Wisconsin Lawyer
Vol. 75, No. 12, December
2002
OLR Annual Report - Fiscal Year 2001-2002
This report from the Office of Lawyer Regulation looks at the
disposition of grievances against lawyers from July 1, 2001 to June 30,
2002, and presents improvements in the system's decision-making and
efficiency due to added staff and the new central intake procedure. More
matters are now resolved within 90 days and 180 days than under the
prior system.
by the Board of Administrative Oversight & Office of Lawyer
Regulation
The
Office of Lawyer Regulation (OLR) and Board of Administrative Oversight
(board) file annually with the Wisconsin Supreme Court a report of their
activities during the preceding year to permit the court, the bar, and
the public to evaluate their performance. This is the second report
filed under the new lawyer regulation system, which became effective on
Oct. 1, 2000. The new system continues to improve its efficiency and
effectiveness. Though challenged with a heavy caseload that developed
over several years, the system has sufficient capability to meet this
challenge and to address current developments in lawyer regulation in a
deliberate, comprehensive, and responsive manner.
Lawyer Regulation System Overview
The Wisconsin Supreme Court created the
lawyer regulation system to carry out the court's constitutional
responsibility to supervise the practice of law and protect the public
from misconduct by persons practicing law in Wisconsin.
Figure
1 shows the composition and organization of the lawyer regulation
system. The court has adopted standards of professional conduct for
attorneys. The court confers the privilege to practice law on an
attorney conditioned on his or her compliance with those
standards.1 A failure to comply with the
court's standards may constitute misconduct or may be evidence of a
medical problem.
The OLR director is required to investigate any possible misconduct
or medical incapacity of an attorney licensed to practice in
Wisconsin.2 Communications with the OLR
alleging lawyer misconduct are privileged, and no lawsuit predicated on
those communications may be instituted against any grievant or
witness.3 Attorneys and grievants may
consult with and be represented by counsel at any stage of an
investigation. Prior to the filing of a formal complaint or petition,
all papers, files, transcripts, and communications in an OLR
investigation must be kept confidential by the OLR.4 The OLR may, however, provide relevant information
to the respondent and the grievant.5
Although the Supreme Court Rules provide no sanction for disclosure of a
grievance by the respondent or the grievant, the OLR requests that those
involved in an OLR investigation keep confidential all documents
generated by the investigation.
Initially, the OLR staff screens all inquiries and grievances
concerning attorney conduct. If the allegations made are not within the
OLR's jurisdiction, staff will close the file. If the grievant disagrees
with the staff's decision, the grievant may make a written request for
the director's review of the closure. The director's decision is final.
After preliminary evaluation, staff also may forward the matter to
another agency; attempt to reconcile the matter between the grievant and
attorney if the dispute is minor; or refer the matter to the director
for diversion or investigation. Before or after investigation, the
director may divert the matter to an alternatives to discipline program,
providing that nothing more than minor misconduct is involved, the
respondent agrees, and the respondent is eligible to participate.
Alternatives to discipline usually are educational programs or
monitoring arrangements that help an attorney improve the quality of his
or her practice.
If the grievance sets forth sufficient information to support an
allegation of a violation of SCR chapter 20, OLR staff may initiate an
investigation. The OLR staff will send a letter to the respondent,
enclosing the grievance and requesting a response within 20 days. In
most instances, staff will forward the attorney's response to the
grievant for comments. When the OLR staff has completed the preliminary
investigation, the director will determine whether: 1) an uncontested
violation exists; 2) the grievance should be dismissed for lack of
merit; 3) further staff investigation is needed; or 4) the matter should
be assigned to a district investigative committee for further
investigation, pursuant to SCR 22.04(1).
If the grievance is further investigated by staff or a district
committee, the respondent and the grievant will be kept advised about
the investigation. The committee chair can assign the matter to one of
the committee's investigators. Pursuant to SCR 22.04(2), the respondent
may request a substitution of a district committee investigator within
14 days of receiving notice of the assignment of the investigator. The
respondent shall be granted one such substitution as a matter of right,
and any other requests for substitution shall be granted by the
committee chair for good cause shown. If the committee decides to take
sworn testimony regarding a grievance at an investigative meeting, the
respondent and the grievant will receive timely notice of the meeting.
Committee members elicit pertinent information from witnesses at such a
meeting. In any matter referred to committee, the committee will prepare
a report summarizing the facts and potential disciplinary violations.
That report will be sent to the respondent and grievant for comment.
