OLR
Annual Report
Fiscal Year 2000-2001
Regulating the Legal Profession
The new lawyer regulation system became effective on
Oct. 1, 2000. This first report from the Office of Lawyer Regulation
looks at the disposition of grievances against lawyers from July 1, 2000
to June 30, 2001, and presents an overview of the OLR's structure and
responsibilities.
by the Board of Administrative Oversight & Office of Lawyer
Regulation
The Office of Lawyer Regulation (OLR) and Board of Administrative
Oversight (board) files annually with the Wisconsin Supreme Court a
report of their activities during the preceding year to permit the
court, the bar, and the public to evaluate their performance. This is
the first report filed under the new lawyer regulation system, which
became effective on Oct. 1, 2000. The new organizations are formed and
functioning. The new central intake and alternatives to discipline
programs have been established and are working well.
Lawyer Regulation System Overview
The Wisconsin Supreme Court created the lawyer regulation system to
carry out the court's constitutional responsibility to supervise the
practice of law and protect the public from misconduct by persons
practicing law in Wisconsin. The court has adopted standards of
professional conduct for attorneys. The court confers the privilege to
practice law on an attorney conditioned on his or her compliance with
those standards.1 A failure to comply with the court's
standards may constitute misconduct or may be evidence of a medical
problem.
The OLR director is required to investigate any possible misconduct
or medical incapacity of an attorney licensed to practice in
Wisconsin.2 Communications with the OLR alleging lawyer
misconduct are privileged, and no lawsuit predicated on those
communications may be instituted against any grievant or witness.3 Attorneys and grievants may consult with and be
represented by counsel at any stage of an investigation. Prior to the
filing of a formal complaint or petition, all papers, files,
transcripts, and communications in an OLR investigation must be kept
confidential by the OLR.4 The OLR may, however, provide
relevant information to the respondent and the grievant.5 Although the Supreme Court Rules provide no sanction for
disclosure of a grievance by the respondent or the grievant, the OLR
requests that those involved in an OLR investigation keep confidential
all documents generated by the investigation.
Initially, the OLR staff screens all inquiries and grievances
concerning attorney conduct. If the allegations made are not within the
OLR's jurisdiction, staff will close the file. If the grievant disagrees
with the staff's decision, the grievant may make a written request for
the director's review of the closure. The director's decision is final.
After preliminary evaluation, staff also may forward the matter to
another agency; attempt to reconcile the matter between the grievant and
attorney if the dispute is minor; or refer the matter to the director
for diversion or investigation. Before or after investigation, the
director may divert the matter to an alternatives to discipline program,
providing that nothing more than minor misconduct is involved, the
respondent agrees, and the respondent is eligible to participate.
Alternatives to discipline usually are educational programs or
monitoring arrangements that help an attorney improve the quality of his
or her practice.
If the grievance sets forth sufficient information to support an
allegation of a violation of SCR Chapter 20, the OLR staff may initiate
an investigation. The OLR staff will send a letter to the respondent,
enclosing the grievance and requesting a response within 20 days. In
most instances, staff will forward the attorney's response to the
grievant for comments. When the OLR staff has completed the preliminary
investigation, the director will determine whether: 1) an uncontested
violation exists; 2) the grievance should be dismissed for lack of
merit; 3) further staff investigation is needed; or 4) the matter should
be assigned to a district investigative committee for further
investigation, pursuant to SCR 22.04(1).
If the grievance is further investigated by staff or a district
committee, the respondent and the grievant will be kept advised about
the investigation. The committee chair can assign the matter to one of
the committee's investigators. Pursuant to SCR 22.04(2), the respondent
may request a substitution of a district committee investigator within
14 days of receiving notice of the assignment of the investigator. The
respondent shall be granted one such substitution as a matter of right,
and any other requests for substitution shall be granted by the
committee chair for good cause shown. If the committee decides to take
sworn testimony regarding a grievance at an investigative meeting, the
respondent and the grievant will receive timely notice of the meeting.
