Vol. 84, No. 4, April 2011
- Order 10-04 – Establishing Standards and Procedures for Permanent Revocation, petition denied
- Order 08-11 – Adverse Determinations of Bar Applicants’ Character and Fitness, amended rules effective April 1, 2011
Establishing Standards and Procedures for Permanent Revocation
In the matter of the petition to amend Supreme Court Rules 21.16, 22.19, and 22.29, establishing standards and procedures for permanent revocation.
On March 16, 2010, the Board of Administrative Oversight and the Preliminary Review Committee filed a joint petition seeking to amend Supreme Court Rules (SCRs) 21.16, 22.19, and 22.29. The petition asked the court to establish standards and procedures to permit permanent revocation of lawyer licenses in cases where the seriousness of the lawyer’s misconduct and significance of the public interest required it. On Sept. 14, 2010, the court sent a letter to the petitioners seeking additional information regarding the petition. The petitioners responded by letters dated Sept. 27, 2010, and Sept. 29, 2010, respectively. The court also received a letter from Attorney Donald J. Christl, a member of the Preliminary Review Committee, writing in his personal capacity in support of the petition. A public hearing on this matter was conducted on Nov. 9, 2010.1 Attorney Rod W. Rogahn, Vice Chair of the Board of Administrative Oversight, Attorney Edward A. Hannan, Chair of the Preliminary Review Committee, and Attorney Mark A. Peterson, Board of Administrative Oversight, presented the petition to the court. Attorney Frank Remington spoke on behalf of the State Bar of Wisconsin Board of Governors in opposition to the petition.
At the ensuing open administrative conference the court commended the petitioners for their work and for bringing the petition before the court. The court discussed practices in various other jurisdictions, noting that some provide for permanent revocation either by court rule or case law, while others do not. The court discussed the criteria proposed by the petitioners to assess when permanent revocation might be warranted, expressing concern that the rule might strip the court of the ability to rectify an unjust outcome.
The court reasoned that to justify permanent revocation on the assumption that the attorney will forever be a danger to clients requires making a judgment that an individual lacks the capacity to ever mature, reform, or to re-establish the requisite character and fitness required to practice law. A lawyer’s misconduct may pose a danger to the public interest and this may require a lengthy suspension of that lawyer’s license. However, to make the judgment that a lawyer is so unethical that reform is never possible – that the lawyer can never again ethically serve clients in Wisconsin – is the kind of judgment that cannot be accurately determined at the time the lawyer is disciplined by this court. In some cases time will demonstrate that a particular lawyer is not capable of rehabilitation and remains a danger to the public interest. That lawyer will not be reinstated and will not be permitted to practice law. Indeed, no lawyer whose license has been revoked has a right to reinstatement. However, permanent revocation denies a lawyer any opportunity to even seek reinstatement. Permanent revocation denies any opportunity to demonstrate rehabilitation, growth, or maturity on the part of the lawyer.
Permanent revocation also forecloses any opportunity for the court to rectify an outcome that is later determined to be unjust, such as if a lawyer was permanently revoked for committing a serious felony but was later exonerated of the crime. The inflexibility of permanent revocation further illustrates the challenges inherent in determining, at the outset, the ability of a lawyer to re-establish the character and fitness requirements needed to practice law. In denying the petition for standards and procedures to permit permanent revocation, the court permits offending lawyers not only the chance, but also the incentive to demonstrate their ability to reform.
In considering the petition the court discussed statistics provided to the court regarding the number of long-term suspensions or revocations ordered by this court.2 The court emphasized that lawyers whose licenses have been suspended or revoked for professional misconduct can seek reinstatement but have no right to reinstatement. See, e.g., In re Disciplinary Proceedings Against Banks, 2010 WI 105, 329 Wis. 2d 39, 787 N.W.2d 809 (denying lawyer’s petition for reinstatement noting that practicing law is a privilege not a right).
In voting to deny the petition, the court indicated it might be amenable to modifying the rules governing reinstatement, e.g., SCR 22.29 and SCR 22.31, for example, extending the length of time before an attorney whose license has been revoked can seek reinstatement of his or her law license, increasing the standards for reinstatement, or requiring the court to consider the nature of the attorney’s misconduct when evaluating a reinstatement petition.
Ultimately, however, a majority of the court was not persuaded there is a compelling need for the rule change because there is no right to reinstatement. Therefore,
IT IS ORDERED that the petition is denied.