After the investigation is completed by staff and/or a committee, the
director may dismiss the matter for lack of sufficient evidence of cause
to proceed, divert the matter to an alternatives to discipline program,
obtain the respondent's consent to a private or public reprimand, or
present the matter to the Preliminary Review Committee for a
determination of whether there is cause to proceed. In cases in which
the director dismisses the matter, the grievant has 30 days after
receiving written notice of the dismissal to make a written request for
review of the decision by the Preliminary Review Committee. The decision
of the Preliminary Review Committee is final.
If, after the investigation is completed, the director does not
dismiss the grievance, seek a consent reprimand, or divert the matter,
the OLR staff will prepare an investigative report and provide copies to
the grievant and the respondent for comment. (In cases in which a
district committee investigates a matter, its report will serve as the
investigative report.) The grievant and the respondent may submit
written responses to the report within 10 days following receipt of the
report.
The director may then submit the results of the investigation to the
Preliminary Review Committee. The committee determines whether the
evidence presented supports a reasonable belief that an attorney has
engaged in misconduct or has a medical incapacity that may be proved by
clear, satisfactory, and convincing evidence.6 If the committee dismisses the matter, the
grievant has 30 days after being notified of the dismissal to file a
written request for review of that decision. The supreme court will
select a referee to review the matter, and the referee's decision is
final.
If the Preliminary Review Committee determines that the director has
established cause to proceed, the director may file a complaint with the
supreme court alleging misconduct. The OLR, rather than the grievant, is
the complainant in such a matter. If the director files a complaint, an
answer is required within 20 days of service of the complaint. Upon
proof of service, the supreme court appoints a referee to hear the
matter pursuant to SCR 22.13(3). The referee holds a scheduling
conference to define the issues and to determine the extent of
discovery. The referee then presides at a public hearing that is
conducted as a trial of a civil action to the court.7 The OLR must prove misconduct or medical
incapacity by clear, satisfactory, and convincing evidence.8
Within 30 days after the hearing concludes, the referee will submit
his or her report to the supreme court, including findings of fact,
conclusions of law, and a recommendation of dismissal or imposition of
discipline. The OLR or the respondent may file an appeal of the
referee's report within 20 days after the report is filed. If no appeal
is timely filed, the supreme court reviews the referee's report and
determines appropriate discipline in cases of misconduct and appropriate
action in cases of medical incapacity. The court may, on its own motion,
order the parties to file briefs. Either the respondent or the OLR may
file a motion for reconsideration of the supreme court's decision within
20 days of the filing of the court's decision. The filing of a motion
for reconsideration does not stay enforcement of the judgment. The
supreme court's final dispositions of disciplinary and medical
incapacity proceedings are published in the Wisconsin Reports
and in the Wisconsin Lawyer.
The Year in Review
Significant Lawyer Regulation System Developments.
Fiscal 2001 efforts focused on implementing the new system. Fiscal 2002
efforts focused on improving the system's efficiency and effectiveness.
As system participants have become more experienced, decision-making and
efficiency have improved. The new system has a significantly greater
capacity than the prior system, due in equal part to the increase in
staff and the new central intake procedure. An increasingly higher
percentage of matters are being resolved within 90 days and within 180
days than under the prior system.
The increase in the number of matters over a year old, however, has
raised considerable concern. This increase is attributable to an
increase in the number of grievances over several years not addressed by
staffing increases, and the need to implement the new regulation system
and train its participants. During this fiscal year, several measures
were applied to alleviate this concern, including staff overtime,
limited-term employees, and increased district committee referrals. More
aggressive measures are in place for next year, such that the number of
matters over a year old should be reduced to a minimum.
The supreme court conducted a hearing on petitions to amend the rules
relating to the lawyer regulation system on Sept. 20, 2001, and amended
the rules on Nov. 14, 2001, and Jan. 23, 2002. On March 12, 2002, the
court met with the Board of Administrative Oversight, the Preliminary
Review Committee, special investigators, and the Special Preliminary
Review Panel to discuss current developments in the lawyer regulation
system.
The Preliminary Review Committee reelected attorneys James Wickhem,
Janesville, chair, and James D. Friedman, Milwaukee, vice chair. The
committee has considered whether cause to proceed existed in 42 matters
and has reviewed the director's dismissals in 66 matters. The supreme
court increased the committee's membership, adding an attorney member
and a public member. In May, the court appointed attorney Michael
Anderson, Madison, and Dr. Thomas Radmer, Trevor, to these positions.
The committee received educational presentations during its open
meetings, and further developed its operating procedures. Committee
meetings will continue quarterly.
The Board of Administrative Oversight reelected attorneys William H.
Levit Jr., Milwaukee, chair, and Ann Ustad Smith, Madison, vice chair.
