Attorney Discipline: Lawyer Discipline from the Defense
Perspective
Practice defensive lawyering to avoid serious BAPR encounters. Here
are some suggestions for avoiding grievances and for responding to BAPR
communications.
By Richard Cayo
By almost any measure, lawyers are very highly regulated. Wisconsin's
Board of Attorneys Professional Responsibility (BAPR) is as active as
any of the other licensing agencies in the state, very likely matching
the combined efforts of all but a few.1 Our
rules are more well-developed than those of other regulated
professionals, many of the latter being more
aspirational,
unenforceable platitudes than real rules. Moreover, the discipline
imposed upon lawyers exceeds that visited upon most other licensed
professionals in both quantity and severity. Although the public might
take this to signify that our moral compasses are dismantled during law
school, it is more a reflection of the conflicts and pressures that
attend law practice and our profession's commitment to self-regulation.
As one might imagine, being carefully regulated is both good and
bad.
Our system reflects well on the bar inasmuch as BAPR and its district
professional responsibility committees are comprised of volunteers who
serve difficult and time-consuming functions with little thanks.
Likewise, there is little doubt that BAPR, as an organization, is
scrupulous; no mean accomplishment for any system of self-regulation.
However, BAPR wields substantial power over lawyers. It has significant
resources and paid staff who investigate misconduct full-time. While
BAPR dismisses the majority of the grievances it investigates, like any
prosecutorial body it prides itself on being tough.
Lawyers who must respond to grievances do so at great personal,
financial and professional expense. Responding to a grievance often is
an agonizing process, even for those who are blameless. This article
offers some suggestions for avoiding grievances and for responding to
BAPR when necessary.
Defensive lawyering
Like cobblers whose children go barefoot, lawyers often exercise
their skills least well on their own behalf. Many of the good habits
practiced for the benefit of clients are not observed for the lawyer's
own sake. This writer has worked with many lawyers dealing with the
discipline system, each of whom inevitably wrestles with the question,
"How did I get into such a mess?" Some protective measures are
self-evident. Others are not. Consider the following suggestions:
Practice careful case selection. Neither BAPR nor
the supreme court will acknowledge (publicly) that lesser cases warrant
lesser lawyering. A lawyer who agrees to handle a "simple" divorce case
for an inadequate fee may be found to have communicated inadequately
with a demanding client, notwithstanding that the work might bear a
reasonable relationship to the fee charged. According to several
decisions, even a valueless case can be regarded as having been
"neglected." 2
In the long run, careful regulation benefits the bar, just as an
aggressive State Patrol benefits motorists - so long as it's not in your
rearview mirror.
Document files with notes regarding phone conversations or
verbal agreements with clients. You will not recall these
events to the extent necessary to be persuasive in a fight, and the
absence of notes may be used to support an inference that these
conversations never happened.
Insist upon written contracts or waivers even under
circumstances where doing so might appear overly formal. Good
lawyers would never enter agreements on behalf of clients without
documentation. 3Yet, they do just this with
agreements on their own behalf. Use plain English in fee contracts. Few
lawyers agree on the significance of the word "retainer," and clients do
not understand it at all.
Refuse to tolerate the accumulation of accounts
receivable. Besides the fiscal impact, unpaid bills actually
create incentives for clients to complain. A client who owes $100 is not
as likely to find fault with his/her lawyer as one who owes
$100,000.
Set your own limits and refuse to acquiesce to unreasonable
or inappropriate demands. The same public that wants less
litigious and more moderate attorneys in general wants one thing only
from their own lawyers - a win. Don't let clients decide where the line
is with respect to ethics.
Invest in adequate practice systems. Computers are
ready-made for conflict prevention and, with networks, can be even
better. The trust accounting rules are highly detailed and, although
reasonable, are not self-evident. Take the time to review SCR 20:1.15.
Inexpensive and helpful prepackaged trust accounting systems are
available. Reliance upon staff without reasonable oversight creates
exposure for supervisors under SCRs 20:5.1 and 5.3.
Invest in a professional responsibility library. The
explosion of professional responsibility cases has yielded a wealth of
law that can serve as real guidance in difficult situations, sometimes
yielding categorical answers. Annotations of the Model Rules of
Professional Conduct are an inexpensive option to a more complete
professional responsibility library. Allocating a fraction of the
resources spent on the libraries maintained for the benefit of clients
might spare lawyers serious BAPR encounters.