In any matter referred to committee, the committee will prepare a report
summarizing the facts and potential disciplinary violations. That report
will be sent to the respondent and grievant for comment.
After the investigation is completed by staff and/or a committee, the
director may dismiss the matter for lack of sufficient evidence of cause
to proceed, divert the matter to an alternatives to discipline program,
obtain the respondent's consent to a private or public reprimand, or
present the matter to the Preliminary Review Committee for a
determination of whether there is cause to proceed. In cases in which
the director dismisses the matter, the grievant has 90 days after
receiving written notice of the dismissal to make a written request for
review of the decision by the Preliminary Review Committee. The decision
of the Preliminary Review Committee is final.
If, after the investigation is completed, the director does not
dismiss the grievance, seek a consent reprimand, or divert the matter,
the OLR staff will prepare an investigative report and provide a copy to
the grievant and the respondent for comment. (In cases in which a
district committee investigates a matter, its report will serve as the
investigative report.) The grievant and the respondent may submit
written responses to the report within 10 days following receipt of the
report.
The director may then submit the results of the investigation to the
Preliminary Review Committee. The committee determines whether the
evidence presented supports a reasonable belief that an attorney has
engaged in misconduct or has a medical incapacity that may be proved by
clear, satisfactory, and convincing evidence.6 If the
committee dismisses the matter, the grievant has 90 days after being
notified of the dismissal to file a written request for review of that
decision. The supreme court will select a referee to review the matter,
and the referee's decision is final.
If the Preliminary Review Committee determines that the director has
established cause to proceed, the director may file a complaint with the
supreme court alleging misconduct. The OLR, rather than the grievant, is
the complainant in such a matter. If the director files a complaint, an
answer is required within 20 days of service of the complaint. Upon
proof of service, the supreme court appoints a referee to hear the
matter pursuant to SCR 22.13(3). The referee holds a scheduling
conference to define the issues and to determine the extent of
discovery. The referee then presides at a public hearing that is
conducted as a trial of a civil action to the court.7
The OLR must prove misconduct or medical incapacity by clear,
satisfactory, and convincing evidence.8
Within 30 days after the conclusion of the hearing, the referee will
submit his or her report to the supreme court, including findings of
fact, conclusions of law, and a recommendation of dismissal or
imposition of discipline. The OLR or the respondent may file an appeal
of the referee's report within 20 days after the report is filed. If no
appeal is timely filed, the supreme court reviews the referee's report
and determines appropriate discipline in cases of misconduct and
appropriate action in cases of medical incapacity. The court may, on its
own motion, order the parties to file briefs. Either the respondent or
the OLR may file a motion for reconsideration of the supreme court's
decision within 20 days of the filing of the decision by the court. The
filing of a motion for reconsideration does not stay enforcement of the
judgment. The supreme court's final dispositions of disciplinary and
medical incapacity proceedings are published in the Wisconsin Reports
and in the Wisconsin Lawyer. Figure
1 depicts the organization of the lawyer regulation system.
The Year in Review
Implementation of the New Lawyer Regulation System.
Fiscal 2001 saw the most dramatic change in lawyer regulation in
Wisconsin in more than 20 years. In September 2000, the supreme court
completed its review of lawyer regulation in Wisconsin by establishing a
new system through complete revision of Chapters 21 and 22 of the
Supreme Court Rules, which became effective on Oct. 1, 2000.
The Preliminary Review Committee was organized on Nov. 3, 2000; it
elected attorneys James Wickhem, Janesville, chair, and James D.
Friedman, Milwaukee, vice chair. The committee has considered whether
cause to proceed existed in 11 matters, and has reviewed the director's
dismissals in 51 matters based upon grievant requests. The committee
will continue to meet quarterly.