Attorney Scott Roberts, Stevens Point, was appointed to the board to
replace attorney John Holzhuter, who resigned. Subcommittees to study
district committees, to establish board priorities, and to review rules
proposals continued their work. The board began a program to assess
perceptions of the regulation system through a questionnaire that is
sent to each grievant and respondent after the grievance is resolved.
The response rate is approximately 6 percent for grievants and 8 percent
for respondents. While respondents' perceptions generally relate to the
grievance outcome, the questionnaire responses provide helpful
information. The board will continue to monitor trends in these
perceptions.
Also this year, the board has given careful consideration to reducing
the number of matters more than a year old. In addition to regular
monitoring, the board approved an aggressive plan to reduce the number
to minimum levels during this next year. In its budget submission, the
board proposed and the court approved funding for six limited-term
grievance investigators and two program assistants. The board also
supported the director's request for staff overtime and encouraged
referring significantly more matters to district committees.
The district committees continue to make a valuable contribution to
the system, particularly this year, as the caseload has required
referring many more cases than normal. Improvements in training and in
information sharing have increased committee effectiveness.
Special investigators and the Special Preliminary Review Panel
process matters involving allegations against attorneys who serve with
the regular components of the regulation system. During Fiscal 2002,
special investigators received 67 referrals and resolved 33 matters. The
Special Preliminary Review Panel considered whether cause to proceed
existed in three matters and reviewed special investigator decisions to
close or dismiss matters in 25 matters. The supreme court modified the
special procedures effective April 1, 2002, to more closely parallel the
normal process, and added another member to the review panel, Mr. Dennis
Gorder, Necedah.
The alternatives to discipline program, which became effective on
Oct. 1, 2000, provides an effective way to improve an attorney's ability
to practice in accordance with high professional standards. Frequently,
this is a more effective measure than professional discipline. The court
has authorized diversion to an alternative program in situations where
the program will likely benefit the attorney, and where the attorney
will not likely harm the public. Alternative programs may include
mediation, fee arbitration, law office management assistance, evaluation
and treatment for alcohol and other substance abuse, psychological
evaluation and treatment, medical evaluation and treatment, monitoring
of practice or trust account procedures, continuing legal education,
ethics school, and the multistate professional responsibility
examination. During the fiscal year, 85 attorneys were diverted to
alternative programs.
The central intake program, which became effective on Jan. 1, 2001,
receives inquiries and grievances concerning attorney conduct and
provides preliminary evaluation of grievances prior to any formal
investigation. Inquiries and grievances are now received by telephone;
callers may use a toll-free number to contact the OLR. After the
preliminary evaluation, the central intake staff may forward the matter
to another appropriate agency, attempt to reconcile the matter if it is
a minor dispute, close the matter if it does not present sufficient
information to support an ethical allegation, or refer the matter for
investigation or diversion to an alternative to discipline.
Central intake received approximately 2,400 inquiries and grievances.
This represents an increase of approximately 60 percent in matters
received compared to the period prior to the program. Of the matters
evaluated in central intake during the last six months of the fiscal
year, approximately 25 percent were forwarded for formal investigation.
Of the 75 percent that were closed without formal investigation, 15
percent involved the resolution of minor disputes or grievances that
were withdrawn.
The regulation system is more accessible than in the past. The
ability to communicate by telephone with grievants and respondents
provides more personal contact and increases the level of satisfaction
with the process. Central intake also provides an efficient means to
respond to grievances. Decisions whether to close or to formally
investigate are made more promptly. As a result, the number and
percentage of matters resolved within 90 days and within 180 days have
increased.
Overdraft Notification Program
The Overdraft Notification Rule9 went
into effect on Jan. 1, 1999. The rule requires attorneys to authorize
their banks to notify the OLR of overdrafts on their client trust
accounts and fiduciary accounts. Information regarding the trust account
overdraft program is available from the OLR
Web page.
During the 2002 fiscal year, 117 overdrafts were reported to OLR, 14
fewer overdrafts than in the previous fiscal year. Overdraft reports
resulted in the commencement of two disciplinary proceedings this year.
Those proceedings remain pending. In addition, overdraft notifications
have resulted in the following dispositions: diversion - 5; dismissal
after investi gation/advisory letter sent - 22; dismissal - 10; closed
without investigation/advisory letter sent - 23; and closed without
investigation/bank errors - 39.
Beginning this year, the OLR will conduct a trust account management
seminar as an alternative to discipline program. The director and
overdraft investigator continue to work with the State Bar regarding
possible amendments to SCR 20:1.15.
Survey of Matters
Overall Processing. Since the inception of the new
system, the number of grievances has increased approximately 60 percent.
