Wisconsin's New Lawyer Regulation System
Sidebars:
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:
- the court selecting the members to make up the Preliminary Review
Committee and the Board of Administrative Oversight, which is in
progress;
- the court appointing a director of the Office of Lawyer Regulation,
which is in process; and
- 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:
- monitor an attorney's compliance with conditions imposed on the
attorney's practice of law;
- investigate petitions for license reinstatement and the applicant's
character and fitness for bar admission;
- employ staff to assist in performing the director's duties;
- supervise the district investigative committees;
- 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
- 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:
- 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);
- to assist in the investigation of possible misconduct or medical
incapacity of an attorney upon referral by the director; and
- 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:
- 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;
- review at the request of a grievant the director's dismissal of a
grievance following investigation; and
- 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:
-
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;
- monitor the implementation of new procedures in the lawyer
regulation system;
- assess the public's and the bar's perception of the integrity of the
lawyer regulation system;
- propose for consideration by the supreme court substantive and
procedural rules related to the regulation of lawyers; and
- 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
To learn more...
Fall teleconference to explain new regulatory
system. The State Bar is offering a CLE telephone seminar to
explain and clarify the emerging Office of Lawyer Regulation (OLR).
Speakers Jim Martin, OLR interim administrator, and William Weigel, OLR
staff attorney, will discuss the new lawyer regulatory system in a
convenient, noon-to-1 p.m. phone session on Friday, Sept. 22.
The seminar carries one CLE ethics credit. Tuition is $109 for
registration on or before Sept. 11, and $129 after. For further
information, call the State Bar at (800) 728-7788 or (608) 257-3838.
Link to related content online. To find articles and
other related materials that explain the impetus behind the development
of this new lawyer regulation system, go to WisBar.
There you'll find supreme court orders, ABA evaluations and reports, and
State Bar reports and recommendations regarding the new system.
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:
- 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.
- 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.
- 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.
- 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.
- A 10-year "statute of limitations" with a discovery provision will
act as a bar on stale claims about a lawyer's services.
- 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.
James L. Martin , U.W. 1977, is
the interim administrator of the Board of Attorneys Professional
Responsibility.
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