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Public Notice of Misconduction Investigation
February 11, 2014
Some issues are far from clear cut – there are fairly equal pros and cons on both sides. Such is the case with a petition which the Wisconsin Supreme Court will consider on February 24, 2014. According to an article on the State Bar website, the petition is to provide the public with information when an attorney is being investigated – not formally accused or convicted, but merely investigated. According to the article:
The Wisconsin Supreme Court may authorize public notice in the following circumstances:
- When the attorney’s continued practice of law presents substantial risk of physical, financial, or legal harm to the attorney’s clients or other persons;
- When an attorney is unable to adequately attend to clients’ interests due to physical absence, abandonment of the practice, or physical or medical incapacity;
- When the attorney is engaged in a pattern of conduct involving the receipt of advanced fees and the subsequent failure or inability to perform legal services for which the fees were advanced;
- When the attorney is engaged in a pattern of criminal or fraudulent conduct; or
- When, in the judgment of the supreme court, other good cause exists.
Before public notice is authorized, the attorney must show cause why the public notice should not be issued. Once a public notice is posted, OLR has six months to complete the formal investigation or show cause why it cannot be completed in six months.
There are pros and cons. Some pros:
- Protecting the public. Since OLR proceedings may take a ridiculously long period of time, the public may continue to retain the attorney not knowing that the attorney may be disciplined in the near future.
- If the attorney is suspended or revoked, clients of that attorney would be left hanging. Changing attorneys is expensive. If the public knew that such discipline was likely, they may be able to avoid that cost.
- Since CCAP reveals criminal charges prior to conviction, why should lawyers have more privacy protection than the general public?
- Public disclosure would be very limited. OLR Director Keith Sellen estimates that it would affect only 2 to 3 lawyers per year.
- Many, if not most, grievances, are merely disgruntled clients – and sometimes not even clients (one of my associates had a grievance filed against him by the husband of his client on the grounds that he had gotten too good a settlement for her. Seriously).
- Although disclosure is limited for now, it is easier to expand it than to establish it (that is the old “slippery road” argument).
- The media loves stories about lawyers being disciplined. If they could write about an investigation, it would be difficult to mitigate the damage if the lawyer is eventually exonerated.
So, since good arguments can be made on both sides, I have two alternative suggestions: First, create a streamlined process for OLR to seek immediate suspensions where a lawyer is incapacitated or involved in conduct which is harming clients. Currently, OLR can file an Order to Show Cause for Temporary Relief, but the process is slow and cumbersome.
Second, speed up the process! Here, the problem starts with the SC. One current example: I filed a complaint on behalf of OLR on January 2, 2014. Nearly six weeks later, the SC has STILL not appointed a referee. Even their own calendering system required a referee to be appointed by January 23, 2014, which was almost three weeks ago. Of course, since it was their own deadline, so there is no sanction for ignoring it. Btw, it takes about two seconds to appoint a referee (pull out your list, select next name). And, the case sits still until a referee is appointed.
This is typical of the SC – they ignore their own deadlines for appointing referees and deciding motions. Decisions can take forever, especially if the case concludes near the time of their summer break (why do they get a summer break, anyway? Circuit court judges and court of appeal judges work 12 months per year and they work very hard).
So my suggestion is that instead of risking a media frenzy against a possibly innocent lawyer, the SC should adopt a rule that says “Justice delayed is justice denied.” Then, after adopting it, they should abide by it.