System capacity also has increased, such that the processing of matters
occurs efficiently. There is, however, a significant increase in the
number of matters more than a year old that should be resolved during
the next year.
The pending caseload is more than 1,200 matters, up from the prior
year, and more than the optimal caseload capacity of about 950 matters.
Increased referrals to district committees and the hiring of temporary
staff should reduce the number to the optimal caseload during this
fiscal year.
With the exception of matters more than a year old, the efficiency
with which matters are processed is very good. The average processing
time was 184 days, which is near the average for the last 10 years. The
percentage of matters resolved within 90 days has increased from 44
percent in Fiscal 2000, to 55 percent in Fiscal 2001, to 58 percent in
Fiscal 2002. The percentage of matters resolved within 180 days
increased from 68 percent in Fiscal 2000, to 70 percent in Fiscal 2001,
to 74 percent in Fiscal 2002. These percentages are expected to increase
this year.
Grievances.
Figure
2 breaks down by category the grievances received between July 1,
2001 and June 30, 2002. In describing the nature of the grievances, only
the most serious allegation is reflected. While most grievances allege
various acts of misconduct, it is not practical to list all
allegations.
The allegations most commonly made in a grievance were lack of
diligence by the lawyer entrusted with the legal matter and lack of
communication with the client. The two areas of practice that produced
the most grievances during the year were criminal law and family law.
While clients file the majority of grievances, anyone can file a
grievance.
Discipline. In Fiscal
2002, 28 attorneys received a public disciplinary sanction. The supreme
court imposed one revocation by consent, 10 suspensions, eight temporary
suspensions, and four public reprimands. Referees issued five public
reprimands by consent. At the end of the year, 32 formal disciplinary
matters were pending in the supreme court. Figure
3 shows the numbers and percentages of attorneys receiving public
discipline since Fiscal 1979. Figure
4 shows the type of misconduct found in public discipline
decisions.
A referee has authority, under SCR 22.09(3), to issue private
reprimands pursuant to an agreement between the director and the
attorney. Typically, a private reprimand is imposed for an isolated act
of misconduct that caused relatively minor harm. A private reprimand is
not imposed if public disclosure of the attorney's misconduct is
necessary to protect the public. 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 twice a year in the
Wisconsin Lawyer.
During this fiscal year, 21 attorneys received private reprimands.
Eighty-five attorneys entered the new alternatives to discipline program
and 18 attorneys completed an alternative program.
In Fiscal 2002, there were 2,139 additional dispositions. This
category includes matters closed after the initial intake evaluation due
to insufficient information to support a misconduct allegation (1,664);
dismissals after investigation in cases due to insufficient evidence of
a violation (363); matters dismissed with an advisory letter (84); and
matters closed pending petition for reinstatement (28).
Reinstatements. During Fiscal 2002, the court
completed action on 20 reinstatement petitions, 14 administrative and
six disciplinary, after investigations by the OLR and public hearings.
(In the past, public hearings were before a district committee. Under
the new system, public hearings are before a referee.)
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 lawyer regulation system, including all
the costs and expenses of the OLR, district committees, the Preliminary
Review Committee, and the board. To help offset the costs, the OLR
collects costs from attorneys disciplined in formal court proceedings
and collects fees on petitions for reinstatement. Collections for Fiscal
2002 were $51,839.52.
The budget for Fiscal 2003 is $2,318,000; the assessment is $128.55,
up from $124.78 last year. The assessment is in line with assessments in
neighboring jurisdictions, somewhat higher than in Minnesota and Iowa,
but lower than in Illinois. The assessment is significantly lower than
in Colorado, which has a comparable lawyer population and similar
programs.
Public Information and Outreach
To promote understanding and confidence in the lawyer regulation
system, public information and outreach efforts are ongoing. General
information about the lawyer regulation system is available at www.courts.state.wi.us/olr.
The Year Ahead
Next year, the system will be challenged to reduce the number of
matters more than a year old; it should meet that challenge as it
continues to improve in its efficiency and effectiveness. Efforts to
assess perceptions of the system and to evaluate its effectiveness will
continue. These efforts will further enhance fairness and effectiveness
and promote increased public confidence in lawyer regulation. Finally,
the system will begin to consider and address the current issues
affecting lawyer regulation, particularly those related to Ethics 2000,
an ABA initiative to review the model rules of professional conduct.
Endnotes
1 SCR
21.15(2).
2 SCR
21.03(6)(a).
3 SCR 21.19.
4 SCR
22.40(1).
5 SCR
22.40(2).
6 SCR
22.001(2).
7 SCR 22.16.
8 SCR 22.38.
9 SCR 20:1.15(i) -
(p).
Wisconsin
Lawyer