Vol. 73, No. 7, July 2000

Supreme Court Orders

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II. A Rule Should Be Created That States Who Can Initiate A Grievance And What Options Are Available To Staff At The Intake Stage.

It is suggested that a rule be created that is similar to the following:

Request for Investigation

(a) Commencement. Proceedings as provided in these Rules shall be commenced:

(1) Upon request for investigation made by any person and directed to the Director; or

(2) Upon a report made by a judge of any court of record of this state and directed to the Director, as provided in SCR 60.04(3)(b); or

(3) By the Director based on an articulated cause for concern about the lawyer's conduct.

(b) Screening. Immediately upon receipt of a request for investigation or a report made by a judge, as provided in subsection (a) of this Rule, the matter shall be referred to the Director to determine:

(1) If the attorney in question is subject to the disciplinary jurisdiction of the Supreme Court;

(2) If there is an allegation made against the attorney in question which, if proved, would constitute misconduct; and

(3) If the matter should be investigated as provided by SCR ____ or addressed by means of diversion from discipline as provided by SCR _____.

The Director's decision as to whether a matter should be referred to the investigative unit for further investigation or addressed by means of diversion from discipline shall be final, and the grievant shall have no right of review.

Commentary: This rule is modeled after Colorado's Rule 251.9. This rule states how requests for investigation may be made, the options available during the intake/screening process and makes clear that the Director's decision to investigate or divert the grievance is not subject to a request for review by the grievant.

III. A Rule Should Be Adopted Clarifying When A Grievant Can Request Review Of The Director's Determination.

Determination by the Director

At the intake stage, during the investigation, or at the conclusion thereof, the Director may determine that the matter should be referred to the diversion from discipline program as provided in SCR ______.

At the conclusion of the investigation of a matter that has not been diverted, the Director shall either dismiss the allegations or report the matter to the Probable Cause Body as provided in SCR _______. If the Director dismisses the allegations as provided herein, the person making the allegations against the attorney in question may request review of the Director's decision. If review is requested, the Probable Cause Body, or a subcommittee of said Body, shall review the matter and make a determination as provided in SCR _____; provided, however, that the Body shall sustain the dismissal unless it determines that the Director's determination constituted an abuse of discretion. The Body or subcommittee shall furnish the grievant and the lawyer with a written statement of its determination.

Commentary: This section further clarifies when a determination of the Director can be reviewed. As proposed above, a grievant shall have no right of review of the Director's decision not to investigate an inquiry. This proposed section makes it clear that review can be had only after the Director has decided to investigate a matter and, after the investigation, has determined to dismiss the grievance. In addition, this section establishes the standard against which a decision by the Director should be reviewed.

IV. Amend The Supreme Court Rules To Provide For Diversion From Discipline. Such A Program Should Read As Follows:

DIVERSION FROM DISCIPLINE

(a) Referral to Program. The Director may offer an attorney entry into the diversion from discipline program. The diversion from discipline program may include, but is not limited to, diversion to other programs such as mediation, fee arbitration, law office management assistance, evaluation and treatment through the lawyer assistance program, evaluation and treatment for alcohol and/or substance abuse, psychological evaluation and treatment, medical evaluation and treatment, monitoring of the attorney's practice or trust account procedures, continuing legal education, ethics school, the multistate professional responsibility examination, or any other program authorized by the Court.

(b) Participation in the Program. An attorney may participate in an approved diversion program in cases where there is little likelihood that the attorney will harm the public during the period of participation, where the Director can adequately supervise the conditions of diversion, and where participation in the program is likely to benefit the attorney and accomplish the goals of the program. A matter generally will not be diverted under this Rule when:

(1) The presumptive form of discipline in the matter is likely to be greater than a private reprimand;

(2) The misconduct involves misappropriation of funds or property of a client or a third party;

(3) The misconduct involves a serious crime as defined by SCR 20.20(2);

(4) The misconduct involves family violence;

(5) The misconduct resulted in or is likely to result in actual injury (loss of money, legal rights, or valuable property rights) to a client or other person, unless restitution is made a condition of diversion;

(6) The attorney has been publicly disciplined within the preceding three years;

(7) The matter is of the same nature as misconduct for which the attorney has been disciplined within the preceding five years;

(8) The misconduct involves dishonesty, fraud, deceit, or misrepresentation; or

(9) The misconduct involves prohibited sexual relations under these Rules;

(10) The alleged misconduct is the same as that for which the attorney has previously been the subject of a diversion; or

(11) The misconduct is part of a pattern of similar misconduct.

