April 3, 2019 – The Wisconsin Supreme Court in 2016 appointed the OLR Procedure Review Committee to review the Office of Lawyer Regulation’s (OLR) disciplinary procedures. The Committee established as its mission to review the OLR procedures and structure, and report to the Wisconsin Supreme Court recommendations that would increase the efficiency, effectiveness, and fairness of the OLR process.
The Committee has made recommendations that, if adopted, will alter the way attorney disciplinary cases are handled in Wisconsin.
The Committee recently filed nine petitions with the Wisconsin Supreme Court that address five main areas: the OLR Charging Process, Referees, Confidentiality, Changes to the OLR Process, and Reinstatement.
These petitions suggest both technical and substantive changes to the rules. This article provides an overview of the petitions’ contents. The full petitions and supporting memoranda can be found at the rule petition page of the Supreme Court’s website.
The Committee’s Process
Members of the Committee made a comprehensive review of disciplinary systems across the country. Some of the recommended changes are a result of that review, as well as from concerns expressed by those who participate in the OLR process, including advocates, grievants, and respondent attorneys.
Marsha Mansfield is a distinguished clinical professor of law at U.W. Law School and serves as the reporter for the Office of Lawyer Regulation (OLR)’s Procedure Review Committee, chaired by the Hon. Gerald Ptacek. Mansfield also served as chair of the OLR Process subcommittee.
One innovative proposal creates a larger role for referees in imposing discipline in certain cases while preserving the Supreme Court’s authority as a reviewing body and ultimate arbiter of attorney discipline. Petition 19-05 establishes rules that allow referees to make findings, conclusions, and, under certain circumstances, determine attorney misconduct, and impose or approve disciplinary actions.
Referees may approve consensual private and public reprimands and may approve stipulations under which an attorney’s license to practice law is suspended for a period not to exceed one year.
In addition, in contested cases, referees may impose discipline up to suspending an attorney’s license to practice law for a period not to exceed three months, with the attorney having the right to appeal the decision to the Supreme Court.
The petition’s objective is to save the Court time, resources, and effort in certain cases, while remaining the final arbiter of all appeals in disciplinary matters. Proposed SCR 21.08 (1)(b) and 22.12.
A companion petition, Petition 19-04, addresses the training and composition of the referee panel, limiting the panel to no more than 24 members, serving staggered four-year terms, appointed by and functioning under the supervision of the Supreme Court. Proposed SCR 21.08.
An amendment to the current rule would also require referees to file their reports 30 days after the later of the conclusion of the hearing, the filing of the hearing transcript, or the filing of post-hearing briefs. Proposed SCR 22.16.
OLR Charging Process
The first of two Charging Process petitions, Petition 19-11, proposes amending SCR 22.02(4), SCR 22.06(6)(a) and SCR 22.05(2) to require the OLR Director, when he or she closes a file opened by OLR after it receives a grievance, to provide the grievant with a written explanation for the decision.
This change is an effort to make the process more transparent and understandable to grievants. To make the process more efficient, allegations of a breach of a diversion agreement would no longer come before the Preliminary Review Committee (PRC) but rather, would provide the attorney an opportunity to respond, and allow an agreement to be modified by mutual agreement or terminated by the OLR Director. Proposed SCR 22.10(4) and 22.10(7).
A respondent attorney also has the right to waive, at any stage of the proceeding, submission of the matter to the PRC for a cause to proceed determination and enter into a consent reprimand agreement prior to OLR investigation. Proposed SCR 22.02(6)(d) and 22.05(1)(e).
The second petition, Petition 19-09, proposes a procedural rule explicitly clarifying that the OLR may seek enforcement of a disciplinary order without initiating a new disciplinary proceeding. Proposed SCR 22.185. It allows the Supreme Court to enforce compliance where a respondent attorney’s noncompliance is “substantial” on its own motion or on the motion of the Director or a special investigator.
State Bar Board of Governors Discussed Proposals at Last Board Meeting
The State Bar of Wisconsin’s Board of Governors, elected to represent the membership, engaged in a robust discussion regarding the OLR Procedure Review Committee’s recommendations at a recent meeting, but took no action on whether to support or oppose the petitions, which had not been filed yet. Read about the discussion.
Reinstatement
The reinstatement petition, Petition 19-06, proposes assessing costs against an attorney who petitions for reinstatement (proposed SCR 10.03(6m)) and requires the petitioning attorney to submit to the Director a reinstatement questionnaire designed to assist the Director in his or her investigation of the petition. Proposed SCR 22.29(4x).
