Zilavy, Thomas Oral History 10312014
Oral History interview with THOMAS ZILAVY for Dane County Bar Association
Interviewer: Kris Anderson
Location: DeWitt Ross & Stevens 2 E. Mifflin Street Madison, Wisconsin
MS. ANDERSON: Today is Monday, October 13th, and this is Kris Anderson. I am at the offices of DeWitt Ross & Stevens in Madison as part of the Dane County Bar Association Oral History Project. This interview will be recorded and transcribed and made available for people interested in the evolution and development of the practice of law in Dane County.
Q Mr. Zilavy, Tom Zilavy, do I have your permission to record you and have a transcript prepared?
A Yes.
Q Okay. Great. So do you want to go through a general introduction of background information. Your name is Thomas D. Zilavy; correct?
A Right.
Q And you live in Madison?
A I live in the Town of Middleton, Madison area, yes.
Q I know you have family.
A Right.
Q You have at least one daughter named Jennifer.
A Right.
Q Do you want to talk about family at all?
A Yeah. I have a spouse, Karen. And in addition to my daughter, Jennifer, I have two sons: John, who is a lawyer and who lives in Seattle, Washington; and a son, David, who works for Washington State University in Vancouver, Washington.
Q And how long have you been working in the law?
A I've been working since June of 1961. So that's 50 plus years.
Q Yep. And I noticed that you're in phased retirement. What does that mean exactly?
A Well, it means that I gradually diminish the time that I spend in my office. I still have a few clients, including a few corporate clients, for which I do work. I'm on the board of directors of one of these corporate clients, and that causes me to come to the office to deal with those corporate clients as well as some individual clients probably two, sometimes three days a week.
Q Is being retired something you're really looking forward to and hoping to get to sooner than later?
A Well, I consider myself essentially retired at this point. I don't take on any new matters. If any new matters come up with existing or old clients, they are assigned by me to other lawyers in the firm. As long as I have interesting things to do and as long as clients wish me to do them, I will continue to appear in my office from time to time to carry on those activities.
Q So was law the thing you wanted to do the most? Or did you have other aspirations as you were growing up, and was law something that you were really drawn to?
A Yeah. I was interested in law because -- I suppose the interest generated initially because my father was an official with the Milwaukee Police Department. He was Captain of the Detectives. So I was exposed to that aspect of the law early on. And several of my parents' friends were lawyers. And I developed an interest in the practice of law as law school unfolded.
Q So were you primarily interested in criminal law?
A No, I was never that interested in criminal law, even though that's the area that my father was involved in. While I was developing my interest in the law, my sister married a lawyer, and he became a judge in Waukesha County and then subsequently a Wisconsin Supreme Court justice. So I had some influence, not just from my parents, but from the person that my sister married.
Q Oh. Do you mind telling me who that was?
A Ah, yeah. William Callow.
Q Oh, okay. So you grew up in Milwaukee then?
A Yes, I did.
Q And how many siblings did you have?
A I had two siblings. I have a brother, Jack, who is a CPA, and my sister, Jean, who is the one that's married to Bill Callow.
Q And is Mr. Callow still alive?
A Yes. In fact, he is going to be in Madison today, but he is 93 years old. His mind is still good.
Q Oh, good.
A His body is not quite as good. But he's still functioning. He's driving himself to Madison.
Q Oh, my goodness. Wow! So then -- but you came to Madison for undergrad; right?
A Yes. I came to Madison in 1953 after I graduated from Washington High School in Milwaukee and became a freshman at the University. I started out living in the dormitory at Adams on Lakeshore. And one of the more interesting things about my freshman year in the University is the first day I was here on campus, the first day I was in the dormitory, the social chair of the dormitory had a mixer with one of the dormitories for women at the University.
Q Right.
A On the first day of my appearance in Madison, Wisconsin I met my wife to be during this mixer. I had a blind date.
Q Oh, my goodness. Your blind date –
A My blind date.
Q -- became your wife.
A Yeah. And even more interesting, the way we got together as a blind date was the boys and the girls each picked a card from a deck, and we matched up on similar cards. So Karen and I matched up on the ace of hearts.
Q Wow. What a great story.
A Yeah.
Q Great story. Let's see. So -- and what did you -- what was your undergrad degree in?
A My undergraduate degree was in political science. And I think I had a second major, and I can't remember what it was. It might have been -- it might have been English or Literature or something.
Q You know, I thought I saw that somewhere. So-- but you chose to stay here. You went here instead of Marquette, for instance, or --
A Oh, yes. I wanted to get away from Milwaukee. I wanted to be on my own. I wanted to get away from the influence of my parents.
Q You came to Madison.
A Well, my father was very well known in Milwaukee.
Q Oh. I see.
A And every time I would run into somebody, I would be asked if I was John's son. And I got sick of that.
Q Right. I'm sure.
A And I wanted to be myself.
Q Right.
A So that's one of the reasons I came to Madison. Not because it was -- well, eventually it was a hotbed of radicalism, but -- it was not a hotbed of radicalism when I was a freshman or a sophomore or a junior or a senior. It was a much more rational place.
Q So then did you go straight to law school after graduation?
A No. I -- I was in ROTC during my undergraduate years. And then I had a military commitment I had to fulfill after I graduated from college, from undergraduate school. And so I entered the Army, I think, six months after I graduated from the University for my undergraduate degree. And initially I was supposed to serve two years in the military. But then President Eisenhower caused the defense budget to be cut back, and there wasn't enough money to provide for a two-year service commitment, so my orders were changed to six months. So for six months I served as an officer in the military police, first in Augusta, Georgia at Fort Gordon, and then I was a confinement officer for a stockade which housed primarily people who for one reason or another got in trouble with -- under military law during the Korean War. And so I was a confinement officer at Fort Sheridan, Illinois. Our jail there housed about 250 prisoners. Many of them were deserters from the Korean War or people who committed other crimes while they were in the military service.
Q So were you disappointed that you only had six months?
A Yeah. I was counting on going to Europe because most people who had two-year orders were ordered to spend probably 18 months of the two years in Europe. So I was disappointed that my orders were cut back from two years to six months because it meant that I would not be able to go to Europe.
