Regulating the Legal Profession: BAPR Annual Report

In fiscal 1999, BAPR handled 1,923 grievances; studied the effectiveness of professional responsibility committees; and educated attorneys to avoid professional misconduct. During the year, the supreme court initiated a comprehensive review of Wisconsin's lawyer disciplinary system, including BAPR's structure. That review continues.

by Sharren B. Rose & James L. Martin

he Board of Attorneys Professional Responsibility (BAPR or the board) files annually with the Wisconsin Supreme Court a report of its activities during the preceding year to permit the court, the bar, and the public to evaluate its performance.¹ This report is the first in 16 years that hasn't been, in part, authored by Gerald C. Sternberg. Sternberg served as administrator of BAPR for almost 16 years. He resigned as administrator effective Nov. 13, 1998.

Sternberg began his service to the supreme court in March 1983. At the time, BAPR consisted of eight employees in Madison and five in Milwaukee. The 1982-83 fiscal budget was $494,700; there were 13,300 members of the State Bar of Wisconsin; the assessment on State Bar members was $48.50; and 1,098 grievances were filed against Wisconsin lawyers.

At Sternberg's departure, BAPR's staff consisted of 12 employees in Madison and 10 in Milwaukee. The fiscal 1998-99 budget was $1,463,450; the assessment on Wisconsin-licensed attorneys was $78.25; there were 19,984 members of the State Bar; and 1,423 grievances were filed against Wisconsin lawyers.

Sternberg leaves behind a legacy of solid accomplishments directing the agency that oversees Wisconsin's lawyer disciplinary system. We are enriched by his service to the court and we wish him well in his new endeavor.

Board Composition

BAPR is composed of eight lawyers and four public members selected by the Wisconsin Supreme Court to serve an initial three-year term, followed by one successive three-year term. The State Bar president-elect serves as a nonvoting member of the board. All board members serve without compensation, but may be reimbursed for travel expenses. Approximately every six weeks, the board meets in open session on policy matters and in closed session on disciplinary matters. (Brief biographies of fiscal 1999 board members are shown in Figure 1.)

Brief Review

The supreme court has assigned to BAPR and its administrator the responsibility for investigating grievances involving possible attorney misconduct or medical incapacity. Investigations are conducted without regard to the manner in which the matter comes to the board.² After an investigation, BAPR determines whether a lawyer's alleged misconduct or medical incapacity should be the basis for a complaint or petition to the supreme court seeking public discipline, medical suspension, or conditions on a law license. BAPR also has the authority to impose a public or private reprimand, with the consent of the respondent attorney, or to dismiss the grievance.³

The administrator is accountable to the board for handling all grievances, medical incapacity inquiries, and reinstatement investigations.⁴

The 16 district professional responsibility committees, composed of lawyers and public members and appointed by the State Bar president, are an integral part of the board's investigative program.⁵ Pursuant to SCR 21.02 and 22.05, the administrator supervises the professional responsibility committees. The use of the committees ensures local input into the grievance process and provides both complainants and respondents with a convenient, economical means of peer review. The board and its administrator publicly express appreciation for the dedicated work of the 245 volunteer committee members whose substantial hours of investigation and deliberation are essential to the board's work.

In fiscal 1998-99, the State Bar's BAPR Study Committee worked with BAPR to survey the chairs of the professional responsibility committees to ascertain how the committee component of the process is working. One such survey was made available as of Sept. 10, 1998. The board discussed the Study Committee's findings with the district chairs in January 1999 and will continue its cooperative efforts with the BAPR Study Committee in the coming year.

As seen in Figure 2, the two areas of practice producing the most grievances in fiscal 1998-99 were criminal law and family law. The allegations most commonly filed are lack of diligence by the lawyer entrusted with the legal matter and lack of communication with the client. While clients file the majority of grievances, grievances can be filed by anyone. (See Figure 2.)

In fiscal 1998-99, BAPR handled 1,923 grievances (500 were pending from the previous fiscal year and 1,423 were new matters received during fiscal 1998-99). BAPR closed 1,302 matters in an average time of 161 days as compared to 148 in 1997-98. As of June 30, 1999, BAPR had 621 pending investigations. BAPR continued to work to develop a record of consistent and timely dispositions in its investigations and the formal cases it filed. Clearing the calendar continues to be the goal.

In addition to investigating and prosecuting cases, BAPR participated in educational efforts to help attorneys avoid professional misconduct. Board members and staff participated in several ethics programs for lawyers given statewide, and analyzed ethics vignettes presented by the State Bar.

