|
|
Vol. 72, No. 12, December 1999 |
Regulating the Legal Profession:
BAPR Annual Report
In fiscal 1999, BAPR handled 1,923 grievances; studied
the effectiveness of professional responsibility committees;
and educated attorneys to avoid professional misconduct. During
the year, the supreme court initiated a comprehensive review
of Wisconsin's lawyer disciplinary system, including BAPR's structure.
That review continues.
by Sharren B. Rose & James L.
Martin
he Board of Attorneys Professional Responsibility (BAPR or
the board) 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
This report is the first in 16 years that hasn't been, in
part, authored by Gerald C. Sternberg. Sternberg served as administrator
of BAPR for almost 16 years. He resigned as administrator effective
Nov. 13, 1998.
Sternberg began his service to the supreme court in March
1983. At the time, BAPR consisted of eight employees in Madison
and five in Milwaukee. The 1982-83 fiscal budget was $494,700;
there were 13,300 members of the State Bar of Wisconsin; the
assessment on State Bar members was $48.50; and 1,098 grievances
were filed against Wisconsin lawyers.
At Sternberg's departure, BAPR's staff consisted
of 12 employees in Madison and 10 in Milwaukee. The fiscal 1998-99
budget was $1,463,450; the assessment on Wisconsin-licensed attorneys
was $78.25; there were 19,984 members of the State Bar; and 1,423
grievances were filed against Wisconsin lawyers.
Sternberg leaves behind a legacy of solid accomplishments
directing the agency that oversees Wisconsin's lawyer disciplinary
system. We are enriched by his service to the court and we wish
him well in his new endeavor.
Board Composition
BAPR is composed of eight lawyers and four public members
selected by the Wisconsin Supreme Court to serve an initial three-year
term, followed by one successive three-year term. The State Bar
president-elect serves as a nonvoting member of the board. All
board members serve without compensation, but may be reimbursed
for travel expenses. Approximately every six weeks, the board
meets in open session on policy matters and in closed session
on disciplinary matters. (Brief biographies of fiscal 1999 board
members are shown in Figure 1.)
Brief Review
The supreme court has assigned to BAPR and its administrator
the responsibility for investigating grievances involving possible
attorney misconduct or medical incapacity. Investigations are
conducted without regard to the manner in which the matter comes
to the board.2 After an investigation, BAPR determines whether
a lawyer's alleged misconduct or medical incapacity should
be the basis for a complaint or petition to the supreme court
seeking public discipline, medical suspension, or conditions
on a law license. BAPR also has the authority to impose a public
or private reprimand, with the consent of the respondent attorney,
or to dismiss the grievance.3
The administrator is accountable to the board for handling
all grievances, medical incapacity inquiries, and reinstatement
investigations.4
The 16 district professional responsibility committees, composed
of lawyers and public members and appointed by the State Bar
president, are an integral part of the board's investigative
program.5 Pursuant to SCR
21.02 and 22.05,
the administrator supervises the professional responsibility
committees. The use of the committees ensures local input into
the grievance process and provides both 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 245 volunteer committee members whose substantial
hours of investigation and deliberation are essential to the
board's work.
In fiscal 1998-99, the State Bar's BAPR Study Committee
worked with BAPR to survey the chairs of the professional responsibility
committees to ascertain how the committee component of the process
is working. One such survey was made available as of Sept. 10,
1998. The board discussed the Study Committee's findings
with the district chairs in January 1999 and will continue its
cooperative efforts with the BAPR Study Committee in the coming
year.
As seen in Figure 2, the two areas
of practice producing the most grievances in fiscal 1998-99 were
criminal law and family law. The allegations most commonly filed
are lack of diligence by the lawyer entrusted with the legal
matter and lack of communication with the client. While clients
file the majority of grievances, grievances can be filed by anyone.
(See Figure 2.)
In fiscal 1998-99, BAPR handled 1,923 grievances (500 were
pending from the previous fiscal year and 1,423 were new matters
received during fiscal 1998-99). BAPR closed 1,302 matters in
an average time of 161 days as compared to 148 in 1997-98. As
of June 30, 1999, BAPR had 621 pending investigations. BAPR continued
to work to develop a record of consistent and timely dispositions
in its investigations and the formal cases it filed. Clearing
the calendar continues to be the goal.