Confront problems early. A conflict issue that might
disqualify you from a case is much less a problem when the
representation begins than on the eve of trial. Neglect and poor
communication frequently are symptoms of cases suffering underlying
ailments. Deliver bad news as quickly as good. Delay rarely makes
matters better.
If you practice solo, develop a network of colleagues that
you can turn to for backup and consultation. Consult the State
Bar's Lawyer-to-Lawyer
Directory for a list of members willing to answer questions
about practice areas, and use the Ethics
Hotline and the Professional
Ethics Committee for answers to questions about ethics and
professional responsibility.
Live and practice within your means. Our culture
says that lawyers are rich. The marketplace says otherwise. Don't let
your own expectations, or those of friends and family, tempt you to
overextend yourself.
Withdraw from doomed attorney/client relationships.
The corollary to good case selection is knowing when to quit. Many of my
lawyer-clients have said, "I could see it coming." While we can't always
divine which of our prospective clients will be impossible to please,
this foreboding usually comes into focus at some point during the
representation. Personal services contracts can be terminated, if
handled timely and responsibly. 4
Sadly, some of the lawyers who have fallen into the deepest trouble
are those who were the most accommodating to their clients. Conflicts of
interest are sometimes suffered ignorantly or for venal reasons, but
often they result from a good faith attempt to accommodate clients. The
absence of written fee contracts can similarly result from a
well-intentioned desire to relate to clients in a way that is more
personal and informal. Defensive lawyering involves keeping an eye out
for your own interests and recognizing that all we do may, at some
point, be subject to a detailed and critical review.
Responding to BAPR
In my experience, no lawyer, firm or practice area is immune from
grievances with BAPR, and in every practice, however careful, a little
rain will fall. Upon receiving a grievance inquiry from BAPR, lawyers
should appreciate that they do not lack for good company. They should
reply effectively but not overreact. A couple of recommendations for
responding to BAPR follow.
SCR 22.07(2) requires lawyers to respond to BAPR inquiries
with a recitation of facts regarding the subject of the inquiry, not a
plea. 5 Although a lawyer is
entitled to assert the Fifth Amendment, even with respect to the facts,
this is largely unavailing in the disciplinary setting as BAPR will draw
the most sinister inferences from such a claim.
Cooperation is appropriate, practical and mandatory. However, the
rule does not call upon lawyers to offer conclusions concerning the
applicability of rules cited by BAPR to the extant facts. Neither do the
rules (or cases) require lawyers to confess ethical violations. For
example, if the grievance concerns a claimed failure to timely act or
communicate upon a matter, the rule requires that you recite the facts
and circumstances surrounding the alleged failing. However, the rule
does not require an attorney to admit or deny that the facts complained
of constituted "neglect" or "failure to communicate," proscribed by SCRs
20:1.3 and 20:1.4, because the facts and circumstances in each
individual case will bear upon these conclusions. The fact that one may
"feel guilty" regarding a piece of work does not make it so.
Take the gloves off with the complainant in the first
response to BAPR, even where the grievant is a current client.
Where a complainant misrepresents or inaccurately characterizes the
lawyer's conduct, the record must be set straight immediately and
persuasively. It is crucial that this be done at the outset of the
process because the investigator's impressions about the merits of the
grievance will profoundly affect both the course of the investigation
and its eventual outcome.
Taking the gloves off in the first response to BAPR means, in a
sense, briefing the merits of the conduct being examined. This includes
setting forth the full factual context, correcting any misstatements by
the complainant, exposing shortcomings in the complainant's credibility
and explaining mitigating factors. SCR 20:1.6, which otherwise prohibits
the revelation of confidential information, contains an exception to the
extent necessary to defend against a client's allegation of wrongful
conduct.
Give BAPR all the information it needs, not just the
information it requests. For example, if a lawyer is accused of
making a misrepresentation, BAPR doubtless will ask whether or not that
was so. If one is indeed guilty of making a misrepresentation, that may
well constitute professional misconduct. If this is all BAPR learns of
the matter, it can be expected to have little other than condemnation
for the lawyer.
