Nov. 3, 2009 – The Wisconsin Supreme Court voted unanimously on Oct. 29 to adopt a petition changing confidentiality rules so that the Office of Lawyer Regulation (OLR) may refer lawyers to the Wisconsin Lawyer Assistance Program (WisLAP) for assessment, treatment, and monitoring.

WisLAP is a member service of the State Bar of Wisconsin that provides confidential assistance to lawyers, judges, law students and their families in coping with addictions, mental illness, or other problems related to or affecting the practice of law. Currently when the OLR learns that a lawyer’s ability to practice may be adversely affected by a mental or physical condition, the OLR is not permitted to refer that individual to WisLAP for assistance.

OLR Director Keith Sellen told the justices that one of the purposes of the petition was to improve early identification and response to attorneys in need. The proposed monitoring system is a recognition that lawyer professional misconduct correlates with alcoholism, depression, and other mental and physical conditions.

Deborah Smith, director of assigned counsel for the State Public Defender, testified to the public need for the referral system.

“The Wisconsin State Public Defender has seen this problem first hand,” Smith wrote in a letter to the court. “Each year we receive reports of lawyers appearing in court impaired or with a noticeable odor of intoxicants. Each year we receive reports of lawyers neglecting cases or behaving in an unprofessional manner under circumstances which suggest underlying medical health problems. Each year we see lawyers lock their doors and walk away because the stress of trying to manage a practice and manage their life has overwhelmed them.”

Smith said that the referral system would be “good for the lawyer, good for the practice, and good for clients.”

Referrals to WisLAP

Under the proposal, OLR could refer lawyers to WisLAP as an alternative to discipline, as part of the conditions to continue practice or gain licensure reinstatement, or because an attorney pleaded impairment or medical incapacity following an investigation or complaint of professional misconduct.

A referral from the OLR could also arise when the lawyer exhibits behavior that provides a reasonable belief that the lawyer is impaired or incapacitated.

Formal referrals for monitoring could come from the Board of Bar Examiners (BBE), the agency that regulates admission to the bar and continuing legal education to maintain a license. The BBE could potentially use the program with a procedure for conditional admissions to the bar proposed in petition 08-13.

WisLAP monitors

Following a referral, a lawyer is expected to sign a contract establishing objective, measurable behaviors demonstrating compliance with a plan responsive to concerns of the referring agency and WisLAP.

A lawyer is to meet with a trained WisLAP monitor. A monitor may be another lawyer or a licensed health care professional. At the first meeting, a monitor and the WisLAP coordinator are to review the obligations of the participating lawyer, which include the duty to immediately report any breach of the contract.

Monitors only supervise a participating lawyer in accordance with the contract, according to WisLAP Coordinator Linda Albert. A monitor shall never serve in the role of a counselor, sponsor, treatment provider or representative, she said.

Thereafter, a monitor meets with the attorney to gather data such as drug or alcohol test results or treatment progress to track compliance. That information is supplied to the WisLAP coordinator who maintains ongoing consultation with the monitor.

All communications between the monitored lawyer and WisLAP, as well as all records of monitoring, are to be confidential. However, the contract stipulates that limited information sufficient to demonstrate compliance or noncompliance will be reported to the referring agency, either OLR or BBE. The referring agency determines the course of action for the attorney if there is noncompliance.

About WisLAP

WisLAP is a member service of the State Bar of Wisconsin created in January 1996. Its professionally staffed telephone helpline can be contacted 24 hours a day at (800) 543-2625. Each request for help is treated with the same confidentiality as a lawyer-client relationship. WisLAP is exempt from reporting professional misconduct to the OLR under Wisconsin Supreme Court Rule 20:8.3(c)(2) and to the Judicial Commission under Wisconsin Supreme Court Rule 60.04(3)(b) It does not require callers to disclose their identity and does not keep any case records.

Callers can receive advice on coping with mental health, addiction or other problems as well as assistance with finding treatment programs locally or around the country.

WisLAP can put callers in touch with one of its trained volunteer lawyers or judicial officials even on nights and weekends, to provide someone to talk to who has faced similar problems The program helps legal professionals build on their strengths and improve their functioning through the enhancement of physical, mental, and emotional health.