ETHICALLY SPEAKING: You know what is right and you should do it

Michael Berzowski

My last article included some general observations about the Rules of Professional Conduct for Attorneys and concluded that most, if not all, lawyers want to do a good job. This article discusses the most common types of problems lawyers are experiencing from a disciplinary point of view with regard to ethics rule violations.

There are approximately 23,800 Wisconsin licensed lawyers of which approximately 15,000 are practicing in Wisconsin. During the Office of Lawyer Regulation and Board of Administrative Oversight fiscal year 2009-2010, 2,307 inquiries and grievances were received representing a 3.5 percent increase over the prior year.

Sixty-three percent of the inquiries and grievances or about 1,470 were closed for lack of sufficient information to support an allegation of potential misconduct. Of the balance, 18 percent were forwarded for formal investigation, 10 percent involved resolution of minor disputes or were withdrawn and 9 percent were diverted, which means educational programs, mentoring arrangements or alternative programs (such as mediation, fee arbitration, evaluation and treatment for alcohol and other substance abuse).

The complaints, which can be viewed from multiple perspectives, can also be categorized by areas of practice, nature of complaint and complainant. Turning to areas of practice in which misconduct was found in public disciplinary decisions, criminal law/traffic leads the pack with 20 percent of the cases followed by bankruptcy which accounted for 19 percent, litigation 17 percent, family law 12 percent and estate-probate 7 percent. So then while you should always be on enguard with respect to observing the Rules of Professional Conduct, it would be particularly wise to do so when practicing in these areas of law.

Regarding violations for which misconduct was found in public discipline cases, leading the pack was lack of communication at 29 percent which is a SCR 20:1.4 violation. As suggested in the preceding article, it would be good to review 1.4 and all of the rules for that matter so you can avoid violating their provisions. For example, in those cases where you do not like a client or things are not going well or you are behind the ball economically, it might be a good idea to sever the relationship in accordance with the rules, rather than hope some miracle will occur. Some people express the viewpoint that the first loss is usually the smallest loss.

Next in the line at 17 percent is a lack of diligence, which is a SCR 20:1.3 violation which is a one sentence rule — as usual, I would recommend your reading it and the ABA five paragraph explanation, all of which are found in Volume 5 of the Wisconsin Statutes as are all of the rules.

Coming at third place at 12 percent is misrepresentation/dishonesty — here I cannot help you — you should know what is right and should do it. Basically there is no solution for this other than yourself. I am guessing that this may be caused by feelings of great desperation and pressure. Having never been desperate, I do not know what desperate people will do, although I suppose misrepresenting and lying might be part of it.

A surprising situation is violation of a decision or the attorney’s oath. In the three-hour ethics class I teach to practicing lawyers for the UW Law School — CLE in the fall/winter of each year, we review the oath, since I am of the firm belief that most lawyers, when sworn in, have little or no recollection of the oath. I would go so far as to say many lawyers would be surprised to learn a violation of the oath is misconduct under SCR 20:8.4(g) in the first place.

So where are the grievances coming from? Not surprisingly, about 57 percent come from clients, about 16.5 percent from adverse parties and 15.7 percent from other parties. About 3 percent are coming from attorneys and 4.5 percent from the OLR staff itself. Nothing surprising there.

Because I am of the firm belief that virtually all lawyers want to do a good job, I take no pleasure in reporting that last year’s spring disciplinary rains yielded a crop of 46 public disciplinary sanctions, including four revocations, two revocations by consent, and 18 suspensions. In addition, there were eight public reprimands imposed by the Supreme Court, as well as 14 consent reprimands issued by Supreme Court referees. Additionally, the Court temporarily suspended 11 attorneys. Fifteen lawyers received private reprimands, and the Supreme Court issued two private reprimands. One hundred twenty-five lawyers entered alternatives to discipline programs.