Inside Track: Ethical Dilemma Administrative Suspensions: What Are Your Duties to Clients and Court?:

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    Administrative Suspensions: What Are Your Duties to Clients and Court?

    Apart from providing a lesson to read without delay any letter from the Board of Bar Examiners (BBE) and to keep up with your CLE requirements, this ethical dilemma addresses what you should do while waiting to be reinstated while on administrative suspension. In other words, does SCR 22.26 apply to administrative suspensions?
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    Oct. 18, 2017 – It happens. Lawyers can be placed on administrative suspension for any number of reasons – sometimes simply for overlooking something critical to maintaining their license to practice.

    Just what do you need to do while waiting to be reinstated if you are on administrative suspension?

    Question

    Lawyer A is a solo practitioner with a thriving and very busy practice. While being busy is a good thing, Lawyer A did not keep up with CLE requirements, and consequently began receiving notices from the Board of Bar Examiners (BBE) that his CLE reporting was overdue.

    While A had every intention of taking some courses and reporting, A did not follow through and did not take the time to carefully read the notices that kept coming from the BBE. Then, one day while at the courthouse, a judge asked to have a word with Lawyer A, and told A that he was on the list of lawyers who were suspended for failing to meet CLE requirements.

      

    Stunned, A returned to his office and read the last few unopened letters from the BBE and saw that it was correct. After a little research, A found some classes, but getting the necessary credits will take a little time.

    What must Lawyer A do while waiting to be reinstated?

    Answer

    SCR 22.26 (1) specifically addresses the responsibilities of lawyers whose license is suspended or revoked. It states:

    1) On or before the effective date of license suspension or revocation, an attorney whose license is suspended or revoked shall do all of the following:

    (a) Notify by certified mail all clients being represented in pending matters of the suspension or revocation and of the attorney's consequent inability to act as an attorney following the effective date of the suspension or revocation.

    (b) Advise the clients to seek legal advice of their choice elsewhere.

    (c) Promptly provide written notification to the court or administrative agency and the attorney for each party in a matter pending before a court or administrative agency of the suspension or revocation and of the attorney's consequent inability to act as an attorney following the effective date of the suspension or revocation. The notice shall identify the successor attorney of the attorney's client or, if there is none at the time notice is given, shall state the client's place of residence.

    (d) Within the first 15 days after the effective date of suspension or revocation, make all arrangements for the temporary or permanent closing or winding up of the attorney's practice. The attorney may assist in having others take over clients' work in progress.

    (e) Within 25 days after the effective date of suspension or revocation, file with the director an affidavit showing all of the following:

    (i) Full compliance with the provisions of the suspension or revocation order and with the rules and procedures regarding the closing of the attorney's practice.

    (ii) A list of all jurisdictions, including state, federal and administrative bodies, before which the attorney is admitted to practice.

    (iii) A list of clients in all pending matters and a list of all matters pending before any court or administrative agency, together with the case number of each matter.

    (f) Maintain records of the various steps taken under this rule in order that, in any subsequent proceeding instituted by or against the attorney, proof of compliance with the rule and with the suspension or revocation order is available.

    While this list may seem quite detailed and appears to directly answer the question, for many years it was uncertain whether this rule applied to administrative suspensions. Neither the rule nor its comment mention administrative suspensions, and the requirements seemed onerous for administrative suspensions, which are often resolved.

    The Wisconsin Supreme Court addressed this question in Disciplinary Proceedings against Scanlan, 2006 WI 38, 712 N.W.2d 877. In the relevant part of that case, the respondent lawyer’s license was suspended for failure to pay dues and because he did not attend a pretrial hearing with a client. The client attended alone and resolved the matter, but the respondent never notified the court of his suspension and was subsequently charged with violating SCR 22.26(1).

    The respondent argued that 22.26 did not apply to administrative suspensions and convinced the referee who conducted the disciplinary trial. The referee’s report stated that the respondent:

    … argued persuasively that SCR 22.26(1) does not apply to administrative suspensions based upon a lawyer's failure to pay State Bar dues pursuant to SCR 10.03(6) because it is not a Supreme Court suspension nor revocation.

    Upon review, the Supreme Court disagreed, stating:

    ¶ 53 We are unpersuaded. We agree with the OLR that the rule's plain language does not distinguish between administrative suspensions and court-ordered suspensions. Its application to an administrative suspension is consistent with the results in the other cases. See In re Disciplinary Proceedings Against Nott, 2003 WI 17, ¶ 10, 260 Wis.2d 4, 658 N.W.2d 438 (failing to notify two clients of CLE suspension violated SCR 22.26(1)(a)); *53 In re Disciplinary Proceedings Against Engelbrecht, 2000 WI 120, ¶¶ 2,9, 239 Wis.2d 236, 618 N.W.2d 743. (This court approved a stipulation that failure to notify the court and counsel of administrative license suspension for failing to comply with mandatory CLE requirements while counsel of record for a client in a small claims eviction trial violated SCR 22.26(1)(b).) We conclude that the plain language of SCR 22.26(1) encompasses administrative as well as court-ordered suspensions.

    ¶ 54 Here, the effect of Attorney Scanlan's failure to comply with SCR 22.26(1) was to leave his client unrepresented at a pretrial hearing, resulting in entering her plea on her own without counsel. This result could have been alleviated had Attorney Scanlan complied with SCR 22.26(1) and notified his client, the court and opposing counsel of his inability to represent R.M. due to his administrative license suspension.

    Thus, the Scanlan case unequivocally answered the question of whether SCR 22.26 applies to administrative suspensions.

    A few points are worth noting, however. First, many administrative suspensions are quickly resolved, some in a day or two, so some of the requirements of the rule would not be applicable. Second, the lawyer in Scanlan was faulted for not providing any notice of his suspension, not for failing to send certified letters. Lawyers who are suspended obviously must notify affected clients and courts1, but most administrative suspensions are so brief that sending certified letters to clients would not be effective.

    While lawyers who are suspended for administrative reasons should obviously do what is necessary to get their licenses reinstated, they also must be mindful of their duties to clients and courts.

    In Case You Missed It: Read Past Ethical Dilemmas

    Ethical Dilemmas appears monthly in InsideTrack. Check out these topics from recent issues:

    Settlement Agreements: Should Lawyers Notify Clients of Errors from Opposing Counsel? Sept. 20, 2017

    Should a lawyer gain a client’s permission to notify opposing counsel that a critical provision was left out of the draft settlement agreement?

    When Your Clients Divorce: Who Owns the Client File in Joint Representation? Aug. 16, 2017

    What happens when your clients divorce? Must a lawyer surrender a client file of a former joint representation when one party does not consent to providing the file to the other party? Who owns a client’s file?

    Endnotes

    1 See SCR 20:1.4 and Disciplinary Proceedings against Wentzel, 204 Wis.2d 285, 554 N.W.2d 669 (1996).

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