Regulating the Law Profession
Board of Attorneys Professional Responsibility
Annual Report
Fiscal year July 1, 1996 to June 30, 1997
By Gerald C. Sternberg
The Board of Attorneys Professional Responsibility (the board or
BAPR) files annually with the Wisconsin Supreme Court a report of its
activities during the preceding year to permit the court, the bar and
the public to evaluate its performance.1
During the past year, BAPR closed 1,479 matters in an average time of
4.4 months. As of June 30, 1997, BAPR's caseload of pending
investigations was 448.
In fiscal 1997, BAPR continued to improve the
timeliness of investigating possible attorney misconduct; disposed of
1,479 such matters in an average time of 4.4 months; began hosting
reach-out luncheons with local bar leaders statewide; hired a full-time
litigation counsel and a half-time independent contractor counsel; and
board members took on specific committee assignments. |
Board composition
BAPR is composed of eight lawyers and four nonlawyer public members,
selected by the supreme court justices to serve an initial three-year
term, followed by one successive three-year term. The State Bar of
Wisconsin president-elect serves as a nonvoting member of the board. All
board members serve without compensation but are reimbursed for actual
travel expenses. Approximately every six weeks, the board meets in open
public session on policy matters and in closed session on disciplinary
matters. (Brief biographies of board members are shown in Figure
1.)
Brief review
The court has assigned to BAPR and its administrator the
responsibility to investigate grievances of possible attorney misconduct
or medical incapacity without regard to the manner in which the matter
comes to their attention. 2 BAPR also
determines whether a lawyer's alleged misconduct or medical incapacity
should be the basis for filing a complaint or petition in the supreme
court seeking public discipline, medical suspension or conditions on a
law license, the imposition of a private reprimand by BAPR or dismissal
of the grievance. 3
The administrator is accountable to the board for handling all
grievances, medical incapacity inquiries and reinstatement
investigations, including periodic progress reports to the board at its
meetings.
The 16 district professional responsibility committees, composed of
lawyer and public members and appointed by the State Bar president, are
an integral part of the board's investigative program. Pursuant to SCR
21.02 and 22.05, the administrator supervises the professional
responsibility committees. The use of the committees ensures local input
in the grievance process and provides complainants and respondents with
a convenient, economical means of peer review. The board and its
administrator publicly express appreciation for the dedicated work of
the 241 volunteer committee members whose substantial hours of
investigation and deliberation are essential to the board's vital
work.
As seen in Figure
2, the two areas of practice producing the most grievances in fiscal
1996-97 were criminal law and family law. The most commonly filed
allegation was attorney lack of diligence. Clients filed the majority of
grievances.
Recent developments
In the last few years, BAPR has paid particular attention to reducing
its investigation time and the number of investigations pending more
than one year. In October 1989 the number of investigations pending more
than one year was 264, which was 26 percent of the total investigative
caseload. In October 1997 the number of such investigations was 12, or 2
percent of the total caseload.
In formal cases, the supreme court decided a variety of lawyer
discipline cases in fiscal 1996-97. Several cases involved
misappropriation of funds, including Disciplinary Proceeding Against
Inderberg, Disciplinary Proceeding Against Sosnay,
Disciplinary Proceeding Against Pigatti and Disciplinary
Proceeding Against Kellogg. 4
Disciplinary Proceeding Against Stuligross involved the abuse
of the Illinois pro hac vice procedure by a lawyer licensed to practice
in Wisconsin. 5 The court also decided
Disciplinary Proceeding Against Solomon, that included, among
other things, some instances of in-person solicitation of clients for
representation, failure to keep clients reasonably informed of the
status of their matters and failure to refund unearned fees. 6 Practicing law during a suspension was, in
part, the ground for a three-year disciplinary suspension in
Disciplinary Proceeding Against Wentzel. 7 The court also decided several reciprocal
discipline cases, based on lawyer discipline imposed in other states,
including Disciplinary Proceeding Against Mohammed-Zadeh,
Disciplinary Proceeding Against Session and Disciplinary
Proceeding Against Marick. 8 Figure
3 shows the rule violations the supreme court determined in orders
in fiscal 1996-97.
BAPR staff has had an active liaison with the State Bar's WisLAP
Committee (Wisconsin Lawyer Assistance Program). WisLAP provides
education and comprehensive assistance to Wisconsin lawyers who may be
impaired for various reasons, including substance abuse or emotional
problems. BAPR strives to be involved in preventive programs, such as
WisLAP, that are likely to result in less misconduct and that benefit
the public and profession. In connection with several discipline cases
or reinstatements, BAPR has recommended license conditions that address
an attorney's impairment, chemical dependency or mental health.