IT IS FURTHER ORDERED that notice of the entry of this order shall be given by a single publication of a copy of this order in the official state newspaper and in an official publication of the State Bar of Wisconsin.
Dated at Madison, Wis., this 22nd day of February, 2011.
By the court:
A. John Voelker,
Acting Clerk of Supreme Court
Adverse Determinations of Bar Applicants’ Character and Fitness
In the matter of the amendment of SC 40.08 relating to adverse determinations of bar applicants’ character and fitness.
On April 1, 2008, the Board of Bar Examiners by its former director, John E. Kosobucki, petitioned this court for an order amending Supreme Court Rule (SCR) 40.08 relating to adverse determination of a bar applicant’s character and fitness. An amended petition was filed on July 24, 2008. A public hearing on the petition was held on Friday, Feb. 26, 2010. A second amended petition was filed on Oct. 22, 2010, by BBE Director Jacquelynn Rothstein. A public hearing on the second amended petition was held on Wednesday, Jan. 12, 2011.
Upon consideration of matters presented at the public hearing and submissions made in response to the proposed amendment, the court adopted the second amended petition with modifications.
IT IS ORDERED that effective April 1, 2011, SCR 40.08 is repealed and recreated to read:
SCR 40.08 Adverse determination.
(1) At Risk Notice. Before declining to certify an applicant’s satisfaction of requirements under this chapter, the board shall notify the applicant in writing of the basis for its notice that the application is at risk of being denied. The board’s notice shall provide that, except as to failure of the bar examination under SCR 40.04, the applicant may challenge the at risk notice upon filing a written request for a hearing and statement responding to the board’s notice. The board’s notice shall contain a statement identifying the date of mailing. The board shall serve the notice on the applicant by mail to the last address furnished by the applicant in writing to the board.
(2) Applicant’s Request for Hearing and Response.
(a) Within 30 days of the date of mailing of an at risk notice, the applicant may challenge the at risk notice by filing any of the following:
1. A written request for a hearing and a statement setting forth the grounds on which the board’s at risk notice should be reversed.
2. A written supplement to the record.
(b) If the applicant does not request a hearing or file a supplement to the record within 30 days, a subsequent adverse determination by the board becomes final and the applicant may not seek review under sub. (6) or (7).
(3) Scheduling of Hearing. The board shall grant a hearing upon the applicant’s timely and written request.
(4) Notice of Hearing. The board shall provide written notice of the hearing at least 30 days prior to the hearing date. The notice shall state the time and place of the hearing and the issues to be considered. The notice shall advise the applicant that he or she may be represented by counsel and present evidence.
(5) Board’s Decision on Certification of Application. The board shall notify the applicant of its decision by mailing a copy to the applicant at the last address furnished by the applicant in writing to the board. The board’s decision shall contain a statement identifying the date of mailing. A decision that is an adverse determination by the board shall include findings of fact and conclusions of law and shall be final, unless the applicant timely files a review under sub. (6) or (7). A decision to certify that the applicant has satisfied the requirements of this chapter by the board does not require findings of fact and conclusions of law.
(6) Review by Board. An applicant may seek review of a decision that is an adverse determination by filing a written request with the board within 30 days of the date of mailing of the adverse determination. A request for review shall be granted only on the basis of a material error of law or fact, or the discovery of new evidence sufficiently strong to reverse the adverse determination. The board shall notify the applicant of its decision by mailing a copy to the applicant at the last address furnished by the applicant in writing to the board. The board’s decision shall contain a statement identifying the date of mailing.
(7) Review by Supreme Court. An applicant may seek review of a decision that is an adverse determination by filing a petition for review with the supreme court and serving a copy on the board within 30 days of the date of mailing of the board’s adverse determination. However, if the applicant has filed a timely request for review under sub. (6), the deadline for seeking review by the supreme court shall be within 30 days of the date of mailing of the board’s disposition of the applicant’s request to review.
IT IS FURTHER ORDERED that within 6 months of the date of this order, the board of bar examiners shall ensure that the rules of the board of bar examiners, SCR ch. 40 Appendix, are consistent with this order.
IT IS FURTHER ORDERED that notice of this amendment of Supreme Court Rule 40.08 be given by a single publication of a copy of this order in the official state newspaper and in an official publication of the State Bar of Wisconsin.
Dated at Madison, Wis., this 1st day of March, 2011.
By the court:
A. John Voelker,
Acting Clerk of Supreme Court