The purpose of discipline is to protect the public, not to
punish.6 Therefore, BAPR should know more
than whether an offense was committed. In short, the system, operating
at its best, judges people, not just offenses. BAPR makes a good faith
effort to be even-handed in correlating discipline with misconduct.
However, a correlation between acts and discipline is not well-reflected
in the case law because BAPR, district committees, referees and the
court all take mitigating factors into account. BAPR can only
incorporate as much mitigating information as it is provided. If modesty
inhibits your ability to speak well of yourself or your efforts on
behalf of the grievant, retain counsel to speak for you.
BAPR is not an adjudicative body; it investigates and prosecutes
alleged misconduct. As such, it is not obliged to afford procedural due
process to lawyers during the "investigative stage" of its work.
Likewise, its staff is not prohibited from ex parte contacts with
attorneys being investigated. This means lawyers representing
respondents or respondents themselves are free to phone or meet with the
investigators concerning grievances. This may or may not be advisable
depending upon the circumstances of an individual case (and the
presentability of the respondent), but such contact often affords an
indispensable means of educating BAPR about the merits of the
respondent's position and may be the only means of humanizing the
process.
Under current practice BAPR will not permit personal appearances by
respondents at its meetings. While it sometimes may be beneficial to
talk with BAPR or district committee investigators, I recommend you not
contact members of BAPR or district professional responsibility
committee hearing panel members.
Bear in mind that many grievances are acted upon by BAPR without any
personal contact with the respondent. Remember, if all BAPR knows about
the respondent is the bad stuff, it has little likelihood of being
sympathetic.
Richard Cayo, U.W. 1976, concentrates his
practice in lawyers professional responsibility, securities fraud,
worker's compensation and mediation. Before joining Halling & Cayo
S.C., Milwaukee, he was a staff lawyer for the State Bar of Wisconsin
and deputy administrator of BAPR. He currently is a State Bar delegate
to the Joint BAPR/State Bar Committee studying fee arbitration and
lawyer advertising.
BAPR prides itself on its refusal to "plea bargain"
professional responsibility offenses. Aside from the legitimate
debate about whether bargaining might sometimes better serve the end of
substantial justice, this policy imposes special considerations upon
respondents and their lawyers. BAPR will not shrink from protracted
fights. Moreover, SCR 22:20(1) permits BAPR to recover its costs and
attorney fees from respondents where it prevails. The referee's fees and
expenses also may be charged by the court to the respondent in the event
he or she is disciplined.
Nothing prevents a lawyer from remedying a problem.
If the complaint concerns a problem, like failure to communicate or
neglect that can be remedied, nothing prohibits a lawyer from doing so,
as long as no attempt is made to "buy back" the grievance or restrain
the client from cooperating with BAPR in exchange.7
Conclusion
Wisconsin's system of lawyer discipline is fair but it is aggressive.
BAPR and the system's other participants include many volunteers who are
skilled lawyers motivated by a genuine desire to do the right thing.
Nevertheless, lawyers should exercise great care in dealing with BAPR
both in individual cases and with respect to rulemaking. In the long
run, careful regulation benefits the bar, just as an aggressive State
Patrol benefits motorists - so long as it's not in your rearview
mirror.
Endnotes
1 Compare Regulating the Legal Profession:
BAPR Annual Report (fiscal 1996), 69 Wis. Law. 25 (Dec. 1996), with
the Department of Regulation and Licensing's monthly Report of
Decisions, containing disciplinary orders and opinions for more
than 30 regulated professions for the same 12-month period.
2 See, e.g., In re Disciplinary
Proceedings Against Mandelman, 158 Wis. 2d 1, 460 N.W.2d 749
(1990).
3 See SCR 20:1.5(b) and (c).
4 See SCR 20:1.16; In re Marriage
of Johnson, 199 Wis. 2d 367 (Ct. App. 1996).
5 See In re Disciplinary Proceedings
Against Norlin, 104 Wis. 2d 117 (1981) (a lawyer's failure to
cooperate with a disciplinary investigation constitutes misconduct).
6 In re Disciplinary Proceedings Against
Kelsay, 155 Wis. 2d 480, 483, 455 N.W.2d 871 (1990); SCR
20:21.03(5).
7 See In re Suemnick, 108 Wis. 2d
427, 321 N.W.2d 298 (1982).
Wisconsin
Lawyer