Recent developments also include reach-out luncheons set up by BAPR
with local bar leaders statewide to take their pulse on important
ethical issues facing Wisconsin's lawyers.
During fiscal 1996-97, BAPR hired a litigation counsel, William
Weigel of Milwaukee, to assume a larger proportion of formal cases so as
to reduce the cost of referring most cases to outside counsel and to
provide greater accountability to BAPR. The board also hired a half-time
independent contractor counsel, Robert Krohn of Edgerton. Together with
one of the outside counsel, Eugene Radcliffe of Black River Falls, these
two lawyers handle the majority of formal cases. The balance of formal
cases is assigned to outside counsel based upon the type of misconduct
issues alleged, the case complexity, or the respondent attorney and
witness location. This litigation team, under the administrator's
supervision, has reduced the cost of concluding formal cases in a timely
manner.
In addition to reviewing disciplinary cases this year, board members
have taken on specific committee assignments. The following assignments
give a perspective on the breadth of issues facing lawyer regulation and
the commitments of the volunteer board members.
Administrative Committee: Chair - Adrian Schoone;
Jon Axelrod, Sharren Rose, Trinette Pitts, Walter Washburn.
Subcommittees include: Communications Policy, Administrative Committee
and Committee Guidelines - Jon Axelrod; Reach Out - Trinette Pitts; Case
Compendium - Sharren Rose; Personnel -Administrative Committee; and New
Board Orientation - Walter Washburn.
Joint Trust Account Committee: Chair - William
Koslo; Sharren Rose, William Fale, Arthur Egbert.
Fee Arbitration Committee: Chair - Trinette Pitts;
Walter Washburn, Laura DeGolier.
Advertising Survey Committee: Chair - Gerald
O'Brien; James Martin, Jon Axelrod.
District Committee Guideline Review Committee: Chair
- Gerald O'Brien; William Fale, Bonnie Schwid.
Subcommittee on Disabilities: Chair - James Martin;
Sharren Rose, William Fale, Walter Washburn.
BAPR also has expanded its participation in the number and kinds of
educational programs. Significantly, BAPR has worked in cooperation with
the State Bar to produce a compendium of all disciplinary case law, to
be published in fiscal 1997-98.
Finally, on Oct. 29-30, 1997, BAPR presented a substantive
disciplinary law seminar to all professional responsibility committee
members to bring them as up-to-date as possible in this challenging
field.
Referee panel
The supreme court's panel of referees presides over the formal
disciplinary and medical incapacity hearings. After the board files a
disciplinary complaint or medical incapacity petition, the court
designates a referee. The referee holds a scheduling conference,
establishes a time schedule, determines the extent of discovery,
presides at the hearing and prepares a report, including findings of
fact, conclusions of law and a recommendation to the supreme court. The
board or respondent can appeal from the referee's report, or the court
can order briefs on its own motion. The court ultimately decides the
disciplinary actions.
The supreme court rules and the board require publication of each
disciplinary order in the Wisconsin Reports and a summary of
the matter in the Wisconsin Lawyer. All courts of record, local
bars and the media are notified of the disciplinary actions.
Currently active members of the referee panel are: Norman C.
Anderson, Madison; Michael Ash, Milwaukee; Linda S. Balisle, Madison;
Rose Marie Baron, Milwaukee; Kathleen Brady, Wauwatosa; Hon. Robert
Cannon, Elm Grove; John R. Decker, Milwaukee; Jean W. DiMotto,
Greendale; John A. Fiorenza, Milwaukee; David R. Friedman, Madison;
Stanley F. Hack, Milwaukee; Charles J. Herro, Oconomowoc; Janet A.
Jenkins, La Crosse; Joan F. Kessler, Milwaukee; Judith Sperling Newton,
Madison; Rudolph P. Regez Sr., Monroe; Marjorie H. Schuett, Madison;
J.N. Schweitzer, Madison; John E. Shannon Jr., Stevens Point; Charles S.
Van Sickle, Madison; Timothy L. Vocke, Rhinelander; June M. Weisberger,
Madison; and Cheryl Rosen Weston, Madison.
Formal discipline imposed in 1996-97
In fiscal 1996-97, 28 attorneys received a public disciplinary
sanction. This includes seven license revocations, 16 license
suspensions, and five public reprimands imposed by the board, with the
lawyer's consent, pursuant to SCR 21.09(2). In percentage terms, 0.1
percent of all Wisconsin-licensed attorneys received a public
disciplinary sanction, as shown in Figure
4.
