Vol. 72, No. 12, December 1999

Guest Editorial

Bar Proposes Consumer Focus
to Lawyer Disciplinary System

The current disciplinary system works as intended, but it could be improved to include consumer-oriented programs and other discipline alternatives.

By Gary L. Bakke

The current attorney regulatory system was designed to discipline lawyers who are found in violation of the Rules of Professional Conduct. That process is working well. But let's consider the 95 percent of complaints that don't rise to the level of disciplinary action.

The current system does nothing to reassure consumers that such complaints regarding minor professional misconduct are being heard and acted upon. The State Bar's BAPR Structure Committee¹ recommendations, passed unanimously by the Board of Governors in November, offer smart solutions to address consumers' needs while maintaining the integrity of Wisconsin's attorney disciplinary process.²

The Bar's Proposal

The core of the committee's recommendation is to adopt a consumer-focused central intake system to deal more effectively with minor complaints. The central intake system would field all inquiries and complaints regarding lawyers and would refer them to either: the Board of Attorneys Professional Responsibility (BAPR) for consideration of a rule violation; the Dispute Resolution and Assistance Program; or the Lawyer Rehabilitation Program. In many cases, the intake process might be able to resolve the inquiry without any need for referral.

The current lawyer disciplinary system can be compared to the criminal law. Both deal effectively with those who violate the rules, but neither is designed to help the victim. Thus, even if the grievance involves serious misconduct of the type that appropriately falls within its jurisdiction, the current disciplinary system does not satisfy the complaining client. The committee, therefore, believed that it was in the best interests of both the legal profession and the public to broaden the attorney disciplinary system to include consumer assistance.

The ABA Recommendations

The Wisconsin Supreme Court will consider the State Bar's proposal along with the formal report and 20 recommendations of the American Bar Association (ABA) Standing Committee on Professional Discipline.³ The ABA recommendations have drawn intense criticism from the bar. The criticism has been focused primarily on the belief that:

1. the recommendations were based on a misunderstanding or misinterpretation of the current system;

2. the changes would put the court in a position of conflict by charging it with supervising investigations and prosecuting disciplinary complaints while it also is the ultimate adjudicator; and

3. the changes do not improve our disciplinary system.

One of the most controversial ABA recommendations would revise the structure and duties of BAPR and relegate it to oversight of the attorney discipline system, but with no authority to supervise the administrator and no role in the decision to prosecute an attorney.⁴ Another controversial ABA recommendation would eliminate the investigative role of the 16 local district committees and replace them with a statewide committee that meets in Milwaukee or Madison.⁵

The ABA agreed with the State Bar that an alternatives to discipline program should be instituted.⁶ That alternative program, sometimes called a CAP program (consumer assistance program or client assistance program), was recommended by the State Bar's BAPR Study Committee in its June 1999 report, and by the BAPR Structure Committee, the Board of Governors, and BAPR itself. With no one opposed to it, the court likely will institute some type of CAP program.

Background

Last spring the supreme court announced its intention to review the entire structure of the attorney disciplinary system. The court invited the ABA to study the current system and make recommendations for change. The ABA Standing Committee on Professional Discipline conducted its study and presented a preliminary report to the court on Sept. 8. On Sept 14, the court held a public hearing, hearing testimony from representatives of the ABA, State Bar, law schools, BAPR board, the public, and other interested parties. It then held a public conference on Sept. 15, after which it decided to consider any additional written comments submitted by Jan. 4, 2000, before making any decision. The formal action taken by the Board of Governors authorizes and directs the BAPR Structure Committee to formally present the State Bar's proposal to the court for its consideration.

The Board of Governors accepted our recommendation that the BAPR Structure Committee present an independent proposal and that we not directly challenge or criticize the ABA report. That report, which was finalized in October, has drawn intense scrutiny and almost universal criticism by those who have studied it.