In addition to investigating and prosecuting cases, BAPR participated
in educational efforts to help attorneys avoid professional misconduct.
Board members and staff participated in several ethics programs
for lawyers given statewide, and analyzed ethics vignettes presented
by the State Bar.
To raise public awareness of its various functions, BAPR plans
to increase its outreach activities to civic organizations. In
another effort to educate the public about BAPR's activity
and responsibility, a Web
site has been developed for BAPR that can be reached from
the supreme court home page.
Recent Developments
Of particular significance to BAPR's operation are the
court's amendments to the trust account rule that occurred
as a result of a joint petition of the State Bar and the board.
The amendments, which the court adopted on June 4, 1998 and became
effective on Jan. 1, 1999, do four things:
- create an overdraft program that requires financial institutions
to send a copy of all trust account overdraft notices to BAPR;
- expand SCR
20:1.15 to treat all funds held in a fiduciary capacity by
a lawyer as trust funds, making them subject to overdraft notification;
- fine-tune SCR
20:1.15 to clarify that the lawyer can invest trust funds
in income-generating investments if the client or the court that
has jurisdiction approves; and
- include within its coverage investment institutions, such
as brokerage houses.
Commencing on Feb. 8, 1999, all Wisconsin law firms were required
to register their trust account(s) with BAPR. Approximately 3,600
trust account overdraft agreements were mailed to Wisconsin law
firms. As of June 30, 1999, 45 overdraft notices had been received
for processing/investigation.
The disciplinary case compendium, a joint project of BAPR
and the State Bar, continues to be a work in progress and should
be available in year 2000. In addition, in conjunction with the
annual district chairs meeting and new district committee training,
three district committee reference manuals were updated and distributed
to all 245 professional responsibility committee members. The
manuals are Guidelines for District Professional Responsibility
Committees, Training for New District Committee Members,
and Decision Guidelines.
In formal cases, the supreme court decided a variety of public
disciplinary actions in fiscal 1998-99. Revocations were imposed
in three cases involving misappropriation of client funds: Disciplinary Proceedings Against Johnson,6
Disciplinary Proceedings Against Pederson,7 and Disciplinary Proceedings Against
Martinez.8
Figure 3 shows the rule violations
the supreme court determined in fiscal 1998-99. The rule violations
most frequently found in public discipline cases were lack of
diligence, lack of communication, dishonesty or misrepresentation,
and failure to cooperate.
BAPR continues to use staff litigation counsel William Weigel
of Madison, half-time contract counsel Robert Krohn of Edgerton,
and quarter-time contract counsel Eugene Radcliffe of Black River
Falls, to handle the majority of formal disciplinary cases. The
supreme court permits BAPR to retain outside counsel on a case-by-case,
hourly basis to represent the board in disciplinary proceedings.
In the past fiscal year, no new cases were assigned to outside
counsel. However, outside counsel are retained on the basis of
the type of misconduct alleged, the case complexity, or the respondent
attorney and witness location. The outside counsel who represented
BAPR in cases in fiscal 1998-99 are: Thomas J. Basting, Janesville;
Marc McCrory, Janesville; and Paul Schwarzenbart, Madison.
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 - Sharren Rose;
Art Egbert, Jon Axelrod, William Koslo, and Gerald O'Brien.
- Reconsideration Committee: Sharren Rose, Art Egbert,
and Jim Martin.
- Joint Trust Account Committee: Sharren Rose, Art Egbert,
Bill Fale, Bill Koslo, and Jim Martin.
- District Committee Guideline Review Committee: Chair
- Jerry O'Brien; Bill Fale, Bonnie Schwid, and Jim
Martin.
- Subcommittee on Disabilities: Chair - Jim Martin;
Bill Fale, Sharren Rose, Shell Goar (WisLAP), and Susan Van Schaik
(WisLAP).
- Subcommittee on Self-Study and Reachout: Chair -
Bill Koslo; Art Egbert.
- Case Compendium Committee: Sharren Rose, Elsa Greene,
Barbara Neider, and Carolyn Butler.
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 chemical
dependency or emotional problems. In connection with several
discipline cases or reinstatements, BAPR has recommended license
conditions that address an attorney's impairment, chemical
dependency, or mental health.
Next Page
|