Vol. 72, No. 12, December 1999

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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.