|
 OLR
Annual Report
FiscalYear 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 
|
