blows, Hist. (Nov. 21, 2016).

8 Michigan, initially considered the loser in the bargain, turned out to be the winner. According to secondary sources, a report once described the Upper Peninsula as a sterile region on the shores of Lake Superior destined by soil and climate to remain forever a wilderness. That changed in the 1840s. Explorers discovered rich mineral deposits (primarily copper and iron). Upper Peninsula mines produced more mineral wealth than the California Gold Rush. The Upper Peninsula supplied 90% of America’s copper by the 1860s. It was the nation’s largest supplier of iron ore by the 1890s. Logging also became an important industry.

9 Houghton, Mich., bears his name. Houghton died in 1845 at age 36 when his party’s small boat capsized during a Keweenaw peninsula expedition.

10 See 1841 Report app., infra note 12.

11 During the 1841 expedition, Cram and Houghton detoured south to explore the upper tributaries of the Wisconsin and Chippewa Rivers and the forests, lakes, and streams in the area. On the shore of Trout Lake in Vilas County, about 10 miles north of Minocqua, they scratched out a surveyor’s mark, or blaze, on a tree. It bears their names and the date: “Aug 11, 1841”. Cram designated the spot as “astronomical station no. 3.” It likely had a clear view of the sky, which was essential for sextant readings – the only reliable way to establish latitude. Loggers eventually felled the tree but preserved the blaze. It is in the collection of the Wisconsin Historical Society in Madison.

12 Captain Cram’s reports were printed in U.S. Senate, Message from the President of the United States, in Compliance with a Resolution of the Senate in Relation to the Survey to Ascertain and Designate the Boundary-Line Between the State of Michigan and the Territory of Wiskonsin, S. Doc. No. 151, 26th Cong., 2d Sess. (1841) [hereinafter 1841 Report]; and U.S. Senate, Report of the Secretary of War: Communicating, in Compliance with a Resolution of the Senate, a Copy of the Report of the Survey of the Boundary Between the State of Michigan and the Territory of Wisconsin, S. Doc. No. 170, 27th Cong., 2d Sess. (1842). See also Lawrence Martin, The Michigan-Wisconsin Boundary Case in the Supreme Court of the United States, 1923-26, Annals of the Association of American Geographers, Vol. 20, No. 3 (Sept. 1930).

13 Often translated as Lake of the Desert. According to Cram, in “mongrel” French it meant “old potatoe-planting ground.” See 1841 Report app., supra note 12.

14 In this document, Cram acquired an extra “m.”

15 U.S. Const. art. III, § 2, cl. 2.

16 Michigan v. Wisconsin, 270 U.S. 295 (1926). Later in the year, the Court issued a decree describing the new boundary. This description referenced the 1847 Burt survey. Michigan v. Wisconsin, 272 U.S. 398 (1926). In connection with the Brule and Menominee Rivers sections of the boundary, the Court confirmed Wisconsin’s claim to the river islands below the Quinnesec Falls. In connection with the Green Bay section of the boundary, the Court confirmed Wisconsin’s claim to Washington, Detroit, Rock, Plum, and Chambers Islands. Several years later in connection with the boundary at the mouth of the Menominee River and the boundary extension into Green Bay, the Court adjusted the border yet again. Wisconsin v. Michigan, 295 U.S. 455 (1935); Wisconsin v. Michigan, 297 U.S. 547 (1936).

17 Michigan v. Wisconsin, 270 U.S. at 308.

» Cite this article: 99 Wis. Law. 12-16 (February 2026).

Evidence, Procedure, Fairness: Applying the Rules in Family Court

Hon. Thomas John Walsh — 2026-02-05 00:00:00

Recently, I conversed with some judges about their experience with family law dockets and family law attorneys.

One opinion that was shared seemed rather disparaging. It related to the lack of familiarity with the rules of evidence by attorneys in this area of practice. It was felt that family law attorneys assume they don’t have to follow the rules of evidence and that family court trials were some sort of informal process.

Ironically, less recently but not so long ago, I was conversing with some family law attorneys who bemoaned the fact that judges simply refuse to apply the rules of evidence in family matters. They would say things such as “this is family court, the rules of evidence don’t apply.” Attorneys felt that some judges simply viewed family court trials as some sort of informal process. Truly an unfortunate state of affairs, but one which creates great opportunity and a basis for reflection.

There is an old adage regarding the presentation and credibility of evidence: cross-examination is “the most perfect and effectual system for the unraveling of falsehood ever devised by the ingenuity of mortals.”^[1] There is a great deal of truth in this statement, and family law litigants are in as much need of “truth-finding” as litigants in any other area of practice.

In the Anglo-American system of justice, skillful cross-examination is effective because of the rules governing the admission of evidence, that is, the proponent of the witness generally cannot lead the witness whereas the cross-examiner can.^[2] Further, the cross-examiner can object and enlist the help of the court if the witness prevaricates and won’t answer (absent some privilege of course).^[3]

All of this procedure is governed by the rules of evidence, which also provide other tools for revealing the truth and unraveling falsehood.

This article discusses the importance of the rules of evidence, and to a certain extent the rules of civil procedure, in family court trials, and why this issue deserves special attention by judges and lawyers in the family law context.

The Purpose of the Rules of Evidence

When looking at the applicability of evidentiary rules to family law, it is important to look at the purposes behind the rules of evidence. In Wisconsin, these purposes are clearly set forth in Wis. Stat. section 901.02: “Chapters 901 to 911 shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.”

Thomas J. Walsh, Hamline 1992, is a Brown County Circuit Court judge and editor of The Wisconsin Journal of Family Law (WJFL). This article originally appeared in the January 2026 WJFL and is reprinted with permission. The WJFL is accessible to members of the State Bar’s Family Law Section. For information about the section and to join, visit the Family Law Section.

The rules of civil procedure have a similar purpose: “Chapters 801 to 847 shall be construed, administered, and employed by the court and the parties to secure the just, speedy and inexpensive determination of every action and proceeding.”^[4]

Thus, it is clear that rules of evidence and procedure are established to, inter alia, increase just and fair resolutions and decrease costs to litigants. That certainly makes sense for family law litigants.

Applicability to Family Court Cases

General Applicability. In assessing the applicability of these rules to family court matters, it is important to review Wis. Stat. section 901.01, which is the “general provisions” section of the rules of evidence. This section indicates that “[c]hapters 901 to 911 govern proceedings in the courts of the state of Wisconsin except as provided in ss. 911.01 and 972.11.”^[5] Nothing in sections 911.01 or 972.11 suggests that the rules of evidence do not apply in family court matters. In fact, section 911.01(1) states:

(1) Courts and court commissioners. Chapters 901 to 911 apply to the courts of the state of Wisconsin, including municipal courts and circuit, supplemental, and municipal court commissioners, in the proceedings and to the extent hereinafter set forth except as provided in s. 972.11. The word “judge” in chs. 901 to 911 means judge of a court of record, municipal judge, or circuit, supplemental, or municipal court commissioner.

Similarly, and more specifically, the rules of civil procedure apply to family court cases by statutory directive. Section 767.201 indicates that “(e)xcept as otherwise provided in the statutes, chs. 801 to 847 govern procedure and practice in an action affecting the family. Except as provided in this chapter, chs. 801 and 802 apply to the content and form of the pleadings and summons in an action affecting the family.”^[6]

Clearly, the laws of this state require the rules of evidence and civil procedure to be applied in family court proceedings.

