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Vol. 72, No. 6, June 1999

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Parting Thoughts:
An Interview with Jerry Sternberg

"One of the most important things for lawyers to do from the get-go when they meet with clients," Sternberg adds, "is to say, 'This is the way I charge.' Bite the bullet; don't put it off. Because if you suddenly hit clients with a big bill, they're angry and file a grievance. Also, show what you did. It's aggravating to get a bill that says 'worked on the file.' That doesn't mean anything to the client. Be specific. There are so many commonsense ways to avoid grievances and to make your clients more satisfied. Those go hand in hand."

Leaving a legacy

What overall impression does Sternberg hope he's left behind? "The thing I'm proudest of is the fact that people were treated evenhandedly and extremely fairly," he responds. "In tandem with that goal, I also tried to run the agency with the utmost integrity. We were straightforward; we took our lumps when we had to. If we did something wrong, we explained we made a mistake. That's the way I see my legacy with the agency."

He also worked hard over the years to get quicker dispositions on cases, which is better for all involved, Sternberg notes. "People's memories are better; the outcomes are more meaningful to them," he says. "So quicker dispositions were a priority, but that had to be consistent with the seriousness of the case and with fairness."

He'd also like to be remembered as an administrator who took great care to preserve confidentiality while grievance investigations were pending and in cases that resulted in dismissals. "During my administration," he says, "I don't remember anybody ever saying that we leaked something to the media. I worked hard to make sure that we honored the public records requests, which we had to under public records law. But at the same time, on the cases that were confidential - those that had no merit and were dismissed, or the minor ones that resulted in private reprimands - people didn't get to know about them."

Sternberg also cites specific accomplishments during his tenure of which he's proud. One was working several years ago with a State Bar committee chaired by Dan Hildebrand to consider adopting the ABA Model Rules, including trust account rules. What had been two separate trust account rules were consolidated into one, and the language made clearer to spell out exactly what lawyers must do when acting as fiduciaries for clients. "The committee saw it as necessary to protect the public, and to make sure the lawyer had substantiation for what he or she was doing," Sternberg says. "So it was a two-way win."

More key changes to the trust account rule took shape in 1998 through the work of a joint BAPR/State Bar committee chaired by Dan Shneidman. Lawyers now can invest trust account monies in places such as investment institutions, enabling a higher rate of return. The rule now covers estate accounts, as well as trust accounts. It also sets up a system for overdraft notification, in effect as of Jan. 1, 1999. If a check on the account bounces, the bank notifies the lawyer and BAPR. Motivations for this change were to spot recordkeeping problems earlier and to nab thieves sooner. "What we found in prosecuting some misappropriation cases," Sternberg explains, "was that there had been numerous bounced checks on some of those accounts for two years. If we'd known earlier, we could have protected the public better."

In addition, Sternberg pushed for a new rule prohibiting sexual contact between lawyers and their clients. The rule results in education about and deterrence against inappropriate contact, Sternberg says, and clarifies how the public is protected.

Victim restitution for attorney misconduct, whether due to misappropriations or excessive fees, is another area Sternberg pursued vigorously, as was recouping prosecution costs from disciplined lawyers. The latter helped attain another goal: keeping a lid on the BAPR assessment paid by Wisconsin attorneys. Because of recouped prosecution costs and administrative cost cutting, "we've kept the assessment at between $70 and $85 (per attorney) for several years," Sternberg says.

As for future recommendations, Sternberg would like to see BAPR once again undergo an evaluation by the ABA's Center for Professional Responsibility, as was last done in 1986. "It's an independent point of view," Sternberg says. "It's objective, and I think it would be a good idea to do it again. You always have to look at ways to make things better."

Upon cross-examination

If any Wisconsin lawyer could sit down with Sternberg and pose any question he or she has always wanted to ask, what might some of those questions be? Sternberg surmises one on many lawyers' minds is: Why does BAPR prosecute small-firm attorneys and sole practitioners more than it does large-firm attorneys?

Sternberg says BAPR has never targeted solos or small-firm practitioners to watch for transgressions. Misconduct is misconduct; the size of the errant lawyer's firm is irrelevant. That said, Sternberg does feel that solos and small-firm lawyers are more vulnerable to grievances, largely due to their lack of backup support. They don't have an in-house ethics advisor, as some large firms do. They may have insufficient personnel to handle bookkeeping, such as trust account records. They lack adequate staff support to help take care of client call-backs and other daily routines. These factors add up to prime conditions for potential grievances: faulty trust account records, ethical missteps, disgruntled clients who feel they're being ignored, and so on.

Sternberg addressed those pitfalls at the State Bar's "Tools for the 21st Century: 1998 Midwest Small-Firm Success Conference" last May, just as he's discussed them with lawyers in other seminars over the years. "What I was trying to do in that speech was make it an even playing field," Sternberg says. "I was trying to give them all the tips that I thought the larger firms use." For example, have a tickler file to aid your memory. Call people back the same day they call you. "Because, number one, it shows you care," Sternberg points out, "and number two, you're very unlikely to get a grievance if you call clients back the same day. It just shows respect."

Two other questions lawyers might want to ask him, Sternberg says, include: Why doesn't BAPR prosecute government lawyers? And why are matters prosecuted that seem to be no more than errors of judgment? As for the first, "Not true," Sternberg states. "I've prosecuted a number of cases against government lawyers." In fact, he notes, he's gotten several calls from other jurisdictions that have never prosecuted prosecutors, asking him for advice on how to proceed.

As for the second question, Sternberg stresses that simple mistakes by a lawyer resulting in minor problems generally are not prosecuted. Prosecution enters in, "when lawyers let something go for a prolonged period of time," he says. "The common excuse is 'the press of other business got to me.' But if, for example, you don't call the personal representative in an estate for two years, which I've seen in some cases, that's neglect. That's not adequate representation. It shows you're not taking care of business."

"Something like that has to be dealt with," he adds, "so it doesn't happen again. And usually if it's one mistake, it would result in a private reprimand - unless it's compounded by a lie."

From members of the general public might come an entirely different question, or accusation, regarding BAPR, namely: Aren't all you lawyers just watching out for yourselves? To that Sternberg responds a resounding, "No." I think anyone who had contact with us over some period of time got to know we were not there to protect lawyers who committed misconduct. We were there to do an objective job, to find out what happened, and to take fair and appropriate action."

Too lenient with lawyers? Too aggressive in prosecuting attorneys who make mistakes? The claims and counterclaims always hover, as they do for any agency delegated with the kinds of responsibilities BAPR has. "You can never please everybody," Sternberg says philosophically. "You have to have the guts to do the job, notwithstanding the fact that not everybody loves you."

That brings us to one final question that may be on the minds of many people. Why is Sternberg leaving BAPR after all these years? As of Jan. 4, he began working as legal counsel for the Wisconsin Department of Health and Family Services, where he'll prosecute nursing home abuse cases. When he was offered the position last October, he mulled over the decision for several days before deciding the time was ripe for a change. "But I had very mixed feelings about leaving," Sternberg says. "I deeply loved the agency and the people with whom I was associated. So it wasn't an easy decision. Not at all."

Dianne Molvig operates Access Information Service, a Madison research, writing, and editing service. She is a frequent contributor to area publications.