(c) Diversion Agreement. If an attorney agrees to an offer of diversion as provided by this rule, the terms of the diversion shall be set forth in a written agreement. The agreement shall specify the program(s) to which the attorney shall be diverted, the general purpose of the diversion, the manner in which compliance is to be monitored, and any requirement for payment of restitution or costs. (1) If the diversion agreement is entered into prior to a report to the Probable Cause Body, pursuant to SCR ______, the agreement shall be between the attorney and the Director. (2) If a diversion agreement is offered and entered into after a report to the Probable Cause Body, pursuant to SCR ______, the diversion agreement between the attorney and the Director shall be submitted to the Probable Cause Body for approval. If the Probable Cause Body rejects the diversion agreement, the matter shall proceed as otherwise provided by these Rules. (3) If a diversion agreement is offered and entered into after a Complaint has been filed pursuant to SCR ______, the diversion agreement shall be submitted to the Referee for approval. If the diversion agreement is rejected, the matter shall proceed as provided by these Rules.

(d) Costs of the Diversion. The attorney shall pay all the costs incurred in connection with participation in any diversion program.

(e) Effect of Diversion. When the diversion agreement becomes final, the attorney shall enter into the diversion program(s) and complete the requirements thereof. Upon the attorney's entry into the diversion program(s), the underlying matter shall be held in abeyance, indicating diversion. Diversion shall not constitute a form of discipline.

(f) Effect of Successful Completion of the Diversion Program. If a diversion agreement is entered prior to a report to the Probable Cause Body, pursuant to SCR ______, and if the Director determines that the attorney has successfully completed all requirements of the diversion program, the Director shall close the file. If diversion is successfully completed in a matter that was determined to warrant investigation or other proceedings pursuant to these Rules, the matter shall be dismissed and expunged pursuant to SCR ______. After the file is expunged, the attorney may respond to any general inquiry as provided in SCR ______.

(g) Breach of Diversion Agreement. The determination of a breach of a diversion agreement will be as follows:

(1) If the Director has reason to believe that the attorney has breached a diversion agreement, and the diversion agreement was entered into prior to a report to the Probable Cause Body, pursuant to SCR _____, and after the attorney has had an opportunity to respond, the Director may elect to modify the diversion agreement or terminate the diversion agreement and proceed with the matter as provided by these Rules.

(2) If the Director has reason to believe that the attorney has breached a diversion agreement entered into after a report to the Probable Cause Body has been made, the Director shall give written notice of the facts establishing the breach to the attorney and to the Probable Cause Body or Referee, whichever approved the diversion agreement. The attorney shall have 20 days to respond in writing. The Director will have the burden, by a preponderance of the evidence, to establish the materiality of the breach, and the attorney will have the burden, by a preponderance of the evidence, to establish justification for the breach. If, after consideration of the information presented by the Director and the attorney's response, if any, it is determined that the breach was material and without justification, the agreement will be terminated and the matter will proceed as provided for by these rules. If a breach is established but determined to be not material or to be with justification, the diversion agreement may be modified in light of the breach. If no breach is found, the matter shall proceed pursuant to the terms of the original diversion agreement.

(3) If the alleged breach has been referred for determination to the Probable Cause Body or the Referee as provided for in section (g)(2) of this rule, upon motion of either party, a Referee shall hold a hearing on the matter. Upon conclusion of the hearing, the Referee shall prepare written findings of fact and conclusions and enter an appropriate order in those matters in which the Referee originally approved the diversion agreement.

