Vol. 73, No. 7, July 2000

Supreme Court Orders

The Wisconsin Supreme Court sets a public hearing for Sept. 12 to consider establishing rules for a central intake procedure and for diversion from discipline in the lawyer regulation system. The court also sets a public hearing for Sept. 20 to consider creating a body to determine discipline and disability of a supreme court justice.

In the Matter of the Creation if a Body to Determine Discipline and Disability of a Supreme Court Justice

Order 00-04

The court has considered the advisability of establishing a body to perform its statutory duty to review the findings of fact, conclusions of law and recommendations of a judicial conduct or permanent disability panel and to determine appropriate discipline in cases of misconduct and appropriate action in cases of permanent disability under Wis. Stat. section 757.89 when the judge against whom allegations of misconduct or disability are filed is a justice of the Supreme Court. The Wisconsin Constitution, Article VII, Section 11, provides that "[e]ach justice or judge shall be subject to reprimand, censure, suspension, removal for cause or for disability, by the supreme court pursuant to procedures established by the legislature by law," but it makes no distinction between a justice and a judge in respect to the procedures pursuant to which appropriate discipline in a case of misconduct or appropriate action in a case of permanent disability is to be imposed. The statutory procedure set forth in Wis. Stat. sections 757.81 to 757.99 also does not make that distinction, as "judge" is defined in Wis. Stat. section 757.81(3) as a judge of any court established by or pursuant to Article VII, Section 2 or 14, of the Wisconsin Constitution or a Supreme Court justice. Consequently, Wis. Stat. section 757.91 requires the Supreme Court to review the findings of fact, conclusions of law and recommendations of a judicial conduct or permanent disability panel and determine appropriate discipline in cases of misconduct and appropriate action in cases of permanent disability of a justice.

In order to avoid conflicts and the appearance of conflicts and the potential for the recusal or disqualification of Supreme Court justices from proceedings under Wis. Stat. section 757.91 in which a justice of the Supreme Court is the subject, with the possibility that there will be an insufficient number of justices to proceed in the matter, the court is considering the establishment by court rule of a body to perform the duties of the Supreme Court under Wis. Stat. section 757.91 when the subject of the proceeding is a member of the court. The court is considering, but is not proposing, the following and solicits public comment.

1. Wisconsin Stat. section 757.91 be amended to read:

757.91 (title) Supreme court, special tribunal; disposition.

(1) The Except as provided in sub. (2), the supreme court shall review the findings of fact, conclusions of law and recommendations under s. 757.89 and determine appropriate discipline in cases of misconduct and appropriate action in cases of permanent disability. The rules of the supreme court applicable to civil cases in the supreme court govern the review proceedings under this section.

(2) When the judge against whom a formal complaint alleging misconduct or a petition alleging permanent disability is filed by the commission is a supreme court justice, the special tribunal provided in s. 757.92 shall review the findings of fact, conclusions of law and recommendations under s. 757.89 and determine appropriate discipline in cases of misconduct and appropriate action in cases of permanent disability.

(3) The rules of the supreme court applicable to civil cases in the supreme court govern the review proceedings under this section.

2. Wisconsin Stat. section 757.92 be created to read:

757.92 Special tribunal.

(1) As soon as practicable following the filing with the supreme court of a formal complaint alleging misconduct or a petition alleging permanent disability of a supreme court justice, a special tribunal consisting of seven members shall be selected as provided in sub. (2) to review the findings of fact, conclusions of law and recommendations under s. 757.89 and determine appropriate discipline in cases of misconduct and appropriate action in cases of permanent disability.

(2) The clerk of the supreme court shall select by lot the following to serve on a special tribunal under sub. (1):

(a) Three judges from among those current and former judges of the Court of Appeals and the circuit court who have served but are not currently serving as supreme court appointees to the judicial commission or who have served or are serving as supreme court appointees to the judicial conduct advisory committee.

(b) Two judges from among those who have served on the supreme court at a time when the justice against whom the complaint or petition has been filed was not serving and those who have served or are serving on the court of appeals.

(c) Two active or reserve judges who have served or are serving as chief judge of a judicial administrative district.

(3) Disqualification and recusal of a member of the special tribunal shall be governed by law and by the code of judicial conduct, SCR ch. 60. Selection of a member to replace a member who recuses or is disqualified shall be pursuant to sub. (2).

(4) The chief judge of the court of appeals shall assign a staff attorney of the court of appeals to provide assistance to the special tribunal.

(5) The determination of the special tribunal under s. 757.91 shall not be subject to review by the supreme court. Appropriate discipline in a case of misconduct or appropriate action in a case of permanent disability determined by the special tribunal shall be imposed by per curiam order of the supreme court. The findings, conclusions and recommendations of the special tribunal shall be published with the per curiam order of the supreme court in the official publications of the opinions of the supreme court.

3. Wisconsin Stat. section 757.95 be amended to read:

757.95 Temporary suspension by supreme court, special tribunal.

(1) The supreme court may, following the filing of a formal complaint or a petition by the commission, prohibit a judge or court commissioner from exercising the powers of a judge or court commissioner pending final determination of the proceedings.