Q Right. But you had already met your wife. When did you get married?
A We were married shortly after I graduated from undergraduate school. And my wife was in nursing school. I think at the time I -- oh, no. Yeah, that's right. I graduated and we got married shortly after graduation. And then she continued in nursing school for another two years. This was 1957. So she didn't officially finish nursing school until 1959. And then I entered law school in 1958.
Q And then did you graduate in the three years or --
A Yes. Yeah. I graduated in 1961 in June.
Q Did you work while you were in law school?
A Um, yeah. I -- I had one of these Knapp scholarships in law school which paid my tuition, maybe books. I can't remember. And then I worked in the State Law Library on a part-time basis for the State Law Librarian at that time whose named was Ed Jensen. And my time in the Law Library was -- turned out to be not only a place to make a little bit of money, but was extremely valuable in developing knowledge about law books, which were available for research. And so I became intimately familiar with all of the looseleaf services and the treatises which were available for lawyers to use in doing research. And I also got to know a lot about the Legislative Reference Library and the resources that that agency has and got to know people on the Supreme Court. And it was an interesting experience.
Q So when was Justice Callow on the court?
A Justice Callow was elected to the Supreme Court in the late 1970s, either 1977 or '78, something like that.
Q So your time obviously didn't overlap.
A No.
Q And so then did you continue with that job through law school, or did you --
A No. I think I worked at the State Law Library as long as I went to law school. I think I had some other jobs at the law school for which I was compensated. I can't remember now, maybe a project given to me by one of the professors. I have a vague recollection of that.
Q Okay. So after --
A I used to study when I was in law school in what are called “the stacks” at the library.
Q Right. That must have been great.
A Yeah. And that's where I first met Shirley Abrahamson. Shirley and I used to both study in the stacks.
Q So were you in school at the same time?
A Well, she had graduated from the law school at that point. I think she went to Indiana Law School. And Shirley was working on some advanced law degree at the University of Wisconsin Law School. But we both studied -- would sit near each other in the stacks, and that's how I got to know her.
Q Oh, great. So are you still -- well, I suppose it's not my business, but are you still friends?
A Oh, sure.
Q Or do you still associate with her?
A Yeah.
Q So what was your first job out of law school?
A I was one of the first clerks on the Wisconsin Supreme Court. I was a clerk for the Chief Justice, John Martin. And his term of office was up six months after I started. And then I became a clerk for Myron Gordon. So I was a law clerk for both John Martin and Myron Gordon. And at the time I was a law clerk, well, Tom Ragatz was also a law clerk with me. He and I were some of the first clerks ever hired by the Wisconsin Supreme Court. And the Supreme Court at that time was a very collegial group of judges. And it was a court that contained many outstanding judges, like George Currie, who Tom Ragatz worked for; Timmy Brown, who was a person that was responsible for the creation of the Wisconsin Alumni Research Foundation; Tom Fairchild; Horace Wilkie; Harold Hallows. These were all very outstanding lawyers and interesting people.
And because the court was so collegial at that time, we all got to be good friends with each other. And periodically, one of the justices would have a party where all the justices would appear with their spouses and all the law clerks and their spouses were invited. So it was a very interesting and collegial group. And I retained my friendship with all the justices essentially as long as they lived. And in fact, after I finished my term on the Supreme Court, I did legal work for three of the justices. So it was interesting and fun to have lawyers like that be your client.
Q So have you -- what are your observations about how the Court has evolved into the incredibly divided --
A Well, the court today is a mess.
Q Yeah.
A And it's not a collegial group of people.
Q But do you think that happened, like, in a short period of time? Has it been more recent?
A I think -- I think it evolved. I think that to a certain extent, part of the evolutionary process was or began when the court was sort of a good ol' boys club, and --
Q But wasn't that how it was when you were clerking?
A Well, we had no women on the court, that's true. Um, would I call the justices who served at that time misogynistic or good ol' boys? No, I wouldn't. I wouldn’t at all. They didn't have that approach. I think some of the justices which were elected later on perhaps had some question about the role of women in the law. And I think that may have contributed to the evolution of what we have today, which is a court that is not collegial. It's divided. I mean, it's much more complicated than what I've said.
Q Right. But that might have been the beginning.
A Well, the evolution of the personnel on the court didn't help.
Q Right.
A But the media and the, let's say, the lack of understanding by the members of the general public about the role of the court, that has all contributed to the degradation of the reputation of the court, which is very unfortunate. There are some personality differences on the court which have to do with individual philosophies, to a certain extent, and which arose out of what has become the very unsavory electoral process that is used to elect judges to the court.
Q So we've always had elected judges, justices?
A Yeah. And I favor the election of judges. I don't like the campaigns that have been conducted in the past few years. I don't like some of the media attacks on candidates or the media's support of candidates which, in my opinion, have distorted the role of judges and created an atmosphere where the public today thinks that if Justice A happened to receive some campaign contributions from a certain person or organization, that that means that that person, that justice, is going to be influenced in considering any legal matter that might come before the court that involved that contributor. It's sad. It's very sad.
Q Do you think that's untrue, though?
A Yeah, I think it's untrue. I think that the integrity of the people on the court, even though there's this lack of collegiality, is quite high. And I think that there's always been a problem of judges having to raise money in order to conduct a campaign, especially in the last 10 or 20 years, because it's become so expensive. And judges can't be relied upon or expected to fund their own campaigns. They need to raise money from other sources.
This is -- this has been going on for years. And it's only fairly recently that -- and I think the media has a lot to do with this because of the angles it plays up in news stories that so and so has received a contribution from an organization and, therefore, it must be concluded that that person who benefited from that contribution will handle a legal matter in a way that will favor the contributor. I think that's an insult to our system and an insult to the justices.
Q Certainly, an insult to the justices. But do you think the companies or the contributors had some expectation of that? I mean, why are they giving so much money if they're --
A Well, I think that the contributors are obviously contributing substantial sums of money because they want to elect somebody who they think has their point of view. Do they expect some kind of compensation for that in the form of judges making decisions that favor them? I don't think so.