(h) Effect of Rejection of Recommendation for Diversion. If an attorney rejects a diversion recommendation, the matter shall proceed as otherwise provided in these Rules.

(i) Confidentiality. The Office of Lawyer Regulation shall keep all the files and records resulting from the diversion of a matter confidential except by order of the Supreme Court.
Information regarding misconduct which is disclosed by the attorney to a treatment provider while in a diversion program need not be disclosed to the Office of Lawyer Regulation, if the misconduct occurred before the attorney's entry into a diversion program.

Commentary: We propose that the Director be permitted to enter into a confidential diversion from discipline agreement at any stage of the disciplinary process so long as the conduct of the attorney constitutes "lesser misconduct."³ See Model Rule 9.B. However, this comment focuses on suggested diversion agreements that could be executed at the intake stage.

Educational and remedial purposes. The kinds of conduct we envision will result in diversion agreements at the intake stage will usually be of the sort that would result in advice as to conduct or a dismissal with a caution in our present system. In keeping with the expected expedited pace of the intake process, the agreement need not be predicated on clear and convincing evidence of misconduct. The intake diversion typically recites that "the purpose of this diversion agreement is to educate the attorney and to assure that this type of conduct does not occur in the future." Further, the agreement will state the facts giving rise to the need for the education of the attorney and set forth the terms on which the Director agrees to divert the matter from additional investigation.

Ethics School. Almost without exception, we propose that our intake diversions require the attorney to attend a day-long Ethics School which will be taught by staff from the office of the Director. The school will be offered at least quarterly and most likely alternate between Madison and Milwaukee. There will be a tuition fee and the participants will be required to pass an examination at the end of the day. Participants will not receive CLE credit for successful completion of the Ethics School.

Other remedial conditions. Beyond the Ethics School requirement, the terms of any given diversion agreement will be designed to meet the particular problems of the attorney. A lawyer who has a problem with his/her temper and has exhibited aggressive behavior may be required to undergo an assessment by a counselor and be required to attend a course on anger management. A lawyer convicted of a second operating a vehicle while intoxicated might be required to undergo an assessment and consent to conditions that will monitor his/her use of alcohol and other drugs. A lawyer who has failed to keep a client informed about the status of a case may be required to write a status letter within a certain time period. A lawyer who has missed a deadline or a hearing due to poor calendaring practices might be required to pay for an audit of his or her law office procedures and to be monitored for a period of time. A lawyer who has demonstrated a lack of competence in a particular area of the law may be required to complete a certain number of CLE credits in that area.

V. Adopt A Rule On Expunction Of Records To Read As Follows:

(a) Expunction - Self-Executing. Except for records relating to proceedings that have resulted in discipline, all records relating to proceedings conducted pursuant to these Rules, which proceedings were closed without investigation or dismissed, shall be expunged from the files of the Office of Lawyer Regulation and Director three years after the end of the year in which disposition occurred.

(b) Definition. The term "expunge" and "expunction" shall mean the destruction of all paper records or other evidence of a similar type, including but not limited to, the request for investigation, the response, Investigator's notes, and the report of investigation. Electronic records may be retained for up to ten (10) years.

(c) Effect of Expunction. After expunction, the proceedings shall be deemed never to have occurred. Upon either general or specific inquiry concerning the existence of proceedings which have been expunged, the Director shall respond by stating that no record of the proceedings exist. The attorney in question may properly respond to any general inquiry requiring reference to a specific proceeding which has been expunged by stating only that the proceeding was dismissed and that the record of the proceeding was expunged pursuant to this Rule. After a response as provided in this Rule is given to an inquirer, no further response to an inquiry into the nature or scope of the proceedings, which have been expunged need be made.

(e) Retention of Records. Upon written application to the Board of Administrative Oversight, for good cause and with written notice to the attorney in question and opportunity to such attorney to be heard, the Director may request that records which would otherwise be expunged under this Rule be retained for such additional period of time not to exceed three years as the board deems appropriate. The Director may seek further extensions of the period for which retention of the records is authorized whenever a previous application has been granted.

