Rebuilding Client Trust

by George C. Brown,
State Bar executive director

TRUST IS AN IMPORTANT WORD TO LAWYERS. WE SEE manifestations of it in terms from "trust account" and "trustee" to "confidentiality" and beyond. Lawyers want, in fact need, their clients to trust them and clients want and need to trust their attorney. The system breaks down without it.

So what happens when that trust is broken? One avenue, of course, is through the lawyer discipline system, the Office of Lawyer Regulation (OLR). While that avenue can lead to punishing the lawyer who wronged a client, it provides only some modicum of satisfaction to the client who was harmed. Where does that leave the client who suffered a loss?

If the problem is lawyer theft, one answer is the Client Security Fund. Every year when you pay your State Bar dues and Wisconsin Supreme Court assessments, one of those assessments is for the Client Security Fund. The current maximum assessment is $15 per lawyer. All lawyers must pay into the fund, including government and in-house attorneys who do not have trust accounts and even emeritus State Bar members who pay no other dues or assessments.

The Client Security Fund is a fund of last resort. It provides payments to victims of lawyer theft who have no other recourse, such as malpractice insurance. The maximum payout per claim is $75,000 and there is no limit to the maximum payout per attorney.

According to an August 2000 National Law Journal study of data through 1998, Wisconsin is tied with the District of Columbia as providing the eighth highest in the nation level of payout to victims. Several of those states that provide higher payout levels cap the total amount awarded per attorney. Many states pay out far less, one as low as $5,000 per claim with an attorney maximum of $20,000.

Wisconsin's Experience. Since 1991, the Client Security Fund Committee, which reviews claims and manages the fund under Chapter 12 of the Supreme Court Rules, has paid out $1,557,137.20 to 281 claimants from 419 claims submitted. In the last two fiscal years, two claims totaling in excess of $155,000 were approved but deferred for payment in the following fiscal years because the fund had run out of money. Of the total $1.56 million paid out, $805,939.97, or 52 percent, was paid out in 1999, 2000, and 2001. Those same three years cover only 40 percent of all claimants considered and 45 percent of all claims paid. The bottom line is that there were only a few bad apple attorneys, but they generated very high claims.

Wisconsin's Client Security Fund provides restitution. But it does more. It demonstrates to the victims that Wisconsin lawyers believe that all lawyers are responsible for helping to rebuild the trust that is lost when one of their own breaks the trust that is essential to our justice system. In other words, Wisconsin lawyers put their money where their mouth is.

Wisconsin Lawyer