President's Perspective
On Regulating Our Legal Profession
By Susan R. Steingass
Maintaining a fair, effective, and efficient
system of lawyer regulation within the judicial branch of government is
critical to both the image of the legal profession and its actual
performance. But we lawyers also must be confident that our conduct is
judged by a body that understands our professional lives and, mostly
important, the rules that guide us.
We lawyers are unique in assuming the cost of policing our own
profession through a yearly assessment on all of us. With that
obligation comes another - to have a lawyer regulation system worthy of
the respect of the public and our colleagues through fair, even-handed,
and speedy resolution of legitimate grievances against lawyers for
violating the rules and for medical incapacity.
As many of you know, during the recent political campaign, the Board
of Attorneys Professional Responsibility (BAPR) became something of a
political football in the Wisconsin Supreme Court race. During that time
BAPR came under fire. However, I, as most of you, continue to believe
that our system of lawyer regulation works.
Perhaps a bit of basic history is in order. Lawyer discipline used to
be administered by the Board of State Bar Commissioners appointed by the
Wisconsin Supreme Court. District committees appointed by the State Bar
had responsibility for investigating the majority of the grievances. The
State Bar was empowered to mete out minor discipline. Serious matters
were handled by the supreme court. By regulation effective Jan. 7, 1978,
the supreme court created a statewide Board of Attorneys Professional
Responsibility, to which grievances about lawyer misconduct and/or
medical incapacity were made. However, the district committees remained,
and to this day investigate grievances and provide local peer
review.
In fact, significant work is done through the 16 district committees,
which range in size from 10 to 40 members, one or more of whom are
nonlawyers. Their nearly 250 members are appointed by State Bar
presidents and come from diverse areas of professional life, from
diverse areas of practice, from big firms and small, from government
service, and from the public and private sectors.
The 12 lawyer members of BAPR also are from all over the state and
are from diverse areas of practice. With them are four public members,
including a family practice physician, a forensic document examiner, the
president of a title insurance company, and the executive director of
the Wisconsin Conservation Corps.
BAPR investigates and, if warranted, prosecutes grievances. It also
makes dispositional decisions in the great majority of grievances. Where
a matter is prosecuted, the supreme court has established a panel of
referees from which it designates one to preside over the proceeding.
The referee oversees the progress of the case after the filing of a
formal complaint, hears the case, then makes a report to the supreme
court with findings of fact, conclusions of law, and a recommendation to
the court. The court then makes the final decision.
In the process BAPR, and ultimately the supreme court, has a number
of dispositional options. If the grievance falls outside of the rules -
in other words, a grievance voices a dissatisfaction with the lawyer or
the result of the case, but does not allege a violation of the ethical
rules - the grievance is closed without investigation. If it is clear
from the grievant's response and/or the respondent attorney's response
that no ethical violation can be shown by clear and satisfactory
evidence, the grievance is dismissed. Even if a rule is violated, a case
may be dismissed with a caution, particularly where there has been a
first-time technical violation of the rules but no harm has occurred. An
attorney also may receive a private reprimand and, in a more serious
case, a public reprimand.
More serious by far are those cases that call for suspending a
lawyer's law license. What happens next depends upon the period of
suspension. If the suspension is for less than six months, the lawyer's
license is returned after that time has expired, upon proof that the
lawyer has satisfied the conditions of suspension. However, if the
suspension is for six months or more, or if the license is revoked (a
minimum of five years), the lawyer must petition the supreme court for
reinstatement.
It was my privilege, during my year as president-elect, to sit as an
ex officio member of BAPR. Incoming president Leonard Loeb was an ex
officio member this year, and he will be followed by president-elect
Gary Bakke. From my experience, I know that this is an extremely
hardworking body that devotes substantial time and effort to the fair
and expeditious resolution of grievances.
In addition, I know that BAPR and its staff participate in
educational efforts to help attorneys avoid professional misconduct and
avoid the grievance system altogether. They participate in an increased
number of ethics programs for lawyers throughout the state. BAPR also
attempts to raise public awareness of its work through outreach
activities to local bars and civic organizations.
The recent press attention given to the BAPR process doesn't mean
that our system of attorney regulation doesn't work. It does. But there
is, as there should be, an ongoing effort involving BAPR and the supreme
court to improve the process.
As you may know, almost 18 months ago, a supreme court commissioner
was asked to interview BAPR staff and board members, assess the
functioning of BAPR, and report to the supreme court. Though kept
confidential by the court at the time, a redacted version of the Mann
report was released by Justice Ann Walsh Bradley within the last month.
Many of you may have read it. For those of you who did not, you can find
the downloadable
Mann report and BAPR counsel's responses to it (first
and second)
on WisBar.
In response to the issues raised in the Mann report, about a year ago
the supreme court issued a statement of principles, policies, and
procedures and appointed a facilitator to meet with BAPR and its staff
and members of the court to iron out the policies and procedures to
govern BAPR. The Mann report was made to the court. The court, pursuant
to its constitutional authority to supervise the practice of law,
indicated that it would propose internal operating procedures for BAPR,
with consideration given to the internal operating procedures submitted
by BAPR, the administrator, the staff, and the facilitator's report. The
supreme court stated an intention to hold a public hearing on the
court's proposed procedures. That has not happened yet.
What the supreme court has done to date is to appoint a highly
respected reserve judge, Hon. Mark J. Farnum, to act as a liaison
between the court and BAPR. He has been acting in this capacity, in a
way productive for BAPR, the court, the public, and the legal community.
BAPR also is beginning the search for a new administrator to replace
Gerald C. Sternberg, who resigned last November, and James L. Martin,
who now serves as interim administrator.
It is critical that we as lawyers support the maintenance of a fair,
effective, and efficient system of lawyer regulation within, not
outside, the judicial branch of government. I urge you to support BAPR
as it continues in its long tradition of fair treatment of grievances,
as well as its efforts to keep improving, under the aegis of the
judicial branch. This is the way we can ensure results that are fair to
the grievant, attorneys grieved against, to the legal system, and to the
public's image of lawyers.
Wisconsin
Lawyer