Aug. 5, 2020 – In 2016, Wisconsin Supreme Court Chief Justice Patience Drake Roggensack created a committee, the OLR Procedure Review Committee, to review the Oﬃce of Lawyer Regulation’s (OLR) disciplinary procedures.
The Committee, chaired by the Honorable Gerald Ptacek, established as its mission to review the OLR procedures and structure, and report to the Wisconsin Supreme Court recommendations that would increase the eﬃciency, eﬀectiveness, and fairness of the OLR process.
In early 2019 the Committee filed nine administrative rule petitions with the Court, all of which have been acted upon.1
These petitions, and the subsequently adopted rule changes to Supreme Court Rules (SCR) Chs. 10, 20, 21, 22 and 31, make significant changes to the way referees are appointed and trained to handle disciplinary matters, as well as other aspects of the OLR charging process, conﬁdentiality, enforcement of judgments, and reinstatement.
Members of the Committee made a comprehensive review of disciplinary systems across the country and sought input from those that participate in the disciplinary process, including members of the OLR’s office, advocates, grievants, and respondent attorneys. All petitions were fully vetted by the State Bar and in particular, by its Ethics Committee and its then-chair Dean Dietrich.
Public hearings were conducted, as well. The remainder of this article explains the technical and substantive changes to the rules that have been adopted by the Wisconsin Supreme Court. Most of these changes will take effect on Jan. 1, 2021.2
Training and Composition of Referee Panels
The first petition (19-04) addressed the training and composition of the referee panel. The Court’s Order, effective Jan. 1, 2020, established a new referee panel consisting of no more than 15 lawyers and reserve judges appointed by the chief justice or his/her delegee, who will serve staggered four-year terms. SCR 21.08.
Marsha Mansfield (U.W. 1984) served on the OLR Procedure Review Committee, and also served as the committee’s reporter.
Julie Anne Rich (Minnesota 1994) is a Supreme Court Commissioner for the Wisconsin Supreme Court.
Training and orientation provisions have been instituted in an effort to better standardize the disciplinary and reinstatement hearing process. SCR 21.11(4).
Referees will be appointed to hear disciplinary, medical incapacity, reinstatement and related matters based primarily on the attorney’s residency. See, e.g., SCR 22.36(5). The rule was further amended to require referees to ﬁle their reports 30 days after the later of the conclusion of the hearing, the ﬁling of the hearing transcript, or the ﬁling of post-hearing briefs. SCR 22.16(6).
Expanded Role for Referees in Imposing Discipline
A companion petition (19-05) asked the Court to expand the referees’ role in imposing discipline in certain cases while preserving the Supreme Court’s authority as a reviewing body and ultimate arbiter of attorney discipline.
Petition 19-05 would permit referees to make ﬁndings, conclusions, and, under certain circumstances, determine attorney misconduct, impose or approve consensual private and public reprimands and approve stipulations under which an attorney’s license to practice law is suspended for a period not to exceed one year.
The rule also would authorize referees to impose discipline, suspending an attorney’s license to practice law for a period not to exceed three months, with the attorney having the right to appeal the decision to the Supreme Court.
The Court voted to hold this petition in abeyance, pending the implementation of the referee training established by S. Ct. Order 19-04.
It is the Committee’s understanding that the Court will revisit this proposal once the revised referee training process has been implemented.
Reinstatement of Attorneys
The rules pertaining to reinstatement of suspended or revoked lawyers have been significantly reorganized and amended to expedite what has traditionally been a long process. Petition 19-06 proposed changes to the reinstatement process.
The amended rule will require a petitioning attorney to submit to the OLR Director a reinstatement questionnaire designed to assist the Director in his or her investigation of the petition. SCR 10.03(6m) and SCR 22.29(4x).
It also consolidates, amends, and redesigns current rules regarding the reinstatement procedure regarding publication and deadlines for the Board of Bar Examiners and the OLR to submit reports regarding compliance with continuing legal education (CLE) and the OLR’s position on reinstatement. SCR 22.30.
Importantly, the amended rule provides that an unopposed reinstatement petition may be considered by stipulation, eliminating the need for a formal evidentiary hearing in certain reinstatement matters. SCR 22.30(5)(b) and (c).
The Court denied Petition 19-10, which would have permitted the Court to permanently revoke an attorney’s license to practice law in particularly heinous cases, without an opportunity to petition for reinstatement.3 A comment was created to clarify that revocation is not permanent in Wisconsin.
Enforcement of Disciplinary Orders (Petition 19-09)
The Court also adopted a new procedural rule explicitly stating that the OLR may seek enforcement of a disciplinary order without initiating a new disciplinary proceeding. SCR 22.185.
It allows the Supreme Court to enforce compliance where a respondent attorney’s noncompliance is “substantial” on its own motion or on the motion of the Director or a special investigator.
Charging Process (19-11)
The Court adopted in total the petitions amending the charging process.