Other board dispositions
The board has authority, pursuant to SCR 21.09(2), to impose private
written reprimands on attorneys, with the attorney's consent. Typically,
a private reprimand is imposed for an isolated act of misconduct that
caused relatively minor harm. In most cases, a lawyer who receives a
private reprimand has had no prior discipline. There also are cases in
which a private reprimand may be imposed based upon mitigating factors
such as the lawyer's prolonged illness during the period of misconduct.
The board will not impose a private reprimand if public disclosure of
the attorney's misconduct is necessary for the public's protection.
During fiscal 1996-97, 24 attorneys received private reprimands. In
percentage terms, 0.1 percent of all Wisconsin-licensed attorneys
received private reprimands. Private reprimands are retained permanently
and will be available as an aggravating factor on the issue of sanction
if the attorney commits subsequent misconduct.
As part of its educational program, reprimand summaries periodically
are published in the Wisconsin Lawyer. Private reprimand
summaries were last published in the November 1996 and May 1997
Wisconsin Lawyer.
In summary, during fiscal 1996-97, 52 lawyers were publicly or
privately disciplined, which is less than 0.3 percent of the total
19,301 Wisconsin-licensed attorneys.
Thirty attorneys received dismissals with caution in fiscal 1996-97.
A dismissal with caution is issued after a finding of a violation of a
Supreme Court Rule where the board determines that a warning rather than
discipline is warranted. 9 A dismissal with
caution generally is imposed in cases of a technical violation of a
rule. Dismissals with caution are expunged within one year of being
issued, as are dismissals.
In fiscal 1996-97, 1,335 grievances were dismissed because they were
not meritorious after an investigation or not supported by sufficient
evidence of a rule violation. In a few dismissed cases, the
administrator will alert the lawyer to an area of possible concern if
the lawyer's conduct was "close to the line" but did not constitute a
violation because of insufficient evidence. This new policy, applicable
to a very few dismissed cases, was suggested by the State Bar Board of
Governors and adopted by BAPR at its meeting on May 1, 1995. The
dismissal category includes matters that are dismissed (623), inquiries
ultimately found to be outside the rules (698) and those matters closed
pending petition for reinstatement (14). An individual attorney may have
more than one disposition within the dismissal category.
Actions pending
The board filed formal disciplinary actions against 37 attorneys in
fiscal 1996-97. At the conclusion of fiscal 1996-97, 32 formal actions
were pending in the supreme court.
Other actions
The board also completed action on 13 investigations of reinstatement
petitions referred by the supreme court; six were granted, three denied
and four withdrawn by the petitioning attorney prior to
investigation.
Volume of grievances
The board handled more grievances this year than last year. The board
received 1,506 grievances in fiscal 1996-97 compared to 1,316 grievances
in fiscal 1995-96. The board kept pace with the increase by disposing of
1,479 grievances this year compared to 1,339 dispositions in fiscal
1995-96. (See
Figure 5.) At the conclusion of fiscal 1996-97, 448 grievances were
pending, which is a slight increase over the 421 grievances pending at
the end of fiscal 1995-96.
The district professional responsibility committees received 145
grievances in fiscal 1996-97. The committees completed 123 grievance
investigations during the same period.
Survey of grievances
Figure
2 breaks down the source and nature of the grievances received and
the areas of practice from which grievances arose between July 1, 1996
and June 30, 1997.
In describing the nature of the grievances, only the most serious
allegation is reflected. In fact, most grievances allege various acts of
misconduct. It is not practical to reflect all allegations.
Finances
The costs and expenses of the board, administrator, district
professional responsibility committees, the investigations of possible
misconduct and medical incapacity, disciplinary proceedings, referees
and appeals are paid for by an assessment on each attorney member of the
State Bar of Wisconsin, making this the only profession that assumes all
costs for policing its membership.
Each year BAPR proposes a budget to the supreme court after
consulting with the State Bar leadership and its Finance Committee.
Following the supreme court's review and approval, the assessment is
collected as a separate item on the State Bar annual dues statement.
Each licensed attorney is billed on a per capita assessment basis. The
assessment collected is forwarded to the supreme court to cover the
board's operation.
To help offset the costs of the disciplinary operation, BAPR collects
costs from the attorneys disciplined in these formal court proceedings,
pursuant to SCR 22.20. BAPR also collects fees on petitions for
reinstatement. Collections from fiscal 1996-97 were $63,055.48.
