Attorney Discipline:
A Referee's View from the Bench

There are no mandatory disposition guidelines in disciplinary cases. While disciplinary case law provides some precedent for discipline recommendations, attorney discipline in Wisconsin is based upon the facts and circumstances of the violations.

By Jean W. DiMotto

Wisconsin Supreme Court referee occupies the bench in attorney disciplinary proceedings. A referee is appointed after the Board of Attorneys Professional Responsibility (BAPR) files with the supreme court a formal pleading, the complaint, charging a Wisconsin-licensed attorney with professional misconduct. BAPR also files a proof of service document verifying that the respondent attorney has been served with the complaint.

The chief justice issues an order appointing a referee to preside over the proceeding. The referee is chosen by rotation from a list of court-approved referees in the respondent attorney's geographic area. Since referees are appointed by the supreme court, receive jurisdiction referred from the supreme court (hence the name "referee"), and report back to the supreme court at the proceeding's conclusion, referees are considered supreme court referees, not "BAPR referees." BAPR, like the respondent attorney, is a party litigant appearing before a referee.

The referee receives from the court the order of appointment, the complaint and the proof of service document. No other information is available to the referee at this point. Respondents or their counsel sometimes assume the referee is privy to information BAPR has obtained during its investigation of the grievance prior to its filing a formal complaint. But initiation of a disciplinary proceeding is akin to initiation of a civil suit: Any pre-suit investigation does not become part of the court file unless it is received into evidence later in the proceeding.

Procedure in a disciplinary proceeding

Comparing a disciplinary proceeding to a civil proceeding is more apt than comparing it to a criminal proceeding. A referee is empowered as a judge trying a civil case,¹ and the proceedings are conducted in the manner of civil litigation,² with the rules of civil procedure (including discovery) applying except as otherwise provided in the Supreme Court Rules.³

As in a civil case, an answer to a complaint in a disciplinary proceeding is due 20 days after the complaint has been served,⁴and a scheduling conference is held to set the date for an evidentiary hearing and other deadlines as necessary for discovery.⁵In addition, discovery proceeds without involving the referee unless a ruling on discovery issues is needed and is made as the result of a discovery motion. Since discovery is conducted according to the civil rules of discovery, verbal or written arguments by the parties on discovery disputes (and procedural disputes) are not limited to citing disciplinary case law and usually include civil case law.

The respondent can deny the allegations in the complaint, admit to the allegations, stipulate to the factual basis of the alleged misconduct or plead no contest ⁶ to the allegations. If any of the latter three options is exercised, the respondent still has the right to an evidentiary hearing on the referee's recommendation for disposition.

Since the respondent has the right to a hearing on the misconduct (violation) charged and on the disposition, the evidentiary hearing sometimes is bifurcated into violation and disposition phases. The disposition phase occurs after the referee determines that the respondent violated the Rules of Professional Conduct. The decision to bifurcate rests within the referee's discretion.

Evidentiary hearing

An evidentiary hearing in a disciplinary case, whether bifurcated, follows the same format as a trial to the court in a civil case. The hearing often occurs in a courtroom (or a meeting room); a court reporter records the hearing; witnesses are called, sworn and testify in response to direct- and cross-examination; and the rules of evidence and civil procedure apply. Since BAPR bears the burden of proof (by clear and convincing evidence), ⁷ it presents its case in chief first, followed by the respondent's case in chief. Requests to present rebuttal and sur-rebuttal testimony are within the referee's discretion.

Referees differ in their preferences for prehearing and posthearing briefs, verbal opening and closing statements, and submission of proposed findings of fact and conclusions of law. Some routinely prefer verbal opening and closing statements, and prepare their own findings of fact and conclusions of law upon receiving the hearing transcript. Others prefer to forego opening statements, and to have posthearing briefs and proposed findings of fact and conclusions of law submitted after receiving the transcript. Sometimes the case's nature and complexity or the fact that the hearing cannot be scheduled on consecutive days favors written arguments. These procedural preferences can be discussed during the scheduling conference or any later status conferences. At times, requests for posthearing briefs are made during the course of the hearing itself. Rulings on these procedural matters are within the referee's discretion.

When the hearing concludes, the referee has 30 days to submit a report to the supreme court. The report contains findings of fact, conclusions of law as to which, if any, of the Rules of Professional Conduct has been violated, and recommendations for discipline. The report typically contains the referee's comments about the evidence, credibility of witnesses and other factors involved in the decisional process, particularly regarding the discipline recommendation.

