Attorney Discipline: A Referee's View from the
Bench
There are no mandatory disposition guidelines in disciplinary
cases. While disciplinary case law provides some precedent for
discipline recommendations, attorney discipline in Wisconsin is based
upon the facts and circumstances of the violations.
By Jean W. DiMotto
Wisconsin Supreme Court referee occupies the bench in attorney
disciplinary proceedings. A referee is appointed after the Board of
Attorneys Professional Responsibility (BAPR) files with the supreme
court a formal pleading, the complaint, charging a Wisconsin-licensed
attorney with professional misconduct. BAPR also files a proof of
service document verifying that the respondent attorney has been served
with the complaint.
The chief justice issues an order appointing a referee to preside
over the proceeding. The referee is chosen by rotation from a list of
court-approved referees in the respondent attorney's geographic area.
Since referees are appointed by the supreme court, receive jurisdiction
referred from the supreme court (hence the name "referee"), and report
back to the supreme court at the proceeding's conclusion, referees are
considered supreme court referees, not "BAPR referees." BAPR, like the
respondent attorney, is a party litigant appearing before a referee.
The referee receives from the court the order of appointment, the
complaint and the proof of service document. No other information is
available to the referee at this point. Respondents or their counsel
sometimes assume the referee is privy to information BAPR has obtained
during its investigation of the grievance prior to its filing a formal
complaint. But initiation of a disciplinary proceeding is akin to
initiation of a civil suit: Any pre-suit investigation does not become
part of the court file unless it is received into evidence later in the
proceeding.
Procedure in a disciplinary proceeding
Comparing a disciplinary proceeding to a civil proceeding is more apt
than comparing it to a criminal proceeding. A referee is empowered as a
judge trying a civil case,1 and the
proceedings are conducted in the manner of civil litigation,2 with the rules of civil procedure (including
discovery) applying except as otherwise provided in the Supreme Court
Rules.3
As in a civil case, an answer to a complaint in a disciplinary
proceeding is due 20 days after the complaint has been served,4and a scheduling conference is held to set the date
for an evidentiary hearing and other deadlines as necessary for
discovery.5In addition, discovery proceeds
without involving the referee unless a ruling on discovery issues is
needed and is made as the result of a discovery motion. Since discovery
is conducted according to the civil rules of discovery, verbal or
written arguments by the parties on discovery disputes (and procedural
disputes) are not limited to citing disciplinary case law and usually
include civil case law.
The respondent can deny the allegations in the complaint, admit to
the allegations, stipulate to the factual basis of the alleged
misconduct or plead no contest 6 to the
allegations. If any of the latter three options is exercised, the
respondent still has the right to an evidentiary hearing on the
referee's recommendation for disposition.
Since the respondent has the right to a hearing on the misconduct
(violation) charged and on the disposition, the evidentiary hearing
sometimes is bifurcated into violation and disposition phases. The
disposition phase occurs after the referee determines that the
respondent violated the Rules of
Professional Conduct. The decision to bifurcate rests within the
referee's discretion.
Evidentiary hearing
An evidentiary hearing in a disciplinary case, whether bifurcated,
follows the same format as a trial to the court in a civil case. The
hearing often occurs in a courtroom (or a meeting room); a court
reporter records the hearing; witnesses are called, sworn and testify in
response to direct- and cross-examination; and the rules of evidence and
civil procedure apply. Since BAPR bears the burden of proof (by clear
and convincing evidence), 7 it presents its
case in chief first, followed by the respondent's case in chief.
Requests to present rebuttal and sur-rebuttal testimony are within the
referee's discretion.
Referees differ in their preferences for prehearing and posthearing
briefs, verbal opening and closing statements, and submission of
proposed findings of fact and conclusions of law. Some routinely prefer
verbal opening and closing statements, and prepare their own findings of
fact and conclusions of law upon receiving the hearing transcript.
Others prefer to forego opening statements, and to have posthearing
briefs and proposed findings of fact and conclusions of law submitted
after receiving the transcript. Sometimes the case's nature and
complexity or the fact that the hearing cannot be scheduled on
consecutive days favors written arguments. These procedural preferences
can be discussed during the scheduling conference or any later status
conferences. At times, requests for posthearing briefs are made during
the course of the hearing itself. Rulings on these procedural matters
are within the referee's discretion.
When the hearing concludes, the referee has 30 days to submit a
report to the supreme court. The report contains findings of fact,
conclusions of law as to which, if any, of the Rules of Professional
Conduct has been violated, and recommendations for discipline. The
report typically contains the referee's comments about the evidence,
credibility of witnesses and other factors involved in the decisional
process, particularly regarding the discipline recommendation.
