Regulating the Legal Profession

Referee panel

The supreme court's panel of referees presides over the formal disciplinary and medical incapacity hearings. After the board files a disciplinary complaint or medical incapacity petition, the court designates a referee. The referee holds a scheduling conference, establishes a timeline, determines the extent of discovery, presides at the hearing and prepares a report, including findings of fact, conclusions of law, and a recommendation to the supreme court. The board or respondent can appeal from the referee's report, or the court can order briefs on its own motion. The court makes all final decisions in disciplinary actions.

The supreme court rules and the board require publication of each disciplinary order in the Wisconsin Reports and a summary of the matter in the Wisconsin Lawyer. All courts of record, local bars, and the media are notified of the disciplinary actions.

Currently active members of the referee panel are: Norman C. Anderson, Madison; Michael Ash, Milwaukee; Linda S. Balisle, Madison; Rose Marie Baron, Milwaukee; Kathleen Brady, Wauwatosa; Hon. Robert Cannon, Elm Grove; John R. Decker, Milwaukee; Hon. Jean W. DiMotto, Greendale; John A. Fiorenza, Milwaukee; David R. Friedman, Madison; Stanley F. Hack, Milwaukee; Charles J. Herro, Ocono-mowoc; Janet A. Jenkins, La Crosse; Joan F. Kessler, Milwaukee; Robert T. McGraw, Waukesha; Judith Sperling Newton, Madison; Rudolph P. Regez Sr., Monroe; Marjorie H. Schuett, Madison; J.N. Schweitzer, Madison; John E. Shannon Jr., Stevens Point; Charles S. Van Sickle, Madison; Hon. Timothy L. Vocke, Rhinelander; June M. Weisberger, Madison; and Cheryl Rosen Weston, Madison.

Formal discipline imposed in 1997-98

In fiscal 1997-98, 37 attorneys received a public disciplinary sanction. This includes five license revocations, 21 license suspensions, and six public reprimands imposed by the board, with the lawyer's consent, pursuant to SCR 21.09(2). The supreme court imposed four public reprimands, and one lawyer had conditions imposed on his law license. In percentage terms, 0.2 percent of all Wisconsin-licensed attorneys received a public disciplinary sanction, as shown in Figure 4.

Other board dispositions

The board has authority, pursuant to SCR 21.09(2), to impose private written reprimands, with the attorney's consent. Typically, a private reprimand is imposed for an isolated act of misconduct that caused relatively minor harm. In most cases, a lawyer who receives a private reprimand has had no prior discipline. There also are cases in which a private reprimand may be imposed based upon mitigating factors such as a lawyer's prolonged illness during the period of misconduct. The board will not impose a private reprimand if public disclosure of the attorney's misconduct is necessary for the public's protection. During fiscal 1997-98, 31 attorneys (or 0.2 percent of all Wisconsin-licensed attorneys) received private reprimands. Private reprimands are retained permanently and will be available as an aggravating factor on the issue of sanction if the attorney commits subsequent misconduct.

Summaries of private reprimands, without any reference to or identification of the attorney involved, are printed periodically in the Wisconsin Lawyer. Private reprimand summaries were last published in the November 1997 and June 1998 Wisconsin Lawyer.

In summary, during fiscal 1997-98, 68 lawyers (0.3 percent of Wisconsin-licensed lawyers) were publicly or privately disciplined.

Twenty-six attorneys received dismissals with caution in fiscal 1997-98. A dismissal with caution is a warning issued after the board finds a supreme court rule was violated but determines that discipline is not warranted.⁶ A dismissal with caution generally is imposed in cases of a technical violation of a rule. Dismissals with caution are expunged within one year of being issued, as are dismissals.

In fiscal 1997-98, 1,182 grievances were dismissed because they were not meritorious after an investigation or not supported by sufficient evidence of a rule violation.

In 36 dismissal cases, the administrator added an advisory note to the dismissal letter to alert the lawyer to an area of possible concern if the lawyer's conduct was questionable but did not constitute a violation because of insufficient evidence. This new policy, applicable to a very few dismissed cases, was suggested by the State Bar Board of Governors and adopted by BAPR at its meeting on May 1, 1995. The dismissal category includes matters dismissed outright (450), inquiries ultimately found to be outside the rules (668), matters closed pending petition for reinstatement (28), and matters dismissed with an advisory note (36). An individual attorney may have more than one disposition within the dismissal category.

Actions pending

The board filed formal disciplinary actions against 20 attorneys in fiscal 1997-98. At the conclusion of fiscal 1997-98, 26 formal actions were pending in the supreme court.

Other actions

The board also completed action on eight investigations of reinstatement petitions referred by the supreme court; three were granted, three were denied, and two were withdrawn by the petitioning attorney prior to investigation.

