Reviewing Wisconsin's Lawyer Regulation System
On April 28, 1999, the Wisconsin Supreme Court
issued order No.
99-03, announcing its determination to initiate a comprehensive
review of the structure of the lawyer regulation system in Wisconsin. As
part of its review, the court requested that the American Bar
Association's Standing Committee on Professional Discipline evaluate the
Wisconsin system of lawyer regulation and report its findings and
recommendations to it. The ABA visited Madison from
July 6 - 9, 1999.
The ABA's Standing Committee on Professional Discipline released a
Preliminary Draft of the Report on the Wisconsin Lawyer Disciplinary
System, received by the court on Sept. 8, 1999. On Sept. 14, 1999, the
court held a public hearing on the structure of the lawyer regulation
system to address the system's current structure and to receive
suggestions on how the system could be restructured to better serve
those it regulates, the legal system, and the public. Invited to speak
on the issue of structure were the deans of the U.W. and Marquette
University law schools, or their designees, and a representative of the
ABA Center for Professional Responsibility. The court also invited other
persons and organizations having interest and experience in the matter
to appear. The court received the ABA's final
Wisconsin Report (in PDF format) on the Lawyer Regulation System on
Nov. 1, 1999.
The ABA Standing Committee's report included 20 recommendations.
Chief among the recommendations were that the court's control and
oversight of the Wisconsin lawyer discipline system should be
emphasized, the structure and duties of the Board of Attorneys
Professional Responsibility (BAPR) should be revised, and the role and
responsibilities of the administrator's office should be revised and
clarified.
On Oct. 1, 1999, the court issued an Order Requesting Further Comment
on Structure of Lawyer Discipline System. The court sought comment on 13
questions regarding the structure of a lawyer regulatory system, some of
which included: whether the investigation function should be carried out
by central staff alone or with the addition of decentralized bodies;
which person or entity should be responsible for directing the
prosecution of a disciplinary proceeding; whether the person or entity
determining to seek discipline should be the one who will prosecute it,
akin to a district attorney, or a neutral adjudicator, akin to a
preliminary hearing magistrate; who should perform the administrative
oversight of the system; and what are the appropriate composition and
proportion - lawyer and nonlawyer - of each entity within the system.
Comments were to be received on or before Jan. 4, 2000.
On Jan. 21 - 22, 2000, the court took the next step toward
reorganizing the lawyer regulatory system in Wisconsin. The role of the
BAPR administrator was changed and the role and function of the current
BAPR was divided between two new committees, a "cause to proceed body"
and an administrative oversight committee. In addition, the court
decided that the role of referees within the system would be expanded to
include issuing consensual public and private reprimands, presiding over
reinstatement hearings, and reviewing lack of cause to proceed findings,
upon the application of the grievant. Identified as issues to be decided
were: the number of district committees, number of members on each
committee, whether the standard before the "cause to proceed body"
should be probable cause or clear and convincing evidence, and who
should collect the BAPR assessment. The court decided that: the court
would appoint all participants within the system; central intake and
diversion from discipline programs would be the subject of a public
hearing in the fall (set for Sept. 12); and district professional
responsibility committees would be the subject of a review by the
administrative oversight committee.
Based on the determinations made on Jan. 20 - 21, Court Commissioner
William Mann was assigned the task of drafting revisions to SCR Chapters
21 and 22 consistent with the court's actions. In March 2000, the court
released Commissioner Mann's initial drafts of Chapters 21 and 22 (the
"rules") for review and comment. On May 22, 2000, the court created a
new lawyer discipline system to replace the Board of Attorneys
Professional Responsibility.
A committee on style composed of Chief Justice Shirley S. Abrahamson,
Justice David T. Prosser, Interim Administrator James L. Martin, State
Bar Structure Committee Co-chair Burneatta Bridge, and Court
Commissioner William Mann reviewed the rules and made specific changes.
The final version of the rules will be presented to the court in early
September. In May, the court voted that it would accept written comment
on the rules after they went into effect and that it would schedule a
public hearing on the rules after they had been in effect for about six
months.
Wisconsin
Lawyer