(2) If the judge against whom a formal complaint or a petition filed by the commission is a justice of the supreme court, the special tribunal provided in s. 757.92 may, upon motion of the commission, prohibit the justice from exercising the powers of a justice pending final determination of the proceedings.

In addition to the foregoing, the court is soliciting public comment on the issue of the constitutionality of a court rule establishing a body to carry out its statutory responsibilities in a judicial conduct or disability proceeding involving one of its members.

IT IS ORDERED that a public hearing on this matter shall be held in the Supreme Court Hearing Room, 119 Martin Luther King Jr. Blvd., Madison, Wis., on Sept. 20, 2000, at 10:30 a.m.

IT IS FURTHER ORDERED that the court's conference in the matter shall be held promptly following the public hearing.

IT IS FURTHER ORDERED that notice of the hearing be given by publication of a copy of this order in the official state newspaper once each week for three consecutive weeks and in an official publication of the State Bar of Wisconsin not more than 60 days nor less than 30 days before the date of the hearing.

Dated at Madison, Wis., this 26th day of April, 2000

By the court:
Cornelia G. Clark,
Clerk of Court

In the Matter of the Amendment of Supreme Court Rules: SCR Chapters 21 and 22, Lawyer Regulation System - Central Intake, Diversion from Discipline

Order 00-06

On April 4, 2000, the Interim Director of the Board of Attorneys Professional Responsibility filed a petition requesting the establishment of rules for a central intake procedure and for diversion from discipline in the lawyer regulation system.

IT IS ORDERED that a public hearing on the petition shall be held in the Supreme Court Hearing Room, 119 Martin Luther King Jr. Blvd., Madison, Wis., on Sept. 12, 2000, at 9:30 a.m.

IT IS FURTHER ORDERED that the court's conference in the matter shall be held promptly following the public hearing and, if necessary, continued on Sept. 13, 2000.

IT IS FURTHER ORDERED that notice of the hearing be given by a single publication of a copy of this order and of the petition in the official state newspaper and in an official publication of the State Bar of Wisconsin not more than 60 days nor less than 30 days before the date of the hearing.

Dated at Madison, Wis., this 28th day of April, 2000.

By the court:
Cornelia G. Clark,
Clerk of Court

Petition 99-03

Requesting the Establishment of a Central Intake Unit in the Office of Lawyer Regulation

Background

Pursuant to directions provided on Jan. 21, 2000, in open administrative conference of the Wisconsin Supreme Court on the Reorganization of the Lawyer Regulation System and by letter dated Feb. 3, 2000, to new appointees to the Board of Attorneys Professional Responsibility, the undersigned was directed to work with a broad-based group to draft rules and procedures for an intake system and submit them to the court for consideration. The committee members that assisted in the formulation and review of the intake rules and procedures were: Rita Kelliher, Madison School Community Recreation Program; Emanuel Scarborough, AODA Prevention Specialist, Genesis Corporation; Louise Trubek, Center for Public Representation; and Tim Pierce, Investigator, Melody Rader-Johnson, Investigator, Elsa Greene, Deputy Administrator, and James L. Martin, Interim Administrator, of the Board of Attorneys Professional Responsibility.

The purposes and goals of this proposed Central Intake Unit are to: 1) make the lawyer regulation process more accessible to people who have concerns about the conduct of Wisconsin lawyers; 2) quickly address complainant's concerns and, where possible, resolve them; 3) offer lawyers who have had minor practice problems alternatives designed to enhance the quality of their services; and 4) promptly refer for full investigation those matters that may involve serious misconduct.

The program that is being proposed to the court would have the central intake function performed in the offices of and under the direction and supervision of the Director of the Office of Lawyer Regulation.1

The Committee on the Formulation of a Central Intake Program and the undersigned, Interim Administrator of the Board of Attorneys Professional Responsibility, respectfully petition the Wisconsin Supreme Court to adopt a central intake mechanism for Wisconsin in the Office of Lawyer Regulation and to adopt amendments to Supreme Court Rules as follows:

Central Intake

Consistent with Supreme Court Rule (SCR) 21.09(1), the Central Intake Unit proposed shall receive, evaluate and act upon each inquiry regarding the conduct of or services provided by a lawyer licensed in Wisconsin, without regard to the manner in which the matter is brought to the program's attention. The staff that is recommended is five full-time equivalent employees: three intake investigators and two program assistants.2 See attached budget, Exhibit A. [Editor's Note: Exhibit A is not included here.]

I. Central Intake Should Be Established By Amending SCR Chapter 21 To Provide For A Central Intake Unit As Follows:

Central Intake. There is hereby established a Central Intake Unit in the Office of Lawyer Regulation, which shall:

(1) operate under the direction and supervision of the Director;

(2) receive inquiries and grievances regarding the professional conduct of lawyers over whom the court has jurisdiction;

(3) provide assistance to complainants in stating their concerns about a lawyer's services;

(4) determine whether the grievant's allegations regarding the conduct of a lawyer provide grounds for: (a) forwarding it to another agency; (b) closing the inquiry without investigation; (c) diverting the lawyer to a program established to assist lawyers; or (d) forwarding the matter for further investigation by staff; and

(5) if an inquiry is referred to an agency other than the disciplinary agency or closed without investigation, provide to the grievant the reasons therefore.

