Attorney Discipline: Lawyer Discipline from the Defense Perspective

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

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.

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).

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