During fiscal 1996-97, BAPR operated on an investigative and
disciplinary budget of $1,414,764. During this period, the board applied
$144,764 in savings plus $50,000 in anticipated collections against the
$1,414,764 budget to place the assessment per attorney at $80, a
reduction from the previous year's assessment of $81.13.
The board's budget in fiscal 1997-98 is $1,418,700. BAPR is using
$200,000 in savings plus the $50,000 in costs that it anticipates
collecting in fiscal 1997-98, to reduce its assessment, placing the
assessment per attorney in fiscal 1997-98 at $75.14.
Administrator, staff and counsel
The board's offices are at Suite 410, 110 E. Main St., Madison, WI
53703, and Suite 102, 611 N. Broadway, Milwaukee, WI 53202.
Gerald C. Sternberg, whose office is in Madison, is the board's
administrator and supervises the disciplinary operation. Deputy
administrator Elsa P. Greene is in charge of investigations assigned to
the Madison office, and deputy administrator Jeananne L. Danner is in
charge of investigations assigned to the Milwaukee office. William J.
Weigel serves as BAPR's litigation counsel and has his office in
Madison. Other permanent staff in the Madison office include: office
manager Carol Kornstedt; full-time investigators Mary Ahlstrom and John
K. O'Connell; part-time investigators Nancy Warner, Melody Rader-Johnson
and Peter Sammataro; full-time program assistants Mary McMillan, Rita
Lord and Linda Ackerman; and part-time program assistant Stacci
Peterson-Bulgrin.
Permanent staff in the Milwaukee office include: full-time
investigators Mary Hoeft Smith, Carol O'Neill and Timothy Pierce;
part-time investigator Lorry C. Eldien; full-time program assistants
Laurel Wildrick and Susan Stock; and part-time program assistant Carol
Rymer.
Experienced attorneys are retained on a case-by-case basis to
represent
|
Gerald C. Sternberg is the administrator of
the Supreme Court Board of Attorneys Professional Responsibility. |
the board in disciplinary proceedings. Part-time counsel who represented
BAPR in cases in fiscal 1996-97 are: Thomas J. Basting, Janesville;
Stephen Jacobs, Milwaukee; Patricia D. Jursik, Milwaukee; Robert Krohn,
Edgerton; Marc McCrory, Janesville; Richard Mozinski, Manitowoc; Eugene
Radcliffe, Black River Falls; Linda Remeschatis, Verona; Paul
Schwarzenbart, Madison; and Dennis Sullivan, Milwaukee.
Conclusion
The investigative process in lawyer regulation has been streamlined
so that 98 percent of investigations are completed in less than one
year. The past year has been busy. Efficiencies have given BAPR the
ability to slightly reduce the assessment to lawyers and maintain the
pending investigative caseload at 448 grievances at the end of fiscal
1996-97. During the year, BAPR concluded 1,479 grievances and collected
more than $63,000 from publicly disciplined lawyers.
The board wishes to thank the Wisconsin Supreme Court, the district
professional responsibility committees and the staff for their
contributions during the past fiscal year.
Endnotes
1 SCR 21.01(4)(g).
2 SCR 21.09(1).
3 SCR 21.09(2).
4 Disciplinary Proceeding
Against Inderberg, 210 Wis. 2d 555, 564 N.W.2d 661 (1997);
Disciplinary Proceeding Against Sosnay, 209 Wis. 2d 241, 562
N.W.2d 137 (1997); Disciplinary Proceeding Against Pigatti, 207
Wis. 2d 41, 558 N.W.2d 626 (1997); Disciplinary Proceeding Against
Kellogg, 205 Wis. 2d 130, 555 N.W.2d 381 (1996).
5 Disciplinary Proceeding
Against Stuligross, 208 Wis. 2d 200, 560 N.W.2d 269 (1997).
6 Disciplinary Proceeding
Against Solomon, 206 Wis. 2d 270, 556 N.W.2d 752 (1997).
7 Disciplinary Proceeding
Against Wentzel, 204 Wis. 2d 285, 554 N.W.2d 669 (1996).
8 Disciplinary Proceeding
Against Mohammed-Zadeh, 206 Wis. 2d 288, 556 N.W.2d 755 (1997);
Disciplinary Proceeding Against Session, 205 Wis. 2d 116, 555
N.W.2d 120 (1996); Disciplinary Proceeding Against Marick, 204
Wis. 2d 280, 554 N.W.2d 204 (1996).
9 See SCR 22.09(1).
Wisconsin Lawyer