Family Court-Specific Rules of Evidence. It is also important to recognize that the Wisconsin Legislature has enacted some very family-law-specific exceptions to the rules of evidence. For example, the family court is permitted to receive into evidence hearsay statements outlining “[t]he wishes of the child, which may be communicated by the child or through the child’s guardian ad litem or other appropriate professional.”^[7] This permits hearsay to be communicated to the court about the child’s placement preferences, but does not necessarily cover each and every other statement the child made to the guardian ad litem.^[8]

In addition, hearsay is also welcomed by the family code when it asserts the following:

“The guardian ad litem shall investigate whether there is evidence that either parent has engaged in interspousal battery, as described in s. 940.60 or 940.61(1) or s. 940.19, 2023 stats., or s. 940.20(1m), 2023 stats., or domestic abuse, as defined in s. 813.12(1)(am), and shall report to the court on the results of the investigation.”^[9]

This provision does not say how this “report” is to be made or what can be included therein. Can the report include hearsay, and is that report written or oral? If written, is it automatically admitted into evidence by virtue of this provision?

Furthermore, a guardian ad litem “shall review and comment to the court on any mediation agreement and stipulation made under s. 767.405(12) and on any parenting plan filed under s. 767.41(1m).”^[10] Although the statute does not say specifically what “comment to the court” means, this generally violates the principle that communication regarding mediation and what occurred therein should not be allowed into evidence.^[11]

While virtually all the family-law-specific rules of evidence relate to children and the guardian ad litem, these exceptions can create problems with the admission of evidence.

The best illustration of these problems is Hollister v. Hollister.^[12] In that divorce case, the guardian ad litem filed a report with the court pretrial and then made an oral recommendation to the court at the close of evidence. The mother opposed the guardian ad litem’s recommendation and ultimately appealed the trial court’s decision awarding sole custody and primary placement to the father. The mother argued, inter alia, that the trial court should be reversed and the case remanded because she had not had the opportunity to call to the stand and cross-examine the guardian ad litem regarding his report and recommendation.

As an aside, but important in this conversation, is the notion that trial courts have been advised by our appellate courts that a circuit court is permitted to weigh a “guardian ad litem’s recommendation more heavily than the other statutory factors. But it cannot rewrite the statute to create a fixed hierarchy of factors.”^[13]

Ironically, a guardian ad litem’s recommendation is not even one of the statutory custody and placement factors listed in the family code. Thus, the meaning of this appellate court directive is unclear. However, if such a recommendation relies primarily on inadmissible evidence, then there are even greater problems.

Thus, the mother in Hollister pushed right at this issue, that is, the court is getting important recommendations from someone who cannot be cross-examined regarding their work product. The court of appeals in Hollister determined, for various reasons, that “a guardian ad litem appointed under sec. 767.045, Stats., may not be called as a witness in a custody proceeding, and therefore may not be cross-examined.”^[14]

While Hollister may seem like an opening of the floodgates to all forms of hearsay (and hence a reason to dispense completely with the evidentiary rule against hearsay), it is not. While a guardian ad litem can base their opinion on evidence that might not otherwise be admissible, the court cannot. If a guardian ad litem cannot properly offer and have admitted a piece of evidence upon which they have relied in making a recommendation, then the court should not consider it.^[15] At least, this should be the experience of a litigator in family court.

This principle is contained within some of the statutory factors for addressing placement. For example, when addressing placement, the court may consider reports of appropriate professionals. However, the statute (Wis. Stat. section 767.41) requires that these reports may be considered only under specific circumstances: “[t]he reports of appropriate professionals if admitted into evidence.”^[16] Thus, a hearsay report is not admissible from experts unless properly received under the rules, for example, qualifications, Daubert, and authentication. The same would apply to anything else the guardian ad litem chooses to offer.

This does not, however, mean that the rules of evidence only apply in family court if the judge says they do and that judges have discretion to simply ignore them.

Applicability Summary. From the above statutory provisions and case law, it is clear that the rules of evidence and procedure are to govern cases in family court. Neither advocate nor judge should be confused about the applicability of these provisions (including the family-law-specific rules) to actions under Wis. Stat. chapter 767, also known as the Wisconsin family code. Lawyers’ and judges’ failure to understand that and to familiarize themselves with the rules of evidence is inconsistent with our duties to litigants and to our profession as a whole.

It is true, of course, that the final word on the admission of evidence at trial belongs to the judge, subject to review by the appellate courts. Nonetheless, it is important to understand that under the rules of evidence in this state, “[e]rror
may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected.”^[17] Meaning, of course, that appellate courts will allow trial judges broad discretion on what to receive into evidence in a family court trial.

This does not, however, mean that the rules of evidence only apply in family court if the judge says they do and that judges have discretion to simply ignore them.

When looking specifically at the purposes and applicability of the Wisconsin rules of evidence, the question really is not whether the rules of evidence should apply in family court cases, but rather whether the rules of evidence make family court outcomes more fair or less fair and whether they reduce costs. If the answer is “yes,” then certainly judges and advocates need to get on the same page about the conduct of family court trials – they do not seem to be in many cases. If the answer is “no,” then steps should be taken to change the law rather than simply dispense with it on a circuit-by-circuit basis.

The Pushback Against the Rules of Evidence

Conversations about the rules of evidence in family court often occur in the context of the lack of trial by jury, where juries cannot be trusted to sift through the quality of evidence.

That is, there are no jury trials in family court, so judges should receive all offered evidence because judges are trained to sift through speculative evidence. In addition, debates about the rules of evidence in family court often focus on evidentiary rules being more important in criminal matters because in those trials there are more important rights at stake, that is, liberty interests, and mistakes on evidence take on greater significance.

Juries Versus Judges. The concept of the rules of evidence being more important in cases involving juries than in cases tried to the court is not new. The following discussion of the rule against hearsay is illustrative:

“In most of the Continental States, the Judges determine upon the facts in dispute as well as upon the law; and they think there is no danger in their listening to evidence of hearsay, because when they come to consider of their judgment on the merits of the case, they can trust themselves entirely to disregard the hearsay evidence, or to give it any little weight which it may seem to deserve. But in England, where the jury are the sole judges of the fact, hearsay evidence is properly excluded, because no man can tell what effect it might have upon their minds.”^[18]

This is certainly a good argument for why the rules of evidence should be left out of family court. In Wisconsin, however, it is a good argument for why the system should be changed and not a good argument for failure to apply the rules of evidence in a Wisconsin circuit court.

Our system is designed to have advocates (or the parties themselves if they are not represented). Those advocates conduct their investigation, bring information to the court, and engage in an adversarial process to assist in revealing the truth to a passive judge who then renders a decision.

This is where the rules of civil procedure dovetail with the rules of evidence. The rules of civil procedure govern how parties are to gather information, both admissible and inadmissible, to ensure that no one arrives in court subjected to trial by ambush. Further, they ensure that the advocates are able to present all relevant evidence to the judge. Having rules as to how this adversarial process and presentation of evidence is to occur makes the process more predictable and thereby more cost effective to litigants.

As long as the process of investigation is delegated to the litigants and the task of passive decision-making is given to the judge, rules governing the submission of evidence are essential for predictability. The rules of civil procedure need to be applied for those trying to gather information (including sanctions for violation), and rules for admissibility of evidence are needed to govern the process of submission.

The issue of trial by ambush is not as serious in some continental systems because the judges often do the investigation, and information can be submitted over a period of time.^[19] In our country and the state of Wisconsin, allowing everyone to simply show up on the trial date, which is usually on one specific day or a series of days after discovery is cut off, and submit whatever suits them would amount to trial by ambush and the very real possibility that the judge would be receiving conflicting statements of witnesses without the opportunity to see them in court and assess credibility. This is a serious impediment to a passive decision-maker if not allowed to conduct an independent investigation.

State law requires the rules of evidence and civil procedure to be applied in family court. It is not a matter of discretion for judges or optional for attorneys. Failing to do so would not be fair to those who expect them to be applied.

The Importance of the Stakes. This argument is relatively easy to address. Although no one is at risk of imprisonment in a family court matter, there are very important interests at stake: children, money, real estate. Beyond a person’s freedom and liberty, there are few things more important than a person’s children, their money, and their real estate.

