May 3, 2010 − The Wisconsin Supreme Court’s April 28 open administrative conference resulted in adoption of a petition relating to monitoring and referral procedures within the State Bar’s Wisconsin Lawyers Assistance Program (WisLAP) and the Office of Lawyer Regulation (OLR).
With some changes, the court adopted (by 5-2 vote) petition 08-28 − filed by the State Bar and the OLR − establishing procedures for lawyer support and monitoring within WisLAP and procedures for OLR to refer lawyers for monitoring to WisLAP. The anticipated effective date is July 1, 2010. A final order reflecting changes has not been released.
Separate from the OLR, which regulates lawyers, WisLAP is a State Bar program that provides confidential assistance to lawyers, judges, law students, and their families in coping with substance addiction, mental illness, or other problems impacting the practice of law.
Under the new rules − amending and creating provisions primarily within chapters 10 (Regulation of the State Bar) and 21 (Lawyer Regulation System) of the Supreme Court rules − the OLR may refer a lawyer to a State Bar lawyer assistance program (currently WisLAP) as an alternative to discipline, as part of conditions for seeking license reinstatement, if a lawyer pleads impairment or medical incapacity in response to an investigation, or the OLR has a reasonable belief that a lawyer is impaired or incapacitated.
Once referred, a lawyer is expected to sign a contract to follow objectives that will demonstrate compliance with a monitoring plan. The lawyer will meet with a trained WisLAP monitor to review the obligations. The monitor will track the lawyer’s compliance under the contract by gathering data such as drug or alcohol test results. All communications between the monitored lawyer and WisLAP are confidential, but the contract stipulates that certain information will be reported to the referring agency to assess compliance or noncompliance under the contract.
“Research has shown a high rate of compliance in other states with similar programs,” said Linda Albert, WisLAP coordinator. “It provides a structure for attorneys to demonstrate rehabilitation and fitness to practice. Thus, it’s an effective way to protect the public and allow lawyers to continue their careers.”
Potentially, the Board of Bar Examiners (BBE) could use these new referral and monitoring procedures to allow applicants with substance abuse problems, mental health conditions, or other impairments, to be admitted conditionally under terms and conditions established by the BBE. This is a proposal under petition 08-13, which was held over pending the outcome of 08-28 and will be considered in the fall.
Prior to 08-28, the OLR was not permitted to refer an individual to WisLAP despite learning of conditions adversely affecting the individual’s practice. On Dec. 29, 2008, the State Bar and the OLR jointly petitioned to allow it, along with monitoring proposals. On Oct. 29, 2009, the court conducted a public hearing on the matter and held an open administrative conference, directing additional research on certain aspects of the petition before adoption.
