Progressive Discipline

By Attorney Gregg Herman
December 19, 2013

One theory of appropriate discipline – which should apply to more than just attorney misconduct – is that subsequent violations should result in more severe discipline than prior ones.  Unfortunately, the Wisconsin Supreme Court honors that theory in the breach.

Today, the court issued its latest discipline to John Miller Carroll.  Mr. Carroll has the following disciplinary history:

By my count, that is five (count ’em) prior disciplinary matters, some involving multiple counts.

Now, Mr. Carroll is found to have committed seven additional violations (out of 10 charged).  Amazingly, despite the prior disciplinary history, the referee recommended and the SC ordered a five month suspension.

Remarkably, the two most liberal judges on the court, Chief Justice Abrahamson and Justice Bradley dissented, saying that due to “our system of progressive discipline.  I would impose a suspension of at least six months.”

Uh, thanks for the dissent, but my arithmetic shows that six months is less than one year, so why would that be progressive?

Even so, there is a huge difference between a five month and a six month suspension.  For suspensions under 5 months, the lawyer can resume practice at the end of the suspension period.  For suspensions of 6 months or more, the lawyer must apply for reinstatement, a process which can take months.

Why claim that we have a system of progressive discipline, when we don’t?  And why even bother to have a disciplinary system which doesn’t even care about the future victims of lawyers like this?

Attorney Gregg Herman is a founding partner of Loeb & Herman S.C. in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.