Supreme Court Orders
The Wisconsin Supreme Court sets a public hearing
for Sept. 12 to consider establishing rules for a central intake
procedure and for diversion from discipline in the lawyer regulation
system. The court also sets a public hearing for Sept. 20 to consider
creating a body to determine discipline and disability of a supreme
court justice.
Body to Determine Supreme Court Justice
Discipline and Disability
In the Matter of the Creation if a Body to Determine Discipline and
Disability of a Supreme Court Justice
Order 00-04
The court has considered the advisability of establishing a body to
perform its statutory duty to review the findings of fact, conclusions
of law and recommendations of a judicial conduct or permanent disability
panel and to determine appropriate discipline in cases of misconduct and
appropriate action in cases of permanent disability under Wis. Stat. section 757.89
when the judge against whom allegations of misconduct or disability are
filed is a justice of the Supreme Court. The Wisconsin Constitution,
Article VII, Section 11, provides that "[e]ach justice or judge shall be
subject to reprimand, censure, suspension, removal for cause or for
disability, by the supreme court pursuant to procedures established by
the legislature by law," but it makes no distinction between a justice
and a judge in respect to the procedures pursuant to which appropriate
discipline in a case of misconduct or appropriate action in a case of
permanent disability is to be imposed. The statutory procedure set forth
in Wis. Stat. sections
757.81 to 757.99 also does not make that distinction, as "judge" is
defined in Wis. Stat. section 757.81(3)
as a judge of any court established by or pursuant to Article VII,
Section 2 or 14, of the Wisconsin Constitution or a Supreme Court
justice. Consequently, Wis. Stat. section 757.91
requires the Supreme Court to review the findings of fact, conclusions
of law and recommendations of a judicial conduct or permanent disability
panel and determine appropriate discipline in cases of misconduct and
appropriate action in cases of permanent disability of a justice.
In order to avoid conflicts and the appearance of conflicts and the
potential for the recusal or disqualification of Supreme Court justices
from proceedings under Wis. Stat. section 757.91
in which a justice of the Supreme Court is the subject, with the
possibility that there will be an insufficient number of justices to
proceed in the matter, the court is considering the establishment by
court rule of a body to perform the duties of the Supreme Court under
Wis. Stat. section 757.91
when the subject of the proceeding is a member of the court. The court
is considering, but is not proposing, the following and solicits public
comment.
1. Wisconsin Stat. section 757.91 be amended to read:
757.91 (title) Supreme court, special
tribunal; disposition.
(1) The Except as provided in sub. (2), the
supreme court shall review the findings of fact, conclusions of law and
recommendations under s. 757.89 and determine appropriate discipline in
cases of misconduct and appropriate action in cases of permanent
disability. The rules of the supreme court applicable to civil
cases in the supreme court govern the review proceedings under this
section.
(2) When the judge against whom a formal complaint alleging
misconduct or a petition alleging permanent disability is filed by the
commission is a supreme court justice, the special tribunal provided in
s. 757.92 shall review the findings of fact, conclusions of law and
recommendations under s. 757.89 and determine appropriate discipline in
cases of misconduct and appropriate action in cases of permanent
disability.
(3) The rules of the supreme court applicable to civil cases in
the supreme court govern the review proceedings under this
section.
2. Wisconsin Stat. section 757.92 be created to read:
757.92 Special tribunal.
(1) As soon as practicable following the filing with the supreme
court of a formal complaint alleging misconduct or a petition alleging
permanent disability of a supreme court justice, a special tribunal
consisting of seven members shall be selected as provided in sub. (2) to
review the findings of fact, conclusions of law and recommendations
under s. 757.89 and determine appropriate discipline in cases of
misconduct and appropriate action in cases of permanent disability.
(2) The clerk of the supreme court shall select by lot the following
to serve on a special tribunal under sub. (1):
(a) Three judges from among those current and former judges of the
Court of Appeals and the circuit court who have served but are not
currently serving as supreme court appointees to the judicial commission
or who have served or are serving as supreme court appointees to the
judicial conduct advisory committee.
