Regulating the Legal Profession: BAPR Annual Report
In fiscal 1999, BAPR handled 1,923
grievances; studied the effectiveness of professional responsibility
committees; and educated attorneys to avoid professional misconduct.
During the year, the supreme court initiated a comprehensive review of
Wisconsin's lawyer disciplinary system, including BAPR's structure. That
review continues.
by Sharren B. Rose & James L. Martin
he Board of Attorneys
Professional Responsibility (BAPR or the board) files annually with the
Wisconsin Supreme Court a report of its activities during the preceding
year to permit the court, the bar, and the public to evaluate its
performance.1 This report is the first in 16
years that hasn't been, in part, authored by Gerald C. Sternberg.
Sternberg served as administrator of BAPR for almost 16 years. He
resigned as administrator effective Nov. 13, 1998.
Sternberg began his service to the supreme court in March 1983. At
the time, BAPR consisted of eight employees in Madison and five in
Milwaukee. The 1982-83 fiscal budget was $494,700; there were 13,300
members of the State Bar of Wisconsin; the assessment on State Bar
members was $48.50; and 1,098 grievances were filed against Wisconsin
lawyers.
At Sternberg's departure, BAPR's staff consisted of 12 employees in
Madison and 10 in Milwaukee. The fiscal 1998-99 budget was $1,463,450;
the assessment on Wisconsin-licensed attorneys was $78.25; there were
19,984 members of the State Bar; and 1,423 grievances were filed against
Wisconsin lawyers.
Sternberg leaves behind a legacy of solid accomplishments directing
the agency that oversees Wisconsin's lawyer disciplinary system. We are
enriched by his service to the court and we wish him well in his new
endeavor.
Board Composition
BAPR is composed of eight lawyers and four public members selected by
the Wisconsin Supreme Court to serve an initial three-year term,
followed by one successive three-year term. The State Bar
president-elect serves as a nonvoting member of the board. All board
members serve without compensation, but may be reimbursed for travel
expenses. Approximately every six weeks, the board meets in open session
on policy matters and in closed session on disciplinary matters. (Brief
biographies of fiscal 1999 board members are shown in Figure
1.)
Brief Review
The supreme court has assigned to BAPR and its administrator the
responsibility for investigating grievances involving possible attorney
misconduct or medical incapacity. Investigations are conducted without
regard to the manner in which the matter comes to the board.2 After an investigation, BAPR determines
whether a lawyer's alleged misconduct or medical incapacity should be
the basis for a complaint or petition to the supreme court seeking
public discipline, medical suspension, or conditions on a law license.
BAPR also has the authority to impose a public or private reprimand,
with the consent of the respondent attorney, or to dismiss the
grievance.3
The administrator is accountable to the board for handling all
grievances, medical incapacity inquiries, and reinstatement
investigations.4
The 16 district professional responsibility committees, composed of
lawyers and public members and appointed by the State Bar president, are
an integral part of the board's investigative program.5 Pursuant to SCR
21.02 and 22.05,
the administrator supervises the professional responsibility committees.
The use of the committees ensures local input into the grievance process
and provides both complainants and respondents with a convenient,
economical means of peer review. The board and its administrator
publicly express appreciation for the dedicated work of the 245
volunteer committee members whose substantial hours of investigation and
deliberation are essential to the board's work.
In fiscal 1998-99, the State Bar's BAPR Study Committee worked with
BAPR to survey the chairs of the professional responsibility committees
to ascertain how the committee component of the process is working. One
such survey was made available as of Sept. 10, 1998. The board discussed
the Study Committee's findings with the district chairs in January 1999
and will continue its cooperative efforts with the BAPR Study Committee
in the coming year.
As seen in Figure
2, the two areas of practice producing the most grievances in fiscal
1998-99 were criminal law and family law. The allegations most commonly
filed are lack of diligence by the lawyer entrusted with the legal
matter and lack of communication with the client. While clients file the
majority of grievances, grievances can be filed by anyone. (See Figure
2.)
