State Bar of Wisconsin

Vol. 73, No. 8, August 2000

Wisconsin's New Lawyer Regulation System

Sidebars:

• Reviewing Wisconsin's Lawyer Regulation System

The new system of lawyer regulation clarifies the duties and responsibilities of the system components and provides new checks and balances to increase the accountability of the decision making in order to protect the public and the legal profession. The effective date is expected to be in September 2000.

by James L. Martin

he lawyer regulation system of tomorrow will operate much like the lawyer regulation system of today. In the new lawyer regulation system¹, the staff of the Office of Lawyer Regulation (OLR) is authorized to receive oral grievances and central staff and district investigative committees will do investigations. A Preliminary Review Committee will function as a neutral magistrate for determining whether the director has cause to proceed to file a public complaint against a lawyer and a Board of Administrative Oversight will be responsible for monitoring the overall fairness, productivity, effectiveness, and efficiency of the system. The director of OLR will be given the authority to determine the disposition to seek in misconduct and medical incapacity cases. The duties of referees include the issuance of consensual private and public reprimands and, on the request of a grievant, review of some determinations adverse to grievants.

The implementation of this new system is dependent upon three events taking place:

1. the court selecting the members to make up the Preliminary Review Committee and the Board of Administrative Oversight, which is in progress;
2. the court appointing a director of the Office of Lawyer Regulation, which is in process; and
3. the adoption of an effective date for the proposed new SCR Chapters 21 and 22, expected to be in September 2000.

Lawyer Regulation System

Under the new system, the office and staff of the Board of Attorneys Professional Responsibility will become the Office of Lawyer Regulation. Components of the new regulation system will be the Office of Lawyer Regulation, including litigation and retained counsel, district investigative committees, a Preliminary Review Committee, a Board of Administrative Oversight, court-appointed referees, and the court. The new lawyer disciplinary system will divide the responsibilities of the previous lawyer discipline board - BAPR - between two 12-person bodies called the Preliminary Review Committee and the Board of Administrative Oversight.

The OLR will be responsible for screening, investigating, and prosecuting alleged lawyer misconduct and alleged medical incapacity. In addition, the director, appointed by and serving at the pleasure of the court, will:

1. monitor an attorney's compliance with conditions imposed on the attorney's practice of law;
2. investigate petitions for license reinstatement and the applicant's character and fitness for bar admission;
3. employ staff to assist in performing the director's duties;
4. supervise the district investigative committees;
5. prepare an annual budget for operating the office of lawyer regulation and submit it to the Board of Administrative Oversight for review and presentation, with comment, to the supreme court; and
6. prepare an annual report of the Office of Lawyer Regulation activities during the preceding year and submit it to the Board of Administrative Oversight for review and presentation, with comment, to the supreme court.

The director may retain private practitioners to assist in performing the director's duties to present matters to the preliminary review committee and to prosecute complaints alleging attorney misconduct and petitions alleging attorney medical incapacity.

District Investigative Committees

District investigative committees are retained in the proposed new system. The court will appoint the members and all members will serve staggered three-year terms. To the extent feasible, one-third of committee members will be nonlawyers. District investigative committees will function under the supervision of the director. Among the committees' duties are:

1. to educate the bar and the public about the practice of law consistent with the Rules of Professional Conduct for Attorneys, SCR Chapter 20 (first and second parts);
2. to assist in the investigation of possible misconduct or medical incapacity of an attorney upon referral by the director; and
3. to make a recommendation to the director as they consider appropriate for the disposition of any matter that the committees have investigated.

District investigative committees are to conduct their investigation and file an investigative report with the director within 90 days after the date of referral of a matter.

Preliminary Review Committee

The 12-member Preliminary Review Committee shall consist of eight lawyers and four nonlawyers appointed by the supreme court. Members will serve staggered three-year terms. The committee will be comprised of two six-member panels, each having four lawyers and two nonlawyers. The preliminary review panels will:

1. review the results of investigations of allegations of attorney misconduct or medical incapacity presented by the director and determine whether there is cause to proceed² in the matter. The affirmative vote of four or more panel members is required to determine cause to proceed;
2. review at the request of a grievant the director's dismissal of a grievance following investigation; and
3. confer periodically with the Board of Administrative Oversight about the operation of the Preliminary Review Committee and panels and suggest improvements in their operation.

The Preliminary Review Committee will hold regularly scheduled meetings at least quarterly and each panel will meet as necessary to carry out its duties.