(b) Two judges from among those who have served on the supreme court
at a time when the justice against whom the complaint or petition has
been filed was not serving and those who have served or are serving on
the court of appeals.
(c) Two active or reserve judges who have served or are serving as
chief judge of a judicial administrative district.
(3) Disqualification and recusal of a member of the special tribunal
shall be governed by law and by the code of judicial conduct, SCR ch.
60. Selection of a member to replace a member who recuses or is
disqualified shall be pursuant to sub. (2).
(4) The chief judge of the court of appeals shall assign a staff
attorney of the court of appeals to provide assistance to the special
tribunal.
(5) The determination of the special tribunal under s. 757.91
shall not be subject to review by the supreme court. Appropriate
discipline in a case of misconduct or appropriate action in a case of
permanent disability determined by the special tribunal shall be imposed
by per curiam order of the supreme court. The findings, conclusions and
recommendations of the special tribunal shall be published with the per
curiam order of the supreme court in the official publications of the
opinions of the supreme court.
3. Wisconsin Stat. section 757.95 be amended to read:
757.95 Temporary suspension by supreme court, special
tribunal.
(1) The supreme court may, following the filing of a formal
complaint or a petition by the commission, prohibit a judge or court
commissioner from exercising the powers of a judge or court commissioner
pending final determination of the proceedings.
(2) If the judge against whom a formal complaint or a petition
filed by the commission is a justice of the supreme court, the special
tribunal provided in s. 757.92 may, upon motion of the commission,
prohibit the justice from exercising the powers of a justice pending
final determination of the proceedings.
In addition to the foregoing, the court is soliciting public comment
on the issue of the constitutionality of a court rule establishing a
body to carry out its statutory responsibilities in a judicial conduct
or disability proceeding involving one of its members.
IT IS ORDERED that a public hearing on this matter shall be held in
the Supreme Court Hearing Room, 119 Martin Luther King Jr. Blvd.,
Madison, Wis., on Sept. 20, 2000, at 10:30 a.m.
IT IS FURTHER ORDERED that the court's conference in the matter shall
be held promptly following the public hearing.
IT IS FURTHER ORDERED that notice of the hearing be given by
publication of a copy of this order in the official state newspaper once
each week for three consecutive weeks and in an official publication of
the State Bar of Wisconsin not more than 60 days nor less than 30 days
before the date of the hearing.
Dated at Madison, Wis., this 26th day of April, 2000
By the court:
Cornelia G. Clark,
Clerk of Court
Lawyer Regulation System -
Central Intake
In the Matter of the Amendment of Supreme Court Rules: SCR Chapters
21 and 22, Lawyer Regulation System - Central Intake, Diversion from
Discipline
Order 00-06
On April 4, 2000, the Interim Director of the Board of Attorneys
Professional Responsibility filed a petition requesting the
establishment of rules for a central intake procedure and for diversion
from discipline in the lawyer regulation system.
IT IS ORDERED that a public hearing on the petition shall be held in
the Supreme Court Hearing Room, 119 Martin Luther King Jr. Blvd.,
Madison, Wis., on Sept. 12, 2000, at 9:30 a.m.
IT IS FURTHER ORDERED that the court's conference in the matter shall
be held promptly following the public hearing and, if necessary,
continued on Sept. 13, 2000.
IT IS FURTHER ORDERED that notice of the hearing be given by a single
publication of a copy of this order and of the petition in the official
state newspaper and in an official publication of the State Bar of
Wisconsin not more than 60 days nor less than 30 days before the date of
the hearing.
Dated at Madison, Wis., this 28th day of April, 2000.
By the court:
Cornelia G. Clark,
Clerk of Court
Petition 99-03
Requesting the Establishment of a Central Intake Unit in the Office
of Lawyer Regulation
Background
Pursuant to directions provided on Jan. 21, 2000, in open
administrative conference of the Wisconsin Supreme Court on the
Reorganization of the Lawyer Regulation System and by letter dated Feb.