In fiscal 1998-99, BAPR handled 1,923 grievances (500 were pending
from the previous fiscal year and 1,423 were new matters received during
fiscal 1998-99). BAPR closed 1,302 matters in an average time of 161
days as compared to 148 in 1997-98. As of June 30, 1999, BAPR had 621
pending investigations. BAPR continued to work to develop a record of
consistent and timely dispositions in its investigations and the formal
cases it filed. Clearing the calendar continues to be the goal.
In addition to investigating and prosecuting cases, BAPR participated
in educational efforts to help attorneys avoid professional misconduct.
Board members and staff participated in several ethics programs for
lawyers given statewide, and analyzed ethics vignettes presented by the
State Bar.
To raise public awareness of its various functions, BAPR plans to
increase its outreach activities to civic organizations. In another
effort to educate the public about BAPR's activity and responsibility, a
Web
site has been developed for BAPR that can be reached from the
supreme court home page.
Recent Developments
Of particular significance to BAPR's operation are the court's
amendments to the trust account rule that occurred as a result of a
joint petition of the State Bar and the board. The amendments, which the
court adopted on June 4, 1998 and became effective on Jan. 1, 1999, do
four things:
-
create an overdraft program that requires financial institutions to
send a copy of all trust account overdraft notices to BAPR;
-
expand
SCR
20:1.15 to treat all funds held in a fiduciary capacity by a lawyer
as trust funds, making them subject to overdraft notification;
-
fine-tune
SCR
20:1.15 to clarify that the lawyer can invest trust funds in
income-generating investments if the client or the court that has
jurisdiction approves; and
-
include within its coverage investment institutions, such as
brokerage houses.
Commencing on Feb. 8, 1999, all Wisconsin law firms were required to
register their trust account(s) with BAPR. Approximately 3,600 trust
account overdraft agreements were mailed to Wisconsin law firms. As of
June 30, 1999, 45 overdraft notices had been received for
processing/investigation.
The disciplinary case compendium, a joint project of BAPR and the
State Bar, continues to be a work in progress and should be available in
year 2000. In addition, in conjunction with the annual district chairs
meeting and new district committee training, three district committee
reference manuals were updated and distributed to all 245 professional
responsibility committee members. The manuals are Guidelines for
District Professional Responsibility Committees, Training for
New District Committee Members, and Decision
Guidelines.
In formal cases, the supreme court decided a variety of public
disciplinary actions in fiscal 1998-99. Revocations were imposed in
three cases involving misappropriation of client funds: Disciplinary Proceedings Against
Johnson,6 Disciplinary
Proceedings Against Pederson,7 and
Disciplinary Proceedings Against
Martinez.8
Figure
3 shows the rule violations the supreme court determined in fiscal
1998-99. The rule violations most frequently found in public discipline
cases were lack of diligence, lack of communication, dishonesty or
misrepresentation, and failure to cooperate.
BAPR continues to use staff litigation counsel William Weigel of
Madison, half-time contract counsel Robert Krohn of Edgerton, and
quarter-time contract counsel Eugene Radcliffe of Black River Falls, to
handle the majority of formal disciplinary cases. The supreme court
permits BAPR to retain outside counsel on a case-by-case, hourly basis
to represent the board in disciplinary proceedings. In the past fiscal
year, no new cases were assigned to outside counsel. However, outside
counsel are retained on the basis of the type of misconduct alleged, the
case complexity, or the respondent attorney and witness location. The
outside counsel who represented BAPR in cases in fiscal 1998-99 are:
Thomas J. Basting, Janesville; Marc McCrory, Janesville; and Paul
Schwarzenbart, Madison.
In addition to reviewing disciplinary cases this year, board members
have taken on specific committee assignments. The following assignments
give a perspective on the breadth of issues facing lawyer regulation and
the commitments of the volunteer board members.