Q And the interesting thing that I've observed, at least in the cases I've heard about, it seems like when people get onto the court, even a circuit court, they rise to the occasion and they don't abuse it that way.
A No. Right.
Q So those are the stories I've heard, you know, that they don't --
A Yeah.
Q Like Justice Warren Burger for, instance. He was appointed by Nixon? Or Eisenhower?
A Eisenhower --
Q Yeah.
A -- who thought it was one of his worst appointments.
Q Or else I'm thinking of Chief Justice Warren too, who was also, I believe, appointed by a Republican --
A -- who didn't --
Q -- who didn't necessarily --
A That's right.
Q So those are the cases I've heard about.
A And there are other cases on the U.S. Supreme Court where the appointing person has been surprised. And there have been some instances on our Wisconsin Supreme Court where the governor who made the appointment was surprised about how the appointee handled his or her duties. But, you know, that's life.
Q That's how it should be, I mean, if things are working right.
A Yeah. I think the media bears a lot of responsibility. The media bears a lot of responsibility for how the public views courts today, and the media has no reason to be proud of what they've done. I think the media has helped create a negative image for our court system, both Supreme Court and, frankly, circuit court. And it's not in the best interests of the administration of justice that that be done. But in my opinion, the media is too stupid to understand what they did.
Q They also want to make money.
A Yeah. Well, they also should be responsible, but they aren't. They're irresponsible. But I think a lot of it has to do with the intellectual capacity of a lot of the writers, who I think are stupid.
Q Well, I could talk to you about the Supreme Court. I was going to say actually about -- I clerked for the circuit court for 10 years. And I saw people who were appointed by different governors. We had Republicans and Democrats while I was clerking. And to a person, I thought -- I worked with quite a few of the 17, and I found them all to be very -- have a lot of integrity and take their jobs very seriously and to be able to see more than one side.
A Yeah. That's what judges are supposed to do.
Q Right. Exactly. So it was -- it was a great experience for me. Okay. So in your own practice, what -- how did your particular area, 'cause it looks like you're primarily involved in business and corporate and commercial.
A Well, how that evolved is as follows. After I finished my law clerkship with the Wisconsin Supreme Court, I interviewed for jobs with law firms in Milwaukee and in Madison. And again, I was sort of reluctant to go back to Milwaukee because of my -- I didn't want to be known as John's son. So I elected to stay in Madison and went with the law firm of Spohn, Ross, Stevens & Pick.
Q Oh. So you're still with the same firm?
A Right. I'm still with the same firm.
Q Wow.
A And when I joined the law firm, there were -- I think I was the sixth member. There were six of us. And Madison at that point had probably a half a dozen what I would call prominent law firms, like Spohn, Ross, Stevens & Pick, the Stroud law firm, the Aberg law firm, Boardman, Suhr, Curry & Field law firm, the Stafford law firm, and William Rieser was with the Stafford law firm. And then there were other law firms like Lathrop & Clark, and there was -- well, let's see if I'm missing anybody.
The number of lawyers in Madison when I began practicing was not as great as it is today. And one of the benefits that I and lawyers like Tom Ragatz who did the same thing I did, stayed in Madison, we both went to work for what we both would characterize as prominent local law firms. They were both relatively small at that juncture. And one of the first things that our law firms did when we began practicing back in 1962 was to have a senior partner introduce you to all the other law firms in town. So we would go over and I would meet Wade Boardman and Fred Suhr. I’d meet Ray Stroud and Dick Stroud. I would meet Burgess Ela, Jim Clark, ah, Trayton Lathrop. I'd meet all the prominent lawyers in town and some of the sole practitioners like Dave Beckwith. Dave's son, Dave, Junior, eventually became a regent. All those lawyers we would all get to know. And there was a tremendous amount of collegiality among the Bar back in 1962. And the fact that I was a young lawyer made no difference. We had to develop a reputation, a confidence among the other lawyers in the city. But I would frequently get referrals if there was a conflict of interest from lawyers like Wade Boardman or one of the Strouds. I mean, those kinds of things don't happen today. But then they did. And it made practicing law just a great profession.
Q Yeah.
A Because you got to know all these outstanding people, and you would not only deal with them on legal matters, but there would be a lot of socialization. The same thing occurred with respect to the judges. Early on we'd be taken around, we'd go over to the courthouse. One of the senior partners in my firm, Frank Ross or Myron Stevens, would take me over to the courthouse and introduce me to the judges -Dick Bardwell, Norris Maloney, Carl Flom. We'd get to know these people. And there was even collegiality among the lawyers and the judges. We would often have lunch together. We would socialize together. When we appeared in court, they didn't favor us in any way.
Q But you knew you could trust them not to.
A Yeah. I mean, they held our feet to the fire just like they would any other lawyer in a courtroom scene. But I was getting to the point where when I first started practicing law, I was first allocated or assigned to handle litigation. So for about the first seven or eight years of my practice, I did a lot of litigation. We had a client that had businesses around the state that often got in some legal difficulty, so for several years I would travel around the state on behalf of this client and appear in courthouses, like Douglas County up in the Ashland area, and over on the east side, Barron County. I appeared in many county circuit courts representing this particular client. And then I got to know a lot of the lawyers in these other counties.
And one of my favorite experiences was when I represented this particular client in a case in Douglas County, and our -- the courthouse was in Superior, Wisconsin, so I had to fly to Minneapolis and rent a car and drive over to Superior. That was the quickest way for me to get to the court. And the opposing lawyer was Tom Doar.
Q That name sounds familiar.
A And the law firm he came from was called Doar and Knowles. It was Governor Knowles' law firm. And Governor Knowles, of course, was a lawyer. Tom Doar was his partner. And another Doar connection was John Doar, the brother of Tom Doar, was the civil rights lawyer working for the U.S. Department of Justice in the Kennedy administration and handled much of the turmoil and riots that took place in the South during John F. Kennedy's attempt to enforce the civil rights of black people in the South. So the Doar family has a great background.