3, 2000, to new appointees to the Board of Attorneys Professional
Responsibility, the undersigned was directed to work with a broad-based
group to draft rules and procedures for an intake system and submit them
to the court for consideration. The committee members that assisted in
the formulation and review of the intake rules and procedures were: Rita
Kelliher, Madison School Community Recreation Program; Emanuel
Scarborough, AODA Prevention Specialist, Genesis Corporation; Louise
Trubek, Center for Public Representation; and Tim Pierce, Investigator,
Melody Rader-Johnson, Investigator, Elsa Greene, Deputy Administrator,
and James L. Martin, Interim Administrator, of the Board of Attorneys
Professional Responsibility.
The purposes and goals of this proposed Central Intake Unit are to:
1) make the lawyer regulation process more accessible to people who have
concerns about the conduct of Wisconsin lawyers; 2) quickly address
complainant's concerns and, where possible, resolve them; 3) offer
lawyers who have had minor practice problems alternatives designed to
enhance the quality of their services; and 4) promptly refer for full
investigation those matters that may involve serious misconduct.
The program that is being proposed to the court would have the
central intake function performed in the offices of and under the
direction and supervision of the Director of the Office of Lawyer
Regulation.1
The Committee on the Formulation of a Central Intake Program and the
undersigned, Interim Administrator of the Board of Attorneys
Professional Responsibility, respectfully petition the Wisconsin Supreme
Court to adopt a central intake mechanism for Wisconsin in the Office of
Lawyer Regulation and to adopt amendments to Supreme Court Rules as
follows:
Central Intake
Consistent with Supreme Court Rule (SCR)
21.09(1), the Central Intake Unit proposed shall receive, evaluate
and act upon each inquiry regarding the conduct of or services provided
by a lawyer licensed in Wisconsin, without regard to the manner in which
the matter is brought to the program's attention. The staff that is
recommended is five full-time equivalent employees: three intake
investigators and two program assistants.2
See attached budget, Exhibit A. [Editor's Note: Exhibit A is
not included here.]
I. Central Intake Should Be Established By Amending SCR Chapter 21
To Provide For A Central Intake Unit As Follows:
Central Intake. There is hereby established a Central Intake Unit in
the Office of Lawyer Regulation, which shall:
(1) operate under the direction and supervision of the Director;
(2) receive inquiries and grievances regarding the professional
conduct of lawyers over whom the court has jurisdiction;
(3) provide assistance to complainants in stating their concerns
about a lawyer's services;
(4) determine whether the grievant's allegations regarding the
conduct of a lawyer provide grounds for: (a) forwarding it to another
agency; (b) closing the inquiry without investigation; (c) diverting the
lawyer to a program established to assist lawyers; or (d) forwarding the
matter for further investigation by staff; and
(5) if an inquiry is referred to an agency other than the
disciplinary agency or closed without investigation, provide to the
grievant the reasons therefore.
At the intake stage, the decision to close the file without
investigation shall be that of the Director. The decision of the
Director shall be final, and the grievant shall have no right of
review.
Commentary: This rule tracks closely Model Rules for
Lawyer Disciplinary Enforcement (1996), Rule 1.B. (hereinafter "Model
Rule"). The Court, upon establishment of a central intake function,
should repeal the Board policy that requires a grievance must be filed
in writing. Policy 12.5, Grievances in Writing. A fundamental precept of
the central intake function being proposed is that the overwhelming
majority of the inquiries and grievances may be received by telephone,
except those from prisoners and other detainees, which will continue to
be received in written form only.
Telephone intake. We propose establishing an 800 number for
the receipt of inquiries about lawyer services from grievants who are
outside of Madison. A support staff, who will request the grievant's
name and address and the name of the lawyer, and enter that information
on an intake screen, will initially receive the calls. See Exhibit B.
[Editor's Note: Exhibit B is not included here.] We have
received intake software from Colorado. It will be adapted to our
computer system. The software will enable staff to quickly: check on
whether the grievant has filed the same grievance previously, obtain the
lawyer's bar number and discipline record, and obtain a listing of any
grievances pending against the lawyer, together with the name of the
investigator to whom those have been assigned.