A parent’s right to engage in the raising and upbringing of their own children is, in fact, a constitutional right.^[20] Actions seeking to remove or modify those rights are also governed by the rules of civil procedure and evidence, for example, termination of parental rights and dependency cases. The Wisconsin Supreme Court has also set forth the principle that the same rights exist in family court cases.^[21] It would seem that watching your custodial rights or your interest in your real estate slip away due to evidence that would not otherwise be admissible in a criminal trial or other civil trial would be unfair if it happens in a family court trial.

The significance of the rights at stake, therefore, does not seem to justify failure to apply the rules of evidence or civil procedure in family court.

Trial Practice. Finally, there is one other aspect of “evidence” that deserves brief comment. Perhaps it is the most important aspect. When a trial attorney is plying their trade in the courtroom, it is important that they understand and apply the basics of trial practice.

In fact, often when attorneys and judges complain about applying the rules of “evidence” in family court, they seem more focused on trial practice, that is, familiarity with the concepts of trial practice. For example, how to go about laying foundation for expert witnesses such as psychologists, physicians, accountants, business evaluators, and appraisers under Wis. Stat. chapter 907. How to authenticate the documents they use or produce under Wis. Stat. chapter 909. How to refresh recollection under Wis. Stat. section 906.12 versus impeaching the witness under Wis. Stat. section 906.07. How to impeach using a deposition transcript under Wis. Stat. section 906.07. How you can get the judge to take judicial notice of something under Wis. Stat. chapter 902.

These are tools of the trade of a civil litigator, and divorce attorneys are civil litigators. Judges should expect these skills from the attorneys, and self-represented litigants, trying family cases in their courts, and attorneys should be prepared to utilize those skills if they want to practice in this area of the law. Our law schools should also be expected to extensively train our attorneys in trial practice.

Conclusion

Changing the manner in which we resolve family dissolutions may certainly have some merit. Maybe society would be better served by having this type of case decided by a panel of psychologists or social workers or therapists or a combination of those trained professionals rather than by a judge. Further, maybe it would make more sense to eliminate the responsibility of the parties to conduct the investigation in family court and place that task on the magistrate or magistrates assigned to make the decision. However, the notion that we believe this to be the case does not simply give us license to do so.

State law requires the rules of evidence and civil procedure to be applied in family court. It is not a matter of discretion for judges or optional for attorneys. Failing to do so would not be fair to those who expect them to be applied.

At the same time, the judge has certain flexibility regarding how rulings on evidence will unfold. This is a principle inherent in all aspects of trial practice across disciplines.

Of greatest importance to courts and advocates is to be absolutely clear, pretrial, regarding rulings on various issues. Again, failure to do so would be unfair. Resolving evidentiary concerns pretrial serves all interested parties and improves the experience at trial.

Also of Interest
Hone Your Understanding of Evidence Before Trying a Family Law Case

The application of the rules of evidence in any trial requires a basic knowledge of long-standing evidentiary rules and the history of cases that have interpreted them. Wisconsin Rules of Evidence: A Courtroom Handbook, published by State Bar of Wisconsin PINNACLE®, compiles concise annotations of the key evidentiary opinions as a handy, single-volume reference. In addition, the book reprints the text of the complete Wisconsin Rules of Evidence, along with judicial council commentary that provides additional guidance. Various finding tools, including topical tabs, a table of cases, and an index, serve as useful methods for quickly pinpointing relevant cases and rules during trial.

wisbar.org/ak0050

Endnotes

1 Of Disqualification of Parties as Witnesses, Legal Register 1857, 5 Am. Legal Reg. 257, 263-64 (1857).

2 Wis. Stat. § 906.11.

3 Wis. Stat. § 905.01.

4 Wis. Stat. § 801.01(2).

5 Wis. Stat. § 901.01.

6 Wis. Stat. § 767.201.

7 Wis. Stat. § 767.41(5)(am)2.

8 For a more in-depth discussion of communicating the wishes of children to the court and children testifying in court, see generally Thomas J. Walsh, Child Testimony in Family Law Cases: Justifying a Decision, 98 Wis. Law 16 (Jan. 2025).

9 Wis. Stat. § 767.407(4).

10 Wis. Stat. § 767.407(4).

11 Wis. Stat. § 904.085(3).

12 173 Wis. 2d 413, 496 N.W.2d 642 (Ct. App. 1992).

13 Goberville v. Goberville, 2005 WI App 58, ¶ 12, 280 Wis. 2d 405, 694 N.W.2d 503. In fact, in upholding the trial court’s reliance on a GAL report, the appellate court cited these comments from the trial judge: “The lawyers know it takes an awful lot to persuade me that the guardian ad litem is wrong.” Id. The concept that a guardian ad litem recommendation is similar to “another factor” under the statute is difficult to grasp given that a guardian ad litem is to be treated simply like any other advocate for a litigant and giving their recommendation more weight than another litigant because of their status seems contradictory.

14 Hollister v. Hollister, 173 Wis. 2d 413, 419, 496 N.W.2d 642 (Ct. App. 1992).

15 This concept, rendering opinions to the court that are partially based upon inadmissible evidence, is similar to, although distinct from, the rule as outlined in Wis. Stat. section 907.03 that physicians may rely on inadmissible evidence in formulating their opinions: “If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted.” Nonetheless, the inadmissible evidence does not transform into admissible evidence just because the expert uses it in rendering an opinion: “Facts or data that are otherwise inadmissible may not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion or inference substantially outweighs their prejudicial effect.” The same would seem to apply to opinions offered by a guardian ad litem.

16 Emphasis added.

17 Wis. Stat. § 901.03(1).

18 4 Camp. 401, 415, 171 Eng. Rep. 128, 135 (H.L. 1811) (Mansfield C.J.C.P.) (advisory opinion).

19 For a more complete discussion of the roles played by judges and lawyers in civil law traditions, see generally Mary Ann Glendon, Michael W. Gordon, & Christopher Osakwe, Comparative Legal Traditions (1994). Judges have a more active role in such courts: “Although the questioning is typically done by the judge, the questions are often submitted by the parties’ counsel who sometimes are permitted to question a witness directly. As the action proceeds, the judge may inject new theories, and new legal and factual issues, thus reducing the disadvantage of the party with the less competent lawyer.” Id. at 92.

20 See Troxel v. Granville, 530 U.S. 57, 65 (2000). “The liberty interest at issue in this case – the interest of parents in the care, custody, and control of their children – is perhaps the oldest of the fundamental liberty interests recognized by this Court. More than 75 years ago, in Meyer v. Nebraska, 262 U.S. 390, 399, 401 (1923), we held that the ‘liberty’ protected by the Due Process Clause includes the right of parents to ‘establish a home and bring up children’ and ‘to control the education of their own.’”

21 Barstad v. Frazier, 118 Wis. 2d 549, 348 N.W.2d 479 (1989). This Wisconsin Supreme Court case was commenced under Wis. Stat. section 767.02(1). The court stated: “We conclude that in the absence of compelling reasons the principles followed in cases involving termination of parental rights should be followed where a request for a custody change from a parent to a third party is presented to a court.” Id. at 556.

» Cite this article: 99 Wis. Law. 18-24 (February 2026).