The Board of Administrative Oversight was organized on Dec. 15, 2000;
it elected attorneys William H. Levit Jr., Milwaukee, chair and Ann
Ustad Smith, Madison, vice chair. Significant board actions during the
year included approval of the lawyer regulation system budget for Fiscal
2002; appointment of a district committee study subcommittee that
developed a three-year plan for studying the district committees;
appointment of subcommittees on priorities and rules review; and
development of a program for monitoring the fairness, productivity,
effectiveness, and efficiency of the regulation system. In addition, the
board studied proposals for amendments to the Supreme Court Rules
relating to the regulation system, and considered means to assess
perceptions of the bar and the public concerning the integrity of the
lawyer regulation system. The board meets quarterly.
The district committees continued intact from the prior regulation
system; nevertheless, the implementation affected them. The chairs met
to consider the changes in district committee responsibilities resulting
from the new system and to identify means to improve the cooperative
investigative efforts of the committees and the OLR staff. In addition,
the training of new district committee members has been redesigned to
account for new procedures, to focus more on investigative tasks, and to
use an interactive training approach. The OLR plans to make the training
more accessible than in the past by conducting sessions at various times
and locations throughout the year.
The special panels, a new feature in the new regulation system, were
organized in January and May, and are processing matters involving
allegations against attorneys who serve with the regular components of
the regulation system. In Fiscal 2001, 22 matters were referred to the
Special Investigative Panel. As of the end of the fiscal year, none of
these matters were yet concluded.
In addition to creating a new structure, the court established two
important new programs within the OLR. The first, the alternatives to
discipline program, became effective on Oct. 1, 2000. By authorizing
this program, the court has provided an effective way to improve an
attorney's ability to practice in accordance with high professional
standards. Frequently, this is a more effective measure than
professional discipline. The court has authorized diversion to an
alternative program in situations where the program will likely benefit
the attorney and the attorney will not likely harm the public.
Alternative programs may include mediation, fee arbitration, law office
management assistance, evaluation and treatment for alcohol and other
substance abuse, psychological evaluation and treatment, medical
evaluation and treatment, monitoring of practice or trust account
procedures, continuing legal education, ethics school, and the
multistate professional responsibility examination. During the fiscal
year, 27 attorneys were diverted to alternative programs.
The second new program, Central Intake, became effective on Jan. 1,
2001. Central Intake provides for the receipt of inquiries and
grievances concerning attorney conduct, and for the preliminary
evaluation of grievances prior to any formal investigation. Inquiries
and grievances now are received by telephone. Previously, grievances
were required to be in writing. After the preliminary evaluation, the
Central Intake staff may forward the matter to another appropriate
agency, attempt to reconcile the matter if it is a minor dispute, close
the matter if it does not present sufficient information to support an
ethical allegation, or refer the matter for investigation or diversion
to an alternative to discipline.
From January through June, Central Intake received about 1,200
inquiries and grievances. This represents a significant increase in
matters received and indicates that the lawyer regulation system is now
more accessible. Moreover, the ability to communicate by telephone with
grievants and respondents provides more personal contact and increases
the level of satisfaction with the process.
Central Intake also provides an efficient means to dispose of
matters. From January through June, Central Intake disposed of about
1,000 matters. Of these, about 150 were forwarded for formal
investigation, four were forwarded to another agency, three were
diverted to an alternative to discipline, and 57 minor disputes were
resolved. The other matters were closed because the grievance did not
involve an ethical violation or because there was insufficient evidence
of a violation. The preliminary evaluation process now allows the staff
to determine much more efficiently whether a matter should be formally
investigated, closed, or resolved another way.
Overdraft Notification Program
The Overdraft Notification Rule9
went into effect on Jan. 1, 1999. The rule requires attorneys to
authorize their banks to notify the OLR of overdrafts on their client
trust accounts and fiduciary accounts. Information regarding the trust account overdraft program
is available from the OLR
Web page. A separate telephone line, (414) 227-4492, was designated
for inquiries relating to the program.
During the 2001 fiscal year, staff nearly completed work on the trust
account database that was created to store information regarding
overdrafts and information obtained from attorneys regarding their trust
and fiduciary accounts.