If the new grievance is identical to one that the caller has filed
previously, the staff person will explain that the agency has already
reviewed the grievant's concerns and can take no further action. In
every other instance, the staff person will ask the grievant to
summarize briefly the grievant's reasons for the inquiry/request for
investigation. As the grievant speaks, the staff person will summarize
the grievance on the left-hand side to the intake screen. The intake
person will try to keep the grievant focused on the actions of the
attorney, rather than the shortcomings of a former spouse or actions of
a third person. The intake person may also elicit additional information
such as the approximate dates on which the alleged conduct occurred and
the names of others having knowledge about the situation.
When the grievant has finished giving a summary of his or her
concerns, the intake person will inform the grievant that this matter
will be assigned to an investigator who will be calling the grievant
within a few days to discuss the grievance further. Staff will provide
the name of the intake investigator and invite the grievant to leave the
investigator a voice mail specifying the times and numbers at which
grievant can be reached.
Except for duplicate grievances, each matter is assigned to an intake
investigator for a follow-up call, regardless of the probable merits of
the grievant's concerns. The intake investigators will be assigned on a
rotating basis unless the intake screen shows that there are grievances
already pending against the lawyer. In that case, the new grievance is
assigned to the investigator who is handling the other matters.
Intake Investigator's follow-up call. For each grievance
assigned, the intake investigator will bring up the grievant's
electronic file and review the nature of grievant's concerns. The
investigator then calls the grievant to further explore and clarify the
allegations. As the grievant provides additional information, the
investigator will make notes of the conversation on the left side of the
computer file immediately below the notes taken during the initial
intake.
Allegations outside the rules. Subject to the general
supervision of the Director, each intake investigator will have the
discretion to close a grievance, enter into a diversion agreement or
refer a grievance for full investigation. If it is apparent to the
intake investigator that the grievant's allegations are well outside the
agency's jurisdiction, the investigator will explain to the grievant the
lawyer/investigator's reason for believing that the matter should
receive no further action. For example, if a grievant were to be unhappy
because his/her lawyer did not return a telephone call on the same day
that the client's call was placed, the intake investigator might explain
that the grievant's expectations are unrealistic. At the conclusion of
the discussion with the grievant, the investigator would close the
grievance on the computer. The lawyer would receive no notice of the
grievant's call to the Office of Lawyer Regulation, and no paper file
would ever be created.
Allegations that, if true, might constitute misconduct. If the
grievant's allegations fall within the scope of the rules, the intake
investigator will have a number of options. The investigator may obtain
additional information from the grievant (which will get noted on the
left-hand side of the intake screen), and then call the lawyer to get
his or her side of the story (which will be summarized on the right-hand
side of the screen). The intake investigator may request the lawyer to
fax documents that verify the lawyer's explanation. If the lawyer's
explanation is satisfactory and the faxed documents substantiate it, the
intake investigator will call the grievant to explain what he or she has
learned about the matter. The investigator might then close the
grievance on the computer and create a paper file for the documents
faxed by the lawyer.
If the grievant's allegations describe a potentially solvable
problem, such as the need for a status report or the return of a file,
or a disagreement about the amount of the lawyer's fees, the intake
investigator may put the grievant on hold, call the lawyer, and
facilitate a discussion between the two directed at resolving the
problem. If the matter is resolved by such a conversation, the grievance
will be closed on the computer without the creation of a paper file.
If the grievant's allegations are unusually complex, if they involve
potentially serious misconduct, or if the intake screen shows they may
be part of a pattern of misconduct by the respondent, the intake
investigator will ask the grievant to submit a written grievance. The
intake investigator may then request a written response from the lawyer.
At the same time, the intake investigator may obtain court documents or
financial records and interview witnesses. Such grievances may then
result in closure, a diversion agreement (as discussed below) or a
referral for full investigation. If a grievance is referred for full
investigation, the intake investigator will print out the electronic
file on the matter and deliver that to the subsequent investigator along
with whatever documents that have been gathered at the intake stage.
II. A Rule Should Be Created That States Who
Can Initiate A Grievance And What Options Are Available To Staff At The
Intake Stage.
