Parting Thoughts: An Interview with Jerry Sternberg

Concluding 16 years as BAPR administrator, Jerry Sternberg reflects on his role and legacy. He left BAPR late last year to prosecute nursing home abuse cases for the Wisconsin Department of Health and Family Services.

By Dianne Molvig

Sitting in the den of his Madison home, Jerry Sternberg looks upon his job as administrator of the Wisconsin Supreme Court Board of Attorneys Professional Responsibility (BAPR) from a new vantage point - one of hindsight. Sternberg left the agency last November, after almost 16 years. "I suppose it was a complex job," Sternberg says. He smiles, and a fleeting expression on his face hints that the meaning of those words may be sinking in deeper now that he's outside of BAPR, rather than in the thick of its activities.

As BAPR administrator, Sternberg supervised all investigations of alleged misconduct or medical incapacity involving Wisconsin lawyers, whether the investigation was conducted by staff in BAPR's Madison and Milwaukee offices, or by any of 16 grievance committees - consisting of both lawyers and nonlawyers, located around the state. Sternberg himself prosecuted several discipline cases brought before a referee appointed by the state supreme court, and also supervised other prosecutors. He also supervised the investigation of reinstatement cases. Added to that were media relations, a mix of administrative duties - and lots of listening.

"Sometimes lawyers who had grievances filed against them called me just to vent," Sternberg says. "And the same thing with complainants. Even if their complaint got dismissed, they still wanted someone to hear them out, to give them their day in court. So it was a balancing act. You had to listen to everybody - complainants, respondents, the public, and the legal profession."

Many who are unfamiliar with the inner workings of BAPR may hold misconceptions about what his role was, Sternberg says. "I think some believe I had more power than I really did," he says, "and that I made all the decisions. But I only had authority to a certain point: to dismiss grievances and to make recommendations on discipline cases to the BAPR board. Then the 12 board members are very free to decide what they want to do." Eight lawyers and four nonlawyers, appointed by the supreme court, make up the board, which ultimately decides whether or not to prosecute a case.

Nonetheless, as the overall administrator of the state agency that disciplines lawyers, Sternberg can't shake the image of being the "Big Bad Cop" who kept a watchful eye on the legal profession. Did that bother him? "No," he says, "because I never saw myself or the job as being the big, bad, mean anything. I always tried to treat people with respect. I didn't go after lawyers I was prosecuting in a personal way. I just tried to do a job, and to do it as well as I could, with the help of the staff, the committees, the board - the whole team."

Coming to Wisconsin

The path that led Sternberg to his BAPR career can be traced to one day in 1982, when he was working as legal counsel for the New York City Police Department. Sternberg and his wife, Merle, had been considering a move to somewhere better suited to raising a family, and where Jerry wouldn't spend two-plus hours a day commuting to his office.

"One day I got home from work," Sternberg recalls, "and there were three red checks next to this job announcement in the Federal Bar Bulletin. So I applied." After a couple rounds of interviews with the BAPR board, Sternberg was hired as the new administrator.

A key motivation in taking the job, Sternberg says, was that Vic Miller, George Steil Sr. of Janesville, and other board members "showed me an example of public service that I admired and was willing to make a move for." Sternberg himself had followed a public service direction in his career, having served two stints as a VISTA volunteer, followed by working as assistant corporation counsel in Mt. Vernon, N.Y., where he prosecuted discipline cases involving public works employees, mostly police, before his job in NYPD's legal department.

With his background, a job involving lawyer discipline was a logical next step. But throughout his tenure at BAPR, Sternberg viewed his job as being more than chief disciplinarian. He also took on the role of educator. BAPR doesn't "just wait for people to trip up," he says. "I can't tell you how many speeches I made to county bars throughout the state and before the State Bar telling lawyers how to avoid grievances. And it's been not just me, but the BAPR board members, too, and some of the supreme court justices. Everybody has tried to supplement the enforcement function of the agency with the educational part. I think you have to put those together and educate lawyers so they don't trip."

Sternberg's education efforts didn't stop with giving speeches or writing articles for legal publications. He made himself available to answer lawyers' personal questions after his seminar presentations, or to respond to attorneys, and even judges, who called his office for rule clarification. "I don't think there's anyone who felt we did not have an open-door policy," he says.

Staying approachable was a high priority to Sternberg - yet not an easy stance to maintain when you're the disciplinarian of your peers. A pitfall for many in such a position is to become separated, isolated. "I didn't have this view of myself as having to be a loner," Sternberg says. "In fact, instead I immersed myself in projects that were cooperative." One example was his involvement in the Wisconsin Lawyers' Assistance Program (WisLAP), which tries to help lawyers conquer personal problems, such as addiction or emotional troubles, before they lead to professional misconduct. Not only does WisLAP aid troubled lawyers, Sternberg points out, but its efforts also translate into better protection of the public, which is BAPR's chief mission.

