October 10, 2006

Interviewee: Warren H. Stolper

Longtime Madison Lawyer, now retired at age 85

Interview taking place at The Madison Club, Madison, Wisconsin

TGR          Warren, tell me what your date and place of birth were.

WHS         Plymouth, Wisconsin, July 4, 1921

TGR          Where did you get your education ?

WHS        Plymouth Grade School, High School. Then came down here to college at University of Wisconsin in 1939 and got my BA Degree. There was no School of Business special degree, so you got an LS Degree. Then I came back after World War Il and finished Law School and was sworn in on, I think it was Friday the 13 ^th wasn't it? Of February, 1948.

TGR         What were any of your special activities or honors that you earned in undergraduate and law school?

WHS       Not any to my knowledge. Well, I guess I won the moot court contest but there weren't many law students around. I was able to finish my undergrad degree and in my 4^th year of the School of Business I took as my electives some law school courses. Anyway, that was in 1943.

TGR          You were an accounting major?

WHS         Yes

TGR         Did you ever pursue accounting?

WHS        Only to this extent. I got back from being an infantry boy in World War Il in the Battle of the Bulge and so on, in February of 1946. I missed going back to Law                                 School by about three weeks, so I decided to wait until Fall to re-enter. So I got a job auditing City and County books in the Municipal Audit Division. It                                 was part of the Wisconsin Department of Taxation. I did that from about March 1 through the end of August in 1946 and then went back to Law School.                               So from  that extent, yes, I was the adding machine operator.  They didn't have computers then. Other than that, no.

TGR          What can you tell me about your service in World War 11?

WHS        Well, we started off in the Battle of the Bulge. I was in the infantry and we started off in the Battle of the Bulge on Christmas Eve of 1944 and I'll just say this, all hell broke loose around us and then of course the war in Europe ended the first part of May. We started off in our Company with about 190 men and there were probably about 20-25 of us left out of that group by the end of the European War. A number of them got frostbite, it was colder than old billy hell and snow knee deep and you got shot at besides. A lot of them were wounded and a fair number of them killed and for some reason or another I was one of the unscathed ones. I didn't get a scratch.

TGR            Were you an enlisted man?

WHS           Yes

TGR             Anything else to report for the record on World War 11?

WHS            Well, war is hell.

TGR            Well said.

WHS            But I'll say this, that having lived through it unscathed, mentally presumably as well as physically, that it was the greatest experience that anybody could                                       have. I don't have any fear, never have, and, unashamedly, the Man upstairs took care of me.

TGR             Wonderful. Well, now it's 1948, tell us about the commencement of your law career.

WHS             I was admitted to the Bar on Friday, February 13, 1948. Warren Kuehling and I were going to open up our law office in the Tenney Building, which we did in August or September of 1948 after he was admitted to the Bar in August, 1948. But in the meantime I audited individual Wisconsin income tax returns for the Wisconsin Assessor of Incomes. We stayed together for a couple of years. I made up my mind that I wasn't getting the experience I should. We didn't have any clients to start with. I guess we had a lot of guts but not too many brains probably in opening up a law office. So then at the beginning of 1951 1 joined Murphy and Gavin. Perry Armstrong had just left to concentrate on his Preferred Title Company, so I joined Bob Murphy and Steve Gavin on January 1, 1951. That was really, I suppose, the real start of practicing law for me. Bob Murphy was busy with the Medical Society matters, Steve Gavin was a trial lawyer, so my business inklings fit in pretty well and I got some great experience. Bob Murphy was a very fine mentor, difficult in many ways ( he wanted excellent work) which was fine.

TGR             What was the Bar like in 1948, 49 and 50:?

WHS           What was it like, well, I suppose you can say that the leaders of the Bar or the leaders of the various firms were basically lawyers who had started in the late 1920s and continued on through the 1930s. They were depression era lawyers, excellent lawyers, and I guess I'd categorize them as being afraid to charge a proper fee lest the client felt they were being overcharged and they would lose a client and they wouldn't have any business, unlike the situations today. But they were highly ethical. They wouldn't think of stealing each other's clients. There was no advertising going on. Of course the Trainman case in the U.S. Supreme Court in about 1965 changed things. That was the one that allowed lawyer advertising. To this day I don't think solicitation as opposed to advertising is ethically allowed, but who's kidding whom. I think that was one of the big changes.  Also my generation (the World War Il kids who graduated from Law School shortly after the end of World War Il) started having more influence in the 1960s and then change came about. As you know I was the first Chairman of the Economics of the Bar Committee for the State Bar of Wisconsin. The reason I took the job (I guess I even volunteered) was that I was convinced that there was no way we were going to continue to get the bright young men and women (there weren't very many women in those days) to come into the law because the financial remuneration wasn't there. The pie was too small and by the time it got sliced and the senior partners took their share of it, there wasn't much left.  So this was my way of making sure that the whole Bar got some wisdom, if you want to call it that, that we ought to be charging a fair fee rather than running a discount shop, which was prevalent in law practice as late as the 1950's and early 1960s.

