The Year in Review

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