In any event, I was sitting in court ready to argue a motion, and Tom Doar, who was my opponent, came around behind me at the counsel table, and he whispered in my ear and he said, "Tom, the judge likes it for you to stand when you make an argument." So I thought that was just great. And I developed a friendship with Tom Doar as a result of that. And I had a great deal of respect for him. He was a great lawyer and a great guy for treating me the way he did.
Q Okay.
A So I got out of the litigation business after a trial I had before William Sachtjen in the circuit court here in Madison involving a fire which occurred at a famous downtown landmark called the Congress Bar. The Congress Bar used to be a hangout for all the media people.
Q Where was it?
A It was -- it was over across from the Park Motor Inn Hotel.
Q On Main Street, West Main Street?
A The building that replaced the building that burned down is a red brick building.
Q That's owned –
A It's kind of a mess now.
Q It's owned by Jerry Mullins, a three-story?
A It might be owned by Jerry.
Q Where the restaurant Crandall's was there?
A Well, you know where the Shamrock Bar is?
Q Right.
A It's behind -- it's up from the Shamrock Bar, and there's a bar on the corner that's quite popular with young people.
Q Right. Genna's.
A Yeah. It's between there.
Q Right.
A Well, the old building that burned was an old downtown building that had this bar. It was very popular with all the media, and lawyers used to go there after work and drink. And the owners of it were clients of mine. So, um, I had -- I was involved in a lawsuit in front of Judge Sachtjen involving recovery of the insurance that covered the bar. And that was one of my other funny experiences in the circuit court, one of my last.
My mentor at that time was Frank Ross, who was a senior partner in our law firm and a very experienced litigator. And he was the lead lawyer, and I was second chair. Okay. So every now and then, Frank would turn over to me the cross-examination of a witness. And the first time that I did it, I was really bumbling along and not asking the right questions. And the opposing lawyer, who was a very experienced, crotchety old lawyer from Milwaukee, kept objecting to my questions. And Bill Sachtjen would usually sustain the objections, and I'd have to rephrase the question. And Bill was really nice to me. He and I were actually pretty good friends at that point. And Bill was very nice to me and tolerated me. And finally the opposing lawyer got up at one point and said, "You know, Judge," he said, "I don't mind you helping out a young lawyer from time to time, but please don't tell him what to do." So I thought that was really funny.
Q Right.
A But that --
Q How did the judge react?
A Oh, he just smiled and went on.
Q Well, how did you feel when that happened?
A Oh, I felt, geez, will I ever learn how to cross-examine somebody correctly? So that night Frank Ross -- the trial ended about 5:00. So Frank said, "We're going back to the office." So he worked with me for about four hours that night. I finally got home about midnight. And the next day he turned over some cross-examination to me, and I did great because I learned what my problems were, what my flaws were. And I had actually been too organized. I had too many notes in front of me. And Frank convinced me that's a bad idea.
Q Right. You need to --
A He said, "Just have a one-word outline, and just make sure you cover every point that you want to cover." And it worked brilliantly. So that -- but that was one of my last trials. And at that point I had accumulated so many business clients, and being away for two weeks to try the Congress Bar case interfered with my ability to deal with my business clients because they wanted me to do things, and I couldn't because I was tied up in this trial. So I concluded that I liked transactional law better, that I was able to attract a lot of clients for that kind of work, and I decided to shift away from litigation and into -- but I was never disappointed that I was involved in litigation because I always felt that gave me a great advantage in negotiating contracts because I -- if somebody would threaten to sue me, so what? Go ahead and do what you want to do.
Q Right.
A But I know how it works.
Q Right.
A Understand what litigation is and how it functions, and there's nothing that you can say to me that's going to make me change my mind on this.
Q Right.
A So I always felt I had a big advantage.
Q Sure. You've gotta have that background, that foundation.
A Yeah. But a lot of young lawyers today don't.
Q Right.
A Which --
Q Well, I will say from my own observation that that kind of mentoring isn't very available anymore, I mean, for a senior partner, for instance, to spend time with young lawyers like that.
A No, it isn't. And that is unfortunate. It isn't available much anymore, I think primarily because of the change in the economics of the practice of law. When I started practicing, the mantra that we lived by was, "Don't worry about attracting clients. Our firm has so much work, let's just see to it that our clients' work is done, and good things will follow from that."
Q Right.
A Well, you can't operate a law firm today on that kind of a premise because there are so many lawyers, and it's so competitive, and lawyers today have to justify their existence in a law firm by generating so much revenue. And it's changed the practice of law. And I think the change has made it less attractive than it used to be.
Q Absolutely. I agree. I wanted to ask you about your interest in the unauthorized practice of law. Did you have some experiences with that, or was it just something you decided to get knowledgeable about?
A Well, I got knowledgeable about it primarily because my partner, the late Dan Hildebrand, was elected president of the State Bar.
Q Right. I remember him, actually. He was my Inns of Court mentor.
A Okay. Well, Dan after he was elected asked me to create and be chair of a significant committee. And he felt that providing legal services to persons who couldn't afford to hire a lawyer and to deal with the problem of the unauthorized practice of law was important from the standpoint of protecting the public.
So I became involved in the committee and the unauthorized practice of law problem back in 1991 or '92. And we worked on this project for probably 20 years. And we finally got the Supreme Court to adopt a new court rule which defines the practice of law. And our committee would -- is this a significant social problem? Well, it's a social problem, and for some people, it's significant if they are duped by someone who claims they have expertise with respect to the practice of law and provides advice and counsel that is incompetent or incorrect. And that happened a lot in the estate planning area primarily through persons who were peddling insurance, persons who were peddling revocable trusts. Revocable trusts became, oh, significant after there were complaints from the 20 public about the cost of probate. And you may not know this or remember this, but when I first started practicing law, the State Bar of Wisconsin had a fee schedule.
Q Oh, right. Actually, I do.
A Okay. And probates were very lucrative for law firms because the fee schedule was based on the value of the assets in an estate and had not much to do with what kind of work was involved in conducting the probate of an estate. So it was a fact, unfortunately, that many clients paid fees for probate services which were grossly exorbitant because the fees had no relationship to either the work that had to be done or the responsibility that had to be assumed during the course of probate. And eventually, the Bar had to give that up. It was an antitrust issue, frankly, that had to be dealt with.