Administrative Committee: Chair - Sharren Rose; Art
Egbert, Jon Axelrod, William Koslo, and Gerald O'Brien.
Reconsideration Committee: Sharren Rose, Art Egbert,
and Jim Martin.
Joint Trust Account Committee: Sharren Rose, Art
Egbert, Bill Fale, Bill Koslo, and Jim Martin.
District Committee Guideline Review Committee: Chair
- Jerry O'Brien; Bill Fale, Bonnie Schwid, and Jim Martin.
Subcommittee on Disabilities: Chair - Jim Martin;
Bill Fale, Sharren Rose, Shell Goar (WisLAP), and Susan Van Schaik
(WisLAP).
Subcommittee on Self-Study and Reachout: Chair -
Bill Koslo; Art Egbert.
Case Compendium Committee: Sharren Rose, Elsa
Greene, Barbara Neider, and Carolyn Butler.
BAPR staff has had an active liaison with the State Bar's WisLAP
Committee (Wisconsin Lawyer Assistance Program). WisLAP provides
education and comprehensive assistance to Wisconsin lawyers who may be
impaired for various reasons, including chemical dependency or emotional
problems. In connection with several discipline cases or reinstatements,
BAPR has recommended license conditions that address an attorney's
impairment, chemical dependency, or mental health.
Referee Panel
The supreme court's panel of referees presides
over the formal disciplinary and medical incapacity hearings. After the
board files a disciplinary complaint or medical incapacity petition, the
court designates a referee. The referee holds a scheduling conference,
establishes a timeline, determines the extent of discovery, presides at
the hearings, and prepares a report, which includes findings of fact,
conclusions of law, and a recommendation to the supreme court. The board
or respondent can appeal from the referee's report, or the court can
order briefs on its own motion. The court makes all final decisions in
disciplinary actions.
The supreme court rules and the board require publication of each
disciplinary order in the Wisconsin Reports and a summary of
the matter in the Wisconsin Lawyer. All courts of record, local
bars, and the media are notified of the disciplinary actions.
Current members of the referee panel are: Norman C. Anderson,
Madison; Michael Ash, Milwaukee; Linda S. Balisle, Madison; Rose Marie
Baron, Milwaukee; Kathleen Brady, Wauwatosa; Hon. Robert Cannon, Elm
Grove; John R. Decker, Milwaukee; Hon. John A. Fiorenza, Milwaukee;
David R. Friedman, Madison; Stanley F. Hack, Milwaukee; Charles J.
Herro, Oconomowoc; Janet A. Jenkins, La Crosse; Joan F. Kessler,
Milwaukee; Hon. Robert T. McGraw, Waukesha; Judith Sperling Newton,
Madison; Rudolph P. Regez Sr., Monroe; Marjorie H. Schuett, Madison;
J.N. Schweitzer, Madison; John E. Shannon Jr., Stevens Point; Charles S.
Van Sickle, Madison; Hon. Timothy L. Vocke, Rhinelander; June M.
Weisberger, Madison; and Cheryl Rosen Weston, Madison.
Formal Discipline Imposed in 1998-99
In fiscal 1998-99, 34 attorneys received a public disciplinary
sanction (see Figure
4). This includes five license revocations, 14 license suspensions,
including one summary suspension pursuant to SCR
11.03(1), one temporary suspension pursuant to SCR
22.30, a medical incapacity suspension, and three public reprimands.
The board imposed 12 public reprimands, with the consent of the lawyer
pursuant to SCR
21.09(2). One attorney was suspended twice and one attorney was
temporarily suspended and ultimately revoked.