It is suggested that a rule be created that is similar to the
following:
Request for Investigation
(a) Commencement. Proceedings as provided in these
Rules shall be commenced:
(1) Upon request for investigation made by any person and directed to
the Director; or
(2) Upon a report made by a judge of any court of record of this
state and directed to the Director, as provided in SCR
60.04(3)(b); or
(3) By the Director based on an articulated cause for concern about
the lawyer's conduct.
(b) Screening. Immediately upon receipt of a request
for investigation or a report made by a judge, as provided in subsection
(a) of this Rule, the matter shall be referred to the Director to
determine:
(1) If the attorney in question is subject to the disciplinary
jurisdiction of the Supreme Court;
(2) If there is an allegation made against the attorney in question
which, if proved, would constitute misconduct; and
(3) If the matter should be investigated as provided by SCR ____ or
addressed by means of diversion from discipline as provided by SCR
_____.
The Director's decision as to whether a matter should be referred to
the investigative unit for further investigation or addressed by means
of diversion from discipline shall be final, and the grievant shall have
no right of review.
Commentary: This rule is modeled after Colorado's
Rule 251.9. This rule states how requests for investigation may be made,
the options available during the intake/screening process and makes
clear that the Director's decision to investigate or divert the
grievance is not subject to a request for review by the grievant.
III. A Rule Should Be Adopted Clarifying When A Grievant Can
Request Review Of The Director's Determination.
Determination by the Director
At the intake stage, during the investigation, or at the conclusion
thereof, the Director may determine that the matter should be referred
to the diversion from discipline program as provided in SCR ______.
At the conclusion of the investigation of a matter that has not been
diverted, the Director shall either dismiss the allegations or report
the matter to the Probable Cause Body as provided in SCR _______. If the
Director dismisses the allegations as provided herein, the person making
the allegations against the attorney in question may request review of
the Director's decision. If review is requested, the Probable Cause
Body, or a subcommittee of said Body, shall review the matter and make a
determination as provided in SCR _____; provided, however, that the Body
shall sustain the dismissal unless it determines that the Director's
determination constituted an abuse of discretion. The Body or
subcommittee shall furnish the grievant and the lawyer with a written
statement of its determination.
Commentary: This section further clarifies when a
determination of the Director can be reviewed. As proposed above, a
grievant shall have no right of review of the Director's decision not to
investigate an inquiry. This proposed section makes it clear that review
can be had only after the Director has decided to investigate a matter
and, after the investigation, has determined to dismiss the grievance.
In addition, this section establishes the standard against which a
decision by the Director should be reviewed.
IV. Amend The Supreme Court Rules To Provide For Diversion From
Discipline. Such A Program Should Read As Follows:
DIVERSION FROM DISCIPLINE
(a) Referral to Program. The Director may offer an
attorney entry into the diversion from discipline program. The diversion
from discipline program may include, but is not limited to, diversion to
other programs such as mediation, fee arbitration, law office management
assistance, evaluation and treatment through the lawyer assistance
program, evaluation and treatment for alcohol and/or substance abuse,
psychological evaluation and treatment, medical evaluation and
treatment, monitoring of the attorney's practice or trust account
procedures, continuing legal education, ethics school, the multistate
professional responsibility examination, or any other program authorized
by the Court.
(b) Participation in the Program. An attorney may
participate in an approved diversion program in cases where there is
little likelihood that the attorney will harm the public during the
period of participation, where the Director can adequately supervise the
conditions of diversion, and where participation in the program is
likely to benefit the attorney and accomplish the goals of the program.
A matter generally will not be diverted under this Rule when:
(1) The presumptive form of discipline in the matter is likely to be
greater than a private reprimand;
(2) The misconduct involves misappropriation of funds or property of
a client or a third party;
(3) The misconduct involves a serious crime as defined by SCR
20.20(2);
(4) The misconduct involves family violence;
(5) The misconduct resulted in or is likely to result in actual
injury (loss of money, legal rights, or valuable property rights) to a
client or other person, unless restitution is made a condition of
diversion;
(6) The attorney has been publicly disciplined within the preceding
three years;
(7) The matter is of the same nature as misconduct for which the
attorney has been disciplined within the preceding five years;
(8) The misconduct involves dishonesty, fraud, deceit, or
misrepresentation; or
(9) The misconduct involves prohibited sexual relations under these
Rules;
(10) The alleged misconduct is the same as that for which the
attorney has previously been the subject of a diversion; or
(11) The misconduct is part of a pattern of similar misconduct.