So one of the ways that people tried to avoid probate back in the sixties was to promote the use of revocable trusts. And there were several prominent business people in Madison, whose names you would recognize if I gave them, who were so incensed by the probate fee system that was administered by the lawyers at that time, and these people I am alluding to were clients of our law firm, Spohn, Ross, Stevens & Pick. They insisted that our firm draft revocable trusts, which would avoid probate. And so that's what we did.
Q You didn't want to do that, did you, because you wouldn't make money?
A Oh, no. Our -- our goal -- I don't want to sound -our goal was to service our clients. Our secondary goal was to make a good living. Our primary goal was always the service of our clients. And we often did work for nothing. I used to have, oh, a dozen elderly clients who I was assigned to early on come into my office once a year to do their income tax returns because they couldn't afford to hire anybody to do that work. And I typically would charge them either nothing or five dollars to do an income tax return. This was not unusual. All of us in the law firm did those kinds of things. We had people who needed help. They didn't have any money. We'd do their legal work, and we wouldn't bill them.
Now, you know, lawyers do pro bono work, and a lot of lawyers do a lot of substantial pro bono work. But it's -- it's an issue in a law firm. Lawyers can only afford to spend so much time doing pro bono work because the lawyers are expected to generate revenue for the law firm. The economic pressure on younger lawyers when I started was, let's say, insubstantial. It's totally different today. But it was -- it made you feel good to do legal work for people who couldn't afford to hire a lawyer, and you became friends with those people.
Q Right. And then they referred their friends to you?
A Oh, not very often. I mean, those are the kind of clients that typically don't have --
Q -- rich friends?
A -- contacts at -- I mean, sometimes -- I mean, that's how your name became well known because you helped people like that.
Q It's generating good will.
A Yeah. Yeah.
Q Do law firms currently have a good will concept? I mean, do they think about the value of good will? Is it part of their balance sheet kind of thing or --
A Yeah. I think that most -- well, I'll give you an example in our law firm. Dan Hildebrand was absolutely adamant about the firm serving free of charge as counsel for people who couldn't afford to hire a lawyer in complicated cases. I mean, Dan represented a lot of unsavory criminals who many of us would say, "Dan, why are you representing that guy? He's a scumbag."
Q Right.
A But this guy needed representation. And Dan was adamant that our firm should participate in this. So he was, for the time that Dan was around and influential with our firm, he was the conscience of the firm and saw to it that we did handle a lot of cases like that. And we still handle a lot of cases for nothing. In addition to that, we contribute firm funds to various charitable organizations around the city. Most law firms do. Our contributions are part of our so-called marketing. When I started practicing law, we had no marketing.
Q Right.
A Now all the law firms have marketing people. We have a professional marketing person that has a budget and recommends to us what areas of charitable functions we should allocate our money to. And, of course, the decision of the marketer is more based on -- not just based on is this a worthwhile charitable function, but will this help the firm. Will it give the firm good publicity, which you can't complain about. It's -- in our competitive economy, law firms have to function like that. They have to worry about clients and attracting new clients so the firm can keep growing.
Q So do you attribute some of that change, at least, to just the population of Madison growing or --
A Oh, the change in the law firms?
Q Well, I mean more and more lawyers, more and more people.
A Yeah. When I started practicing, all the lawyers who functioned in Madison were Madison lawyers.
Q Right.
A Today we have Milwaukee law firms who have significant firms in the city.
Q Right.
A And gradually, Milwaukee understood that because Dane County and Madison is the seat of government that there's going to be a lot of action here and there should be lawyer representation from the big firms in Milwaukee. Foley & Lardner was one of the first firms to establish an office in Madison.
Q Okay. I didn't realize that.
A And the way that came about is sort of interesting. I'll explain it to you.
Q Okay.
A One of my major clients was U.S. Bank. It used to be called First Wisconsin.
Q Right.
A And probably for about 20 years of my practice, about 50 percent of my time was spent representing First Wisconsin National Bank of Madison. And, of course, I developed a close relationship with the executives of the bank. And one of the executives I had a close relationship with was Web Smith, the person who caused the glass bank building to be constructed on the Square, which resulted eventually in his being fired from the bank because he spent too much money and, in part, because if you walk into the bank now from the Pinckney Street entrance and you look to the right, you'll see an Italian painting, I think it's a triptych that's on the wall. Web bought that to give some class to the new bank, and it was installed behind the tellers on the first floor. Well, the head of the bank in Milwaukee was so incensed that Web spent so much money on furnishing this bank here in Madison that it led to the accumulation of complaints that resulted in his termination.
But in any event, before that happened to Web, our firm had some tragedies. One of my senior partners named Ed Pick died. Frank Ross, Senior, a very prominent lawyer, was retiring. One of our partners had an alcohol problem and was not very functional. So at age 32, I essentially became head of our law firm.
And Web Smith called me into his office, and he said, "Are you able to handle the bank work?" And I said, "Of course, Web, I'm able to handle it." And he said, "You know, you don't have any gray hair." And he said, "You don't have any older lawyers in your firm." He said, "I think what you need to do is to merge with Foley & Lardner." And he said, "I've already made the arrangements for you to talk to Foley & Lardner." So for the next six months, my partner, Jerry Shea, and I would about every other week travel to Milwaukee. Of course, they would never come here. We'd always go to Milwaukee. And we'd have -- we'd have meetings with the Foley & Lardner lawyers in sometimes creepy places, like the Milwaukee Club, which is the old, old, private club in Milwaukee where all the floors are wooden and they squeak when you walk on them, and everybody inside has a tux, and it's quiet. There's no sound.
Q Except for the squeaky floors.
