|
President's Perspective
On Regulating Our Legal Profession
By Susan R. Steingass
Maintaining
a fair, effective, and efficient system of lawyer regulation
within the judicial branch of government is critical to both
the image of the legal profession and its actual performance.
But we lawyers also must be confident that our conduct is judged
by a body that understands our professional lives and, mostly
important, the rules that guide us.
We lawyers are unique in assuming the cost of policing our
own profession through a yearly assessment on all of us. With
that obligation comes another - to have a lawyer regulation
system worthy of the respect of the public and our colleagues
through fair, even-handed, and speedy resolution of legitimate
grievances against lawyers for violating the rules and for medical
incapacity.
As many of you know, during the recent political campaign,
the Board of Attorneys Professional Responsibility (BAPR) became
something of a political football in the Wisconsin Supreme Court
race. During that time BAPR came under fire. However, I, as most
of you, continue to believe that our system of lawyer regulation
works.
Perhaps a bit of basic history is in order. Lawyer discipline
used to be administered by the Board of State Bar Commissioners
appointed by the Wisconsin Supreme Court. District committees
appointed by the State Bar had responsibility for investigating
the majority of the grievances. The State Bar was empowered to
mete out minor discipline. Serious matters were handled by the
supreme court. By regulation effective Jan. 7, 1978, the supreme
court created a statewide Board of Attorneys Professional Responsibility,
to which grievances about lawyer misconduct and/or medical incapacity
were made. However, the district committees remained, and to
this day investigate grievances and provide local peer review.
In fact, significant work is done through the 16 district
committees, which range in size from 10 to 40 members, one or
more of whom are nonlawyers. Their nearly 250 members are appointed
by State Bar presidents and come from diverse areas of professional
life, from diverse areas of practice, from big firms and small,
from government service, and from the public and private sectors.
The 12 lawyer members of BAPR also are from all over the state
and are from diverse areas of practice. With them are four public
members, including a family practice physician, a forensic document
examiner, the president of a title insurance company, and the
executive director of the Wisconsin Conservation Corps.
BAPR investigates and, if warranted, prosecutes grievances.
It also makes dispositional decisions in the great majority of
grievances. Where a matter is prosecuted, the supreme court has
established a panel of referees from which it designates one
to preside over the proceeding. The referee oversees the progress
of the case after the filing of a formal complaint, hears the
case, then makes a report to the supreme court with findings
of fact, conclusions of law, and a recommendation to the court.
The court then makes the final decision.
In the process BAPR, and ultimately the supreme court, has
a number of dispositional options. If the grievance falls outside
of the rules - in other words, a grievance voices a dissatisfaction
with the lawyer or the result of the case, but does not allege
a violation of the ethical rules - the grievance is closed
without investigation. If it is clear from the grievant's
response and/or the respondent attorney's response that
no ethical violation can be shown by clear and satisfactory evidence,
the grievance is dismissed. Even if a rule is violated, a case
may be dismissed with a caution, particularly where there has
been a first-time technical violation of the rules but no harm
has occurred. An attorney also may receive a private reprimand
and, in a more serious case, a public reprimand.
More serious by far are those cases that call for suspending
a lawyer's law license. What happens next depends upon the
period of suspension. If the suspension is for less than six
months, the lawyer's license is returned after that time
has expired, upon proof that the lawyer has satisfied the conditions
of suspension. However, if the suspension is for six months or
more, or if the license is revoked (a minimum of five years),
the lawyer must petition the supreme court for reinstatement.
It was my privilege, during my year as president-elect, to
sit as an ex officio member of BAPR. Incoming president Leonard
Loeb was an ex officio member this year, and he will be followed
by president-elect Gary Bakke. From my experience, I know that
this is an extremely hardworking body that devotes substantial
time and effort to the fair and expeditious resolution of grievances.
In addition, I know that BAPR and its staff participate in
educational efforts to help attorneys avoid professional misconduct
and avoid the grievance system altogether. They participate in
an increased number of ethics programs for lawyers throughout
the state. BAPR also attempts to raise public awareness of its
work through outreach activities to local bars and civic organizations.
The recent press attention given to the BAPR process doesn't
mean that our system of attorney regulation doesn't work.
It does. But there is, as there should be, an ongoing effort
involving BAPR and the supreme court to improve the process.
As you may know, almost 18 months ago, a supreme court commissioner
was asked to interview BAPR staff and board members, assess the
functioning of BAPR, and report to the supreme court. Though
kept confidential by the court at the time, a redacted version
of the Mann report was released by Justice Ann Walsh Bradley
within the last month. Many of you may have read it. For those
of you who did not, you can find the downloadable
Mann report and BAPR counsel's responses to it (first and second)
on WisBar.
In response to the issues raised in the Mann report, about
a year ago the supreme court issued a statement of principles,
policies, and procedures and appointed a facilitator to meet
with BAPR and its staff and members of the court to iron out
the policies and procedures to govern BAPR. The Mann report was
made to the court. The court, pursuant to its constitutional
authority to supervise the practice of law, indicated that it
would propose internal operating procedures for BAPR, with consideration
given to the internal operating procedures submitted by BAPR,
the administrator, the staff, and the facilitator's report.
The supreme court stated an intention to hold a public hearing
on the court's proposed procedures. That has not happened
yet.
What the supreme court has done to date is to appoint a highly
respected reserve judge, Hon. Mark J. Farnum, to act as a liaison
between the court and BAPR. He has been acting in this capacity,
in a way productive for BAPR, the court, the public, and the
legal community. BAPR also is beginning the search for a new
administrator to replace Gerald C. Sternberg, who resigned last
November, and James L. Martin, who now serves as interim administrator.
It is critical that we as lawyers support the maintenance
of a fair, effective, and efficient system of lawyer regulation
within, not outside, the judicial branch of government. I urge
you to support BAPR as it continues in its long tradition of
fair treatment of grievances, as well as its efforts to keep
improving, under the aegis of the judicial branch. This is the
way we can ensure results that are fair to the grievant, attorneys
grieved against, to the legal system, and to the public's
image of lawyers.
|