Other Board Dispositions
The board has authority, pursuant to SCR
21.09(2), to impose private written reprimands, with the attorney's
consent. Typically, a private reprimand is imposed for an isolated act
of misconduct that caused relatively minor harm. In most cases, a lawyer
who receives a private reprimand has had no prior discipline. There also
are cases in which a private reprimand may be imposed based upon
mitigating factors such as a lawyer's prolonged illness during the
period of misconduct. The board will not impose a private reprimand if
public disclosure of the attorney's misconduct is necessary for the
public's protection. During fiscal 1998-99, 18 attorneys received
private reprimands. Private reprimands are retained permanently and are
available as an aggravating factor on the issue of sanction if the
attorney commits subsequent misconduct.
Summaries of private reprimands, without any reference to or
identification of the attorney involved, are printed periodically in the
Wisconsin Lawyer. Private reprimand summaries were last
published in the November
1998 and May 1999
Wisconsin Lawyer.
The board believes disseminating this information will assist
attorneys in avoiding misconduct. In summary, 52 lawyers were publicly
or privately disciplined (87 grievances) during fiscal 1998-99.
Forty-one attorneys received dismissals with caution in fiscal
1998-99. A dismissal with caution is a warning issued after the board
finds that a supreme court rule was violated but determines that
discipline is not warranted.9 A dismissal
with caution generally is issued in cases of a technical violation of a
rule and no harm to the client. Dismissals with caution are expunged one
year after issuance, as are dismissals.
In fiscal 1998-99, there were 1,163 additional dispositions. This
category includes grievances disposed of by the administrator such as:
matters dismissed as lacking sufficient evidence of a rule violation
(438); inquiries that did not warrant investigation (624); matters
dismissed with an advisory note (41); and matters closed pending
petition for reinstatement (53).10 The
board also dismissed six grievances and the supreme court granted the
board's motion to dismiss in Disciplinary Proceedings Against Andrew
J. Shaw. An attorney may have more than one disposition within
these categories.
In the cases dismissed with an advisory note, the administrator added
the note to the dismissal letter to alert the lawyer to an area of
possible concern if the lawyer's conduct was questionable but did not
constitute a violation. This new policy, applicable to a very few
dismissed cases, was suggested by the State Bar Board of Governors and
adopted by BAPR at its meeting on May 1, 1995.
Actions Pending
The board filed formal disciplinary actions against 13 attorneys in
fiscal 1998-99. At the conclusion of the fiscal year, 16 formal actions
were pending in the supreme court.
Other Actions
The court completed action on 11 reinstatement petitions, five
administrative and six disciplinary, after investigations by BAPR. The
court granted all five of the administrative reinstatement petitions,
granted three of the disciplinary reinstatement petitions, and denied
two of the disciplinary reinstatement petitions.
Volume of Grievances
The board received more grievances in fiscal 1998-99 (1,423) than
last year (1,396). The board disposed of 1,302 grievances this year,
including 11 reinstatements, as compared with 1,344 dispositions in
fiscal 1997-98. At the conclusion of fiscal 1998-99, 621 grievances were
pending, an increase over the 500 pending at the end of 1997-98.
The board referred 152 grievances to district professional
responsibility committees in fiscal 1998-99. The committees completed
136 grievance investigations during the same period.
Survey of Grievances
Figure
2 breaks down the source and nature of the grievances received and
the areas of practice from which grievances arose between July 1, 1998,
and June 30, 1999.
In describing the nature of the grievances, only the most serious
allegation is reflected. In fact, most grievances allege various acts of
misconduct. It is not practical to list all allegations.
Finances
The legal profession is unique in assuming all costs for regulating
itself. An assessment on every member of the State Bar of Wisconsin pays
the costs and expenses of the board, administrator, staff, district
professional responsibility committees, investigations of possible
misconduct and medical incapacity, and all disciplinary proceedings,
referees, and appeals.
To help offset the costs of the disciplinary operation, BAPR collects
costs from the attorneys disciplined in formal court proceedings,
pursuant to SCR
22.20. BAPR also collects fees on petitions for reinstatement.
Collections from fiscal 1998-99 were $65,594.67.