A Except for the squeaky floors. So you walk into this building and walk over these creaky floors, and you sit down in all these mahogany- and walnut-paneled rooms, and you have these discussions. So Jerry and I did that for six months. And periodically we would meet at the Foley & Lardner offices. Now, we got to know the Foley & Lardner lawyers, and I liked them. They were great people. I liked -they were fun to talk to and interesting to talk to. And we went very -- we were very close to a merger, except these talks took place during one of the real estate crises in this country, and First Wisconsin National Bank was involved in some very significant REIT problems and was losing money hand over fist. Our firm was representing the FDIC in some bank matters, and it turned out that we had a conflict of interest between our law firms which couldn't be resolved and which would go on for at least two or three or four more years, and we had to terminate the discussions.
So shortly after those negotiations with Foley & Lardner ended, I got a call from Foley, one of the Foley lawyers, and he said, "We're gonna open a Madison office." And so they sent up to Madison a guy name Larry Bugge, who is still around Madison.
Q Yeah. I've heard the name.
A And Larry tried to get a Foley & Lardner office going. And Larry's personality is such that he was just not successful in doing that. And the Madison office never really got off the ground until Tom Ragatz went with it. Then Tom knew how to organize and run a law firm, and Tom did a good job in establishing a Foley & Lardner outpost in Madison.
Q But the two of you were well acquainted and friends.
A Oh, sure. Yeah.
Q So that would have been a pretty collegial arrangement.
A Yeah. Well, yeah, we were friends, but still competitive. For example, one of the Foley lawyers, one of the ones I didn't like, knew that I had basically represented First Wisconsin National Bank in all of its affairs. And when we terminated the negotiations for merger, he said to me, "We're gonna open an office in Madison and we're gonna take U.S. Bank -- or First Wisconsin Bank away from you." And I thought, “yeah, okay.” Well, they never were able to do that. They couldn't do it because we did such good work for First Wisconsin, they would never think of leaving us and going with another law firm. So Foley failed in that -- in that area.
Q With Tom?
A No, no, no, no. He had nothing to do with it at that point. No, no. Tom wouldn't do that sort of thing. No, no.
Q This is all really fascinating. So was there more that you were going to say on that?
A No. I just wanted to -- well, then after Foley established an office here, it struggled for a few years until Tom Ragatz came on board. But then that motivated other Milwaukee law firms like Quarles & Brady, Whyte Hirschbeck -- who else is up here? Early on, Quarles & Brady was up here. I can't remember who else. There were a couple of other Milwaukee firms that opened offices up here. So it had just increased the competition for clients and kind of changed the makeup of the practice of law in Madison. Did it change it for the better? Well, I think from a client's standpoint, they had more to choose from. And some of the Milwaukee firms had resources that we didn't have. I'll give you another example along that line.
One of my clients at that time was Wisconsin Alumni Research Foundation. And we had some significant litigation going on that involved Japan. And we had to get documents back and forth as soon as possible from Japan to Madison. And it turned out that Foley & Lardner had the only fax machine in Madison. This is after the invention of the fax machine. So Foley & Lardner would let us use their fax machine to get documents for our case, which was very nice of them.
Q So when was that? I don't remember when faxes first –
A That was 1985, 1986, somewhere around that time, yeah.
Q Was Jack DeWitt part of the firm?
A Oh, Jack became part of the firm very early on. When Jack died, he was about 91, so I think he became a member of the firm in the fifties. Our firm -- okay. From Spohn, Ross, Stevens & Pick, the firm became Ross & Stevens. The senior partners died or retired, and I and my younger partners took over the firm. We changed its name to Ross & Stevens. In 1995, our firm merged with DeWitt Porter.
Q Oh, I see.
A And we agreed because of Jack's name and reputation that we should call the new firm DeWitt, Ross & Stevens.
Q And that was in 1995?
A That was in 1995, yeah. When Jack -- when Jack was I think an attorney and Asemblyman in the fifties, he obviously was a World War II veteran. Jack was a significant hero in the war. He was a very interesting guy.
Q I had the privilege of meeting him when I first started with the committee. He was working with us.
A Yeah. His stories about fighting his way -- he was a captain in the Army, and he landed in France right after D-Day, not at the D-Day place, Normandy, but in a different place, which was to be a diversion. And Jack fought his way up through some valleys to Germany about a week after he landed. And his discussion about what it was like and the weather, it was fascinating. And he caused me to do a bike trip from -- all following the route of his invasion.
Q When was that?
A Oh, I did the bike trip I think in the late 1990s.
Q So did you have family with you, or did you do it by yourself?
A No. I'm part of a group of five couples, and we bike all over Europe, or have biked all over Europe, all over the United States and Canada. And we did that bike trip.
Q Okay. So then I still wanted to know, with the unauthorized practice of law.
A Okay. So, you know, we diverted from the unauthorized practice of law, but -- and I think the last thing I told you was that our committee, which was the State Bar committee, finally got the Supreme Court to recognize that there is some kind of a problem regarding the unauthorized practice of law and caused the court to adopt the rule which defines what practicing law is. Until the court adopted that rule, you couldn't -- you didn't know what activities constituted the practice of law.
Q Right.
A So we felt that was at least the first step that had to be taken to make clear by court rule what kinds of activities did constitute the practice of law so those activities could be regulated to protect the public. So that's what the purpose of the rule is. Now, the dilemma faced by the Supreme Court, the Supreme Court I would have to say was somewhat reluctant to deal with the unauthorized practice of law primarily because there are so many people in Wisconsin that are not served by competent lawyers because they can't afford to hire a lawyer that those people who couldn't afford to hire a lawyer needed to have some access to somebody who would try to lead them in the right direction. So one of the conflicts that immediately comes up with respect to regulating the practice of law and limiting the dissemination of legal advice to only people that have graduated from law school is with the charitable organizations which are organized through non-lawyers to provide some kind of legal guidance. And there are lots of organizations that do that.
Q Advocacy.
A So what we had to do in our committee was come to grips with the fact that the court was concerned about our rule cutting off access that people would have to organizations, charitable organizations, which are functioning to provide some kind of legal assistance. And what we came up with was, okay, so long as the people who are providing these services, even though they're not lawyers, are supervised by a lawyer, that's okay. So we had to carve that kind of an exception into the rule. And that satisfied the court.
