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Lawyer
Disciplinary System
In the Matter of the Review of the Lawyer Disciplinary System
Requesting Further Comment on Structure of
Lawyer Discipline System
Order 99-03
On April 28, 1999, the court determined it advisable to initiate
a comprehensive review of the structure of the lawyer disciplinary
system in Wisconsin, including the structure of its Board of
Attorney's Professional Responsibility (board), the board's
administrative committee, board staff, and the district professional
responsibility committees, and scheduled a public hearing in
the matter. The court invited numerous institutions, interested
individuals, and the public to review the operation of the lawyer
discipline system in Wisconsin and make recommendations for its
improvement.
At the public hearing held Sept. 14, 1999, the court considered
the preliminary draft report of American Bar Association's
Standing Committee on Professional Discipline and submissions
from the board, its administrator, its staff, the State Bar BAPR
Study Committee, Marquette University Law School, U.W. Law School
and, numerous others who addressed the matter in person and in
writing.
On the following day, the court held an open rule-making conference
and discussed the issues raised in the matter. The court neither
accepted nor rejected any of the various proposals, in whole
or in part, and did not endorse the current discipline system.
The court did, however, in an effort to clarify the problems
with the current system and identify potential solutions, focus
on the four major functions of the lawyer regulation and discipline
system: 1) receipt and investigation of misconduct allegations;
2) preliminary adjudication (resulting in a determination of
whether to seek discipline); 3) formal adjudication; and 4) administrative
oversight. The important attributes of these discrete functions
are independence, accountability, and integrity. The goal is
to provide a reliable, efficient, fair, and impartial lawyer
discipline system throughout the state, one that is credible
and serves the interests of the legal system and the public it
serves.
The court determined at the conference to seek further comment
from interested persons prior to making any changes in the structure
of the lawyer discipline system.
Principles
At the conference, the court agreed on the following principles
governing the lawyer regulation and discipline system:
1. The Wisconsin Supreme Court is the ultimate authority for
the regulation and discipline of attorneys.
2. The person(s) deciding whether discipline should be sought
should not direct or control the person(s) investigating misconduct
allegations; the investigation of misconduct allegations and
the determination to seek discipline are two separate functions.
Whether it would be appropriate for the decisionmaker(s) to ask
investigative staff for further investigation and additional
information depends on the nature of the decisionmaker. If the
decisionmaker is the person who will prosecute the matter, akin
to a district attorney in respect to a criminal proceeding, the
decisionmaker may ask the investigator for additional information.
If the decisionmaker is a neutral magistrate, akin to a judicial
officer determining probable cause in a criminal proceeding,
the decisionmaker will dismiss the matter if the information
provided by the investigator is insufficient to warrant a determination
to seek discipline; the investigator will have the opportunity
to resubmit the matter with additional information.
3. Administrative oversight of the lawyer regulation and discipline
system's operation, including the complaint process, timeliness,
training, and proposals for modification of the system, is an
important function.
4. Formal adjudication (fact finding, legal conclusions, and
recommendation for discipline) should be separate from the investigation
and decision-to-seek-discipline functions and should be reviewable.
5. Bodies that include nonlawyer members are an important
part of the regulation and discipline system.
6. The regulation and discipline system must be fair. It must
be neither attorney friendly nor complainant friendly but, rather,
"user" friendly, that is, accessible and responsive
to attorneys and to consumers of legal services.
7. Understanding of and confidence in the regulation and discipline
system is essential and depends upon the education of the public
and the bar in its operation and the ease with which it may be
used. Distrust of the system is always to be expected, but the
system must in reality provide fair and balanced regulation of
the bar in the public interest.
8. Each component of the system has a role to play in the
training of the participants in the system as well as in the
education of the public and the bar in the operation of the system.
9. Timeliness in the processing of misconduct allegations
is important. Where possible, the time required for disposition
of misconduct allegations should be reduced.
10. Each component of the system should have input in the
system's budget process, but it is the responsibility of
administrative staff to prepare an initial budget and submit
a final budget for approval and implementation by the court.
