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Vol. 72, No. 6, June 1999 |
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Parting Thoughts:
An Interview with Jerry Sternberg
"One of the most
important things for lawyers to do from the get-go when they
meet with clients," Sternberg adds, "is to say, 'This
is the way I charge.' Bite the bullet; don't put it
off. Because if you suddenly hit clients with a big bill, they're
angry and file a grievance. Also, show what you did. It's
aggravating to get a bill that says 'worked on the file.'
That doesn't mean anything to the client. Be specific. There
are so many commonsense ways to avoid grievances and to make
your clients more satisfied. Those go hand in hand."
Leaving a legacy
What overall impression does Sternberg hope he's left
behind? "The thing I'm proudest of is the fact that
people were treated evenhandedly and extremely fairly,"
he responds. "In tandem with that goal, I also tried to
run the agency with the utmost integrity. We were straightforward;
we took our lumps when we had to. If we did something wrong,
we explained we made a mistake. That's the way I see my
legacy with the agency."
He also worked hard over the years to get quicker dispositions
on cases, which is better for all involved, Sternberg notes.
"People's memories are better; the outcomes are more
meaningful to them," he says. "So quicker dispositions
were a priority, but that had to be consistent with the seriousness
of the case and with fairness."
He'd also like to be remembered as an administrator who
took great care to preserve confidentiality while grievance investigations
were pending and in cases that resulted in dismissals. "During
my administration," he says, "I don't remember
anybody ever saying that we leaked something to the media. I
worked hard to make sure that we honored the public records requests,
which we had to under public records law. But at the same time,
on the cases that were confidential - those that had no
merit and were dismissed, or the minor ones that resulted in
private reprimands - people didn't get to know about
them."
Sternberg also cites specific accomplishments during his tenure
of which he's proud. One was working several years ago with
a State Bar committee chaired by Dan Hildebrand to consider adopting
the ABA Model Rules, including trust account rules. What had
been two separate trust account rules were consolidated into
one, and the language made clearer to spell out exactly what
lawyers must do when acting as fiduciaries for clients. "The
committee saw it as necessary to protect the public, and to make
sure the lawyer had substantiation for what he or she was doing,"
Sternberg says. "So it was a two-way win."
More key changes to the trust account rule took shape in 1998
through the work of a joint BAPR/State Bar committee chaired
by Dan Shneidman. Lawyers now can invest trust account monies
in places such as investment institutions, enabling a higher
rate of return. The rule now covers estate accounts, as well
as trust accounts. It also sets up a system for overdraft notification,
in effect as of Jan. 1, 1999. If a check on the account bounces,
the bank notifies the lawyer and BAPR. Motivations for this change
were to spot recordkeeping problems earlier and to nab thieves
sooner. "What we found in prosecuting some misappropriation
cases," Sternberg explains, "was that there had been
numerous bounced checks on some of those accounts for two years.
If we'd known earlier, we could have protected the public
better."
In addition, Sternberg pushed for a new rule prohibiting sexual
contact between lawyers and their clients. The rule results in
education about and deterrence against inappropriate contact,
Sternberg says, and clarifies how the public is protected.
Victim restitution for attorney misconduct, whether due to
misappropriations or excessive fees, is another area Sternberg
pursued vigorously, as was recouping prosecution costs from disciplined
lawyers. The latter helped attain another goal: keeping a lid
on the BAPR assessment paid by Wisconsin attorneys. Because of
recouped prosecution costs and administrative cost cutting, "we've
kept the assessment at between $70 and $85 (per attorney) for
several years," Sternberg says.
As for future recommendations, Sternberg would like to see
BAPR once again undergo an evaluation by the ABA's Center
for Professional Responsibility, as was last done in 1986. "It's
an independent point of view," Sternberg says. "It's
objective, and I think it would be a good idea to do it again.
You always have to look at ways to make things better."
