Gableman removal bill faces long odds despite ethics investigation

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Though state Supreme Court Justice Michael Gableman is under investigation, there is little hope for a recent legislative proposal to remove him from the court.

A pending complaint with the Wisconsin Judicial Commission questions the structure of Gableman’s contingent fee agreement with Milwaukee-based Michael Best & Friedrich LLP for defense of his 2008-10 campaign ethics case.

Assembly Joint Resolution 115, introduced Feb. 23 by Wisconsin State Rep. Kelda Helen Roys, D-Madison, calls for Gableman’s removal from the court as a result of questions surrounding his agreement with Michael Best and alleged ethical violations.

The bill has only four sponsors, though, and Roys acknowledged it has little chance of success.

“I’m not optimistic,” she said, “given the current political climate in the Legislature.”

Mike McCabe, executive director of judicial watchdog group the Wisconsin Democracy Campaign, filed the complaint against Gableman in December. The contingent fee agreement was unusual for the type of service being provided, he said, and unlikely to be paid even if Gableman won.

“Law firms only offer contingency fee arrangements when there is the possibility of damages that would enable the firm to get considerable compensation,” McCabe said. “Gableman couldn’t get that.”

According to Roys’ resolution, Gableman didn’t pay Michael Best for its two-year defense and state law and the Code of Judicial Conduct prohibits judges from receiving anything of value for free while in office.

The firm entered into a contingency fee arrangement with Gableman, but because he didn’t win — the Supreme Court split, 3-3, on whether he violated the state’s judicial ethics code in the case — no fee was paid.

Gableman did not return a call seeking comment, nor did Michael Best attorney Eric McLeod, one of the attorneys that represented the justice in the ethics case.

Contingent payments are typical in cases where a plaintiff’s attorney has an expectation that the client will receive a favorable monetary outcome in the case, said veteran personal injury lawyer Victor Harding, of Warshafsky, Rotter, Tarnoff & Bloch SC, Milwaukee.

But those arrangements are uncommon, he said, in cases where there is no financial gain tied to the resolution of a case.

“What’s going on with Gableman doesn’t make sense,” Harding said, “because there was no monetary gain to be made. That is different than a contingent fee agreement as I understand it.”

Harding said 99 percent of his cases are billed on a contingent fee basis. Cases that aren’t evaluated to recover his fee and also a recovery for the client are turned away, he said.

The state typically only reimburses firms representing elected officials up to $5,000, he added, which would have been far less than what Michael Best invested in representing Gableman, anyway.

James Alexander, executive director of the Wisconsin Judicial Commission, confirmed the organization is investigating the allegations against Gableman.

No Wisconsin justice has ever been removed from the bench for an ethics violation, he said, and Justice Annette Ziegler is the only justice to ever have been disciplined.

She received a public reprimand in 2008 for failing to recuse herself while serving as a circuit court judge on 11 cases that involved West Bend Savings Bank as the plaintiff when her husband served on the bank’s board of directors.

Indiana attorney James Bopp, of Bopp, Coleson & Bostrom, represented Ziegler in the ethics case and also Gableman in his 2008-10 campaign ethics case. He declined to comment on the financial structure of his legal agreement with the justices or if he was paid.

Bopp said he is not representing Gableman in the new ethics complaint.

“The fee agreement is privileged information,” he said. “I’m not disclosing anything that would violate the attorney-client privilege.”

But Roys said the fact that Gableman failed to even disclose his retention of Michael Best to the court, much less the unpaid legal fee, calls into question his ability to impartially sit on cases in which the firm has a stake.

According to the resolution, since 2009 Gableman has participated in 11 cases involving other Michael Best clients.

“The code of judicial conduct specifically says that you cannot have these financial entanglements with people likely to have frequent dealings with the court,” Roys said. “So when it’s one of the state’s preeminent appellate law firms, it’s probably not a good idea to entangle yourself.”

One of the cases Gableman ruled on was the union dispute with the state in which Michael Best represented Republican lawmakers. Gableman was in the 4-3 majority ruling in favor of the state.

On Wednesday, Dane County District Attorney Ismael Ozanne filed a motion with the Supreme Court that Gableman recuse himself from future proceedings on the case on the grounds that his receipt of free legal services from Michael Best and failure to disclose the representation called into question his impartiality in the case.