(c) Diversion Agreement. If an attorney agrees to an
offer of diversion as provided by this rule, the terms of the diversion
shall be set forth in a written agreement. The agreement shall specify
the program(s) to which the attorney shall be diverted, the general
purpose of the diversion, the manner in which compliance is to be
monitored, and any requirement for payment of restitution or costs. (1)
If the diversion agreement is entered into prior to a report to the
Probable Cause Body, pursuant to SCR ______, the agreement shall be
between the attorney and the Director. (2) If a diversion agreement is
offered and entered into after a report to the Probable Cause Body,
pursuant to SCR ______, the diversion agreement between the attorney and
the Director shall be submitted to the Probable Cause Body for approval.
If the Probable Cause Body rejects the diversion agreement, the matter
shall proceed as otherwise provided by these Rules. (3) If a diversion
agreement is offered and entered into after a Complaint has been filed
pursuant to SCR ______, the diversion agreement shall be submitted to
the Referee for approval. If the diversion agreement is rejected, the
matter shall proceed as provided by these Rules.
(d) Costs of the Diversion. The attorney shall pay
all the costs incurred in connection with participation in any diversion
program.
(e) Effect of Diversion. When the diversion
agreement becomes final, the attorney shall enter into the diversion
program(s) and complete the requirements thereof. Upon the attorney's
entry into the diversion program(s), the underlying matter shall be held
in abeyance, indicating diversion. Diversion shall not constitute a form
of discipline.
(f) Effect of Successful Completion of the Diversion
Program. If a diversion agreement is entered prior to a report
to the Probable Cause Body, pursuant to SCR ______, and if the Director
determines that the attorney has successfully completed all requirements
of the diversion program, the Director shall close the file. If
diversion is successfully completed in a matter that was determined to
warrant investigation or other proceedings pursuant to these Rules, the
matter shall be dismissed and expunged pursuant to SCR ______. After the
file is expunged, the attorney may respond to any general inquiry as
provided in SCR ______.
(g) Breach of Diversion Agreement. The determination
of a breach of a diversion agreement will be as follows:
(1) If the Director has reason to believe that the attorney has
breached a diversion agreement, and the diversion agreement was entered
into prior to a report to the Probable Cause Body, pursuant to SCR
_____, and after the attorney has had an opportunity to respond, the
Director may elect to modify the diversion agreement or terminate the
diversion agreement and proceed with the matter as provided by these
Rules.
(2) If the Director has reason to believe that the attorney has
breached a diversion agreement entered into after a report to the
Probable Cause Body has been made, the Director shall give written
notice of the facts establishing the breach to the attorney and to the
Probable Cause Body or Referee, whichever approved the diversion
agreement. The attorney shall have 20 days to respond in writing. The
Director will have the burden, by a preponderance of the evidence, to
establish the materiality of the breach, and the attorney will have the
burden, by a preponderance of the evidence, to establish justification
for the breach. If, after consideration of the information presented by
the Director and the attorney's response, if any, it is determined that
the breach was material and without justification, the agreement will be
terminated and the matter will proceed as provided for by these rules.
If a breach is established but determined to be not material or to be
with justification, the diversion agreement may be modified in light of
the breach. If no breach is found, the matter shall proceed pursuant to
the terms of the original diversion agreement.
(3) If the alleged breach has been referred for determination to the
Probable Cause Body or the Referee as provided for in section (g)(2) of
this rule, upon motion of either party, a Referee shall hold a hearing
on the matter. Upon conclusion of the hearing, the Referee shall prepare
written findings of fact and conclusions and enter an appropriate order
in those matters in which the Referee originally approved the diversion
agreement.
(h) Effect of Rejection of Recommendation for
Diversion. If an attorney rejects a diversion recommendation,
the matter shall proceed as otherwise provided in these Rules.
(i) Confidentiality. The Office of Lawyer Regulation
shall keep all the files and records resulting from the diversion of a
matter confidential except by order of the Supreme Court.