Staff responded to more than 270 telephone contacts from attorneys
relating to concerns about trust account rules, overdrafts on trust
accounts, and overdraft reporting requirements. During the period of
June 11 to June 30, 2001, staff responded to an additional 89 inquiries
regarding the 2001 State Bar dues certification statement.
During Fiscal 2001, 131 overdrafts were reported to the OLR, which
resulted in the following dispositions: temporary suspension - 1;
diversion - 1; dismissal with caution - 1; dismissal after
investigation/advisory letter sent - 6; dismissal - 5; closed without
investigation/advisory letter sent - 14; and closed without
investigation/bank errors - 25.
The director and overdraft investigator continue to work with the
State Bar Professional Ethics Committee regarding concerns relating to
the interpretation of SCR 20:1.15. In response to a joint petition from
the State Bar and the OLR, the supreme court clarified SCR 20:1.15(a)
and (g). In Order No. 01-06 of April 11, 2001, the court stated, "[a]
lawyer must certify all trust accounts and safe deposit boxes in which
the lawyer deposits clients' funds or property held in connection with a
representation or held in a fiduciary capacity that directly arises in
the course of or as a result of a lawyer-client relationship." The OLR
and State Bar Professional Ethics Committee will consider revisions to
SCR 20:1.15 to address additional concerns that have arisen relating to
the interpretation of the rule.
Survey of Matters
Overall Processing. Fiscal 2000 and 2001 were years
of transition. While the rate at which new matters were received
increased significantly from the average pace of the past eight years,
efforts to develop and to implement the new lawyer regulation system
somewhat diverted staff efforts. Nevertheless, now that the
implementation is complete, productivity and efficiency are very much
improved under the new system. Some concerns remain; these will be
carefully monitored.
Although the Central Intake staff operated during only the latter
half of Fiscal 2001, the lawyer regulation system as a whole made a
significant accomplishment in improving its productivity and efficiency
over prior years. The system received 1,951 matters this year, an
increase of 28 percent over last year and 37 percent over the average of
the previous eight years. In addition, the system resolved 1,698 matters
this year, an increase of 32 percent over last year and 21 percent over
the average of the last eight years. The average matter processing time
improved slightly from the prior year. This halted an upward trend and
kept processing time close to the average for the past eight years.
Trends in the number of pending matters, and the number of matters
more than one year old, merit continued attention. Central Intake
appears to be resolving matters or referring them for investigation more
quickly than in the past, with an increase in matters closed within 90
days and within 180 days. Over time, this should tend to reduce the
number of matters pending more than one year. However, should the number
of new matters received increase substantially in the future, this trend
would be mitigated or negated.
Grievances. Figure
2 breaks down by category the grievances received between July 1,
2000 and June 30, 2001. In describing the nature of the grievances, only
the most serious allegation is reflected. While most grievances allege
various acts of misconduct, it is not practical to list all
allegations.
The allegations most commonly filed were lack of diligence by the
lawyer entrusted with the legal matter and lack of communication with
the client. The two areas of practice that produced the most grievances
during the year were criminal law and family law. While clients file the
majority of grievances, anyone can file a grievance.
Discipline. In Fiscal 2001, 37 attorneys received a
public disciplinary sanction. The supreme court imposed five
revocations, 12 suspensions, eight temporary suspensions, two indefinite
suspensions, and three public reprimands. BAPR and referees issued seven
public reprimands by consent. The court dismissed two proceedings. At
the end of the year, 16 formal disciplinary matters were pending in the
supreme court. The number of attorneys receiving public discipline
increased from the prior year, but remains slightly below the average
number for the past eight years. Figure
3 shows the numbers and percentages of attorneys receiving public
discipline since Fiscal 1979. Figure
4 shows the type of misconduct found in public discipline
decisions.
A referee has authority, under SCR 22.09(3), to issue private
reprimands pursuant to an agreement between the director and the
attorney. Typically, a private reprimand is imposed for an isolated act
of misconduct that caused relatively minor harm. A private reprimand is
not imposed if public disclosure of the attorney's misconduct is
necessary to protect the public. Private reprimands are retained
permanently and are available as an aggravating factor on the issue of
sanction if the attorney commits subsequent misconduct.
