|
|
Vol. 72, No. 12, December 1999 |
Previous
Page
Regulating the Legal Profession:
BAPR Annual Report
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.
|