Information regarding misconduct which is disclosed by the attorney to a
treatment provider while in a diversion program need not be disclosed to
the Office of Lawyer Regulation, if the misconduct occurred before the
attorney's entry into a diversion program.
Commentary: We propose that the Director be
permitted to enter into a confidential diversion from discipline
agreement at any stage of the disciplinary process so long as the
conduct of the attorney constitutes "lesser misconduct."3 See Model Rule 9.B. However, this comment focuses
on suggested diversion agreements that could be executed at the intake
stage.
Educational and remedial purposes. The kinds of conduct we
envision will result in diversion agreements at the intake stage will
usually be of the sort that would result in advice as to conduct or a
dismissal with a caution in our present system. In keeping with the
expected expedited pace of the intake process, the agreement need not be
predicated on clear and convincing evidence of misconduct. The intake
diversion typically recites that "the purpose of this diversion
agreement is to educate the attorney and to assure that this type of
conduct does not occur in the future." Further, the agreement will state
the facts giving rise to the need for the education of the attorney and
set forth the terms on which the Director agrees to divert the matter
from additional investigation.
Ethics School. Almost without exception, we propose that our
intake diversions require the attorney to attend a day-long Ethics
School which will be taught by staff from the office of the Director.
The school will be offered at least quarterly and most likely alternate
between Madison and Milwaukee. There will be a tuition fee and the
participants will be required to pass an examination at the end of the
day. Participants will not receive CLE credit for successful completion
of the Ethics School.
Other remedial conditions. Beyond the Ethics School
requirement, the terms of any given diversion agreement will be designed
to meet the particular problems of the attorney. A lawyer who has a
problem with his/her temper and has exhibited aggressive behavior may be
required to undergo an assessment by a counselor and be required to
attend a course on anger management. A lawyer convicted of a second
operating a vehicle while intoxicated might be required to undergo an
assessment and consent to conditions that will monitor his/her use of
alcohol and other drugs. A lawyer who has failed to keep a client
informed about the status of a case may be required to write a status
letter within a certain time period. A lawyer who has missed a deadline
or a hearing due to poor calendaring practices might be required to pay
for an audit of his or her law office procedures and to be monitored for
a period of time. A lawyer who has demonstrated a lack of competence in
a particular area of the law may be required to complete a certain
number of CLE credits in that area.
V. Adopt A Rule On Expunction Of Records To Read As
Follows:
(a) Expunction - Self-Executing. Except for records
relating to proceedings that have resulted in discipline, all records
relating to proceedings conducted pursuant to these Rules, which
proceedings were closed without investigation or dismissed, shall be
expunged from the files of the Office of Lawyer Regulation and Director
three years after the end of the year in which disposition occurred.
(b) Definition. The term "expunge" and "expunction"
shall mean the destruction of all paper records or other evidence of a
similar type, including but not limited to, the request for
investigation, the response, Investigator's notes, and the report of
investigation. Electronic records may be retained for up to ten (10)
years.
(c) Effect of Expunction. After expunction, the
proceedings shall be deemed never to have occurred. Upon either general
or specific inquiry concerning the existence of proceedings which have
been expunged, the Director shall respond by stating that no record of
the proceedings exist. The attorney in question may properly respond to
any general inquiry requiring reference to a specific proceeding which
has been expunged by stating only that the proceeding was dismissed and
that the record of the proceeding was expunged pursuant to this Rule.
After a response as provided in this Rule is given to an inquirer, no
further response to an inquiry into the nature or scope of the
proceedings, which have been expunged need be made.
(e) Retention of Records. Upon written application
to the Board of Administrative Oversight, for good cause and with
written notice to the attorney in question and opportunity to such
attorney to be heard, the Director may request that records which would
otherwise be expunged under this Rule be retained for such additional
period of time not to exceed three years as the board deems appropriate.
The Director may seek further extensions of the period for which
retention of the records is authorized whenever a previous application
has been granted.