Summaries of private reprimands, without any reference to or
identification of the attorney involved, are printed twice a year in the
Wisconsin Lawyer.
During this fiscal year, 10 attorneys received private reprimands.
This number is significantly less than last year because 27 matters that
typically might result in a private reprimand were diverted to an
alternative to discipline program.
Fourteen attorneys received dismissals with caution by BAPR in Fiscal
2001. This disposition occurred in cases where there was a violation of
a supreme court rule, but no discipline was warranted. Typically, a
caution was issued for a technical violation of a rule that caused no
harm to a client or other person. Since Oct. 1, 2000, this disposition
is no longer available.
In Fiscal 2001, there were 1,167 additional dispositions. This
category includes matters closed after the initial intake evaluation due
to insufficient information to support a misconduct allegation (631);
dismissals after investigation in cases due to insufficient evidence of
a violation (456); matters dismissed with an advisory letter (68); and
matters closed pending petition for reinstatement (12).
Reinstatements. During Fiscal 2001, the court
completed action on 20 reinstatement petitions, seven administrative and
13 disciplinary, after investigations by the OLR and public hearing. (In
the past, public hearings were before a district committee. Under the
new system, public hearings are before a referee.)
Finances
The legal profession is unique in assuming all
costs for regulating itself. An assessment on every member of the State
Bar of Wisconsin pays the costs and expenses of the lawyer regulation
system, including all the costs and expenses of the OLR, district
committees, Preliminary Review Committee, and Board of Administrative
Oversight. To help offset the costs, the OLR collects
costs from attorneys disciplined in formal court proceedings and
collects fees on petitions for reinstatement. Collections for Fiscal
2001 were $60,320.69.
The budget and the assessment for Fiscal 2002 are $2,102,700 and
$124.78, respectively. In each of the past two budget cycles, the budget
increase has been 17 percent. This is principally due to the
establishment of the Central Intake program, which operated for half of
Fiscal 2001 and will operate for all of Fiscal 2002. The assessment
increase was 11 percent last year and 24 percent this year, because
reserves that were available to apply toward the assessment last year
are not available this year. The assessment is in line with assessments
in neighboring jurisdictions, somewhat higher than Minnesota and Iowa,
but lower than Illinois. The assessment is significantly lower than in
Colorado, which has a comparable lawyer population and similar
programs.
Other Matters
Public Information and Outreach. Due to the
transition to the new lawyer regulation system, public information and
outreach became more prominent. During the year, the OLR gave 28
presentations relating to the new system to groups such as the State Bar
and several of its member entities, eight local bar associations, law
firms, and various professional organizations.
In addition to making public presentations, the OLR provided articles
for The Third Branch and Wisconsin Lawyer and updated and improved the
information available from its Web page.
Case Compendium. This year the vision of the State
Bar and the Board of Attorneys Professional Responsibility for a
comprehensive compendium of Wisconsin professional discipline cases
became reality. Professional Discipline of Wisconsin Attorneys: A
Compendium was published in February 2001. The compendium includes court
cases, court reprimands, and consensual reprimands, and indexes
materials by rule, area of practice, and topic. The compendium is
available in circuit court libraries statewide and may be purchased from
the State Bar.
The Year Ahead
This past year was a time for implementing a new program. The year
ahead will be a time for evaluating and improving the new system. The
Supreme Court has invited comments concerning Chapters 21 and 22 of the
Supreme Court Rules, and held a public hearing Sept. 20-21, 2001. The
interest and support of the Bar and the public has been integral to the
successful implementation of the system and will remain vital to the
system's continued success.
Endnotes
1 SCR 21.15(2).
2 SCR 21.03(6)(a).
3 SCR 21.19.
4 SCR 22.40(1).
5 SCR 22.40(2).
6 SCR 22.001(2).
7 SCR 22.16.
8 SCR 22.38.
9 SCR 20:1.15(i)-(p).
Wisconsin Lawyer
