Plea Bargaining in Disciplinary Cases

By Attorney Gregg Herman
November 13, 2013

Please bargaining has a bad connotation.  People seem to think of prosecutors reducing murder charges to illegal parking in order to avoid a trial.

While misdemeanor court is “let’s make a deal,” prosecutors are not afraid of trials.  My typical plea offer in a felony case was:  “Please guilty to all of the charges and I’ll leave the sentence up to the court.”

OTOH, there were certain cases where I did trade off charges for a guilty plea.  For example, if a defendant wrote 100+ bad checks, it makes no sense to charge 100 counts where the sentence would be the same if the defendant plead guilty to one (or two or three) and read-in the others.  So why spend all the time and effort for no benefit, especially when there are limited resources?

Besides, as my team captain, Jon Peter Genrich, told me:  When there is a guilty plea, there is no risk of a renegade jury, renegade judge or a reversal on appeal.

So, I’ve often wondered why there is no plea bargaining in disciplinary cases.  Given the very limited resources, it makes no sense to pursue meaningless counts which would not add in the least to the discipline imposed.

A few years ago, I was retained to represent OLR in a case where the lawyer was charged with 56 (count ’em) ethics violations.  Amazingly, OLR sought a revocation.  It took a substantial amount of time to prepare and prosecute the complaint.   The lawyer offered to admit most, but not all, of the counts and to not contest the revocation.  OLR instructed me to refuse the offer.  If he admitted 55 counts, I was to try Count #56.  Really.

Therefore, I was pleased to see an article in the Wisconsin Law Journal that the Supreme Court is considering a proposal allowing plea bargaining in disciplinary cases.  It’s about time.

As anyone who has been reading my blog knows (btw, is there anyone reading this???), there are two serious defects in our disciplinary system.  The first is the substantial delay in resolving cases.  The second is the lax discipline imposed for major offenses.

Plea bargaining may help with the former allowing certain cases to move through the system faster.  It certainly can’t hurt the former since is would be difficult to get any more lax than it is.

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