Regulating the Law Profession

Board of Attorneys Professional Responsibility
Annual Report
Fiscal year July 1, 1996 to June 30, 1997

By Gerald C. Sternberg

The Board of Attorneys Professional Responsibility (the board or BAPR) 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 1,479 matters in an average time of 4.4 months. As of June 30, 1997, BAPR's caseload of pending investigations was 448.

Board composition

BAPR is composed of eight lawyers and four nonlawyer public members, selected by the supreme court justices to serve an initial three-year term, followed by one successive three-year term. The State Bar of Wisconsin president-elect serves as a nonvoting member of the board. All board members serve without compensation but are reimbursed for actual travel expenses. Approximately every six weeks, the board meets in open public session on policy matters and in closed session on disciplinary matters. (Brief biographies of board members are shown in Figure 1.)

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 their attention. ² BAPR also determines whether a lawyer's alleged misconduct or medical incapacity should be the basis for filing a complaint or petition in the supreme court seeking public discipline, medical suspension or conditions on a law license, the imposition of a private reprimand by BAPR or dismissal of the grievance. ³

The administrator is accountable to the board for handling all grievances, medical incapacity inquiries and reinstatement investigations, including periodic progress reports to the board at its meetings.

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

As seen in Figure 2, the two areas of practice producing the most grievances in fiscal 1996-97 were criminal law and family law. The most commonly filed allegation was attorney lack of diligence. Clients filed the majority of grievances.

Recent developments

In the last few years, BAPR has paid particular attention to reducing its investigation time and the number of investigations pending more than one year. In October 1989 the number of investigations pending more than one year was 264, which was 26 percent of the total investigative caseload. In October 1997 the number of such investigations was 12, or 2 percent of the total caseload.

In formal cases, the supreme court decided a variety of lawyer discipline cases in fiscal 1996-97. Several cases involved misappropriation of funds, including Disciplinary Proceeding Against Inderberg, Disciplinary Proceeding Against Sosnay, Disciplinary Proceeding Against Pigatti and Disciplinary Proceeding Against Kellogg. ⁴ Disciplinary Proceeding Against Stuligross involved the abuse of the Illinois pro hac vice procedure by a lawyer licensed to practice in Wisconsin. ⁵ The court also decided Disciplinary Proceeding Against Solomon, that included, among other things, some instances of in-person solicitation of clients for representation, failure to keep clients reasonably informed of the status of their matters and failure to refund unearned fees. ⁶ Practicing law during a suspension was, in part, the ground for a three-year disciplinary suspension in Disciplinary Proceeding Against Wentzel. ⁷ The court also decided several reciprocal discipline cases, based on lawyer discipline imposed in other states, including Disciplinary Proceeding Against Mohammed-Zadeh, Disciplinary Proceeding Against Session and Disciplinary Proceeding Against Marick. ⁸ Figure 3 shows the rule violations the supreme court determined in orders in fiscal 1996-97.

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 substance abuse or emotional problems. BAPR strives to be involved in preventive programs, such as WisLAP, that are likely to result in less misconduct and that benefit the public and profession. In connection with several discipline cases or reinstatements, BAPR has recommended license conditions that address an attorney's impairment, chemical dependency or mental health.

Recent developments also include reach-out luncheons set up by BAPR with local bar leaders statewide to take their pulse on important ethical issues facing Wisconsin's lawyers.

During fiscal 1996-97, BAPR hired a litigation counsel, William Weigel of Milwaukee, to assume a larger proportion of formal cases so as to reduce the cost of referring most cases to outside counsel and to provide greater accountability to BAPR. The board also hired a half-time independent contractor counsel, Robert Krohn of Edgerton. Together with one of the outside counsel, Eugene Radcliffe of Black River Falls, these two lawyers handle the majority of formal cases. The balance of formal cases is assigned to outside counsel based upon the type of misconduct issues alleged, the case complexity, or the respondent attorney and witness location. This litigation team, under the administrator's supervision, has reduced the cost of concluding formal cases in a timely manner.

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

Joint Trust Account Committee: Chair - William Koslo; Sharren Rose, William Fale, Arthur Egbert.

Fee Arbitration Committee: Chair - Trinette Pitts; Walter Washburn, Laura DeGolier.

Advertising Survey Committee: Chair - Gerald O'Brien; James Martin, Jon Axelrod.

District Committee Guideline Review Committee: Chair - Gerald O'Brien; William Fale, Bonnie Schwid.

Subcommittee on Disabilities: Chair - James Martin; Sharren Rose, William Fale, Walter Washburn.

BAPR also has expanded its participation in the number and kinds of educational programs. Significantly, BAPR has worked in cooperation with the State Bar to produce a compendium of all disciplinary case law, to be published in fiscal 1997-98.

Finally, on Oct. 29-30, 1997, BAPR presented a substantive disciplinary law seminar to all professional responsibility committee members to bring them as up-to-date as possible in this challenging field.

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 time schedule, 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 ultimately decides the 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; Jean W. DiMotto, Greendale; John A. Fiorenza, Milwaukee; David R. Friedman, Madison; Stanley F. Hack, Milwaukee; Charles J. Herro, Oconomowoc; Janet A. Jenkins, La Crosse; Joan F. Kessler, Milwaukee; 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; Timothy L. Vocke, Rhinelander; June M. Weisberger, Madison; and Cheryl Rosen Weston, Madison.

Formal discipline imposed in 1996-97

In fiscal 1996-97, 28 attorneys received a public disciplinary sanction. This includes seven license revocations, 16 license suspensions, and five public reprimands imposed by the board, with the lawyer's consent, pursuant to SCR 21.09(2). In percentage terms, 0.1 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 on attorneys, 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 the 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 1996-97, 24 attorneys received private reprimands. In percentage terms, 0.1 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.