11. Pursuant to the court's Feb. 27, 1998, Statement
of Principles, Policies and Procedures, the person directing
the staff hires and supervises that staff, and the person who
directs the staff is hired by the Wisconsin Supreme Court, with
the assistance of the Director of State Courts. Issues concerning
the performance of the director are to be referred to the Director
of State Courts, who reports the matter to the Wisconsin Supreme
Court when deemed appropriate.
Request for Further Comment
The court seeks comment in respect to the following:
1. Whether the investigation function should be carried out
by central staff alone or with the addition of decentralized
bodies.
2. If centralized bodies are to perform the investigative
functions now performed by district professional responsibility
committees, what are the fiscal implications and impact on the
attorney assessments? How should the centralized bodies be composed
and selected?
3. Which person or entity should be responsible for directing
the prosecution of a disciplinary proceeding? Who is the prosecutor's
client? Possibilities include the people of the State of Wisconsin,
the person(s) responsible for the investigation, and the person
or entity making the decision to seek discipline. Who should
have oversight of the prosecution function?
4. Should the person or entity making the determination to
seek discipline be a central entity or decentralized entities?
5. Who should perform the administrative oversight of the
system? Should it be performed by a separate entity, with input
from each component of the system, or by other means? Is it appropriate
and advisable to merge the administrative oversight function
with the determination to seek discipline function?
6. Is the person or entity determining to seek discipline
the one who will prosecute it, akin to a district attorney, or
a neutral adjudicator, akin to a preliminary hearing magistrate?
7. How are the various participants in the system selected,
by whom (possibilities include the State Bar and the Supreme
Court, with or without the assistance of a nominating committee),
and according to what criteria?
8. What are the appropriate composition and proportion -
lawyers and nonlawyers - of each entity within the system?
9. Whether a decentralized investigating body should conduct
investigations of attorneys residing or practicing in the investigating
body's locality.
10. What type of formalized training is appropriate for each
component's participants?
11. What are appropriate procedures for handling misconduct
allegations against current or former participants in the system?
12. Who should impose and collect attorney assessments to
fund the system - the State Bar, the Supreme Court, or another
entity?
13. Comment on any of the proposals that have been proffered
and any other matters relating to the lawyer regulation and discipline
system.
IT IS ORDERED that comment on the matters set forth herein
be filed in writing, with eight copies, with the Clerk of the
Supreme Court, 110 E. Main St., Room 215, Madison, WI 53703,
on or before Jan. 4, 2000.
IT IS FURTHER ORDERED that the court hold further proceedings
in this matter as deemed advisable following its consideration
of comment filed pursuant to this order.
Dated at Madison, Wis., this 1st day of October 1999.
By the court:
Marilyn L. Graves,
Clerk of Court
Use
of DOT Operating Record Abstracts
in Criminal Proceeding
In the Matter of the Amendment of the Rules of Pleading,
Practice, and Procedure: Wis. Stat. § 343.24(1) -
Use of Department of Transportation Operating Record Abstract
in Criminal Proceeding
Order 99-04
On Sept. 28, 1999, the court held a public hearing on its
proposal to amend Wis. Stat. section 343.24(1) to delete
the provision declaring Department of Transportation operating
record abstracts inadmissible in evidence in any criminal proceeding
arising out of a motor vehicle accident. The amendment is intended
to make admissible evidence available to establish repeat Operating
While Intoxicated, Operating After Revocation, and other criminal
traffic violations without the need for court records and case
files beyond their retention period specified in SCR 72.01. The
court has considered the presentations made at that public hearing.
IT IS ORDERED that, pursuant to Wis. Stat. section 751.12
and effective Jan. 1, 2000, 343.24(1) of the statutes is amended
to read:
343.24 Department to furnish operating record. (1)
The department shall upon request furnish any person an abstract
of the operating record of any person. The abstract shall be
certified if certification is requested. Such abstract is not
admissible in evidence in any action for damages or criminal
proceeding arising out of a motor vehicle accident.
IT IS ORDERED that notice of this amendment of Wis. Stat.
section 343.24(1) be given by a single publication of a
copy of this order in the official state newspaper and in an
official publication of the State Bar of Wisconsin.
Dated at Madison, Wis., this 5th day of October, 1999.
By the court:
Marilyn L. Graves,
Clerk of Court
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