To raise public awareness of its various functions, BAPR plans to increase its outreach activities to civic organizations. In another effort to educate the public about BAPR's activity and responsibility, a Web site has been developed for BAPR that can be reached from the supreme court home page.

Recent Developments

Of particular significance to BAPR's operation are the court's amendments to the trust account rule that occurred as a result of a joint petition of the State Bar and the board. The amendments, which the court adopted on June 4, 1998 and became effective on Jan. 1, 1999, do four things:

1. create an overdraft program that requires financial institutions to send a copy of all trust account overdraft notices to BAPR;
2. expand SCR 20:1.15 to treat all funds held in a fiduciary capacity by a lawyer as trust funds, making them subject to overdraft notification;
3. fine-tune SCR 20:1.15 to clarify that the lawyer can invest trust funds in income-generating investments if the client or the court that has jurisdiction approves; and
4. include within its coverage investment institutions, such as brokerage houses.

Commencing on Feb. 8, 1999, all Wisconsin law firms were required to register their trust account(s) with BAPR. Approximately 3,600 trust account overdraft agreements were mailed to Wisconsin law firms. As of June 30, 1999, 45 overdraft notices had been received for processing/investigation.

The disciplinary case compendium, a joint project of BAPR and the State Bar, continues to be a work in progress and should be available in year 2000. In addition, in conjunction with the annual district chairs meeting and new district committee training, three district committee reference manuals were updated and distributed to all 245 professional responsibility committee members. The manuals are Guidelines for District Professional Responsibility Committees, Training for New District Committee Members, and Decision Guidelines.

In formal cases, the supreme court decided a variety of public disciplinary actions in fiscal 1998-99. Revocations were imposed in three cases involving misappropriation of client funds: Disciplinary Proceedings Against Johnson,⁶ Disciplinary Proceedings Against Pederson,⁷ and Disciplinary Proceedings Against Martinez.⁸

Figure 3 shows the rule violations the supreme court determined in fiscal 1998-99. The rule violations most frequently found in public discipline cases were lack of diligence, lack of communication, dishonesty or misrepresentation, and failure to cooperate.

BAPR continues to use staff litigation counsel William Weigel of Madison, half-time contract counsel Robert Krohn of Edgerton, and quarter-time contract counsel Eugene Radcliffe of Black River Falls, to handle the majority of formal disciplinary cases. The supreme court permits BAPR to retain outside counsel on a case-by-case, hourly basis to represent the board in disciplinary proceedings. In the past fiscal year, no new cases were assigned to outside counsel. However, outside counsel are retained on the basis of the type of misconduct alleged, the case complexity, or the respondent attorney and witness location. The outside counsel who represented BAPR in cases in fiscal 1998-99 are: Thomas J. Basting, Janesville; Marc McCrory, Janesville; and Paul Schwarzenbart, Madison.

In addition to reviewing disciplinary cases this year, board members have taken on specific committee assignments. The following assignments give a perspective on the breadth of issues facing lawyer regulation and the commitments of the volunteer board members.

Administrative Committee: Chair - Sharren Rose; Art Egbert, Jon Axelrod, William Koslo, and Gerald O'Brien.

Reconsideration Committee: Sharren Rose, Art Egbert, and Jim Martin.

Joint Trust Account Committee: Sharren Rose, Art Egbert, Bill Fale, Bill Koslo, and Jim Martin.

District Committee Guideline Review Committee: Chair - Jerry O'Brien; Bill Fale, Bonnie Schwid, and Jim Martin.

Subcommittee on Disabilities: Chair - Jim Martin; Bill Fale, Sharren Rose, Shell Goar (WisLAP), and Susan Van Schaik (WisLAP).

Subcommittee on Self-Study and Reachout: Chair - Bill Koslo; Art Egbert.

Case Compendium Committee: Sharren Rose, Elsa Greene, Barbara Neider, and Carolyn Butler.

BAPR staff has had an active liaison with the State Bar's WisLAP Committee (Wisconsin Lawyer Assistance Program). WisLAP provides education and comprehensive assistance to Wisconsin lawyers who may be impaired for various reasons, including chemical dependency or emotional problems. In connection with several discipline cases or reinstatements, BAPR has recommended license conditions that address an attorney's impairment, chemical dependency, or mental health.

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.

Wisconsin Lawyer