Regulating the Legal Profession

• BAPR Board Member Biographies

By Gerald C. Sternberg

The 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 During the past year, BAPR closed 1,342 matters in an average time of 148 days. As of June 30, 1998, BAPR's caseload of pending investigations was 502.

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. (See brief biographies of board members)

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 the board.² After an investigation, BAPR also determines whether a lawyer's alleged misconduct or medical incapacity should be the basis for filing 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 private reprimand or dismiss the grievance.

The administrator is accountable to the board for handling all grievances, medical incapacity inquiries, and reinstatement investigations.

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 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 246 volunteer committee members whose substantial hours of investigation and deliberation are essential to the board's work.

In fiscal 1997-98, 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. That survey was made available as of Sept. 10, 1998. The board 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 1997-98 were criminal law and family law. The most commonly filed allegations are lack of diligence, lack of communication with the client, and misrepresentation. While clients file most grievances, grievances can be filed by anyone. (See Figure 2.)

In fiscal 1997-98, BAPR handled 1,844 grievances (448 were pending from the previous fiscal year and 1,396 were new matters received during fiscal 1997-98). BAPR closed 1,342 matters in an average time of 148 days as compared to 141 days in 1996-97. As of June 30, 1998, BAPR had 502 pending investigations. BAPR continued to work to develop a record of consistent and timely dispositions in its investigations and the formal cases it filed.

In addition to investigating and prosecuting cases, BAPR participated in educational efforts to help attorneys avoid professional misconduct. Board members and staff participated in an increased number of ethics programs for lawyers given statewide, and analyzed ethics vignettes presented by the State Bar. The administrator also participated in the first-ever Midwest Small Firm Success Conference, which had an ethics program specially tailored for small firms and solo practices. Staff also participated in a substantive disciplinary law program offered in Eau Claire and Green Bay for all professional responsibility committee members.

To raise public awareness of its various functions, BAPR is increasing its outreach activities by making presentations to civic organizations. The administrator presented a session at the Rotary District Conference in La Crosse, and others are planned for the coming fiscal year. BAPR intends to develop approaches to evaluate the lawyer discipline system.

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, do three things:

1) create an overdraft program that requires financial institutions to send a copy of all trust account checks drawn on insufficient funds to BAPR;

2) expand the rule to treat all funds held in a fiduciary capacity by a lawyer as trust funds, making them subject to overdraft notification; and

3) finetune the rule to clarify that the lawyer can invest trust funds in income-generating investments if the client or the court that has jurisdiction over the relevant case so approves.

The amendments to the trust account rule become effective on Jan. 1, 1999. In addition to using the grace period until the effective date to inform financial institutions of the rule's requirements, BAPR has joined the State Bar in a petition to further amend the rule to bring investment institutions, such as brokerage houses, under the rule. The public hearing on that petition was held Oct. 28, 1998.

Work has been underway to publish a bench book for court-appointed referees in discipline and medical incapacity cases, and a second training session for referees will be presented in June 1999. A disciplinary case compendium - a joint project of BAPR and the State Bar - also is in progress and should be available in 1999. In addition, the substantive disciplinary law outline, developed in connection with the presentation to committees in October 1997, was provided in fiscal 1997-98 to all committee members to assist in investigations.

In formal cases, the supreme court decided a variety of public disciplinary actions in fiscal 1997-98. Disciplinary Proceeding Against Palabrica and Disciplinary Proceeding Against Warmington, two cases involving misappropriation of client funds, resulted in revocation.³Revocation also was the sanction in Disciplinary Proceeding Against Strasburg, in which the lawyer was found to have practiced law in violation of the court's order suspending his law license.⁴ In Disciplinary Proceeding Against Pangman, the court suspended the law license of a lawyer for 90 days for making statements about the integrity of a trial judge that were found to be false with reckless disregard as to their truth or falsity, engaging in conduct with the intention of disrupting the court, and failing to maintain the respect due to courts of justice and judicial officers.⁵ Figure 3 shows the rule violations the supreme court determined in fiscal 1997-98.

BAPR has continued to use litigation counsel William Weigel of Madison, half-time contract counsel Robert Krohn of Edgerton, and part-time contract counsel Eugene Radcliffe of Black River Falls, to handle the majority of formal disciplinary cases. The supreme court permits BAPR to retain experienced attorneys on a case-by-case, hourly basis to represent the board in disciplinary proceedings. In the past fiscal year, these counsel were so assigned based on the type of misconduct issues alleged, the case complexity, or the respondent attorney and witness location.

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; Adrian Schoone, Jon Axelrod, Trinette Pitts, and Walter Washburn. Subcommittees include: Communications Policy - Administrative Committee; Committee Guidelines - Jon Axelrod; Outreach - Trinette Pitts; Case Compendium - Sharren Rose; Personnel - Administrative Committee; and New Board Orientation - Walter Washburn.

District Committee Guideline Review Committee: Chair - Jerry O'Brien; Bill Fale, and Bonnie Schwid.

Subcommittee on Disabilities: Chair - Jim Martin; Bill Fale, Laura DeGolier, and Walter Washburn.

Subcommittee on Self-Study and Reachout: Chair - Bill Koslo; Arthur Egbert, and Walter Washburn.

Subcommittee on Procedure and Policy Revisions: Chair - Jon Axelrod; Bill Fale, Trinette Pitts, and Laura DeGolier.

Subcommittee on Abuse of the Discipline System: Chair - Adrian Schoone; Jon Axelrod, Jim Martin, Bonnie Schwid, and Jerry O'Brien.

