Guest Editorial

Changes to Attorney Discipline System
Leave Unresolved Issues

While the system that is developing resolves some issues, others remain, including evidentiary standards and prosecutorial discretion, the fate of district committees, and whether and when to hold additional public hearings on the proposed new rules.

By Gary L. Bakke

The outline of our new attorney discipline system began to emerge at the Wisconsin Supreme Court's administrative conference, which was held on Jan. 20 - 21. Although most of the functional details related to the restructuring of the Board of Attorneys Professional Responsibility (BAPR) still need to be worked out, the structural elements are now known.

In January, the State Bar's BAPR Structure Committee submitted to the court its recommendations, which had been approved at the State Bar Board of Governors November 1999 meeting.

The Bar's proposal was based on the premise that the bar and the public have a unity of interest in a system that fairly and efficiently disciplines miscreant lawyers. This concept, that attorneys do not want to protect other attorneys who are dishonest or unethical, is second nature to us but meets with skepticism by others.

During the administrative conference, the court considered the Bar's recommendations and those from the ABA, BAPR Interim Administrator James Martin, Marquette Law School, the U.W. Law School, and others. The system that is developing in the court adapts suggestions from many different sources.

Court accepts Bar's recommendation on client assistance program

The State Bar is convinced that most of the public dissatisfaction with the current system stems from the fact that there is no mechanism to handle consumer disputes, rather than from BAPR's handling of serious ethical violations. One major change proposed by the Bar was to establish a client assistance program (CAP). The court, without much discussion, unanimously adopted this suggestion. A central intake system will be established and a diversionary client assistance program will be developed to handle those complaints that do not involve an ethics violation.

I anticipate that the CAP program will handle more than 95 percent of all complaints that are now filed. These complaints, which do not involve serious ethical misconduct, still involve an attorney/client problem that could benefit from third-party assistance. Because the current system is designed to handle only disciplinary cases, these minor matters now are summarily dismissed from the system, leaving complainants frustrated and angry. This new CAP program should benefit both lawyers and their clients and greatly improve the public's acceptance of the disciplinary system. Interim BAPR Administrator Martin has been asked to convene a committee to develop the new intake and diversionary system.

New 12-member board will determine cause to proceed

Another major change involves dividing much of the BAPR board's current responsibilities between two new 12-member boards. There will be a 12-member board that will review the results of an investigation and determine whether to proceed with formal public charges against an attorney. Once that board determines cause to proceed, the prosecution will be handled by BAPR staff and then presented to a referee, who then will recommend discipline to the supreme court if warranted. This is the major role of the current BAPR board and is very similar to the function proposed by the Bar.

An important issue is yet to be decided: What is the evidentiary standard to be applied by the charging board, and to what extent does the board have prosecutorial discretion in the charging decision? The present board applies a "clear-and-convincing" evidentiary standard to proceed and retains prosecutorial discretion in the charging decision. In the court's discussions the standard for the new board was frequently referred to as "probable cause," which is a lower standard than presently used, but there has been no explicit decision on this issue by the court. This evidentiary standard and discretionary authority are one of the most important elements still to be determined.

A second 12-member administrative oversight board will monitor the system and the operation of the district committees. In addition to overseeing the system, this board will hold limited appellate power to handle complainants unhappy with the resolution of their case. As with the present board, both the charging board and the administrative oversight board will be composed of eight lawyer and four nonlawyer members appointed by the court.

Fate of district committees unclear

The local district committees, which were strongly supported by the Bar's proposal, will continue, at least for the immediate future. These committees investigate complaints against local attorneys and make recommendations for discipline. The justices agreed that these district committees need more uniformity in their procedures and discipline recommendations. The court decided that committee members will receive extensive training in the attorney discipline system, which is consistent with the Bar's recommendations.

There is some ambiguity about the process to determine the long-range future of these local committees. The court plans to review the effectiveness of the local committees in three years. Some justices have referred to this as a "sunset," while others maintain that it is a "review." The difference may be significant, but there is no apparent consensus on that point yet.

The court decided that public members will comprise one-third of all local committees. This is consistent with the Bar's proposal. The Bar strongly supports public membership on the statewide and local committees because public members offer valuable insight and experience and their presence enhances the public's perception of the system's fairness. I am concerned, however, that an immediate increase in the public membership on the local committees may drastically increase an already heavy load for the lawyer volunteers. I am confident that the court understands this issue and will give it careful consideration. The court also decided to take on the task of appointing members to the district committees, a task which now falls upon the State Bar president. Chief Justice Shirley Abrahamson suggested establishing a selection committee, with a seat reserved for the Bar president, but the justices did not resolve the new selection process.

Supreme Court Commissioner William Mann has been asked to draft specific court rules by mid-March and these rules, or those finally adopted by the court, may resolve these as-yet-undecided issues.

Rule changes call for public hearing

Possibly the most contentious issue still to be addressed, however, is whether and when to hold additional public hearings on the proposed new rules. Some members of the court have suggested that public hearings be delayed until a new system has been in place for a few months. Because of the complex nature of the current system and the extensive changes that are proposed, the Bar will request that a hearing be held on any new proposed rules before they are implemented. With the extensive proposed changes there is a distinct possibility of unintended consequences unless the rules are subject to public scrutiny and comment before they are implemented.

Process leaves room for improvement

I am concerned about the process by which these changes have occurred, rather than the substance. Many people who have advocated for change have unfairly and unnecessarily criticized the current system. Worse, the motives of the volunteers have been questioned. Without doubt the current system has worked very well for the purpose for which it was designed. More important, I know that the volunteer participants, both lawyer and nonlawyer, have dedicated thousands of hours to make the system work.

Gary L. Bakke, U.W. 1965, is a principal of Bakke Norman S.C., New Richmond. He is State Bar president-elect and cochair of the Bar's BAPR Structure Committee.

Certainly we have to be open to the possibility that the system can be improved; that can benefit us all. However, the possibility of improvement is not a criticism of those who faithfully undertook the task of operating the system designed by the court.

One way to assess the value of Wisconsin volunteers is to compare the cost of our disciplinary system with those of other states that depend totally on paid staff. Colorado has such a system and its disciplinary costs increased by about $100 per lawyer per year. For us that calculates to about $2 million per year. We all owe a debt of gratitude to those volunteers who have given so much to make our system work.

This review process has been a lengthy and intense one for the court, BAPR, and the State Bar. It is my hope that these changes to BAPR will create an attorney discipline system that functions in the best interests of the public and the attorneys who serve the public well.