Delivering messages

Sternberg doesn't kid himself; he knows those four letters, BAPR, are enough to stir fear in the hearts of many lawyers. That fear is largely baseless, Sternberg likes to remind his colleagues. The highest number of public discipline cases he's seen in one year is 69, plus the board issues 20 to 40 private reprimands a year (usually for less serious, one-time incidents resulting in minor harm). "That's at most about 100 lawyers a year affected by discipline, out of 19,000," Sternberg notes. "Most grievances get dismissed. To have this great fear is not really justified. We're not out for skulls."

Just having a grievance filed against them is enough to cause some lawyers to respond like "deer frozen in headlights," Sternberg acknowledges, which then puts them at risk for another professional grievance, one that BAPR categorizes as "failure to cooperate." What may have been a minor matter thus becomes major. "That's why failure to cooperate makes no sense," Sternberg emphasizes. "If an attorney answers a grievance thoroughly, the great probability, at least in terms of the statistics, is that it's going to be dismissed."

Clearly, that's one message Sternberg hopes more attorneys grasp as they become more familiar with what BAPR does and how it works. The overriding message he hopes he's conveyed to lawyers over the past 16 years comes down to this: Practice with honesty. Communicate with clients fully. And should you get a grievance filed against you, don't run scared.

"The other thing is, we're all going to make mistakes," Sternberg says, "because we're human beings. Fess up to those mistakes. Don't try to give excuses or point the blame at others. If you practice honestly and deal openly with clients, opponents, and the courts - and not play games or take on the Rambo style - you're going to do a better job. It's as simple as that."

Another oft-repeated message Sternberg hopes has hit home with lawyers over the years is that practicing according to professional conduct rules serves dual purposes. "Not only does it keep you out of trouble with BAPR," he notes, "it also helps you develop more satisfied clients, which is good business. Clients like it when you communicate well with them, when you're honest and consistent."

"One of the most important things for lawyers to do from the get-go when they meet with clients," Sternberg adds, "is to say, 'This is the way I charge.' Bite the bullet; don't put it off. Because if you suddenly hit clients with a big bill, they're angry and file a grievance. Also, show what you did. It's aggravating to get a bill that says 'worked on the file.' That doesn't mean anything to the client. Be specific. There are so many commonsense ways to avoid grievances and to make your clients more satisfied. Those go hand in hand."

Leaving a legacy

What overall impression does Sternberg hope he's left behind? "The thing I'm proudest of is the fact that people were treated evenhandedly and extremely fairly," he responds. "In tandem with that goal, I also tried to run the agency with the utmost integrity. We were straightforward; we took our lumps when we had to. If we did something wrong, we explained we made a mistake. That's the way I see my legacy with the agency."

He also worked hard over the years to get quicker dispositions on cases, which is better for all involved, Sternberg notes. "People's memories are better; the outcomes are more meaningful to them," he says. "So quicker dispositions were a priority, but that had to be consistent with the seriousness of the case and with fairness."

He'd also like to be remembered as an administrator who took great care to preserve confidentiality while grievance investigations were pending and in cases that resulted in dismissals. "During my administration," he says, "I don't remember anybody ever saying that we leaked something to the media. I worked hard to make sure that we honored the public records requests, which we had to under public records law. But at the same time, on the cases that were confidential - those that had no merit and were dismissed, or the minor ones that resulted in private reprimands - people didn't get to know about them."

Sternberg also cites specific accomplishments during his tenure of which he's proud. One was working several years ago with a State Bar committee chaired by Dan Hildebrand to consider adopting the ABA Model Rules, including trust account rules. What had been two separate trust account rules were consolidated into one, and the language made clearer to spell out exactly what lawyers must do when acting as fiduciaries for clients. "The committee saw it as necessary to protect the public, and to make sure the lawyer had substantiation for what he or she was doing," Sternberg says. "So it was a two-way win."

More key changes to the trust account rule took shape in 1998 through the work of a joint BAPR/State Bar committee chaired by Dan Shneidman. Lawyers now can invest trust account monies in places such as investment institutions, enabling a higher rate of return. The rule now covers estate accounts, as well as trust accounts. It also sets up a system for overdraft notification, in effect as of Jan. 1, 1999. If a check on the account bounces, the bank notifies the lawyer and BAPR. Motivations for this change were to spot recordkeeping problems earlier and to nab thieves sooner. "What we found in prosecuting some misappropriation cases," Sternberg explains, "was that there had been numerous bounced checks on some of those accounts for two years. If we'd known earlier, we could have protected the public better."