Recommendations for discipline
A referee's recommendation for discipline can range from a public
reprimand to suspension of a respondent's law license for varying time
periods, to revocation of a respondent's license. The minimum period of
license suspension is 60 days. 8 The longest
period of suspension typically is three years. Any license suspension of
six months or longer, including revocation of a license, requires the
respondent to apply for reinstatement of his or her law license. (Please
see the accompanying sidebar, "Reinstatements
in a Nutshell.")
Recommendations for discipline routinely require the respondent to
pay the cost of the disciplinary proceeding. 9 The referee also may recommend conditions or
limitations on the respondent's license tailored to the harm caused or
to the attorney's rehabilitation. Recommendations might include
restitution to those from whom funds were misappropriated, attendance in
recovery programs or supervision by another lawyer for a specified time
period.
Sometimes the respondent is willing to stipulate to a certain
discipline. In this situation, the referee still has the discretion to
accept or reject the stipulation, or recommend different discipline.
Ultimately, the supreme court makes the final decision on the discipline
to be imposed.
There are no mandatory disposition guidelines in disciplinary cases.
While disciplinary case law provides some precedent for discipline
recommendations, attorney discipline in Wisconsin is based upon the
facts and circumstances of the violations. Thus, violations of an
identical rule may result in quite different discipline recommendations.
The court and referees consider these factors:
- 1) the seriousness of the misconduct;
- 2) the need to impress upon the respondent the seriousness of the
misconduct;
- 3) the need to protect the public, the courts and the legal system
from the respondent's repetition of the misconduct; and
- 4) the need to deter other attorneys from similar misconduct.10
In weighing the first three issues, the court and referee consider
various factors that mitigate or aggravate the misconduct's seriousness,
and thus the discipline to be imposed. Mitigating factors may include
the respondent's appreciation of her or his wrongdoing, genuine remorse
for the misconduct, lack of harm to clients or third parties, lack of
intentionality in the misconduct, absence of prior discipline, an
unusually good record of community service or evidence of actively
taking measures to prevent recurrence of the misconduct.
In contrast, aggravating factors are those that augment the
misconduct's severity and therefore the severity of the discipline
imposed. Aggravating factors include absence of or insincere remorse, a
lack of appreciation for the misconduct and its consequences,
noncredibility on the witness stand, intentional misconduct, prior
discipline for similar misconduct and harm to clients or the court
system. Another aggravating factor can be the attorney's uncooperative
or contemptuous conduct during the disciplinary proceeding
itself.11
The fourth factor in determining the appropriate discipline reflects
the need to alert the legal community about the court's view of the
misconduct's seriousness. For example, the court has severely
disciplined attorneys for theft (or "loans") from, or unauthorized use
of, trust account funds, and has alerted the bar that it will deal
similarly with an attorney's theft of funds from his or her law
firm.12
Postreport procedure
After the referee's report is filed with the court, the parties have
20 days to appeal the report and any alleged errors in the conduct of
the proceedings. There is no procedure for postreport motions or motions
for a new evidentiary hearing.
Regardless of whether a party appeals from the referee's report, the
court's long-standing practice is to have a supreme court commissioner
review the entire record de novo, including all transcripts and
exhibits. The commissioner then prepares a bench memo, which accompanies
the referee's report, to aid the court in considering the case. The
court decides whether to adopt the referee's findings of fact and
conclusions of law and recommendations for discipline. The court has the
option to accept, reject or modify any of the referee's recommendations.
Once the court decides a disciplinary case, it is published in the
Wisconsin Reports and the Northwestern Reporter.
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Jean W. DiMotto, Marquette 1984, has been a court-appointed referee
in attorney disciplinary proceedings since 1992. She devotes her
practice exclusively to quasi-judicial work: referee, hearing officer,
mediator, early neutral evaluator and arbitrator. She is a past member
of the State Bar Board of Governors and chairs the State Bar's Mentor
Council.
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Conclusion
A referee's role in attorney disciplinary proceedings is analogous to
that of a trial judge presiding over a civil case tried without a jury.
The major distinction is the amount of discretion the referee exercises
in recommending discipline to be imposed by the supreme court. In the
end, the supreme court decides the discipline for each attorney
respondent in a formal disciplinary proceeding.
Endnotes
1 SCR 22.03.
2 SCR 22.14.
3 SCR 22.23; see generally, SCR
Chapter 21 and 22 for rules of procedure in disciplinary matters.
4 SCR 22.12.
5 SCR 22.13.
6 SCR 22.12(2).
7 State v. Posterino, 53 Wis. 2d 412,
417 (1972).
8 Disciplinary Proceeding Against
Schnitzler, 140 Wis. 2d 574 (1987).
9 SCR 22.20.
10 Disciplinary Proceeding Against
Charlton, 174 Wis. 2d 844 (1993).
11 See, for example,
Disciplinary Proceeding Against Schultz, 162 Wis. 2d 184
(1991).
12 Disciplinary Proceeding Against
Casey, 174 Wis. 2d 341 (1993).
Wisconsin Lawyer