Vol. 73, No. 3, March
2000
Guest Editorial
Changes to Attorney Discipline System
Leave Unresolved Issues
While the system that is developing resolves
some issues, others remain, including evidentiary standards and
prosecutorial discretion, the fate of district committees, and whether
and when to hold additional public hearings on the proposed new rules.
By Gary L. Bakke
The outline of our new attorney discipline system began to emerge at
the Wisconsin Supreme Court's administrative conference, which was held
on Jan. 20 - 21. Although most of the functional details related to the
restructuring of the Board of Attorneys Professional Responsibility
(BAPR) still need to be worked out, the structural elements are now
known.
In January, the State Bar's BAPR Structure Committee submitted to the
court its recommendations, which had been approved at the State Bar
Board of Governors November 1999 meeting.
Possibly the most
contentious issue still to be addressed is whether and when to hold
public hearings on the proposed new rules. |
The Bar's proposal was based on the premise that the bar and the
public have a unity of interest in a system that fairly and efficiently
disciplines miscreant lawyers. This concept, that attorneys do not want
to protect other attorneys who are dishonest or unethical, is second
nature to us but meets with skepticism by others.
During the administrative conference, the court considered the Bar's
recommendations and those from the ABA, BAPR Interim Administrator James
Martin, Marquette Law School, the U.W. Law School, and others. The
system that is developing in the court adapts suggestions from many
different sources.
Court accepts Bar's recommendation on client assistance program
The State Bar is convinced that most of the public dissatisfaction
with the current system stems from the fact that there is no mechanism
to handle consumer disputes, rather than from BAPR's handling of serious
ethical violations. One major change proposed by the Bar was to
establish a client assistance program (CAP). The court, without much
discussion, unanimously adopted this suggestion. A central intake system
will be established and a diversionary client assistance program will be
developed to handle those complaints that do not involve an ethics
violation.
I anticipate that the CAP program will handle more than 95 percent of
all complaints that are now filed. These complaints, which do not
involve serious ethical misconduct, still involve an attorney/client
problem that could benefit from third-party assistance. Because the
current system is designed to handle only disciplinary cases, these
minor matters now are summarily dismissed from the system, leaving
complainants frustrated and angry. This new CAP program should benefit
both lawyers and their clients and greatly improve the public's
acceptance of the disciplinary system. Interim BAPR Administrator Martin
has been asked to convene a committee to develop the new intake and
diversionary system.
New 12-member board will determine cause to proceed
Another major change involves dividing much of the BAPR board's
current responsibilities between two new 12-member boards. There will be
a 12-member board that will review the results of an investigation and
determine whether to proceed with formal public charges against an
attorney. Once that board determines cause to proceed, the prosecution
will be handled by BAPR staff and then presented to a referee, who then
will recommend discipline to the supreme court if warranted. This is the
major role of the current BAPR board and is very similar to the function
proposed by the Bar.
An important issue is yet to be decided: What is the evidentiary
standard to be applied by the charging board, and to what extent does
the board have prosecutorial discretion in the charging decision? The
present board applies a "clear-and-convincing" evidentiary standard to
proceed and retains prosecutorial discretion in the charging decision.
In the court's discussions the standard for the new board was frequently
referred to as "probable cause," which is a lower standard than
presently used, but there has been no explicit decision on this issue by
the court. This evidentiary standard and discretionary authority are one
of the most important elements still to be determined.
A second 12-member administrative oversight board will monitor the
system and the operation of the district committees. In addition to
overseeing the system, this board will hold limited appellate power to
handle complainants unhappy with the resolution of their case. As with
the present board, both the charging board and the administrative
oversight board will be composed of eight lawyer and four nonlawyer
members appointed by the court.
Fate of district committees unclear
The local district committees, which were strongly supported by the
Bar's proposal, will continue, at least for the immediate future. These
committees investigate complaints against local attorneys and make
recommendations for discipline. The justices agreed that these district
committees need more uniformity in their procedures and discipline
recommendations. The court decided that committee members will receive
extensive training in the attorney discipline system, which is
consistent with the Bar's recommendations.
There is some ambiguity about the process to determine the long-range
future of these local committees. The court plans to review the
effectiveness of the local committees in three years. Some justices have
referred to this as a "sunset," while others maintain that it is a
"review." The difference may be significant, but there is no apparent
consensus on that point yet.
The court decided that public members will comprise one-third of all
local committees. This is consistent with the Bar's proposal. The Bar
strongly supports public membership on the statewide and local
committees because public members offer valuable insight and experience
and their presence enhances the public's perception of the system's
fairness. I am concerned, however, that an immediate increase in the
public membership on the local committees may drastically increase an
already heavy load for the lawyer volunteers. I am confident that the
court understands this issue and will give it careful consideration. The
court also decided to take on the task of appointing members to the
district committees, a task which now falls upon the State Bar
president. Chief Justice Shirley Abrahamson suggested establishing a
selection committee, with a seat reserved for the Bar president, but the
justices did not resolve the new selection process.
Supreme Court Commissioner William Mann has been asked to draft
specific court rules by mid-March and these rules, or those finally
adopted by the court, may resolve these as-yet-undecided issues.
Rule changes call for public hearing
Possibly the most contentious issue still to be addressed, however,
is whether and when to hold additional public hearings on the proposed
new rules. Some members of the court have suggested that public hearings
be delayed until a new system has been in place for a few months.
Because of the complex nature of the current system and the extensive
changes that are proposed, the Bar will request that a hearing be held
on any new proposed rules before they are implemented. With the
extensive proposed changes there is a distinct possibility of unintended
consequences unless the rules are subject to public scrutiny and comment
before they are implemented.
Process leaves room for improvement
I am concerned about the process by which these changes have
occurred, rather than the substance. Many people who have advocated for
change have unfairly and unnecessarily criticized the current system.
Worse, the motives of the volunteers have been questioned. Without doubt
the current system has worked very well for the purpose for which it was
designed. More important, I know that the volunteer participants, both
lawyer and nonlawyer, have dedicated thousands of hours to make the
system work.
Gary L. Bakke, U.W. 1965, is a principal of
Bakke Norman S.C., New Richmond. He is State Bar president-elect and
cochair of the Bar's BAPR Structure Committee. |
Certainly we have to be open to the possibility that the system can
be improved; that can benefit us all. However, the possibility of
improvement is not a criticism of those who faithfully undertook the
task of operating the system designed by the court.
One way to assess the value of Wisconsin volunteers is to compare the
cost of our disciplinary system with those of other states that depend
totally on paid staff. Colorado has such a system and its disciplinary
costs increased by about $100 per lawyer per year. For us that
calculates to about $2 million per year. We all owe a debt of gratitude
to those volunteers who have given so much to make our system work.
This review process has been a lengthy and intense one for the court,
BAPR, and the State Bar. It is my hope that these changes to BAPR will
create an attorney discipline system that functions in the best
interests of the public and the attorneys who serve the public well.
Wisconsin
Lawyer