Chapter 809

809.85(5)(e)5. 5. If counsel was unable to give the client the notice required under subd. 2., a statement that attempts to give notice have failed and an explanation of what good faith efforts counsel made to satisfy the notice requirement.

809.85(5)(e)6. 6. The reasons for withdrawal under SCR 20:1.16 and the facts relevant to the reasons or factors in the withdrawal determination under par. (f), unless an explanation of the reasons and facts would violate a standard of professional responsibility.

809.85(5)(f) (f) Factors in withdrawal determination. The court may approve withdrawal under appropriate terms and conditions. The court may consider the following factors in deciding the attorney’s motion to withdraw:

809.85(5)(f)1. 1. Whether the client has been given reasonable notice and opportunity to obtain substitute counsel.

809.85(5)(f)2. 2. Complexity of the case, the length of time the attorney has served as counsel of record, and preparatory work completed.

809.85(5)(f)3. 3. The amount of fees paid or owed.

809.85(5)(f)4. 4. Whether the request is made to manipulate the appellate process.

809.85(5)(f)5. 5. Whether the attorney-client relationship is irrevocably broken.

809.85(5)(f)6. 6. Prejudice to any party.

809.85(5)(f)7. 7. Delay caused by the withdrawal of counsel of record.

809.85(5)(f)8. 8. Whether the office of the state public defender will appoint counsel.

809.85(5)(f)9. 9. Such other factors as the court may determine to be relevant.

809.85(5)(g) (g) Time tolled. The filing of a motion to withdraw under this section automatically tolls the time for performing an act required by the rules of appellate procedure or court order from the date the motion was filed until the date motion is disposed of by order. The time for filing a petition for review under s. 808.10 is not tolled.

809.85(5)(h) (h) Motion not necessary. Upon the filing of a petition for review by a self-represented person or new counsel, the clerk shall enter the withdrawal of counsel or substitution of counsel on the court docket without a court order.

809.85(6) (6) Client’s file. The withdrawing attorney shall surrender to the client or successor counsel the papers and property to which the client is entitled within 14 days of counsel’s receipt of the client’s or successor counsel’s request, unless the court orders otherwise.

809.85 History History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 151 Wis. 2d xxv (1989); Sup. Ct. Order No. 20-05, 2021 WI 25, 396 Wis. 2d xv; 2021 a. 240 s. 30.

809.85 Note Judicial Council Committee’s Note, 1978: Rule 809.85 continues former Rule 251.88. [Re Order effective July 1, 1978]

809.85 Note Judicial Council Note, 1990: See ss. 48.235 (7), 767.045 (5) and 880.331 (7).

809.85 Note NOTE: Sup. Ct. Order No. 20-05 states that “the Judicial Council Note to Wis. Stat. § 809.85 is not adopted but will be published and may be consulted for guidance in interpreting and applying the rule.”

809.85 Note Judicial Council Note, 2021: Subsection (5)(a) is not intended to supersede Rule 809.30(4), which governs the withdrawal of appointed counsel. Subsection (6) is consistent with SCR 20:1.16(d) and only adds a time limit in which counsel must act. Subsection (6) allows the court to defer the surrender of papers and property to the client when the appointment of new counsel is anticipated.

809.85 Annotation In this section, “the court” means the court of appeals. Once a timely notice of appeal is filed, the court of appeals gains jurisdiction over the case and the circuit court no longer has jurisdiction to remove court appointed counsel. Roberta Jo W. v. Leroy W., 218 Wis. 2d 225, 578 N.W.2d 185 (1998), 96-2753.

809.86 809.86 Rule (Identification of victims and others in briefing, petitions for review, and responses to petitions for review).

809.86(1) (1) Declaration of policy. By enacting this rule, the supreme court intends to better protect the privacy and dignity interests of crime victims. It requires appellate briefs, petitions for review, and responses to petitions for review to identify crime victims by use of identifiers, as specified in sub. (4), unless there is good cause for noncompliance. The rule protects the identity of victims in appellate briefs, petitions for review, and responses to petitions for review that the courts make available online.

