Vol. 72, No. 12, December 1999

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.

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