As I See It | The Challenge of Handling Pornography and Other Incriminating Evidence in Wisconsin

Rodney John Uphoff & Peter A. Joy — 2026-02-05 00:00:00

In an article in the June 2025 Wisconsin Lawyer,^[1] Sean Harrington offered advice to Wisconsin lawyers on their ethical obligations when they inadvertently come into possession of child pornography. (“Child pornography” refers to images or recordings “of a child engaged in sexually explicit conduct” as defined by Wis. Stat. section 948.12.) He is right to warn criminal defense lawyers that they may face criminal prosecution or professional discipline if they knowingly possess child pornography. Thus, we agree that criminal defense lawyers generally should avoid taking possession of child pornography and instruct those working in their office to avoid doing so as well. While we applaud Mr. Harrington for alerting Wisconsin lawyers to the dangers of mishandling child pornography, our article dives deeper in providing lawyers the guidance they need when wrestling with the complex challenges of handling contraband and other incriminating physical evidence.

As discussed in this article, a lawyer’s options with respect to child pornography may be more limited than when handling other incriminating physical evidence. Nonetheless, lawyers are not always required to turn suspected contraband over to law enforcement as Harrington asserts. Rather, lawyers have other legitimate options to consider. Indeed, a lawyer is professionally obligated to explore those options before taking any action that potentially incriminates a client.^[2]

Scholars’ and Courts’ Views on Handling of Incriminating Evidence

The topic of the challenges for criminal defense lawyers in handling incriminating physical evidence, including contraband, has received considerable attention from legal scholars and commentators since In re Ryder in 1967.^[3] The infamous Ryder case is discussed in most professional responsibility textbooks and often used to warn law students that even though a defense lawyer has a constitutional duty to provide effective representation to a client, that duty does not permit a lawyer to conceal instrumentalities or evidence of a crime in one’s law office. Although counsel may, while properly defending a client, take action that will frustrate the prosecutor’s ability to win a conviction,^[4] lawyers must not alter, conceal, or destroy relevant evidence.

Prof. Rodney J. Uphoff, U.W. 1976, is Elwood Thomas Missouri Endowed Professor Emeritus of Law at the University of Missouri. He had been a public defender from 1978 to 1984, including service as the chief staff attorney of the Milwaukee Office of the Wisconsin State Public Defender.

Uphoff has written numerous articles on criminal defense practice, the delivery of indigent defense services and ethical issues facing those involved in the criminal justice system. In 1995, he edited a book for the American Bar Association, Ethical Problems Facing the Criminal Defense Lawyer.

Uphoff was one of four attorneys appointed to represent Terry Nichols in Oklahoma state court. Nichols was convicted of 161 murders based on the bombing of the Murrah Building in Oklahoma City in April 1995 but did not receive the death penalty.

Prof. Peter A. Joy is the Henry Hitchcock Professor of Law at Washington University in St. Louis. Joy teaches legal ethics and directs the Criminal Justice Clinic.

Joy’s legal ethics scholarship includes coauthoring a professional responsibility textbook, Do No Wrong: Ethics for Prosecutors and Defenders (ABA, 2009), and over 75 legal ethics columns for the ABA publication Criminal Justice. Joy is also an elected member of American Law Institute (ALI), a Subject Matter Expert for the Multistate Professional Responsibility Examination (MPRE), and an American Bar Foundation Fellow.

In the past 60 years, a few courts around the United States have grappled with different aspects of the dilemma facing a criminal defense lawyer who has taken possession of physical evidence. Most, but not all, courts that have addressed the issue have held that a lawyer who comes into possession of incriminating evidence and turns that evidence over to authorities contrary to the best interest of their client has not acted unethically or provided ineffective assistance of counsel.^[5] Because taking possession might trigger a requirement to disclose and turn over incriminating evidence to the authorities to the client’s detriment, commentators uniformly caution criminal defense lawyers not to take possession of contraband or evidence of a crime, except in very limited circumstances, such as when evidence may aid in the client’s defense or its evidentiary value is ambiguous without further examination or testing.^[6]

A criminal defense lawyer should never take possession of physical evidence that is clearly incriminating unless it might be relevant to a viable defense. Certainly, the defense lawyer in People v. Meredith^[7] failed to heed that advice. In that case, the lawyer learned from a client who was accused of murder that the client had thrown a wallet belonging to the victim into a burn barrel behind his house. Without consulting the client, the lawyer instructed an investigator who worked with the lawyer to retrieve the wallet. The investigator found the wallet and gave it to the lawyer, who promptly turned it over to the investigating detective.

No conscientious criminal defense lawyer committed to providing a client zealous representation should ever act in such a manner. Criminal defense lawyers are under no legal or ethical obligation to collect or preserve incriminating evidence not in their possession or control.^[8] Rather, as we explain, clearly incriminating evidence, including child pornography, should be left alone unless there is no doubt that the client will benefit from counsel taking possession.

In rare instances, conscientious defense counsel might feel the need to take possession of contraband, to properly prepare a defense for a client. In 2014, Kenneth Olsen, an experienced public defender representing a client, took possession of items of suspected child pornography material, believing that the items were critical to his theory of defense of the client.^[9] When Olsen left the office to take another job, the public defender who took over the client’s case delivered the items to the prosecuting authorities.

The Montana Office of Disciplinary Counsel eventually charged Olsen with violating Montana Rules of Professional Conduct 3.4 and 8.4(b), (c) and (d). Both the Montana Commission and the Montana Supreme Court found no misconduct on Olsen’s part. The Montana Supreme Court agreed with the Montana Commission that Olsen neither violated the rules of professional conduct nor Montana’s statute on tampering with physical evidence despite keeping the child pornography in his law office and not immediately turning it over to the authorities. The court also noted that the Montana Commission properly relied on the ABA Criminal Justice Standards for guidance in analyzing the issue.^[10]

Must Incriminating Evidence Be Turned Over to Authorities?

One practical problem criminal defense lawyers face when investigating or preparing a defense is that it is not always obvious whether an item of physical evidence they or their investigators encounter is incriminating or potentially exculpatory evidence. Only after the physical evidence is collected – and sometimes only after discussing the item of evidence with the client or after the evidence has been tested – may the lawyer come to recognize that the evidence is indeed incriminating and will not be helpful to the client’s case. What then must the lawyer do with the incriminating physical evidence? Most courts that have addressed the issue mandate that criminal defense lawyers who have taken possession of incriminating evidence must notify prosecuting authorities or turn over that evidence to the authorities.^[11] Some case law recognizes another option – permitting lawyers to avoid turning over incriminating evidence to the authorities by returning evidence to the source.^[12]

Citing to one authoritative source, the Restatement (Third) of the Law Governing Lawyers section 119, Harrington argued that lawyers or their agents who take possession of child pornography must turn over that evidence to law enforcement. Indeed, Restatement section 119, while recognizing the necessity of defense lawyers taking possession of evidence to examine or test items of physical evidence in preparation of a defense, mandates that counsel, after a reasonable time, notify the authorities or deliver the evidence to them.

Harrington’s analysis may have overlooked comment b to section 119, which states that comment b to section 119 states that “[a] lawyer has the same privilege as prosecutors to possess and examine such material for the lawful purpose of assisting in the trial of criminal cases. Such an examination may include scientific tests, so long as they do not alter or destroy the value of the evidence for possible use by the prosecution. So long as the lawyer’s possession is for that purpose, criminal laws that generally prohibit possession of contraband or other evidence of crimes are inapplicable to the lawyer.”

Additionally, 18 U.S.C. § 1515(c) provides lawyers a safe harbor from a federal obstructing-justice charge if they are providing bona fide legal services to a client. Prominent ethics scholar Greg Sisk argued persuasively that 18 U.S.C. § 1515(c) protects a lawyer even when advising a client to destroy contraband such as child pornography if the lawyer has no reason to believe the items are relevant to a pending proceeding or investigation that at least may be reasonably anticipated.^[13]

One of the nation’s leading legal scholars, Stephen Gillers, not only disagrees with Restatement section 119 but also has argued that the prevailing precedent holding that lawyers must turn over physical evidence to the prosecution is wrong.^[14] Sisk agrees with Gillers that most courts have gotten it wrong, arguing that the mandatory turnover rule compromises the criminal defendant’s right to have counsel investigate and examine real evidence because most lawyers will halt doing such an investigation if the lawyer knows that exercising that right will redound to the client’s detriment when the evidence afterward must be laid at the doorstep of the prosecution.^[15] We agree with Gillers and Sisk.