TGR        Did the minimum fee schedule evolve from that period?

WHS       A minimum fee schedule was recommended. Phil Haberman was the

Executive Secretary of the State Bar of Wisconsin. He was on the American Bar Association Economics of the Bar Committee. It advocated the adoption of a fee schedule. So as a result, Phil, was a great advocate of that. Basically it came into fruition around 1960.

TGR       Was Phil the Director of the State Bar at the point you started?

WHS       He became the Executive Secretary of the State Bar in 1948. He and I were in Law School together. I think he may have gotten out a semester before I did, but                               he had some prior experience in trade associations with the Wisconsin League of Municipalities. He was the first fulltime Director of the Wisconsin Bar                               Association, the State Bar of Wisconsin now.

TGR        Was it a voluntary Bar or mandatory Bar at that point?

WHS       It was voluntary until a later date. I think by 1960 it was no longer a voluntary Bar.

TGR        Who were the leading lawyers in the Dane County Bar about that era?

WHS      Do you mean the ones that had the reputation as being the stars, if you want to call it that? You had Harold Wilkie and Oscar Toebaas from Wilkie, Toebaas, Kraege, Hart & Jackman; Bill Aberg from the Aberg, Bell, Blake firm; Wade Boardman and Glen Roberts; Burgess Ela, Bill Spohn and Frank Ross, Sr. and then a little bit younger was Bob Murphy of the firm that I went to work for. I'm probably missing a few. You also had the old Burr Jones firm, Schubring, Ryan, Peterson, Sutherland and Axley. The largest firm in town was the Wilkie, Teobaas firm, I think they had eight lawyers, which is a far cry from the size of law firms today. I'll mention this: I think I'm correct that I was the first non-trial lawyer of the post World War lawyers to get an A rating from Martindale Hubbell. Eugene Gehl and Dick Cates, both trial lawyers, got their A rating before I did. Eventually things started turning around and my classmates, one after another got their A ratings, to the extent they were thought to be worthy of it.

TGR    In that era, do you think of any significant cases, clients or matters that come to mind for purposes of our history? Or that you knew of?

WHS  I guess I had the first Dane County marital deduction federal estate case involving a formula clause. Congress amended the federal estate tax law during the second half of 1948 to allow up to 50% of a decedent's federal estate tax gross estate to pass tax free to the surviving spouse. Henceforth, Wills typically gave 50% to the surviving spouse (outright or to a trust for the benefit of the surviving spouse). The second 50% was typically given to a tmst which gave its income to the surviving spouse for life and remainder to the children outright following the death of the surviving spouse. This second

50% was not death tax free.

Because some gross estate items passed outside the Will, such as life insurance via the policy beneficiary designation, and because market values of assets in the gross estate tax estate changed between the date of the Will and subsequent date of death, and to take into consideration the changes in the makeup of assets owned, acquired, and disposed of during life between Will and death dates, "formula" clauses in Wills were devised to determine as of death what was death tax free and what was part of the taxable gross estate. If these formula clauses were silent as to which assets were to bear the impact of the federal death tax, both the spousal share and non-spousal shares bore an aliquot share of the tax. Determining aliquot shares required a complicated series of computation.

Bob Murphy had been the lawyer for Roy Ward, the Buick dealer here in town. Bob Murphy drafted Ward's Will in early 1949. The Will included a formula clause but no provision saying that the non-marital share should bear the impact of the death tax. Roy Ward died in early 1951. I was the young kid on the block and so I handled the probate. The First National Bank of Madison, the predecessor of First Wisconsin and now the US Bank, was the executor and trustee. Lloyd Coleman, the trust officer of that Bank and I spent three days on an old fashioned hand operated calculator trying to figure what bore the burden of the tax and we had to do it by trial and error because this was the first case that involved a formula clause. The lawyers then, Bob Murphy included, were not sophisticated enough to know that the burden of the Federal death tax should be bourn by the non-marital half. So, I got a reputation right off the bat in knowing more than any of the other practicing lawyers around town because I had the first case involving a formula clause matter.

TGR         What was the Dane County Bar like when you started practicing?

WHS        Dane County Bar, you mean the Association?

TGR         Yes, the Association.

WHS        Well we would have an annual meeting out at one of the country clubs once a year and Lyle Beggs would be the master of ceremonies and castigate one of the local newspapers.

TGR          He continued that for many years, didn't he?

WHS        Absolutely, and we did have a noon luncheon I think probably every other week or so on topics of importance.

TGR          Was it well attended?

WHS        Relatively speaking, yes.

TGR        What would you estimate the size of the practicing Bar in Dane County at that point?