There were other exceptions which the court insisted upon so that the rule regulating the unauthorized practice of law would not simply feather the nest of lawyers by compelling people to hire a lawyer. And we always had to walk that fine line.
Q Right. 'Cause it doesn't sound good or look good.
A Right.
Q Did malpractice cases, suits, have any –
A Well, I think the most dramatic cases of the unauthorized practice of law had to do with immigration law. And most of the worst cases came out of Milwaukee. And most of the dramatic cases we learned about were referred to us by Catholic Welfare Services in Milwaukee, who for some reason or another, I'm not sure why this happened, but that organization became a receptacle for people in Milwaukee, usually Hispanics, having immigration problems. And one of the big problems in the United States and in Wisconsin is in Mexico and in South America -- well, let's say in Mexico in particular – notary publics are lawyers. So we found that there were people, Hispanic people, in Milwaukee who were not lawyers, but who set up shop as a notary public, which was easy to do simply by getting their permit and their stamp from the Secretary of State. And they would dispense legal advice about immigration matters.
And they created horrendous problems for immigrants who didn't understand the rules and regulations. And the rules and regulations regarding immigration are so arcane, and the agency is such a disgusting agency that administered this because you can't talk to them. If you try to call them, you'll get these automated messages. And they're some of the most disgusting people that you ever want to communicate with.
So the people who had these immigration problems were well served by our committee getting the legislature to adopt the law which prevents these notary publics from advertising without explaining to the people they're trying to serve that they aren’t lawyers. And that was one of the things that our committee did, in addition to getting this rule adopted by the Supreme Court.
Q So I know there is a law in the statutes about the unauthorized practice of law. It's prohibited and it's a crime.
A Yeah. But the problem with that statute, it's a criminal statute and it's vague. And it doesn't state what the practice of law is.
Q Right. Did it precede --
A Yes.
Q Okay. So it's been in effect for a long time.
A Yeah, which we thought about trying to get the law changed. But trying to get the legislature to do something that would favor something the State Bar wanted to do is impossible.
Q Really?
A It's not feasible.
Q Why?
A Because they hate lawyers. They don't like the State Bar.
Q Aren't most of them lawyers?
A No. Most of them are not lawyers.
Q Are you saying that you think that's always been true, or it was true when you were working on the committee?
A It was true while I was working on the committee. I was completely naive when I first got into this and saw this -- this criminal statute which prohibited the unauthorized practice of law and recognized what some of its inherent problems were because of the lack of definition of what it is. And so I met with the lobbyist for the State Bar and said, “you know, maybe in this session of the legislature we can get the legislature to adopt -- amend the statute and clarify it.” And she said, "You've gotta be kidding." And then she gave me the facts of life. And those facts of life never changed. We never -- to this day, the State Bar has limited ability to accomplish something like this. The legislature just won't do it.
Q That's fascinating. I had no idea. Which actually kind of segues into the other thing I was thinking about asking you, regulatory matters. Your bio says that's one of your concentrations. What kinds of regulatory matters do you mean, government regulatory matters?
A Well, primarily, I was, as I told you, I was counsel for First Wisconsin National Bank of Madison and handled their regulatory matters under the Controllers of Currency. It was a national bank, so state law didn't apply, but federal law applied. So I'm not sure –
Q I was wondering if you'd ever done any administrative hearings or if you were involved in that sort of thing.
A Sure. Early on I handled administrative hearings, probably Unemployment Compensation, representing an employer.
Q Okay.
A What else would I have done? Tax, sales tax audits, and other things like that.
Q So that was not necessarily –
A Well, there was one other aspect of my background which I always considered important, and it has to do with a job I had when I was in undergraduate school. I was a clerk for the Wisconsin State Senate. And at the time I was a clerk for the State Senate, the State Senate was populated with these outstanding politicians, like Gaylord Nelson. You may not know this name, William Trinke.
Q Kastenmeier?
A No, no. He wasn't there. No. It was Bob Knowles, Governor Knowles -- well, he was lieutenant governor at that time and presided over the Senate. Kirby Hendee; um, Bill Draheim; um, the farmer, Tiny Krueger. I could name all 32 senators at some point. I can't remember them right now. These were outstanding people. They were interested in the state of Wisconsin. This was not a full-time job for them. They had other occupations, all of them. But – and they met six months every two years to pass legislation.
Every now and then I'd get invited to go with the committee -- I worked for the Judiciary Committee -- over to the Park Motor Inn with a couple of lobbyists, and I'd be able to sit there and listen to the discussions back and forth about proposed legislation. The Republicans and Democrats liked each other. They were friends. They talked to each other. They talked about, "Well, if I change this on this bill, would that solve your problem." I mean, it was just a tremendous experience. And then after having that experience and seeing those outstanding Wisconsin leaders function as a legislature, then you see today these hacks that occupy our legislature and seem to want to only pursue their own personal agenda, it's really demoralizing.
Q Oh, absolutely.
A And it's depressing.
Q I agree. I didn't have the experience of what it was like before. Okay. That -- oh --
A I'll give you another example.
Q Okay. And I want to also ask about WARF too 'cause I'm curious about that.
A Okay. What I want to tell you pertains to WARF.
Q Okay.
A WARF owned a lot -- most of the shoreline property up in Wisconsin Dells, which not a lot of people knew. And it owned it because a business person in the Dells back in the early fifties, who started all the boat lines and some of the other attractions up in the Dells and who acquired all the shoreline property in the Dells, wanted to get out of the business, but he didn't want the shoreline property to be developed. So he gave it all to WARF. And he gave WARF the businesses, including the Dells Boat Company, which runs the Ducks and all of the boats up and down the river and some cowboy show over on the side of the road there.
So about 1995 to 2000, WARF concluded that it should not be in the business of owning business property. WARF owned the businesses through separate business corporations which carried on the businesses. WARF decided to concentrate on what WARF does, which is patent licensing to generate royalties. WARF's earnings are used to provide financial support to the University of Wisconsin.
Q Research?