Upon cross-examination
If any Wisconsin lawyer could sit down with Sternberg and
pose any question he or she has always wanted to ask, what might
some of those questions be? Sternberg surmises one on many lawyers'
minds is: Why does BAPR prosecute small-firm attorneys and sole
practitioners more than it does large-firm attorneys?
Sternberg
can't shake the image of being the "Big Bad Cop" who
kept a watchful eye on the legal profession. "I never saw
myself or the job as being the big, bad, mean anything. I always
tried to treat people with respect." |
Sternberg says BAPR has never targeted solos or small-firm
practitioners to watch for transgressions. Misconduct is misconduct;
the size of the errant lawyer's firm is irrelevant. That
said, Sternberg does feel that solos and small-firm lawyers are
more vulnerable to grievances, largely due to their lack of backup
support. They don't have an in-house ethics advisor, as
some large firms do. They may have insufficient personnel to
handle bookkeeping, such as trust account records. They lack
adequate staff support to help take care of client call-backs
and other daily routines. These factors add up to prime conditions
for potential grievances: faulty trust account records, ethical
missteps, disgruntled clients who feel they're being ignored,
and so on.
Sternberg addressed those pitfalls at the State Bar's
"Tools for the 21st Century: 1998 Midwest Small-Firm Success
Conference" last May, just as he's discussed them with
lawyers in other seminars over the years. "What I was trying
to do in that speech was make it an even playing field,"
Sternberg says. "I was trying to give them all the tips
that I thought the larger firms use." For example, have
a tickler file to aid your memory. Call people back the same
day they call you. "Because, number one, it shows you care,"
Sternberg points out, "and number two, you're very
unlikely to get a grievance if you call clients back the same
day. It just shows respect."
Two other questions lawyers might want to ask him, Sternberg
says, include: Why doesn't BAPR prosecute government lawyers?
And why are matters prosecuted that seem to be no more than errors
of judgment? As for the first, "Not true," Sternberg
states. "I've prosecuted a number of cases against
government lawyers." In fact, he notes, he's gotten
several calls from other jurisdictions that have never prosecuted
prosecutors, asking him for advice on how to proceed.
As for the second question, Sternberg stresses that simple
mistakes by a lawyer resulting in minor problems generally are
not prosecuted. Prosecution enters in, "when lawyers let
something go for a prolonged period of time," he says. "The
common excuse is 'the press of other business got to me.'
But if, for example, you don't call the personal representative
in an estate for two years, which I've seen in some cases,
that's neglect. That's not adequate representation.
It shows you're not taking care of business."
"Something like that has to be dealt with," he adds,
"so it doesn't happen again. And usually if it's
one mistake, it would result in a private reprimand - unless
it's compounded by a lie."
From members of the general public might come an entirely
different question, or accusation, regarding BAPR, namely: Aren't
all you lawyers just watching out for yourselves? To that Sternberg
responds a resounding, "No." I think anyone who had
contact with us over some period of time got to know we were
not there to protect lawyers who committed misconduct. We were
there to do an objective job, to find out what happened, and
to take fair and appropriate action."
Too lenient with lawyers? Too aggressive in prosecuting attorneys
who make mistakes? The claims and counterclaims always hover,
as they do for any agency delegated with the kinds of responsibilities
BAPR has. "You can never please everybody," Sternberg
says philosophically. "You have to have the guts to do the
job, notwithstanding the fact that not everybody loves you."
That brings us to one final question that may be on the minds
of many people. Why is Sternberg leaving BAPR after all these
years? As of Jan. 4, he began working as legal counsel for the
Wisconsin Department of Health and Family Services, where he'll
prosecute nursing home abuse cases. When he was offered the position
last October, he mulled over the decision for several days before
deciding the time was ripe for a change. "But I had very
mixed feelings about leaving," Sternberg says. "I deeply
loved the agency and the people with whom I was associated. So
it wasn't an easy decision. Not at all."
Dianne Molvig operates Access Information Service, a Madison
research, writing, and editing service. She is a frequent contributor
to area publications.
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