WHS        Gosh, I don't know. If I had to guess, 100 or so. This was the 1950s. Every lawyer knew every other lawyer in town basically.

TGR          That was the same way when 1 started. You knew all of the active people.

WHS        Active people, sure. And by and large it was a collegial group. There was very little animosity between lawyers and they all respected each other and basically enjoyed each other.

TGR        What about general practice versus specialization in that era.

WHS      The emphasis was on litigation. You were a trial lawyer or a non-trial lawyer. The non-trial lawyers tended to be a jacks of all trades. I think I probably was more specialized earlier on in my law practice than most lawyers. I did a lot of business law, tax planning, a fair amount of real estate law, and estate planning and probate. Estate planning changed as a result of the new marital deduction law in 1948. Hence nobody knew anything about it (myself included). So we all started modern estate planning from scratch about the time I started practicing law. I had the accounting background and so on, so I guess I was a natural for it.

Let's turn back to one more significant matter I was involved in. I probated Herbie Page's estate. Herbie Page, a famous law professor of the University of Wisconsin Law School, did his own law practice except that if he needed some help he would get Bob Murphy of our firm. Herbie died in 1952 and he had drafted his own Will. He executed an original and two carbon copies and he forgot to date his Wills and so we had to get one of the witnesses on the Will into the Court to testify. It was Nellie Davidson, the Secretary of the Law School. Furthermore, we had to get a court construction (to determine what he meant) on three matters. This was William Herbert Page, the author of "Page on Wills," THE Definitive Treatise on Wills. But I guess as a former student of Herbie Page and one who did pretty well grade wise under Herbie, it was a feather in my cap that I happened to be the one who probated his estate.

TGR       Were there some other lawyers of prominence in the 50s and 60s that you recall in the Dane County Bar?

WHS        I should have mentioned a few others. Walter Bjork was a wonderful man and an excellent lawyer with the Boardman firm. Ed Pick was a relatively young                                         lawyer with the Spohn, Ross Stevens firm. Seward Stroud and his father, Ray Stroud, were fine lawyers. Seward and I did much of the same type of                                   work and on a number of occasions where either of us had a conflict and couldn't represent two sides of a matter he would call me and get me                                           involved and I would do the same if I had the problem and so on. Seward and I became and remain good friends. We would discuss matters not by                                     name but in general terms how he was doing things and how I was doing things and that sort of thing. Seward is still alive today at age 92.

TGR         What over the decades that you practiced law what kind of changes did you see in areas of specialization and also the economics of the practice?

WHS        Let's talk about specialization. As society got more complicated areas of law came up that did not exist in earlier years, such as labor law and sophisticated estate planning. So the specialization increased. Starting mainly in 1960s and thereafter at this point, at least in Dane County, there is very little "general law jack of all trades" type of law being practiced. The burden of learning the law of this, that and the other subject and all of the new statutes that have been enacted such as another one being environmental law it's almost impossible to be a jack of all trades. So it's gotten more and more specialized and today in 2006 1 think it's overwhelming by specialization within the Bar. Let's talk economics of the Bar. I think in 1959 thru 1961 1 spent probably about 60 hours a month giving talks to Bar associations around the State, trying to educate them on the need of keeping track of their time so that they knew what the value of their time was and have a better feeling of what the proper charge to the client should be. Up until the Economics of the Bar committees of the various states and the ABA were formed, 2/3 of the lawyers did not keep track of their time. The fee charged was by guess and by gosh a lot of it was based upon result. But as you had more and more of the law being practiced of the non-court trial work variety it became more and more imperative to know how much to charge based upon how many hours you were spending. So as a result of the Economics of the Bar committees and the fee schedules, lawyers started charging higher fees but not exorbitant by any means. That really occurred in the 1960s.

TGR        Lawyers incomes materially improve?

WHS      Now you have to put this in terms of then dollars, but in 1959 half of the practicing Bar throughout the country and also true of the State of Wisconsin lawyers, earned from law practice less than $6,600 per year. $6,600 in 1959 dollars probably would be about maybe $40,000 - $50,000 today.

TGR        Can you think of a most memorable legal matter that you handled over your career, if that's a fair question?

WHS        Most memorable. Well, Herbie Page's probate, for a young kid of whatever I was maybe 27 or 28, and Herbie was the law professor of sort that he was, the bull in the woods type, I suppose that I was quite impressed that I was handling that.

TGR         What Judges come to mind that you thought were particularly good in the Dane County area?

WHS        As I've said I didn't do a lot of trial work. I might mention that Nat Heffernan, who was Chief Justice for a number of years of the Wisconsin Supreme Court, and                             I were sworn in as lawyers together on Friday the 13 ^th of 1948. He was a Sheboygan boy. I was a Plymouth boy. We debated and orated against each                             other in high school and have continued to be good friends to this day. Nat was a fine Justice.