As part of its educational program, reprimand summaries periodically are published in the Wisconsin Lawyer. Private reprimand summaries were last published in the November 1996 and May 1997 Wisconsin Lawyer.

In summary, during fiscal 1996-97, 52 lawyers were publicly or privately disciplined, which is less than 0.3 percent of the total 19,301 Wisconsin-licensed attorneys.

Thirty attorneys received dismissals with caution in fiscal 1996-97. A dismissal with caution is issued after a finding of a violation of a Supreme Court Rule where the board determines that a warning rather than discipline is warranted. ⁹ 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 1996-97, 1,335 grievances were dismissed because they were not meritorious after an investigation or not supported by sufficient evidence of a rule violation. In a few dismissed cases, the administrator will alert the lawyer to an area of possible concern if the lawyer's conduct was "close to the line" 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 that are dismissed (623), inquiries ultimately found to be outside the rules (698) and those matters closed pending petition for reinstatement (14). An individual attorney may have more than one disposition within the dismissal category.

Actions pending

The board filed formal disciplinary actions against 37 attorneys in fiscal 1996-97. At the conclusion of fiscal 1996-97, 32 formal actions were pending in the supreme court.

Other actions

The board also completed action on 13 investigations of reinstatement petitions referred by the supreme court; six were granted, three denied and four withdrawn by the petitioning attorney prior to investigation.

Volume of grievances

The board handled more grievances this year than last year. The board received 1,506 grievances in fiscal 1996-97 compared to 1,316 grievances in fiscal 1995-96. The board kept pace with the increase by disposing of 1,479 grievances this year compared to 1,339 dispositions in fiscal 1995-96. (See Figure 5.) At the conclusion of fiscal 1996-97, 448 grievances were pending, which is a slight increase over the 421 grievances pending at the end of fiscal 1995-96.

The district professional responsibility committees received 145 grievances in fiscal 1996-97. The committees completed 123 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, 1996 and June 30, 1997.

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 reflect all allegations.

Finances

The costs and expenses of the board, administrator, district professional responsibility committees, the investigations of possible misconduct and medical incapacity, disciplinary proceedings, referees and appeals are paid for by an assessment on each attorney member of the State Bar of Wisconsin, making this the only profession that assumes all costs for policing its membership.

Each year BAPR proposes a budget to the supreme court after consulting with the State Bar leadership and its Finance Committee. Following the supreme court's review and approval, the assessment is collected as a separate item on the State Bar annual dues statement. Each licensed attorney is billed on a per capita assessment basis. The assessment collected is forwarded to the supreme court to cover the board's operation.

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 1996-97 were $63,055.48.

During fiscal 1996-97, BAPR operated on an investigative and disciplinary budget of $1,414,764. During this period, the board applied $144,764 in savings plus $50,000 in anticipated collections against the $1,414,764 budget to place the assessment per attorney at $80, a reduction from the previous year's assessment of $81.13.

The board's budget in fiscal 1997-98 is $1,418,700. BAPR is using $200,000 in savings plus the $50,000 in costs that it anticipates collecting in fiscal 1997-98, to reduce its assessment, placing the assessment per attorney in fiscal 1997-98 at $75.14.

Administrator, staff and counsel

The board's offices are at Suite 410, 110 E. Main St., Madison, WI 53703, and Suite 102, 611 N. Broadway, Milwaukee, WI 53202.

Gerald C. Sternberg, whose office is 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 serves as BAPR'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, Melody Rader-Johnson and Peter Sammataro; full-time program assistants Mary McMillan, Rita Lord and Linda Ackerman; and part-time program assistant Stacci Peterson-Bulgrin.

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

Gerald C. Sternberg is the administrator of the Supreme Court Board of Attorneys Professional Responsibility.

Conclusion

The investigative process in lawyer regulation has been streamlined so that 98 percent of investigations are completed in less than one year. The past year has been busy. Efficiencies have given BAPR the ability to slightly reduce the assessment to lawyers and maintain the pending investigative caseload at 448 grievances at the end of fiscal 1996-97. During the year, BAPR concluded 1,479 grievances and collected more than $63,000 from publicly disciplined lawyers.

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 SCR 21.09(2).

⁴ Disciplinary Proceeding Against Inderberg, 210 Wis. 2d 555, 564 N.W.2d 661 (1997); Disciplinary Proceeding Against Sosnay, 209 Wis. 2d 241, 562 N.W.2d 137 (1997); Disciplinary Proceeding Against Pigatti, 207 Wis. 2d 41, 558 N.W.2d 626 (1997); Disciplinary Proceeding Against Kellogg, 205 Wis. 2d 130, 555 N.W.2d 381 (1996).

⁵ Disciplinary Proceeding Against Stuligross, 208 Wis. 2d 200, 560 N.W.2d 269 (1997).

⁶ Disciplinary Proceeding Against Solomon, 206 Wis. 2d 270, 556 N.W.2d 752 (1997).

⁷ Disciplinary Proceeding Against Wentzel, 204 Wis. 2d 285, 554 N.W.2d 669 (1996).

⁸ Disciplinary Proceeding Against Mohammed-Zadeh, 206 Wis. 2d 288, 556 N.W.2d 755 (1997); Disciplinary Proceeding Against Session, 205 Wis. 2d 116, 555 N.W.2d 120 (1996); Disciplinary Proceeding Against Marick, 204 Wis. 2d 280, 554 N.W.2d 204 (1996).

⁹ See SCR 22.09(1).