Board of Administrative Oversight

A 12-member Board of Administrative Oversight consisting of eight lawyers and four nonlawyers will be appointed by the supreme court. Members will serve staggered three-year terms. The board will meet at least quarterly and will, among other things:

1. monitor the fairness, productivity, effectiveness, and efficiency of the attorney regulation system, including:

   a) the timeliness of the system;

   b) the presence of a quorum at meetings of the preliminary review panels and the frequency of divided votes determining cause to proceed; and

   c) variations in specific matters among the discipline sought by the director, the discipline recommended by the referee, and the discipline imposed by the supreme court;

2. monitor the implementation of new procedures in the lawyer regulation system;
3. assess the public's and the bar's perception of the integrity of the lawyer regulation system;
4. propose for consideration by the supreme court substantive and procedural rules related to the regulation of lawyers; and
5. inform and educate the public and the bar about the operation of the lawyer regulation system.

The board will have no substantive or procedural function in the lawyer regulation system as it concerns particular allegations of attorney misconduct or medical incapacity.

Referees

Referees for the system will be appointed by the supreme court from a permanent panel of attorneys and reserve judges. Referees will conduct the hearings on complaints of attorney misconduct, petitions alleging attorney medical incapacity, and petitions for license reinstatement. Referees will make findings, conclusions, and recommendations and submit them to the supreme court for review and appropriate action.

In addition, referees will review and issue consensual private and public reprimands and review, on the request of a grievant, determinations of the preliminary review panels that the director has failed to establish cause to proceed in a matter.

Central Intake/Diversion from Discipline

On Sept. 12, 2000, the supreme court will hold a public hearing on the interim administrator's petition and proposal to establish a central intake function in the Office of Lawyer Regulation. The petition, if adopted, will authorize staff to receive oral grievances. The shift in the way grievances are received is intended to expedite the handling of inquiries and grievances. Under the proposed central intake model, it is anticipated that most inquiries about a lawyer's services will be handled within approximately two weeks.

As part of the proposal, the interim administrator is requesting authority to divert acts of "minor misconduct," by agreement, from the disciplinary track to an educational lawyer assistance track. Diversion from discipline will enable the director to fashion remedial educational and monitoring programs designed to assist and educate the lawyer. Diversion from discipline is proposed for acts of misconduct for which the sanction would have been a private reprimand or less.

Substantive Changes In Procedure

Several substantive changes in the procedure for lawyer regulation are worthy of note. The list below does not represent all of the changes but several that this writer thought would be of interest. They are listed in no particular order:

1. Appeals by the grievant of the closure or dismissal of a grievance must be made within 90 days of being notified of the closure or dismissal.
2. If an attorney fails to respond to a request for written response to an allegation of misconduct or fails to cooperate in other respects in an investigation, the director can file a motion with the supreme court requesting that the court order the attorney to show cause why his or her license to practice law should not be suspended for willful failure to respond or cooperate with the investigation.
3. Summary license suspension will be available to the court upon receipt of satisfactory proof that an attorney has been found guilty of a serious crime.
4. Reinstatement of a license from a suspension of less than six months will be made by the supreme court upon the attorney's filing of an affidavit with the director, showing full compliance with all of the terms and conditions of the suspension order, and the director's notification to the supreme court of the attorney's full compliance.
5. A 10-year "statute of limitations" with a discovery provision will act as a bar on stale claims about a lawyer's services.
6. The new rules will clearly state that no lawsuit predicated on the filing of a grievance with OLR may be instituted against any grievant or witness.

Conclusion

The lawyer regulation system of tomorrow will operate much like the lawyer regulation system of today. Staff and district investigative committees will continue to investigate all grievances filed against lawyers. The significant changes of the new system clarifiy the duties and responsibilities of the components of the system. The director of OLR will have the authority to determine the disposition to seek in misconduct and medical incapacity cases and to divert acts of "minor misconduct." The Preliminary Review Committee, the Board of Administrative Oversight, referees, and the court, will review the work of the Office of Lawyer Regulation.

A Preliminary Review Committee and a Board of Administrative Oversight replace the Board of Attorneys Professional Responsibility. This change will establish the Preliminary Review Committee as the "neutral magistrate" to determine whether the director has cause to proceed before the filing of a complaint alleging misconduct or a petition alleging medical incapacity. The Board of Administrative Oversight will be responsible for monitoring the overall fairness, productivity, effectiveness, and efficiency of the system. The new system uses referees to establish checks and balances designed to increase the accountability of the decision making for the protection of the public and the legal profession.

The proposed rules offer a new beginning for lawyer regulation in Wisconsin. We should seize the moment to establish a system that will serve the public and the bar, and the role of the court in supervising the practice of law in Wisconsin. But, like all governmental institutions, lawyer regulation should never be taken for granted; it should be understood that improvements to the system are always possible, and serving the public good should always be the system's most important product.

Endnotes

¹ As of the date this article went to press (July 26, 2000), the Wisconsin Supreme Court has voted to adopt the structure discussed in this article and has adopted "in principle" proposed new SCR Chapters 21 and 22.

² "Cause to proceed" means a reasonable belief based on a review of an investigative report that an attorney has engaged in misconduct or has a medical incapacity that may be proved by clear, satisfactory, and convincing evidence.

Wisconsin Lawyer