It also consolidates, amends, and redesigns current rules regarding the reinstatement procedure regarding publication and deadlines for the Board of Bar Examiners and the OLR to submit reports regarding compliance with CLE and the OLR’s position on reinstatement. Proposed SCR 22.30.
Under the proposed rule change, the Supreme Court may approve a stipulation in a reinstatement matter, adopt its stipulated facts and conclusions of law, and reinstate the attorney’s license, ask the parties to amend the stipulation, or reject the stipulation and refer the matter to a referee. Proposed SCR 22.30(5)(b) and (c).
Under the current rule, an attorney whose license is revoked may petition for reinstatement five years after revocation. The second restatement petition, Petition 19-10, would permit the Court to revoke permanently an attorney’s license to practice law in particularly heinous cases, without an opportunity to petition for reinstatement. Proposed SCR 21.16(1m)(a) and 22.29(2).
Confidentiality
The changes to the rules governing confidentiality in OLR proceedings seek to balance the rights of the respondent attorney who has merely been accused of misconduct, the rights of the public to protection, and the interest of assuring public confidence in the disciplinary process. The confidentiality petition, Petition 19-07, requires an attorney who receives a notice of a formal OLR investigation to provide a copy of the notice to a supervisor in his or her law firm, or the law firm where he or she worked at the time of the alleged misconduct. Proposed SCR 22.03(2g) and (2r).
The petition also allows the OLR to provide the copy of the notice to the law firm(s) if, in the Director’s view, such action is warranted. Proposed SCR 22.03(5).
Additionally, the petition would codify existing agency practice whereby the Director provides the respondent attorney with a copy of the grievance received by OLR and any additional information provided by the grievant if the Director believes the disclosure is appropriate. Proposed SCR 22.03(5)(c).
The petition proposes modifications to clarify SCR 22.40, most notably providing that a “cause to proceed” determination by the PRC would trigger the OLR’s ability to publicly release information pertaining to the grievance. This changes current practice, under which the formal initiation of a disciplinary proceeding triggers public disclosure.
Finally, this petition would reduce, from 10 years to 6 years, the limitations period for filing a grievance with the OLR. The petition also changes the limitations period from the later, to the earlier, of the time when the grievant knew or reasonably should have known of the conduct underlying the grievance.
OLR Process
The changes to rules governing OLR process reflect a wide-ranging review of the OLR process and how it could be made more efficient while protecting the rights of all involved parties. A major change proposed by the process petition, Petition 19-08, eliminates the role of District Committees.
The reasoning supporting this proposal is that the OLR has internal resources to conduct the investigations formerly handled by District Committees, and the rules currently permit the OLR to contact attorneys in certain areas (both geographic and legal) to provide additional expertise when necessary, eliminating a need that was the basis for the original structure and purpose of the District Committees.
The petition also makes the function and processes of the Special Preliminary Review Committee (SPRC) similar to that of the PRC. Proposed SCR 22.25(3m) and 22.25(4)(intro). Additionally, the petition proposes changing the process for a respondent attorney who fails to respond to a request for a written response to an allegation of misconduct, or who otherwise fails to cooperate with a disciplinary investigation. Under the proposed rule, the burden is shifted to the respondent attorney to either cooperate, demonstrate why he or she is not able to cooperate, or show cause as to why his or her license to practice should not be suspended. Proposed SCR 22.03(4).
Changes to SCR 20:8.3
The only aspect of the Committee’s petitions that directly involves SCR Ch. 20 is Petition 19-12, which seeks to amend SCR 20:8.3 (a) and (b) to change the standard when attorneys are required to inform the appropriate professional authority of another lawyer or a judge’s violation of the rules of Professional Conduct or of judicial conduct, and the violation raises a substantial question of fitness.
The petition proposes changing the word “know” to the phrase “reasonably believes.” Additionally, the petition requests amending the rule so that an attorney may not enter into an agreement with a client limiting any person’s right to report the attorney’s conduct to a disciplinary authority. Proposed SCR 20:8.3.
Members of the Bar are encouraged to contact Hon. Gerald Ptacek, Committee Chair; Marsha Mansfield, the Committee’s Reporter; or any of the Committee Chairs (Jacquelynn Rothstein, Referees and Reinstatement; Paul Schwarzenbart, Charging Process; Joseph Ranney, Confidentiality), with questions or concerns regarding the petitions.