Commentary: This rule is modeled after Model Rule
4.B.(12) and Colorado Rule 251.33. We believe Wisconsin should have such
a rule. We propose that paper records of inquiries and grievances be
maintained a minimum of three years and the computer records of all
inquiries and grievances be preserved for up to ten years and be capable
of being printed out should a question arise about the handling of a
particular matter.
VI. Central Intake To Have An Evaluation Component.
Consistency and accountability. To assure overall consistency
in the intake process, using the software we've obtained from Colorado,
the Director will have the ability to monitor the electronic intake
files at frequent intervals from her/his personal computer, and we
propose that she/he meet with the intake staff regularly. In that way,
the Director should be well-prepared to field the occasional angry call
from a dissatisfied grievant or attorney. Because the Director is
responsible for full investigations, as well as intake, he/she is also
able to monitor the consistency with which matters are handled at the
intake stage as compared with those referred for further
investigation.
Program evaluation. The Director will provide monthly to
quarterly statistical reports to the Board of Administrative Oversight
and/or the Supreme Court on the number, nature, age and disposition of
inquiries and grievances. In addition, the Director may be able to
provide the Board of Administrative Oversight with sanitized diversion
agreement summaries that will be useful in monitoring the use of
same.
Finally, real consideration will be given to soliciting
consumer/grievant and lawyer input through the use of surveys and other
mechanisms to determine: whether the central intake program is meeting
its goals of providing a fast, efficient method of handling consumer
inquiries and grievances about lawyer services, and providing attorneys
with effective remedial alternatives to discipline.
Conclusion
A central intake program, as discussed above, has the potential to
make the lawyer regulation process more accessible to the general
public; quickly address inquiries and, where possible, resolve them;
offer lawyers who have had minor practice problems alternatives designed
to enhance the quality of their services; and promptly refer for full
investigation those matters that may involve serious misconduct.
The rules that are proposed are designed to clarify the Director's
authority, clearly articulate the commencement of the investigation and
screening process, the determinations to be made by the Director; and
the review rights of the participants in the system. Further, the
diversion from discipline program is set forth in great detail so that
those who are referred to the program will be advised of their
responsibilities and the procedures should there be a material breach of
a diversion agreement.
Last, the above proposal offers a rule on expunction of records,
guidance to lawyers on how they can respond regarding inquiries and
grievances closed or dismissed and establishes a framework for an
evaluation component for the central intake function.
Therefore, the undersigned files this petition on behalf of the
Committee on the Formulation of a Central Intake Program and himself as
Interim Administrator and prays for an Order accordingly.
Submitted this 31st day of March, 2000.
Committee on the Formulation of a Central Intake Program
By: James L. Martin
Interim Administrator
Board of Attorneys
Professional Responsibility
Endnotes
1 Within this document we have
attempted to use the terms as proposed in the new rules relating to the
lawyer discipline system. Office of Lawyer Regulation replaces the Board
of Attorneys Professional Responsibility and director replaces
administrator. We have also used the terms "Probable Cause Body" and
"Board of Administrative Oversight" as we believe these may be the names
of the two committees denoted in the supreme court's reorganization
plan.
2 The attached budget has been
previously submitted to the court and the State Bar as an estimate of
the cost of a central intake program. Colorado's central intake program
was the model. We are proposing to modify the position descriptions to
three intake investigators and two program assistants to better reflect
our estimate of the division of responsibilities necessary to perform
the duties of the unit.
3 Lesser Misconduct. Lesser
misconduct is conduct that does not warrant a sanction greater than a
private reprimand. Conduct shall not be considered lesser misconduct if
any of the following considerations apply:
- the misconduct involves the misappropriation of funds;
- the misconduct constitutes a "serious crime" as defined in SCR
11.03(2);
- the misconduct constitutes family violence;
- the misconduct results in or is likely to result in substantial
prejudice to a client or other person;
- the respondent has been publicly disciplined in the last three
years;
- the misconduct is of the same nature as misconduct for which the
respondent has been disciplined in the last five years;
- the misconduct involves dishonesty, fraud, deceit, or
misrepresentation by the respondent;
- the misconduct involves sexual relations prohibited in SCR
20:1.8(k)(2); or
- the misconduct is part of a pattern of similar misconduct.
Wisconsin Lawyer