March 10, 2009 - Following a March 9 hearing on rule Petition 8-13, the Wisconsin Supreme Court said that otherwise qualified attorneys should be allowed to practice in Wisconsin so long as they demonstrate efforts to recover from substance abuse, mental illness, financial mismanagement, or other impairments.

John Kosobucki, director of the Board of Bar Examiners, told the justices that currently his agency faces a dilemma as it strives to protect the public from “unfit” lawyers. An applicant may currently satisfy all requirements for admission, including character and fitness criteria, but recent treatment for a condition suggests a risk of misconduct should the problem recur.   

“A conditional admission rule would allow the [BBE] the leeway of admitting the applicant under conditions whereby the applicant would be monitored or until the applicant demonstrates rehabilitation from the conduct which gave rise to the Board’s concerns,” Kosobucki told the court.

Conditions upon which a lawyer would be permitted to practice include random alcohol or other drug testing; supervision; periodic reporting by the applicant; professional medical, psychological or other treatment; financial, business, or law office management counseling or supervision.

Justices were particularly concerned who would be responsible for the supervision. The State Bar of Wisconsin’s lawyer assistance program (WisLAP) is expected to write the conditions and oversee the adherence to a “contract” between the applicant and WisLAP, according to WisLAP coordinator Linda Albert. WisLAP would report compliance or noncompliance to the BBE which would impose sanctions for failure to comply, she said.

Comparing this proposal to a similar rule in Minnesota and the American Bar Association’s model rule, Justice Ann Walsh Bradley found the language of 08-13 to be far less demanding of applicants’ proof of recovery. The justices agreed, preferring language to stipulate a lawyer show rehabilitation from chemical dependency or successful treatment for mental illness or other defect that has resulted in otherwise disqualifying conduct.

State Bar President Diane Diel told the justices that the Board of Governors withheld their support for this rule because it would not protect the confidentiality of the applicant. The governors believe that confidentiality encourages applicants to disclose their problems and receive early treatment, Diel said. With inclusion of a confidentiality rule, the State Bar would support the rule, she said.

Kosobucki acknowledged that the BBE was not unanimous in its decision to drop a confidentiality provision from its proposal. Kosobucki explained that the BBE ultimately decided that the public had a right to know whether an attorney was conditionally admitted. However, in response to a question from Justice Patience D. Roggensack, Kosobucki noted that the public is not permitted to review any other bar application and the circumstances of the applicant.

Noting that the ABA model rule contains a confidentiality provision, the justices agreed such a protection should be in the Wisconsin rule.

The justices also decided to follow the ABA model rule in regards to the length of time a lawyer might conditionally practice. The proposal would have conditional bar admission last up to a year, unless the BBE had good cause to extend the period by as much as an additional year.  Under the ABA model rule, conditional admission may last as long as five years.

An applicant is expected to bear “all costs” of conditional admission, according to a strict reading of the proposed rule. However, justices learned from Albert that the applicant is actually expected to pay for individualized treatment and drug screening, but WisLAP overhead would be funded by State Bar dues. Albert said that BBE expects only one or two applicants a year under this rule so that there should not be any increase of cost to WisLAP. She added that WisLAP already has trained volunteers and a coordinator in place to handle the supervisory duties. The justices sought greater precision in the language regarding costs.

The rule is to be reworked to reflect the justices’ concerns before adoption.