SCR 22.02(4), SCR 22.06(6)(a) and SCR 22.05(2) have been amended to require the OLR Director, when he or she closes a grievance file, to provide the grievant with a written explanation for the decision. This change is an eﬀort to make the process more transparent and understandable to grievants.
A number of changes were also made to ensure the process is more eﬃcient. Allegations of a breach of a diversion agreement will no longer come before the Preliminary Review Committee (PRC) but rather, the attorney will be afforded an opportunity to respond, and the agreement may be modiﬁed by mutual agreement or terminated by the OLR Director. SCR 22.10(4) and 22.10(7).
A respondent attorney now also has the right to waive, at any stage of the proceeding, submission of the matter to the PRC for a cause to proceed determination and enter into a consent reprimand agreement prior to an OLR investigation. SCR 22.02(6)(d) and 22.05(1)(e).
Confidentiality (Petition 19-07)
The changes to the rules governing conﬁdentiality in OLR proceedings seek to balance the rights of the respondent attorney who has merely been accused of misconduct, the rights of the grievant, the rights of the public to protection, and the interest of assuring public conﬁdence in the disciplinary process.
Petition 19-07 asked the Court to amend the rule to require an attorney who receives a notice of a formal OLR investigation to provide a copy of the notice to a supervisor in his or her law ﬁrm, or the law ﬁrm where he or she worked at the time of the alleged misconduct and to allow the OLR Director the discretion to provide a copy of the notice to the law firm. Proposed SCR 22.03(2g) and (2r).
The Supreme Court denied this aspect of the petition. The amended rule thus codifies existing agency practice whereby the Director provides the respondent attorney with a copy of the grievance received by OLR and any additional information provided by the grievant if the Director believes the disclosure is appropriate. SCR 22.03(5)(c).
Under current practice, the formal initiation of a disciplinary proceeding in the form of a complaint triggers public disclosure. The Court refused to advance public disclosure to an earlier stage of the proceedings when the PRC determines there is cause to proceed. The Court did reduce, from 10 years to 6 years, the limitations period for ﬁling a grievance with the OLR as well as changing the limitations period from the later, to the earlier, of the time when the grievant knew or reasonably should have known of the conduct underlying the grievance. SCR 21.18.
OLR Process (19-08)
The changes to rules governing OLR process reﬂect a wide-ranging review of the OLR process and how it could be made more eﬃcient while protecting the rights of all involved parties. A major change proposed by the process petition would have eliminated the role of District Committees.
The reasoning supporting this proposal is that the OLR has internal resources to conduct the investigations formerly handled by District Committees, and the rules currently permit the OLR to contact attorneys in certain areas (both geographic and legal) to provide additional expertise when necessary, eliminating a need that was the basis for the original structure and purpose of the District Committees.
After much discussion and testimony at the public hearing and in private conference, the Court rejected this change, with three justices dissenting.4
The Court adopted changes that confirm that the function and processes of the Special Preliminary Review Committee (SPRC) are similar to that of the PRC.
Additionally, a new process has been instituted when a respondent attorney fails to respond to a request for a written response to an allegation of misconduct, or otherwise fails to cooperate with a disciplinary investigation.
Under the new rule, the respondent attorney’s license is automatically suspended until the attorney either cooperates or demonstrates why he or she is not able to cooperate, or show cause as to why his or her license to practice should not be suspended. SCR 22.03(4).
The amendments add a comment to clarify that the requirements of SCR 22.26 (activities after license suspension) apply to administrative license suspensions.
Changes to SCR 20:8.3
The only aspect of the Committee’s petitions that directly involved SCR Ch. 20 sought to amend SCR 20:8.3 (a) and (b), by changing the standard when attorneys are required to inform the appropriate professional authority of another lawyer or a judge’s violation of the rules of Professional Conduct or of judicial conduct, and the violation raises a substantial question of ﬁtness. Petition 19-12.
The Court rejected a proposal to change the word “know” to the phrase “reasonably believes” but did amend SCR 20:1.8(h) and its Wisconsin Comment to make clear that an attorney may not enter into an agreement with a client limiting any person’s right to report the attorney’s conduct to a disciplinary authority.
All documents filed in these matters are public and can be accessed on the court’s rules website: https://www.wicourts.gov/scrules/pending.htm.
1 Petition 19-05, was held in abeyance pending future consideration. S. Ct. Order 19-05 (issued June 26, 2019).
2 S. Ct. Order 19-06-19-12, 2020 WI 62 (issued June 30, 2020, eff. Jan. 1, 2021).
3 S. Ct. Order 19-10 (issued Dec. 18, 2019), Ziegler, J., dissenting, joined by Grassl Bradley and Hagedorn, JJ.
4 S. Ct. Order 19-06-19-12, 2020 WI 62 (issued June 30, 2020, eff. Jan. 1, 2021), Roggensack, C.J., dissenting, joined by Ziegler and Hagedorn, JJ.