Many other legal scholars agree that lawyers are not required to turn over all incriminating evidence to the prosecution.^[16] In their treatise on ethics, The Lawyer’s Deskbook on Professional Responsibility, Morgan and Rotunda stated:

“A lawyer, when necessary, may take possession of physical evidence and retain it for a reasonable amount of time in order to examine it, but this examination must not alter or destroy the evidence. After that time, the lawyer must either return the evidence to the site from which it was obtained (if it can be done without destroying the evidentiary value) or notify the prosecuting authorities that the lawyer has possession of the evidence.”^[17]

Neither the ABA Model Rules of Professional Conduct nor Wisconsin SCR 20:3.4 provides a clear answer to the question of what a lawyer must do after taking possession of incriminating physical evidence. Comment [2] of SCR 20:3.4 states that “[a]pplicable law may permit a lawyer to take temporary possession of physical evidence of client crimes for the purpose of conducting a limited examination that will not alter or destroy material characteristics of the evidence. In such a case, applicable law may require the lawyer to turn the evidence over to the police or other prosecuting authority, depending on the circumstances.”

In the absence of any Wisconsin case law directly on point spelling out a lawyer’s obligation once in possession of incriminating physical evidence, therefore, we encourage criminal defense lawyers to look to ABA Criminal Justice Standard 4-4.7.^[18] Warren Burger, chair of the ABA Standards project until his appointment as Chief Justice of the U.S. Supreme Court in 1969, described the project as “the single most comprehensive and probably the most monumental undertaking in the field of criminal justice ever attempted by the American legal profession in our national history” and recommended that “[e]veryone connected with criminal justice … become totally familiar with [the Standards’] substantive content.”^[19] Since their adoption, the ABA Standards have been cited thousands of times by courts across the United States, including the U.S. Supreme Court. As the Supreme Court noted in Strickland v. Washington, the ABA Standards provide reliable guidance as to the “prevailing norms of practice” and “guides to determining what is reasonable” criminal defense attorney performance.^[20]

A client should not have to sacrifice the Fifth Amendment right against self-incrimination because the client consulted with counsel who took possession of the client’s phone while attempting to provide representation consistent with the defendant’s Sixth Amendment right.

ABA Guidance: Standard Defense Function 4-4.7

ABA Standard Defense Function 4-4.7, “Handling Physical Evidence with Incriminating Implications,” provides authoritative guidance to criminal defense lawyers. [See sidebar.] ABA Standard 4-4.7 reflects a more nuanced approach to the ethical dilemma criminal defense lawyers face than a mandatory disclosure rule. The standard recognizes that defense lawyers at times face an exceptionally difficult challenge if, while preparing a client’s defense, they come into possession of an item of physical evidence that is incriminating. Few defense lawyers want to take any action that might contribute to a client’s conviction. ABA Standard 4-4.7 acknowledges this difficulty and allows counsel to return evidentiary items to the source, thereby encouraging counsel to conduct a rigorous investigation. Demanding the delivery of all such evidence to law enforcement would chill defense investigation. Zealous defense lawyers would be extremely reluctant to ever take possession of evidentiary items, if doing so always would require disclosure to the authorities.^[21]

Thus, as the ABA Standards, some case law, and leading authorities advise, lawyers should not fear taking possession of physical evidence if counsel has a legitimate reason to do so. “If the lawyer takes the item to test it, she should have a reasonable basis to believe that the test will yield relevant information. Where the item is a document and its meaning is not immediately apparent, as with the workpapers in Fisher, taking possession will be necessary to understand its meaning. Absent an independent reason to retain the item or document, it should then be returned to its source.”^[22]

Specific Concerns for Contraband Evidence

Unquestionably, handling contraband such as child pornography, which is illegal to possess for the client or the lawyer, is even more challenging than handling other items of physical evidence.

What Not to Do. The case of United States v. Russell highlights the serious consequences lawyers might experience if they take possession of contraband and do not handle it properly.^[23] In Russell, church leaders discovered child pornography on a laptop that belonged to a long-time choirmaster. The church leaders took the laptop to a lawyer, Philip Russell, for his advice. After confronting the choirmaster, who confirmed that he had downloaded the inappropriate images, Russell advised the church leaders that they could not continue to possess the laptop because possession of child pornography was unlawful. Russell then took possession of the laptop and destroyed the hard drive. The choirmaster eventually was arrested, found in possession of other child pornography, and agreed to cooperate with prosecutors in a case against Russell. Russell was then charged with two counts of obstruction of justice for destroying the laptop.

Russell ultimately agreed to plead guilty to a single count of misprision of felony and was sentenced to six months’ home confinement and ordered to pay a $25,000 fine. The federal misprision-of-felony offense requires knowledge of the commission of a felony by another, failure to report the felony to the authorities, and taking steps to conceal the crime. In Russell, the prosecution could show that Russell knew or should have known that there was a pending investigation into the choirmaster’s behavior such that Russell’s destruction of the laptop under the circumstances constituted a violation of the misprision-of-felony statute.^[24] Russell was not obligated to take possession of the laptop nor was he required to notify the authorities that the church leaders had a laptop with pornography on it. Indeed, such a disclosure would have violated his duty to preserve his clients’ confidences.

Russell’s crime was destroying evidence knowing there was an ongoing investigation. Greg Sisk made a compelling argument that if there was not a pending case or investigation, a lawyer could lawfully take possession of child pornography for the purpose of destroying the evidence.^[25] ABA Standard 4-4.7(ii) agrees.

Authors’ Suggested Approach. We would have handled the situation much differently than Russell did. We discussed how we would have counseled the client in such a situation in our article “‘What Do I Do with the Porn on my Computer?’: How a Lawyer Should Counsel Clients about Physical Evidence.”^[26] After examining the images, we would have told the church leaders we would not take possession of the laptop unless they wished us to do so for the purpose of turning it over to the authorities. If we could not persuade them to allow us to turn in the laptop, we would decline to take possession, explain why, and then warn the church leaders about the relative risks involved in both continuing to possess illegal images and destroying the laptop. This would be consistent with our obligations under SCR 20:1.2(d), which instructs that “a lawyer may discuss the legal consequences of any proposed course of conduct with a client.”^[27]

Nor would we take possession of a laptop containing child pornography if a parent came into our office requesting our advice as to whether certain images on his child’s laptop constituted child pornography. Merely looking at the images in order to provide our client a legal opinion does not constitute taking possession of that laptop.^[28]

If that were the law, then lawyers in a host of situations, by merely examining documents, emails, or texts on a cellphone, would be obligated to turn over that evidence to state or federal authorities if counsel’s review of that evidence indicated that it was contraband or incriminating. Such a broad definition of possession would eviscerate a client’s right to access legal advice because the client’s showing any item of evidence to a lawyer for even a brief inspection or cursory examination would necessitate the lawyer’s turning that evidence over to the authorities if the lawyer believed the evidence was in some manner incriminating.

Nor is it taking possession if a client asked us to review certain text exchanges on the client’s phone and we see images that appeared to be child pornography on the phone. In both instances, we would explain to the client why we would not take possession of the laptop or phone and counsel the client on the risk the client faces by continuing to possess child pornography, again consistent with our ethical obligations under SCR 20:1.2(d).^[29]

Consider a more complicated situation, in which a client drops off the client’s phone at our law office and we examine the phone to review text messages between the client and a complaining witness that the client thinks could be helpful in the client’s case. In examining the phone, we see images that we believe are child pornography. We confront the client, who claims that he did not know the images were child pornography. What should a lawyer do in such a situation?