A Well, WARF itself doesn't do research. WARF patents the research done at the University and then licenses the patents to the people who exploit the patented technology. WARF is paid a royalty which it shares with the inventor. WARF wanted to get out of all of the business operations. So WARF's way of getting out was to donate or create a bargain sale of all of the land, the shoreline property it owned through the business corporations, to the DNR. So WARF sold certain shoreline property in the Wisconsin Dells area to the DNR at a bargain price, or a price less than its fair market value. The land is now a park, a state park, and it can't be developed, so the shoreline is going to remain pristine.
The other business assets were sold to other businesses in the Wisconsin Dells area. At one point in the process of transferring shoreline property to the DNR, the DNR came to me and reported that certain language in a statute which regulated the DNR would place unreasonable limits on the use of the park by the public. The troublesome language caused a limitation on the access to the park by the public.
The DNR asked if WARF could get this statute changed. Our firm had lobbyists. So I went to one of our lobbyists, and I said WARF would like to get this particular statute changed to facilitate the DNR's ability to administer the land WARF sold to the DNR for a state park. My partner lobbyist agreed to look into changing the statute. This occurred at the time most significant proposed legislation was tied to the budget bill. My lobbyist partner advised me that because of the timing, the only way the statute could be amended would be to make the amendment part of the budget bill. In other words, the amendment would not be considered on its merits, but could be adopted by being attached to the budget bill. My lobbyist partner contacted a particular state senator who happened to be a candidate for Wisconsin attorney general. The senator was a legislative leader who had the power to attach the statutory amendment language to the budget bill.
The senator was willing to assist WARF if WARF would contribute $6,000 to his campaign for attorney general.
Q Oh, my God.
A I told the lobbyist that WARF would not make any political contribution.
Q No kidding.
A Well, that senator eventually went to jail for other law violations and had to abandon his campaign for attorney general.
Q So that was in your representation of WARF. Did you ever tell them about it?
A Oh, sure. I informed WARF officials.
Q What did they say?
A They said WARF would absolutely not contribute funds to a political campaign to obtain passage of the legislation.
Q It was outrageous.
A It was outrageous.
Q So what about the bill?
A It eventually passed.
Q Good.
A But it had to be passed as part of a budget bill, and it took two sessions of the legislature to do it. Tacking everything onto the budget bill in my opinion made dealing with some of these issues on the merits or demerits impossible because it's tied to this budget bill.
Q I guess I don't understand enough about it to know what that means exactly, to tie it to the budget bill, because you just -- you just kind of threw it in willy-nilly?
A You would have to talk to a lobbyist to get a thorough understanding of it.
Q Uh-huh (affirmative).
A I had enough of an understanding of it to know that I didn't like it.
Q Is it still being practiced today?
A I'm not sure.
Q Okay.
A I'm not sure. I don't know. I hope it isn't. I hope that legislation is considered on its merits and not always tied to a budget bill.
Q Okay. Well, let's see. Oh, and then the Uniform Commercial Code. It looks like you've been doing -- you've done numerous seminars.
A Well, because I represented First Wisconsin and other banks, I had to know a lot about the Uniform Commercial Code.
Q Right. But when you do a presentation -- I mean, it's huge, the code is huge -- do you concentrate on any particular part of it or --
A Well, you concentrate primarily, if you're representing a lender, on those parts of the code that pertain to collateral security. How do banks get a lien on personal property? That's Section 409 of the code. And that's what you become an expert in.
Q I see. And is that sort of what you did?
A Yes.
Q I was curious when you did these seminars what you were presenting on primarily.
A Well, okay. The seminars that I presented for several years were done for the Federal Intermediate Credit Bank of St. Paul, which is an agency of the federal government. It is an agency under the Farm Credit Administration. The federal Farm Credit Administration was created by President Franklin Delano Roosevelt as a response to the economic Depression of the 1930s. In the early 1930s, because of the Depression and the failure of banks, farmers often could not borrow any money in order to finance the production of their crops. Typically, farmers had to borrow money in the beginning of a growing season to cover the input costs, the fertilizer, the seed, the cultivating and things like that because they ordinarily did not have cash reserves.
So Roosevelt created the Farm Credit Administration as a means of providing credit to farmers, and the credit was dispensed through Production Credit Associations and Federal Land Banks. The money to be loaned to farmers by the Production Credit Associations and the Federal Land Banks came primarily from the Federal Intermediate Credit Land Banks selling bonds on the market. So the Federal Intermediate Credit Bank would get money from selling bonds and then dispense that money to Federal Land Banks and the Production Credit Associations.
So the Federal Intermediate Credit Bank of St. Paul, which is what I represented, supervises Production Credit Associations and Federal Land Banks in Minnesota, Wisconsin, Michigan, and Iowa. And so I was hired as a lawyer for the bank to train the loan officers for Production Credit Associations and Federal Land Banks to understand the security lending laws of Wisconsin, such as the Uniform Commercial Code provisions dealing with obtaining collateral security, so that when these federal agencies did make loans, they were properly collateralized. So for years, I would travel around to Michigan, Minnesota, Iowa, and Wisconsin, training loan officers. At a typical seminar I would conduct in Madison, it would involve Production Credit Associations from the state of Wisconsin. There might be 50 people there, 50 loan officers. So I would spend one or two days going through the technical aspects of the Uniform Commercial Code and, in particular, Section 409, the collateral provisions, and make sure that these people understood what documentation had to be obtained from the borrowers in order to provide the Production Credit Association or the Federal Land Bank with an appropriate collateral position.
Q That sounds incredibly complicated.
A Well, it was interesting.
Q Good. Yeah. All right. Well, so then, I guess -- let's see. Um, I probably better get going 'cause my tape is about to run out. But was there anything else that you specifically or particularly would like to tell me?
A No.
Q No?
A Not really, unless you have specific questions.
Q Okay.
A Just that my responses have been kind of stream of consciousness
Q That's exactly how I like it. And I'm glad it went that way. And it's been incredibly fascinating. I really appreciate you taking the time to do this. It's a great opportunity. All right. And so I think you know, you already know that we'll have a transcript prepared and that you will get to proof it before it becomes part of our project. I'm going to stop the tape now.