Commentary: This rule is modeled after Model Rule 4.B.(12) and Colorado Rule 251.33. We believe Wisconsin should have such a rule. We propose that paper records of inquiries and grievances be maintained a minimum of three years and the computer records of all inquiries and grievances be preserved for up to ten years and be capable of being printed out should a question arise about the handling of a particular matter.

VI. Central Intake To Have An Evaluation Component.

Consistency and accountability. To assure overall consistency in the intake process, using the software we've obtained from Colorado, the Director will have the ability to monitor the electronic intake files at frequent intervals from her/his personal computer, and we propose that she/he meet with the intake staff regularly. In that way, the Director should be well-prepared to field the occasional angry call from a dissatisfied grievant or attorney. Because the Director is responsible for full investigations, as well as intake, he/she is also able to monitor the consistency with which matters are handled at the intake stage as compared with those referred for further investigation.

Program evaluation. The Director will provide monthly to quarterly statistical reports to the Board of Administrative Oversight and/or the Supreme Court on the number, nature, age and disposition of inquiries and grievances. In addition, the Director may be able to provide the Board of Administrative Oversight with sanitized diversion agreement summaries that will be useful in monitoring the use of same.

Finally, real consideration will be given to soliciting consumer/grievant and lawyer input through the use of surveys and other mechanisms to determine: whether the central intake program is meeting its goals of providing a fast, efficient method of handling consumer inquiries and grievances about lawyer services, and providing attorneys with effective remedial alternatives to discipline.

Conclusion

A central intake program, as discussed above, has the potential to make the lawyer regulation process more accessible to the general public; quickly address inquiries and, where possible, resolve them; offer lawyers who have had minor practice problems alternatives designed to enhance the quality of their services; and promptly refer for full investigation those matters that may involve serious misconduct.

The rules that are proposed are designed to clarify the Director's authority, clearly articulate the commencement of the investigation and screening process, the determinations to be made by the Director; and the review rights of the participants in the system. Further, the diversion from discipline program is set forth in great detail so that those who are referred to the program will be advised of their responsibilities and the procedures should there be a material breach of a diversion agreement.

Last, the above proposal offers a rule on expunction of records, guidance to lawyers on how they can respond regarding inquiries and grievances closed or dismissed and establishes a framework for an evaluation component for the central intake function.

Therefore, the undersigned files this petition on behalf of the Committee on the Formulation of a Central Intake Program and himself as Interim Administrator and prays for an Order accordingly.

Submitted this 31st day of March, 2000.

Committee on the Formulation of a Central Intake Program

By: James L. Martin
Interim Administrator
Board of Attorneys
Professional Responsibility

Endnotes

¹ Within this document we have attempted to use the terms as proposed in the new rules relating to the lawyer discipline system. Office of Lawyer Regulation replaces the Board of Attorneys Professional Responsibility and director replaces administrator. We have also used the terms "Probable Cause Body" and "Board of Administrative Oversight" as we believe these may be the names of the two committees denoted in the supreme court's reorganization plan.

² The attached budget has been previously submitted to the court and the State Bar as an estimate of the cost of a central intake program. Colorado's central intake program was the model. We are proposing to modify the position descriptions to three intake investigators and two program assistants to better reflect our estimate of the division of responsibilities necessary to perform the duties of the unit.

³ Lesser Misconduct. Lesser misconduct is conduct that does not warrant a sanction greater than a private reprimand. Conduct shall not be considered lesser misconduct if any of the following considerations apply:

1. the misconduct involves the misappropriation of funds;

2. the misconduct constitutes a "serious crime" as defined in SCR 11.03(2);

3. the misconduct constitutes family violence;

4. the misconduct results in or is likely to result in substantial prejudice to a client or other person;

5. the respondent has been publicly disciplined in the last three years;

6. the misconduct is of the same nature as misconduct for which the respondent has been disciplined in the last five years;

7. the misconduct involves dishonesty, fraud, deceit, or misrepresentation by the respondent;

8. the misconduct involves sexual relations prohibited in SCR 20:1.8(k)(2); or

9. the misconduct is part of a pattern of similar misconduct.