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.

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 timeline, 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 makes all final decisions in 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; Hon. Jean W. DiMotto, Greendale; John A. Fiorenza, Milwaukee; David R. Friedman, Madison; Stanley F. Hack, Milwaukee; Charles J. Herro, Ocono-mowoc; Janet A. Jenkins, La Crosse; Joan F. Kessler, Milwaukee; Robert T. McGraw, Waukesha; 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; Hon. Timothy L. Vocke, Rhinelander; June M. Weisberger, Madison; and Cheryl Rosen Weston, Madison.

Formal discipline imposed in 1997-98

In fiscal 1997-98, 37 attorneys received a public disciplinary sanction. This includes five license revocations, 21 license suspensions, and six public reprimands imposed by the board, with the lawyer's consent, pursuant to SCR 21.09(2). The supreme court imposed four public reprimands, and one lawyer had conditions imposed on his law license. In percentage terms, 0.2 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, 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 a 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 1997-98, 31 attorneys (or 0.2 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.

Summaries of private reprimands, without any reference to or identification of the attorney involved, are printed periodically in the Wisconsin Lawyer. Private reprimand summaries were last published in the November 1997 and June 1998 Wisconsin Lawyer .

In summary, during fiscal 1997-98, 68 lawyers (0.3 percent of Wisconsin-licensed lawyers) were publicly or privately disciplined.

Twenty-six attorneys received dismissals with caution in fiscal 1997-98. A dismissal with caution is a warning issued after the board finds a supreme court rule was violated but determines that discipline is not warranted.⁶ 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 1997-98, 1,182 grievances were dismissed because they were not meritorious after an investigation or not supported by sufficient evidence of a rule violation.

In 36 dismissal cases, the administrator added an advisory note to the dismissal letter to alert the lawyer to an area of possible concern if the lawyer's conduct was questionable 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 dismissed outright (450), inquiries ultimately found to be outside the rules (668), matters closed pending petition for reinstatement (28), and matters dismissed with an advisory note (36). An individual attorney may have more than one disposition within the dismissal category.

Actions pending

The board filed formal disciplinary actions against 20 attorneys in fiscal 1997-98. At the conclusion of fiscal 1997-98, 26 formal actions were pending in the supreme court.

Other actions

The board also completed action on eight investigations of reinstatement petitions referred by the supreme court; three were granted, three were denied, and two were withdrawn by the petitioning attorney prior to investigation.

Volume of grievances

The board received fewer grievances in fiscal 1997-98 (1,396) than last year (1,506). The board disposed of 1,342 grievances this year, as compared with 1,479 dispositions in fiscal 1996-97. At the conclusion of fiscal 1997-98, 502 grievances were pending, an increase over the 448 pending at the end of 1996-97.

The board referred 165 grievances to district professional responsibility committees in fiscal 1997-98. The committees completed 151 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, 1997, and June 30, 1998.

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 list all allegations.

Finances

The legal profession is unique in assuming all costs for regulating itself. An assessment on every member of the State Bar of Wisconsin pays the costs and expenses of the board, administrator, district professional responsibility committees, investigations of possible misconduct and medical incapacity, and all disciplinary proceedings, referees, and appeals.

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 1997-98 were $167,531.95.

During fiscal 1997-98, BAPR operated on an investigative and disciplinary budget of $1,418,700. The board applied $200,000 in savings plus $50,000 in anticipated collections against its budget to place the assessment per attorney at $75.14, a reduction from the previous year's assessment of $80.

The board's budget in fiscal 1998-99 is $1,463,450. BAPR will use $190,000 in savings and $50,000 in costs that it anticipates collecting in fiscal 1998-99 to place the assessment per attorney in fiscal 1998-99 at $78.17.

Administrator, staff, and counsel

The board's offices are at Suite 315, 110 E. Main St., Madison, WI 53703, and Suite 102, 611 N. Broadway, Milwaukee, WI 53202.

Gerald C. Sternberg, based 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 is the board'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 and Melody Rader-Johnson; and full-time program assistants Mary McMillan, Rita Lord, and Linda Ackerman. 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 the board in disciplinary proceedings. Part-time counsel who represented BAPR in cases in fiscal 1997-98 are: Thomas J. Basting, Janesville; Patricia D. Jursik, Milwaukee; Marc McCrory, Janesville; Richard Mozinski, Manitowoc; Paul Schwarzenbart, Madison; and Dennis Sullivan, Milwaukee.

Conclusion

The investigative process in lawyer regulation has been streamlined, with 93 percent of investigations completed in less than one year and an average grievance processing time of 4.7 months. The past year has been busy. BAPR has maintained the pending investigative caseload at 502 cases, a slight increase over the 448 pending cases in fiscal 1996-97. At the same time, BAPR concluded 1,342 grievance inquiries and collected $167,531.95 from publicly disciplined lawyers and reinstatement fees.

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 Disciplinary Proceeding Against Palabrica, 216 Wis. 2d 146, 573 N.W.2d 532 (1998); Disciplinary Proceeding Against Warmington, 212 Wis. 2d 657, 568 N.W.2d 641(1997).

⁴ Disciplinary Proceeding Against Strasburg, 217 Wis. 2d 318, 577 N.W.2d 1(1998).

⁵Disciplinary Proceeding Against Pangman, 216 Wis. 2d 439, 574 N.W.2d 232 (1998).

⁶ See SCR 22.09(1).

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