Recommendations for discipline

A referee's recommendation for discipline can range from a public reprimand to suspension of a respondent's law license for varying time periods, to revocation of a respondent's license. The minimum period of license suspension is 60 days. ⁸ The longest period of suspension typically is three years. Any license suspension of six months or longer, including revocation of a license, requires the respondent to apply for reinstatement of his or her law license. (Please see the accompanying sidebar, "Reinstatements in a Nutshell.")

Recommendations for discipline routinely require the respondent to pay the cost of the disciplinary proceeding. ⁹ The referee also may recommend conditions or limitations on the respondent's license tailored to the harm caused or to the attorney's rehabilitation. Recommendations might include restitution to those from whom funds were misappropriated, attendance in recovery programs or supervision by another lawyer for a specified time period.

Sometimes the respondent is willing to stipulate to a certain discipline. In this situation, the referee still has the discretion to accept or reject the stipulation, or recommend different discipline. Ultimately, the supreme court makes the final decision on the discipline to be imposed.

There are no mandatory disposition guidelines in disciplinary cases. While disciplinary case law provides some precedent for discipline recommendations, attorney discipline in Wisconsin is based upon the facts and circumstances of the violations. Thus, violations of an identical rule may result in quite different discipline recommendations. The court and referees consider these factors:

1) the seriousness of the misconduct;

 

2) the need to impress upon the respondent the seriousness of the misconduct;

 

3) the need to protect the public, the courts and the legal system from the respondent's repetition of the misconduct; and

 

4) the need to deter other attorneys from similar misconduct.¹⁰

In weighing the first three issues, the court and referee consider various factors that mitigate or aggravate the misconduct's seriousness, and thus the discipline to be imposed. Mitigating factors may include the respondent's appreciation of her or his wrongdoing, genuine remorse for the misconduct, lack of harm to clients or third parties, lack of intentionality in the misconduct, absence of prior discipline, an unusually good record of community service or evidence of actively taking measures to prevent recurrence of the misconduct.

In contrast, aggravating factors are those that augment the misconduct's severity and therefore the severity of the discipline imposed. Aggravating factors include absence of or insincere remorse, a lack of appreciation for the misconduct and its consequences, noncredibility on the witness stand, intentional misconduct, prior discipline for similar misconduct and harm to clients or the court system. Another aggravating factor can be the attorney's uncooperative or contemptuous conduct during the disciplinary proceeding itself.¹¹

The fourth factor in determining the appropriate discipline reflects the need to alert the legal community about the court's view of the misconduct's seriousness. For example, the court has severely disciplined attorneys for theft (or "loans") from, or unauthorized use of, trust account funds, and has alerted the bar that it will deal similarly with an attorney's theft of funds from his or her law firm.¹²

Postreport procedure

After the referee's report is filed with the court, the parties have 20 days to appeal the report and any alleged errors in the conduct of the proceedings. There is no procedure for postreport motions or motions for a new evidentiary hearing.

Regardless of whether a party appeals from the referee's report, the court's long-standing practice is to have a supreme court commissioner review the entire record de novo, including all transcripts and exhibits. The commissioner then prepares a bench memo, which

Jean W. DiMotto, Marquette 1984, has been a court-appointed referee in attorney disciplinary proceedings since 1992. She devotes her practice exclusively to quasi-judicial work: referee, hearing officer, mediator, early neutral evaluator and arbitrator. She is a past member of the State Bar Board of Governors and chairs the State Bar's Mentor Council.

Conclusion

A referee's role in attorney disciplinary proceedings is analogous to that of a trial judge presiding over a civil case tried without a jury. The major distinction is the amount of discretion the referee exercises in recommending discipline to be imposed by the supreme court. In the end, the supreme court decides the discipline for each attorney respondent in a formal disciplinary proceeding.

Endnotes

1 SCR 22.03.

2 SCR 22.14.

3 SCR 22.23; see generally, SCR Chapter 21 and 22 for rules of procedure in disciplinary matters.

4 SCR 22.12.

5 SCR 22.13.

6 SCR 22.12(2).

7 State v. Posterino, 53 Wis. 2d 412, 417 (1972).

8 Disciplinary Proceeding Against Schnitzler, 140 Wis. 2d 574 (1987).

9 SCR 22.20.

10 Disciplinary Proceeding Against Charlton, 174 Wis. 2d 844 (1993).

11 See, for example, Disciplinary Proceeding Against Schultz, 162 Wis. 2d 184 (1991).

12 Disciplinary Proceeding Against Casey, 174 Wis. 2d 341 (1993).