Harrington asserted that a lawyer knowing that the lawyer possesses child pornography must turn in the phone to law enforcement. If we are confident that the authorities are not looking for the phone, that the phone is not relevant to the pending case, and that an investigation for child pornography is not imminent, ABA Standard 4-4.7(ii) would allow us to advise the client that we were going to destroy the phone.

In discussing how he would have handled the laptop in the Russell case, Sisk suggested that the best alternative might have been to advise the choirmaster to obtain legal counsel “while passively allowing him to retain and remove his own possessions, including the offending laptop.”^[30] Both Sisk and Gillers made clear that they do not believe that defense counsel should act as a state agent and turn in a client when defense counsel has inadvertently come into possession of a laptop containing child pornography that the state is unaware of and when there is no anticipated investigation.^[31] Sisk opined that defense counsel should be able to ethically and lawfully assist the client in destroying the laptop containing child pornography under such circumstances.^[32] Norm Lefstein agrees, noting that, “some state statutes make it a crime to destroy evidence only when it is related to an official investigation or proceeding or when there is a belief that an investigation or proceeding is about to be instituted. Similarly, under federal law, it is not illegal to destroy an item unless it pertains to a criminal investigation or is the subject of a subpoena.”^[33]

A client should not have to sacrifice the Fifth Amendment right against self-incrimination because the client consulted with counsel who took possession of the client’s phone while attempting to provide representation consistent with the defendant’s Sixth Amendment right. Gillers’ criticism of Restatement section 119 and the mandatory turnover rule strongly suggests that he would advise a defense lawyer who inadvertently saw child pornography on the phone in the above hypothetical not to give the phone to the authorities but would allow the client to leave with the phone after warning the client of the dangers of continued possession.

Fisher v. United States and its progeny and 18 U.S.C. § 1515 (c) generally would appear to protect the lawyer under these circumstances.^[34] Neither we nor the client would be seeking to use the law office as a repository for evidence or to conceal the phone from an ongoing search or investigation when we saw the child pornography on the phone. The situation would change, however, if we were aware that law enforcement officers were looking for the client’s phone because the complaining witness had alerted the officers to the presence of child pornography on the phone. Under those circumstances, we could not legally or ethically destroy the phone or give it back to the client.

A lawyer in Wisconsin faces one additional hurdle. In State v. Jones,^[35] the Wisconsin Court of Appeals determined that the offense of harboring or aiding a felon could be established even if the perpetrator has not been convicted or even identified.^[36] The rationale in that case possibly could be applied to a Iawyer who destroyed a phone or returned it to the client in the circumstances described above, even though the authorities were completely unaware of the underlying crime.

It is unclear whether the Wisconsin Supreme Court or disciplinary authorities would penalize a lawyer who acted pursuant to ABA Standard 4-4.7 and destroyed the phone or returned it to the client when the contents of the phone were not the subject of any investigation or charged offense. The court could find, as in Olsen, that the lawyer was acting in good faith to resolve an ethical dilemma without a clear answer. Or it could find that a mandatory “turn over” requirement when lawyers inadvertently possess child pornography under the circumstances described above is constitutionally offensive because it directly links the client to a crime that might otherwise never be discovered.

Admittedly, in resolving the dilemmas posed above, because of Jones a Wisconsin lawyer faces more risk than lawyers in most other jurisdictions. A conscientious lawyer would have to decide whether to betray the client and subject the client to a criminal prosecution the client otherwise likely never would have faced or run the risk of being prosecuted, subjected to disciplinary proceedings, or both.

Conclusion

Except for the lawyer in Olsen, none of the lawyers who took possession of incriminating physical evidence in the cases cited in this article did so with a strategically valid, good reason for doing so. Rather, most of them erroneously thought they had an ethical obligation to take possession of incriminating evidence. Wisconsin lawyers must be extremely careful about taking possession of incriminating physical evidence and instruct their staff, including investigators and paralegals, never to take possession of such evidence without first consulting with the lawyer. Doing so likely will minimize the instances of inadvertent possession of contraband or clearly incriminating physical evidence. But lawyers should not be so afraid of navigating messy ethical dilemmas such that they compromise a client’s right to a zealous defense by never taking possession of potential evidence even though it might be exculpatory.

Lawyers who find themselves in possession of incriminating physical evidence should consult with knowledgeable criminal defense lawyers or ethics counsel before taking any action. In some instances, they may be able to return that physical evidence to the source. In other cases, especially dealing with contraband like child pornography, that option might be foreclosed.

If counsel has no recourse except to disclose the evidence to the authorities, we recommend that rather than simply turning the contraband over to law enforcement, counsel notify the prosecuting authorities and then, like the lawyers in In the Matter of a Grand Jury Investigation,^[37] insist that prosecutors seek a court order before relinquishing the contraband. Conscientious criminal defense lawyers always should take action that “minimizes prejudice to the client.”^[38] Such lawyering is consistent with defense counsel’s overarching duty to zealously advance the client’s undivided interest, not the interest of the state.^[39]

ABA Guidance: Standard Defense Function 4-4.7

ABA Standard Defense Function 4-4.7, “Handling Physical Evidence with Incriminating Implications,” provides authoritative guidance to criminal defense lawyers. Standard 4-4.7 states:

(a) Counseling the client: If defense counsel knows that the client possesses physical evidence that the client may not legally possess (such as contraband or stolen property) or evidence that might be used to incriminate the client, counsel should examine and comply with the law and rules of the jurisdiction on topics such as obstruction of justice, tampering with evidence, and protection for the client’s confidentiality and against self-incrimination. Counsel should then competently advise the client about lawful options and obligations.

(b) Permissible actions of the client: If requested or legally required, defense counsel may assist the client in lawfully disclosing such physical evidence to law enforcement authorities. Counsel may advise destruction of a physical item if its destruction would not obstruct justice or otherwise violate the law or ethical obligations. Counsel may not assist the client in conduct that counsel knows is unlawful, and should not knowingly and unlawfully impede efforts of law enforcement authorities to obtain evidence.

(c) Confidentiality: Defense counsel should act in accordance with applicable confidentiality laws and rules. In some circumstances, applicable law or rules may permit or require defense counsel to disclose the existence of, or the client’s possession or disposition of, such physical evidence.

(d) Receipt of physical evidence: Defense counsel should not take possession of such physical evidence, personally or through third parties, and should advise the client not to give such evidence to defense counsel, except in circumstances in which defense counsel may lawfully take possession of the evidence. Such circumstances may include:

(i) when counsel reasonably believes the client intends to unlawfully destroy or conceal such evidence;

(ii) when counsel reasonably believes that taking possession is necessary to prevent physical harm to someone;

(iii) when counsel takes possession in order to produce such evidence, with the client’s informed consent, to its lawful owner or to law enforcement authorities;

(iv) when such evidence is contraband and counsel may lawfully take possession of it in order to destroy it; and

(v) when defense counsel reasonably believes that examining or testing such evidence is necessary for effective representation of the client.

(e) Compliance with legal obligations to produce physical evidence: If defense counsel receives physical evidence that might implicate a client in criminal conduct, counsel should determine whether there is a legal obligation to return the evidence to its source or owner, or to deliver it to law enforcement or a court, and comply with any such legal obligations. A lawyer who is legally obligated to turn over such physical evidence should do so in a lawful manner that will minimize prejudice to the client.

(f) Retention of producible item for examination. Unless defense counsel has a legal obligation to disclose, produce, or dispose of such physical evidence, defense counsel may retain such physical evidence for a reasonable time for a legitimate purpose. Legitimate purposes for temporarily obtaining or retaining physical evidence may include: preventing its destruction; arranging for its production to relevant authorities; arranging for its return to the source or owner; preventing its use to harm others; and examining or testing the evidence in order to effectively represent the client.