In addition, Sternberg pushed for a new rule prohibiting sexual contact between lawyers and their clients. The rule results in education about and deterrence against inappropriate contact, Sternberg says, and clarifies how the public is protected.

Victim restitution for attorney misconduct, whether due to misappropriations or excessive fees, is another area Sternberg pursued vigorously, as was recouping prosecution costs from disciplined lawyers. The latter helped attain another goal: keeping a lid on the BAPR assessment paid by Wisconsin attorneys. Because of recouped prosecution costs and administrative cost cutting, "we've kept the assessment at between $70 and $85 (per attorney) for several years," Sternberg says.

As for future recommendations, Sternberg would like to see BAPR once again undergo an evaluation by the ABA's Center for Professional Responsibility, as was last done in 1986. "It's an independent point of view," Sternberg says. "It's objective, and I think it would be a good idea to do it again. You always have to look at ways to make things better."

Upon cross-examination

If any Wisconsin lawyer could sit down with Sternberg and pose any question he or she has always wanted to ask, what might some of those questions be? Sternberg surmises one on many lawyers' minds is: Why does BAPR prosecute small-firm attorneys and sole practitioners more than it does large-firm attorneys?

Sternberg says BAPR has never targeted solos or small-firm practitioners to watch for transgressions. Misconduct is misconduct; the size of the errant lawyer's firm is irrelevant. That said, Sternberg does feel that solos and small-firm lawyers are more vulnerable to grievances, largely due to their lack of backup support. They don't have an in-house ethics advisor, as some large firms do. They may have insufficient personnel to handle bookkeeping, such as trust account records. They lack adequate staff support to help take care of client call-backs and other daily routines. These factors add up to prime conditions for potential grievances: faulty trust account records, ethical missteps, disgruntled clients who feel they're being ignored, and so on.

Sternberg addressed those pitfalls at the State Bar's "Tools for the 21st Century: 1998 Midwest Small-Firm Success Conference" last May, just as he's discussed them with lawyers in other seminars over the years. "What I was trying to do in that speech was make it an even playing field," Sternberg says. "I was trying to give them all the tips that I thought the larger firms use." For example, have a tickler file to aid your memory. Call people back the same day they call you. "Because, number one, it shows you care," Sternberg points out, "and number two, you're very unlikely to get a grievance if you call clients back the same day. It just shows respect."

Two other questions lawyers might want to ask him, Sternberg says, include: Why doesn't BAPR prosecute government lawyers? And why are matters prosecuted that seem to be no more than errors of judgment? As for the first, "Not true," Sternberg states. "I've prosecuted a number of cases against government lawyers." In fact, he notes, he's gotten several calls from other jurisdictions that have never prosecuted prosecutors, asking him for advice on how to proceed.

As for the second question, Sternberg stresses that simple mistakes by a lawyer resulting in minor problems generally are not prosecuted. Prosecution enters in, "when lawyers let something go for a prolonged period of time," he says. "The common excuse is 'the press of other business got to me.' But if, for example, you don't call the personal representative in an estate for two years, which I've seen in some cases, that's neglect. That's not adequate representation. It shows you're not taking care of business."

"Something like that has to be dealt with," he adds, "so it doesn't happen again. And usually if it's one mistake, it would result in a private reprimand - unless it's compounded by a lie."

From members of the general public might come an entirely different question, or accusation, regarding BAPR, namely: Aren't all you lawyers just watching out for yourselves? To that Sternberg responds a resounding, "No." I think anyone who had contact with us over some period of time got to know we were not there to protect lawyers who committed misconduct. We were there to do an objective job, to find out what happened, and to take fair and appropriate action."

Too lenient with lawyers? Too aggressive in prosecuting attorneys who make mistakes? The claims and counterclaims always hover, as they do for any agency delegated with the kinds of responsibilities BAPR has. "You can never please everybody," Sternberg says philosophically. "You have to have the guts to do the job, notwithstanding the fact that not everybody loves you."

That brings us to one final question that may be on the minds of many people. Why is Sternberg leaving BAPR after all these years? As of Jan. 4, he began working as legal counsel for the Wisconsin Department of Health and Family Services, where he'll prosecute nursing home abuse cases. When he was offered the position last October, he mulled over the decision for several days before deciding the time was ripe for a change. "But I had very mixed feelings about leaving," Sternberg says. "I deeply loved the agency and the people with whom I was associated. So it wasn't an easy decision. Not at all."

Dianne Molvig operates Access Information Service, a Madison research, writing, and editing service. She is a frequent contributor to area publications.

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