At the intake stage, the decision to close the file without investigation shall be that of the Director. The decision of the Director shall be final, and the grievant shall have no right of review.

Commentary: This rule tracks closely Model Rules for Lawyer Disciplinary Enforcement (1996), Rule 1.B. (hereinafter "Model Rule"). The Court, upon establishment of a central intake function, should repeal the Board policy that requires a grievance must be filed in writing. Policy 12.5, Grievances in Writing. A fundamental precept of the central intake function being proposed is that the overwhelming majority of the inquiries and grievances may be received by telephone, except those from prisoners and other detainees, which will continue to be received in written form only.

Telephone intake. We propose establishing an 800 number for the receipt of inquiries about lawyer services from grievants who are outside of Madison. A support staff, who will request the grievant's name and address and the name of the lawyer, and enter that information on an intake screen, will initially receive the calls. See Exhibit B. [Editor's Note: Exhibit B is not included here.] We have received intake software from Colorado. It will be adapted to our computer system. The software will enable staff to quickly: check on whether the grievant has filed the same grievance previously, obtain the lawyer's bar number and discipline record, and obtain a listing of any grievances pending against the lawyer, together with the name of the investigator to whom those have been assigned.

If the new grievance is identical to one that the caller has filed previously, the staff person will explain that the agency has already reviewed the grievant's concerns and can take no further action. In every other instance, the staff person will ask the grievant to summarize briefly the grievant's reasons for the inquiry/request for investigation. As the grievant speaks, the staff person will summarize the grievance on the left-hand side to the intake screen. The intake person will try to keep the grievant focused on the actions of the attorney, rather than the shortcomings of a former spouse or actions of a third person. The intake person may also elicit additional information such as the approximate dates on which the alleged conduct occurred and the names of others having knowledge about the situation.

When the grievant has finished giving a summary of his or her concerns, the intake person will inform the grievant that this matter will be assigned to an investigator who will be calling the grievant within a few days to discuss the grievance further. Staff will provide the name of the intake investigator and invite the grievant to leave the investigator a voice mail specifying the times and numbers at which grievant can be reached.

Except for duplicate grievances, each matter is assigned to an intake investigator for a follow-up call, regardless of the probable merits of the grievant's concerns. The intake investigators will be assigned on a rotating basis unless the intake screen shows that there are grievances already pending against the lawyer. In that case, the new grievance is assigned to the investigator who is handling the other matters.

Intake Investigator's follow-up call. For each grievance assigned, the intake investigator will bring up the grievant's electronic file and review the nature of grievant's concerns. The investigator then calls the grievant to further explore and clarify the allegations. As the grievant provides additional information, the investigator will make notes of the conversation on the left side of the computer file immediately below the notes taken during the initial intake.

Allegations outside the rules. Subject to the general supervision of the Director, each intake investigator will have the discretion to close a grievance, enter into a diversion agreement or refer a grievance for full investigation. If it is apparent to the intake investigator that the grievant's allegations are well outside the agency's jurisdiction, the investigator will explain to the grievant the lawyer/investigator's reason for believing that the matter should receive no further action. For example, if a grievant were to be unhappy because his/her lawyer did not return a telephone call on the same day that the client's call was placed, the intake investigator might explain that the grievant's expectations are unrealistic. At the conclusion of the discussion with the grievant, the investigator would close the grievance on the computer. The lawyer would receive no notice of the grievant's call to the Office of Lawyer Regulation, and no paper file would ever be created.

Allegations that, if true, might constitute misconduct. If the grievant's allegations fall within the scope of the rules, the intake investigator will have a number of options. The investigator may obtain additional information from the grievant (which will get noted on the left-hand side of the intake screen), and then call the lawyer to get his or her side of the story (which will be summarized on the right-hand side of the screen). The intake investigator may request the lawyer to fax documents that verify the lawyer's explanation. If the lawyer's explanation is satisfactory and the faxed documents substantiate it, the intake investigator will call the grievant to explain what he or she has learned about the matter. The investigator might then close the grievance on the computer and create a paper file for the documents faxed by the lawyer.

If the grievant's allegations describe a potentially solvable problem, such as the need for a status report or the return of a file, or a disagreement about the amount of the lawyer's fees, the intake investigator may put the grievant on hold, call the lawyer, and facilitate a discussion between the two directed at resolving the problem. If the matter is resolved by such a conversation, the grievance will be closed on the computer without the creation of a paper file.

If the grievant's allegations are unusually complex, if they involve potentially serious misconduct, or if the intake screen shows they may be part of a pattern of misconduct by the respondent, the intake investigator will ask the grievant to submit a written grievance. The intake investigator may then request a written response from the lawyer. At the same time, the intake investigator may obtain court documents or financial records and interview witnesses. Such grievances may then result in closure, a diversion agreement (as discussed below) or a referral for full investigation. If a grievance is referred for full investigation, the intake investigator will print out the electronic file on the matter and deliver that to the subsequent investigator along with whatever documents that have been gathered at the intake stage.

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