(g) Testing physical evidence. If defense counsel determines that effective representation of the client requires that such physical evidence be submitted for forensic examination and testing, counsel should observe the following practices:

(i) The item should be properly handled, packaged, labeled and stored, in a manner designed to document its identity and ensure its integrity.

(ii) Any testing or examination should avoid, when possible, consumption of the item, and a portion of the item should be preserved and retained to permit further testing or examination.

(iii) Any person conducting such testing or examination should not, without prior approval of defense counsel, conduct testing or examination in any manner that will consume the item or otherwise destroy the ability for independent re-testing or examination by the prosecution.

(iv) Before approving a test or examination that will entirely consume the item or destroy the prosecution’s opportunity and ability to re-test the item, defense counsel should provide the prosecution with notice and an opportunity to object and seek an appropriate court order.

(v) If a motion objecting to consumptive testing or examination is filed, the court should consider ordering procedures that will permit independent evaluation of the defense’s analysis, including but not limited to:

(A) permitting a prosecution expert to be present during preparation and testing of the evidence;

(B) video recording the preparation and testing of the evidence;

(D) access to all raw data, notes and other documentation relating to the defense preparation and testing of the evidence.

(h) Client consent to accept a physical item. Before voluntarily taking possession from the client of physical evidence that defense counsel may have a legal obligation to disclose, defense counsel should advise the client of potential legal implications of the proposed conduct and possible lawful alternatives, and obtain the client’s informed consent.

(i) Retention or return of item when law permits. If defense counsel reasonably determines that there is no legal obligation to disclose physical evidence in counsel’s possession to law enforcement authorities or others, the lawyer should deal with the physical evidence consistently with ethical and other rules and law. If defense counsel retains the evidence for use in the client’s representation, the lawyer should comply with applicable law and rules, including rules on safekeeping property, which may require notification to third parties with an interest in the property. Counsel should maintain the evidence separately from privileged materials of other clients and preserve it in a manner that will not impair its evidentiary value. Alternatively, counsel may deliver the evidence to a third-party lawyer who is also representing the client and will be obligated to maintain the confidences of the client as well as defense counsel.

(j) Adoption of judicial and legislated procedures for handling physical evidence. Courts and legislatures, as appropriate, should adopt procedures regarding defense handling of such physical evidence, as follows:

(i) When defense counsel notifies the prosecution of the possession of such evidence or produces such evidence to the prosecution, the prosecution should be prohibited from presenting testimony or argument identifying or implying the defense as the source of the evidence, except as provided in Standard 3-3.6;

(ii) When defense counsel reasonably believes that contraband does not relate to a pending criminal investigation or prosecution, counsel may take possession of the contraband and destroy it.

Endnotes

1 Sean Harrington, Attorneys’ Legal Obligations When Coming into Inadvertent Possession of or Access to Child Pornography, 98 Wis. Law. 28 (June 2025).

2 Obligations to the client under two Wisconsin Supreme Court Rules require this. First, SCR 20:1.4, the communication duty, states that “[a] lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Second, SCR 10:1.6, the duty of confidentiality, prohibits a lawyer from “reveal[ing] information relating to the representation of a client unless the client gives informed consent” or revealing the information meets one of the very limited discretionary exceptions to protecting client information.

3 263 F. Supp. 360, 361-62 (E.D. Va. 1967), aff’d per curiam, 381 F.2d 715 (4th Cir. 1967). See, e.g., Stephen Gillers, Guns, Fruits, Drugs, and Documents: A Criminal Defense Lawyer’s Responsibility for Real Evidence, 63 Stan. L. Rev. 813 (2011) (discussing what lawyers should do with evidence that is illegal to possess); Peter A. Joy & Kevin C. McMunigal, Incriminating Evidence – Too Hot to Handle?, 24 Crim. Just. 42 (2009) (outlining ethical and legal framework for what a lawyer should do with incriminating evidence); Norman Lefstein, Incriminating Physical Evidence, the Defense Attorney’s Dilemma, and the Need for Rules, 64 N.C. L. Rev. 897 (1986) (discussing what attorneys should do with evidence that implicates a client in a crime); Kevin R. Reitz, Clients, Lawyers and the Fifth Amendment: The Need for a Projected Privilege, 41 Duke L.J. 572 (1992) (suggesting that lawyers should be able to assert clients’ Fifth Amendment privilege with respect to incriminating evidence); Gregory C. Sisk, The Legal Ethics of Real Evidence: Of Child Porn on the Choirmaster’s Computer and Bloody Knives Under the Stairs, 89 Wash. L. Rev. 819, 819, 822 (2014) (examining how law of real evidence relates to “professional responsibility, attorney-client confidentiality, and the constitutional rights of criminal defendants”); Rodney J. Uphoff, Handling Physical Evidence: Guidance Found in ABA Standard 4-4.6, 26 Crim. Just. 4 (2011) (discussing handling incriminating physical evidence); Rodney J. Uphoff, The Physical Evidence Dilemma: Does ABA Standard 4-4.6 Offer Appropriate Guidance?, 62 Hastings L.J. 1177 (2011) [hereinafter Uphoff, Physical Evidence Dilemma].

4 See United States v. Wade, 388 U. S. 218, 256 -58 (1967) (White, J., dissenting in part and concurring in part) (articulating the proper role for defense counsel in the adversary system, which includes not furnishing information that helps the prosecution’s case).

5 Clutchette v. Rushen, 770 F.2d 1469 (9th Cir. 1985); In re Jan. 1976 Grand Jury, 534 F.2d 719 (7th Cir. 1976); Gipson v. State, 609 P.2d 1038 (Alaska 1980); Morrell v. State, 575 P.2d 1200 (Alaska 1978); Magill v. Superior Ct., 103 Cal. Rptr. 2d 355 (Ct. App. 2001) (ordered unpublished), as modified on denial of reh’g (Jan. 29, 2001); People v. Superior Ct., 237 Cal. Rptr. 158 (Ct. App. 1987); In re Navarro, 155 Cal. Rptr. 522 (Ct. App. 1979); People v. Lee, 83 Cal. Rptr. 715 (Ct. App. 1970); Anderson v. State, 297 So. 2d 871 (Fla. Dist. Ct. App. 1974); State v. Carlin, 640 P.2d 324 (Kan. Ct. App. 1982); State v. Green, 493 So. 2d 1178 (La. 1986); Commonwealth v. Stenhach, 514 A.2d 114 (Pa. Super. Ct. 1986); State ex rel. Sowers v. Olwell, 394 P.2d 681 (Wash. 1964); cf. Quinones v. State, 766 So. 2d 1165 (Fla. Dist. Ct. App. 2000); State v. Dillon, 471 P.2d 553, 565 (Idaho 1970); Rubin v. State, 602 A.2d 677 (Md. 1992); People v. Nash, 313 N.W.2d 307, 314 (Mich. Ct. App. 1981), aff’d in relevant part, 341 N.W. 2d 439 (Mich. 1983); In re Original Grand Jury Investigation (Helmick), No. L-98-1146, 1999 WL 518837, at *1 (Ohio Ct. App. July 23, 1999) (unpublished), aff’d, 733 N.E.2d 1135 (Ohio 2000).

6 For a detailed examination of the authority permitting lawyers to take possession of physical evidence and providing examples of when doing so is appropriate to render effective representation, see Uphoff, Physical Evidence Dilemma, supra note 3, at 1191-98.

7 639 P.2d 46, 51-53 (Cal. 1981).