The ABA Standing Committee on Professional Discipline has promulgated model rules for attorney discipline, so no one would have been surprised if the ABA had strongly advocated the adoption of its model in Wisconsin. Instead, the ABA committee analyzed the current system, and in its preliminary report it identified many alleged deficiencies and problems. It then made 20 recommendations to fix the system. Some of the recommendations were consistent with its model rules, but many were an amalgam of model rules, Wisconsin's current disciplinary system, and ad hoc changes. This report was greeted with a firestorm of protest by the State Bar, both to the underlying factual assumptions and to the appropriateness of some of the proposed solutions.

Several attorneys, including BAPR Interim Administrator James Martin, made formal submissions to the ABA in an attempt to correct the errors. One of Wisconsin's ABA delegates, Daniel Hildebrand, met with ABA officials for the same purpose. As a result of these meetings, many, but not all, of the factual errors and unsupportable assumptions found in the ABA's preliminary report were removed or corrected in the October final draft. However, none of the 20 recommendations were changed to conform to the corrections.

Colorado currently uses a plan similar to the one the ABA proposed for Wisconsin. Colorado's experience shows that assessment for attorney discipline has increased by more than $100 per year for each Colorado attorney. A primary reason for this large increase is Colorado's use of paid staff in place of the extensive use of volunteers, as we have in Wisconsin. The BAPR staff estimates that implementation of the State Bar plan will increase the supreme court assessment⁷ for BAPR by about $18 per year for each Wisconsin attorney. That cost estimate assumes that the court will preserve the current aspects of the Wisconsin system that make extensive use of volunteers as opposed to paid staff.

Other Bar Recommendations

In addition to recommending alternatives to discipline, consumer assistance, and central intake, the State Bar will recommend other minor changes. Under the Bar's proposal, the court will hire and control the retention of the BAPR administrator while the BAPR board will perform an annual evaluation that is reported to the court. Public participation on the district committees will be increased, and all participants in the system will receive more extensive orientation and education. The disciplinary sanctions that are available to the court will be broadened, and some specific disciplines will be renamed to conform to the ABA's language. Also, new alternatives to discipline will include mandatory ethics classes, mandatory practice management classes, practice supervision, trust account audits, mediation, and conditions on practice.

Conclusion

I am proud that the State Bar has crafted a proposal that is solid and thoughtful. The BAPR Structure Committee proposal retains those features of the disciplinary system that have been proven over time to work well. It refines some details to improve the operation, and it responds to specific concerns of the court. Last, but not least, our proposal creates an entirely new focus for the disciplinary system by allowing it to respond to consumer complaints. When the supreme court created the State Bar of Wisconsin, the Bar was directed "[t]o foster and maintain on the part of those engaged in the practice of law, high ideals of integrity, learning, competence and public service, and high standards of conduct."⁸

I am confident that the modifications we propose are an appropriate response to that responsibility. I hope we have your support. I invite your input. Please contact me by email.

Endnotes

¹ BAPR Structure Committee members include: Burneatta Bridge and Gary Bakke, cochairs; past-president Susan Steingass; Barbara Neider, BAPR Study Committee, former chair, District 9 Professional Responsibility Committee, chair; William Mulligan, Alexander Pendleton, James Brennan, and Daniel Shneidman, governors; Ralph Cagle, reporter, U.W. Law School; Michael McChrystal, Marquette Law School; Daniel Hildebrand, former governor; James Martin, BAPR interim administrator and former BAPR board member; William Neal, Ripon College, Board of Governors public member; Thomas Basting, Professional Ethics Committee, chair; and George Brown and Katy Duren of the State Bar staff.

² The BAPR Structure Committee recommendations can be found online.

³ The full text of the ABA report is available online.

⁴ ABA, Report on Lawyer Disciplinary System, Recommendation 2, p.18.

⁵ ABA, Report on Lawyer Disciplinary System, Recommendation 4, p.27.

⁶ ABA, Report on Lawyer Disciplinary System, Recommendation 20, p.55.

⁷ The Wisconsin Supreme Court assessment for BAPR and for the Board of Bar Examiners is detailed on the Bar member dues statement mailed by the State Bar of Wisconsin. Members pay the assessment to the Bar, which in turn forwards it to the court. However, the Bar has no control over the amount of the supreme court assessment. That assessment is entirely separate from State Bar membership dues.

⁸ SCR 10.02(2).