Volume of grievances

The board received fewer grievances in fiscal 1997-98 (1,396) than last year (1,506). The board disposed of 1,342 grievances this year, as compared with 1,479 dispositions in fiscal 1996-97. At the conclusion of fiscal 1997-98, 502 grievances were pending, an increase over the 448 pending at the end of 1996-97.

The board referred 165 grievances to district professional responsibility committees in fiscal 1997-98. The committees completed 151 grievance investigations during the same period.

Survey of grievances

Figure 2 breaks down the source and nature of the grievances received and the areas of practice from which grievances arose between July 1, 1997, and June 30, 1998.

In describing the nature of the grievances, only the most serious allegation is reflected. In fact, most grievances allege various acts of misconduct. It is not practical to list all allegations.

Finances

The legal profession is unique in assuming all costs for regulating itself. An assessment on every member of the State Bar of Wisconsin pays the costs and expenses of the board, administrator, district professional responsibility committees, investigations of possible misconduct and medical incapacity, and all disciplinary proceedings, referees, and appeals.

To help offset the costs of the disciplinary operation, BAPR collects costs from the attorneys disciplined in these formal court proceedings, pursuant to SCR 22.20. BAPR also collects fees on petitions for reinstatement. Collections from fiscal 1997-98 were $167,531.95.

During fiscal 1997-98, BAPR operated on an investigative and disciplinary budget of $1,418,700. The board applied $200,000 in savings plus $50,000 in anticipated collections against its budget to place the assessment per attorney at $75.14, a reduction from the previous year's assessment of $80.

The board's budget in fiscal 1998-99 is $1,463,450. BAPR will use $190,000 in savings and $50,000 in costs that it anticipates collecting in fiscal 1998-99 to place the assessment per attorney in fiscal 1998-99 at $78.17.

Administrator, staff, and counsel

The board's offices are at Suite 315, 110 E. Main St., Madison, WI 53703, and Suite 102, 611 N. Broadway, Milwaukee, WI 53202.

Gerald C. Sternberg is the administrator of the Supreme Court Board of Attorneys Professional Responsibility.

Gerald C. Sternberg, based in Madison, is the board's administrator and supervises the disciplinary operation. Deputy administrator Elsa P. Greene is in charge of investigations assigned to the Madison office, and deputy administrator Jeananne L. Danner is in charge of investigations assigned to the Milwaukee office. William J. Weigel is the board's litigation counsel and has his office in Madison. Other permanent staff in the Madison office include: office manager Carol Kornstedt; full-time investigators Mary Ahlstrom and John K. O'Connell; part-time investigators Nancy Warner and Melody Rader-Johnson; and full-time program assistants Mary McMillan, Rita Lord, and Linda Ackerman. Permanent staff in the Milwaukee office include: full-time investigators Mary Hoeft Smith, Carol O'Neill, and Timothy Pierce; part-time investigator Lorry C. Eldien; full-time program assistants Laurel Wildrick and Susan Stock; and part-time program assistant Carol Rymer.

Experienced attorneys are retained on a case-by-case basis to represent the board in disciplinary proceedings. Part-time counsel who represented BAPR in cases in fiscal 1997-98 are: Thomas J. Basting, Janesville; Patricia D. Jursik, Milwaukee; Marc McCrory, Janesville; Richard Mozinski, Manitowoc; Paul Schwarzenbart, Madison; and Dennis Sullivan, Milwaukee.

Conclusion

The investigative process in lawyer regulation has been streamlined, with 93 percent of investigations completed in less than one year and an average grievance processing time of 4.7 months. The past year has been busy. BAPR has maintained the pending investigative caseload at 502 cases, a slight increase over the 448 pending cases in fiscal 1996-97. At the same time, BAPR concluded 1,342 grievance inquiries and collected $167,531.95 from publicly disciplined lawyers and reinstatement fees.

The board wishes to thank the Wisconsin Supreme Court, the district professional responsibility committees, and the staff for their contributions during the past fiscal year.

Endnotes

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¹ SCR 21.01(4)(g).

² SCR 21.09(1).

³ Disciplinary Proceeding Against Palabrica, 216 Wis. 2d 146, 573 N.W.2d 532 (1998); Disciplinary Proceeding Against Warmington, 212 Wis. 2d 657, 568 N.W.2d 641(1997).

⁴ Disciplinary Proceeding Against Strasburg, 217 Wis. 2d 318, 577 N.W.2d 1(1998).

⁵Disciplinary Proceeding Against Pangman, 216 Wis. 2d 439, 574 N.W.2d 232 (1998).

⁶ See SCR 22.09(1).