8 See, e.g., Commonwealth v. Tate, 490 Mass. 501, 192 N.E.2d. 1034 (2022) (holding that defense counsel had no ethical obligation to disclose to prosecution location of incriminating evidence and breached duty to client by doing so); Wedmark v. State, 602 N.W.2d 810, 817 (Iowa 1999) (holding that defense lawyer had no legal obligation to disclose information about the location of an instrument of a crime when possession of the instrument is not taken); Clutchette v. Rushen, 770 F.2d 1469, 1473 (9th Cir. 1985) (noting that defense lawyer would have discharged his duties had he left evidence where it was located).

9 222 P.3d 632 (Mont. 2009).

10 Id. at 638. The court and the Montana Commission were looking at ABA Criminal Justice Standard § 4-4.6, which was an earlier version of section 4-4.7.

11 See cases cited in note 3, supra.

12 Several cases explicitly recognize the right of a lawyer to return an item of incriminating physical evidence to the source. See, e.g., Hitch v. Pima Cnty. Superior Ct., 708 P.2d 72, 78 (Ariz. 1985) (stating that if counsel reasonably believed that evidence would not be destroyed, he could return it to the source); Commonwealth v. Stenhach, 514 A.2d 114, 123 (Pa. Super. Ct. 1986) (stating that counsel can return physical evidence to the source under certain circumstances); Dean v. Dean, 607 So. 2d 494, 499 (Fla. Dist. Ct. App. 1992) (allowing lawyer to return stolen property to rightful owner rather than authorities). For a compelling defense of the need for lawyers to be able to return incriminating items to the source to properly defend their clients, see Sisk, supra note 3, at 862-27.

13 See Sisk, supra note 3, at 839-42.

14 Gillers, supra note 3, at 846-48.

15 Sisk, supra note 3, at 881.

16 See, e.g., Lefstein, supra note 3, at 926-30,937-38; Reitz, supra note 3, at 584-613.

17 Ronald D. Rotunda & Thomas D. Morgan, The Lawyer’s Deskbook on Professional Responsibilities § 3.4-2 (2025-26 ed.); see also John M. Burkoff, Criminal Defense Ethics § 5.22 (March 2025 update, 2d ed).

18 ABA, Criminal Justice Standards for the Defense Function, Standard 4-4.7 (4th ed. 2017) (hereinafter ABA Standard 4-4.7).

19 Warren E. Burger, Introduction: The ABA Standards for Criminal Justice, 12 Am. Crim. L. Rev. 251 (1974).)

20 Strickland v. Washington, 466 U.S. 668, 688 (1984).

21 The commentary to the prior version of ABA Standard 4-4.7 (Standard 4-4.6) concluded a mandatory turnover rule would discourage candid lawyer-client communications, compromise full defense investigation and undermine client trust in counsel. Gillers agreed, noting that a footnote in Clutchette v. Rushen acknowledged that counsel may face a constitutional dilemma if evidence must be possessed to determine its evidentiary significance and then turned over to authorities if incriminating. Gillers, supra note 3, at 841-42. For a detailed discussion of the ways a mandatory return regime undermines a defendant’s right to effective representation, see Sisk, supra note 3, at 862-72, and Uphoff, supra note 3, at 1193-95, 1198-1203.

22 Gillers, supra note 3, at 857.

23 639 F. Supp. 2d 226 (D. Conn. 2007).

24 Sisk explained that the destruction of contraband under federal law and most state law turns on whether the lawyer knows or had reason to know that a case is pending or an investigation is to be reasonably anticipated. Sisk, supra note 3, at 852, 857-61, 878-81.

25 Wis. Stat. section 946.47(1)(b) makes it a crime for a person with “intent to prevent the apprehension, prosecution or conviction of a felon” to destroy, alter, hide, or disguise physical evidence. Both the Model Penal Code § 241.6 (Am. Law Inst. 1985) and the Restatement (Third) of the Law Governing Lawyers § 118 comment c state that obstruction of justice and similar statutes generally only apply when an official proceeding or investigation is ongoing or imminent. In considering an Iowa statute with language similar to Wisconsin’s, Sisk opined that “classifying such conduct as criminal obstruction of justice when done with intent to prevent ‘apprehension,’ as well as when designed to obstruct prosecution or defense of a person, this statute effectively integrates the anticipation of a future criminal investigation or proceeding into the mens rea for the crime. Sisk, supra note 3, at 829. But see infra notes 33-34 & accompanying text.

26 Peter A. Joy & Rodney J. Uphoff, ‘What Do I Do With the Porn on My Computer?’ How a Lawyer Should Counsel Clients about Physical Evidence, 54 Amer. Crim. L. Rev. 751 (2017).

27 For an extended discussion of the advice that counsel can ethically and legally give to a client when declining to take possession of contraband, see Joy & Uphoff, supra note 26, at 761-81.

28 See Geoffrey Hazard Jr. et al., The Law of Lawyering § 10:46 (last updated June 2025) (acknowledging that if a client is proffering physical evidence to the lawyer, the client has the right to be told what the lawyer will do with the evidence and can demand it back, even though the client may then hide the evidence). As the U.S. Supreme Court made clear, documents turned over to a lawyer or an accountant by a person (for example, a taxpayer) can be considered no longer in the possession of the taxpayer and, as such, might not be privileged and might be able to be subpoenaed from the taxpayer’s lawyer. Couch v. United States, 409 U.S. 322, 328-31 (1973). Such documents are not protected by the attorney-client privilege unless they would still be protected if possessed by the taxpayer. Couch, 409 U.S. at 335-36. Nonetheless, the Court in Couch observed that “situations may well arise where constructive possession is so clear or the relinquishment of possession is so temporary and insignificant as to leave the personal compulsions upon the accused substantially intact.” Id. at 333. If the lawyer does not “actively participate in hiding an item” or “take possession of it in such a way that its discovery by the authorities becomes less likely,” the duties of confidentiality and loyalty to the client prevent the lawyer from turning over potential physical, electronic, or documentary evidence to authorities. The Law of Lawyering, supra, § 10.46.

29 For a detailed discussion of the advice we would give in this situation, see Joy & Uphoff, supra note 26, at 767-72.

30 Sisk, supra note 3, at 855.

31 Sisk, citing Gillers, referred to this as an “unacceptable solution.” Sisk, supra note 3, at 857.

32 Sisk, supra note 3, at 857-59; see also Lefstein, supra note 3, at 934-35.

33 Lefstein, supra note 3, at 934-35. In Matter of Ash, 211 A.D.3d 56 (N.Y. App. 2022), Sylvia Ash was disbarred after being convicted of conspiracy to obstruct justice, obstruction of justice, and making a false statement to federal officers after deleting text messages and emails and wiping data from a phone, some of which had been the subject of federal grand jury subpoenas, and then making false and misleading statements in connection with the federal investigation. Both criminal and professional liability attached because Ash knew of the investigation and destroyed evidence sought by the subpoenas.

34 425 U.S. 391, 409-10 (1976) (stressing importance of protecting client’s right to obtain fully informed legal advice).

35 98 Wis. 2d 679, 681, 298 N.W.2d 100 (Ct. App. 1980).

36 See also State v. Schmidt, 221 Wis. 2d 189, 585 N.W.2d 186 (Ct. App. 1998) (holding that Wis. Stat. section 946.47(1)(b) did not require showing that Joros was wanted for a felony when police officers were seeking to apprehend him, only that defendant knew Joros was a felon, aided him, and did so to prevent his apprehension).

37 470 Mass. 399 (2015).

38 ABA Standard 4-4.7(e).

39 As Justice Powell observed, “a defense lawyer best serves the public, not acting on behalf of the state or in concert with it, but rather by advancing ‘the undivided interest of his client.’” Polk Cnty. v. Dodson 454 U.S. 312, 318-319 (1981) (quoting Ferri v. Ackerman, 444 U.S. 193, 204 (1979)).

» Cite this article: 99 Wis. Law. 26-34 (February 2026).

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