Progressive Discipline
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:
- Private reprimand in 1992 for failing to hold funds in trust
- Private reprimand in 1997 for performing work for a client after his services were terminated and for misrepresenting that he had filed a motion on behalf of the client.
- Public reprimand in 1999 for neglect of a matter, failing to communicate with a client, and failing to return a retainer.
- One year in 2002 for eight counts of professional misconduct, four of which related to trust account and fee matters, and the other four involving failure to diligently pursue a client’s claim, failure to keep a client reasonably informed about the status of a matter, failure to disclose to and cooperate with BAPR and engaging in conduct involving dishonesty, fraud, deceit, and misrepresentation. [Note: I represented OLR in this matter, which was litigated before the referee].
- Public reprimand for pre-suspension conduct involving loaning funds to a personal injury client in conjunction with pending litigation.
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?
