October 23, 2013
In Wisconsin’s disciplinary system, the “judge” hearing the trial is called a referee. The referee is chosen from a pool of 32 eligible lawyers, who rule on pretrial motions, conduct a hearing and make a recommendation to the SC regarding violations and sanctions. While their recommendations are not binding, the SC tends to follow them. Therefore, the quality of the referee is critical.
According to a recent article in the Wisconsin Law Journal, the SC will conduct a hearing this week on a proposal to reduce this pool to four referees, who will hear the majority of cases. The proposal is a joint one from the State Bar, the Court’s Board of Administrative Oversight and OLR. Is this a good idea?
First, for the most part, as counsel for OLR, I have been very impressed with the referees hearing the matter. All – without exception – have been highly professional and conducted impartial hearings. Even when I disagreed with a recommendation, I respected the reasoning. Offhand, I cannot think of a single instance where I recommended OLR appeal from a ruling. Put another way, even when the referee disagreed with my position (how dare they!) I’ve respected their reasoning enough to not appeal it.
Second, however, some referees – not all, but some – are not sufficiently diligent. I have had referees take months and months to make a decision on pretrial motions and even on their ultimate recommendation. Although the SC is supposed to keep track on the progress of a case, more than once I’ve had to call a clerk to ask if they had checked on the progress yet.
Certainly, some of this problem is due to referees being under compensated. I’m not sure of the exact amount, but I know that it is a per diem and not a living wage (btw, I get paid $70 per hour as OLR counsel, which represents a fraction of my hourly overhead).
This proposal does not address, therefore, one of the real problems of the disciplinary system which is the length of time it takes to resolve some of these cases. While some referees are outstanding at moving the cases along quickly, others are, well, not so much. And the SC does not do a good job of policing them.
Simply put, reducing the pool of referees is fine if the court either chooses the right four referees (“right” being defined as referees who are timely in their rulings and decisions) or polices the referees so that cases don’t take years and years to be resolved.