During fiscal 1998-99, BAPR operated on an investigative and
disciplinary budget of $1,463,450. The board applied $190,000 in
reserves plus $50,000 in anticipated collections against its budget to
place the assessment per attorney at $78.17, an increase from the
previous year's assessment of $75.14.
The board's budget in fiscal 1999-00 is $1,525,400. BAPR will use
$40,000 in reserves and $40,000 in anticipated collections to place the
assessment per attorney in fiscal 1999-00 at $89.82.
Review of the Disciplinary System
On April 28, 1999, the supreme court issued an order initiating a
comprehensive review of the structure of the lawyer disciplinary system
in Wisconsin, including the structure of BAPR and its administrative
committee, staff, and the district professional responsibility
committees. The court also asked the American Bar Association (ABA) to
evaluate the Wisconsin
system.
As one of the first steps in the comprehensive review, the court held
a public hearing at which lawyers and the public addressed the current
structure of Wisconsin's lawyer disciplinary system and offered
suggestions on ways the system may be restructured to better serve the
legal system and the public. Among those the court invited to attend
were the deans of the U.W. and Marquette University law schools,
representatives of the ABA Center for Professional Responsibility, and
other persons and organizations having an interest and experience in
lawyer regulation.
Administrator, Staff, and Counsel
The board's offices are at 110 E. Main St., Suite 315, Madison, WI
53703, and 342 N. Water St., Suite 300, Milwaukee, WI 53202.
James L. Martin, based in Madison, is the board's interim
administrator and supervises the disciplinary operation. Deputy
administrator Elsa P. Greene is in charge of investigations assigned to
the Madison office, and deputy administrator Jeananne L. Danner is in
charge of investigations assigned to the Milwaukee office. William J.
Weigel is the board's litigation counsel and has his office in Madison.
Other permanent staff in the Madison office include: office manager
Carol Kornstedt; full-time investigators Mary Ahlstrom and John K.
O'Connell; part-time investigators Nancy Warner and Melody
Rader-Johnson; and full-time program assistants Mary McMillan, Rita
Lord, Linda Ackerman, and Mary Ellen Durka. Permanent staff in the
Milwaukee office include: full-time investigators Mary Hoeft Smith,
Carol O'Neill, Timothy Pierce, and Gary Shultis; part-time investigator
Lorry C. Eldien; full-time program assistants Laurel Wildrick and Susan
Stock; part-time program assistant Carol Rymer, and LTE Patricia
Kane.
Conclusion
The investigative process in lawyer regulation has been streamlined,
with 93 percent of investigations completed in less than one year and an
average grievance processing time of 5.2 months. The past year has been
busy. The pending investigative caseload stands at 621 cases, an
increase over the 500 pending cases in fiscal 1997-98. At the same time,
BAPR concluded 1,302 grievance inquiries and collected $65,594.67 from
publicly disciplined lawyers and reinstatement fees.
The board wishes to thank the Wisconsin Supreme Court and its liaison
the Hon. Mark Farnum, the court's panel of referees, the district
professional responsibility committees, the Director of State Courts and
his staff, and the BAPR staff for their contributions during the past
fiscal year.
Endnotes
1 SCR
21.01(4)(g).
2 SCR
21.09(1).
3 SCR
22.09.
4 SCR
22.04(2)(a).
5 SCR
21.08.
6 221 Wis. 2d 600, 585 N.W.2d 148
(1998).
7 225 Wis. 2d 268, 592 N.W.2d 197
(1999).
8 225 Wis. 2d 433, 591 N.W.2d 866
(1999).
9 SCR
22.09(1).
10 See SCR
21.09(2) and board policies 10.4, 10.2, and 5.4 respectively.
Sharren B. Rose, U.W. 1979, chairs the Board of Attorneys
Professional Responsibility. James L. Martin, U.W. 1977, is the interim
administrator.
Wisconsin Lawyer