809.86(2) (2) Applicability. This section applies to appeals in the following types of cases:

809.86(2)(a) (a) Section 971.17 proceedings.

809.86(2)(b) (b) Criminal cases.

809.86(2)(c) (c) Chapter 938 cases.

809.86(2)(d) (d) Chapter 980 cases.

809.86(2)(e) (e) Certiorari review of decisions or orders entered by the department of corrections, the department of health services, or the parole commission in a proceeding or case specified in pars. (a) to (d).

809.86(2)(f) (f) Collateral challenges to judgments or orders entered in a proceeding or case specified in pars. (a) to (e).

809.86(3) (3) Definition. In this section, “victim” means a natural person against whom a crime, other than a homicide, has been committed or alleged to have been committed in the appeal or proceeding. “Victim” does not include the person convicted of or alleged to have committed a crime at issue in the appeal or proceeding.

809.86(4) (4) Briefs, petitions for review, and responses to petitions for review. In an appeal specified under sub. (2), the briefs of the parties, petitions for review, and responses to petitions for review shall not, without good cause, identify a victim by any part of his or her name but may identify a victim by one or more initials or other appropriate pseudonym or designation.

809.86(5) (5) Protective order. For good cause, the court may make any order necessary to protect the identity of a victim or other person, or to excuse compliance with this section.

809.86 History History: Sup. Ct. Order No. 14-01, 2015 WI 21, filed 3-2-15, eff. 7-1-15; 2017 a. 365 s. 111; Sup. Ct. Order No. 19-19, 2020 WI 6, 390 Wis. 2d xiii.

809.86 Note NOTE: Sup. Ct. Order No. 14-01 states, “The Judicial Council Note to Wis. Stat. § (RULE) 809.86 is not adopted, but will be published and may be consulted for guidance in interpreting and applying the rule.”

809.86 Note Judicial Council Note, 2015: Proposed s. 809.86 addresses victim privacy concerns that result from public access to searchable documents posted on the Wisconsin Supreme Court and Court of Appeals access website. The proposed rule is intended to protect victims’ constitutional and statutory rights to be treated with fairness, dignity, courtesy, sensitivity, and respect for their privacy. See Wis. Const. Article I, section 9m; Wis. Stat., s. 950.01. Specifically, the rule protects the identity of victims in appellate briefs that the courts make available online. The rule does not extend to other appellate filings, including appendices, because these documents are not currently posted electronically.

809.86 Note The proposed rule is not a rule of confidentiality or privilege. It is not intended to limit a defendant’s right to a public trial, to limit the availability of any potential appellate argument or remedy, or to affect laws regarding public records or open court records that are available in the clerks of courts offices.

809.86 Note The rule is intended to address only matters in which the state has alleged or proved that a party in the appeal or proceeding has committed criminal conduct against one or more victims in the matter. Accordingly, sub. (2) is limited to matters in which victims of crime are most frequently referenced and identified as victims or alleged victims.

809.86 Note Subsection (3) provides a definition of a “victim” that includes an alleged victim. In some appeals, a party’s position will be that there was in fact no victimization, and nothing in this proposed rule is intended to limit arguments to that effect.

809.86 Note The privacy issues addressed by the rule do not extend to a deceased victim in the same manner. Therefore, subsection (3) permits the victim of a homicide to be recognized in an appellate brief.

809.86 Note Subsection (4) prohibits the use of any part of a victim or alleged victim’s name except initials. Subsection (4) does not prescribe or limit the use of other pseudonyms for victims, as long as they maintain sensitivity and respect for victims.

809.86 Note Subsection (5) allows an appellate court to make any necessary order to further protect the identity of victims or to protect the identity of other persons not otherwise covered by the rule. It also allows the court to excuse compliance with this section.

Effective date note Comment, 2020: By S. Ct. Order 19-19, 2020 WI 6 (issued Jan. 29, 2020, eff. July 1, 2020) the court extended the privacy protections of this rule to petitions for review and responses to petitions for review, so that they may be posted on the Wisconsin Supreme Court and Court of Appeals case access website, along with appellate briefs, in a manner that respects victim privacy concerns.