Wisconsin's New Lawyer Regulation System

Reviewing Wisconsin's Lawyer Regulation System

On April 28, 1999, the Wisconsin Supreme Court issued order No. 99-03, announcing its determination to initiate a comprehensive review of the structure of the lawyer regulation system in Wisconsin. As part of its review, the court requested that the American Bar Association's Standing Committee on Professional Discipline evaluate the Wisconsin system of lawyer regulation and report its findings and recommendations to it. The ABA visited Madison from July 6 - 9, 1999.

The ABA's Standing Committee on Professional Discipline released a Preliminary Draft of the Report on the Wisconsin Lawyer Disciplinary System, received by the court on Sept. 8, 1999. On Sept. 14, 1999, the court held a public hearing on the structure of the lawyer regulation system to address the system's current structure and to receive suggestions on how the system could be restructured to better serve those it regulates, the legal system, and the public. Invited to speak on the issue of structure were the deans of the U.W. and Marquette University law schools, or their designees, and a representative of the ABA Center for Professional Responsibility. The court also invited other persons and organizations having interest and experience in the matter to appear. The court received the ABA's final Wisconsin Report (in PDF format) on the Lawyer Regulation System on Nov. 1, 1999.

The ABA Standing Committee's report included 20 recommendations. Chief among the recommendations were that the court's control and oversight of the Wisconsin lawyer discipline system should be emphasized, the structure and duties of the Board of Attorneys Professional Responsibility (BAPR) should be revised, and the role and responsibilities of the administrator's office should be revised and clarified.

On Oct. 1, 1999, the court issued an Order Requesting Further Comment on Structure of Lawyer Discipline System. The court sought comment on 13 questions regarding the structure of a lawyer regulatory system, some of which included: whether the investigation function should be carried out by central staff alone or with the addition of decentralized bodies; which person or entity should be responsible for directing the prosecution of a disciplinary proceeding; whether the person or entity determining to seek discipline should be the one who will prosecute it, akin to a district attorney, or a neutral adjudicator, akin to a preliminary hearing magistrate; who should perform the administrative oversight of the system; and what are the appropriate composition and proportion - lawyer and nonlawyer - of each entity within the system. Comments were to be received on or before Jan. 4, 2000.

On Jan. 21 - 22, 2000, the court took the next step toward reorganizing the lawyer regulatory system in Wisconsin. The role of the BAPR administrator was changed and the role and function of the current BAPR was divided between two new committees, a "cause to proceed body" and an administrative oversight committee. In addition, the court decided that the role of referees within the system would be expanded to include issuing consensual public and private reprimands, presiding over reinstatement hearings, and reviewing lack of cause to proceed findings, upon the application of the grievant. Identified as issues to be decided were: the number of district committees, number of members on each committee, whether the standard before the "cause to proceed body" should be probable cause or clear and convincing evidence, and who should collect the BAPR assessment. The court decided that: the court would appoint all participants within the system; central intake and diversion from discipline programs would be the subject of a public hearing in the fall (set for Sept. 12); and district professional responsibility committees would be the subject of a review by the administrative oversight committee.

Based on the determinations made on Jan. 20 - 21, Court Commissioner William Mann was assigned the task of drafting revisions to SCR Chapters 21 and 22 consistent with the court's actions. In March 2000, the court released Commissioner Mann's initial drafts of Chapters 21 and 22 (the "rules") for review and comment. On May 22, 2000, the court created a new lawyer discipline system to replace the Board of Attorneys Professional Responsibility.

A committee on style composed of Chief Justice Shirley S. Abrahamson, Justice David T. Prosser, Interim Administrator James L. Martin, State Bar Structure Committee Co-chair Burneatta Bridge, and Court Commissioner William Mann reviewed the rules and made specific changes. The final version of the rules will be presented to the court in early September. In May, the court voted that it would accept written comment on the rules after they went into effect and that it would schedule a public hearing on the rules after they had been in effect for about six months.

Wisconsin Lawyer