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High court to hear attorney misconduct notification proposal

A proposal to make public certain investigations into allegations of attorney misconduct will be given a public hearing Monday in front of the state Supreme Court.

The rules petition seeks to give the public a heads up about attorneys who are being investigated for misconduct. Currently, an investigation is not made public until the Office of Lawyer Regulation files a formal complaint.

The proposal would require justices to authorize each notification and give the attorney in question a chance to argue why notice of investigation should be kept private. The justices would also give the accused attorney a chance to argue why the public should not be notified. Notification would only be sought in certain situations, such as those involving possible criminal conduct or, according to the proposed rule change, “if the attorney’s practicing law presents substantial risk of physical, financial or legal harm to the attorney’s clients or other persons.”

Once the justices give authorization, the notice would be put on the OLR’s website.

The rules petition was filed in August by OLR Director Keith Sellen and Board of Administrative Oversight Chairman Rod Rogahn. Both are expected to speak at Monday’s open rules conference.

“We want to tailor this public notice to a public interest,” Sellen said. “The fact that an investigation is pending against a lawyer does not mean a lawyer has done anything wrong.”

The proposal came as a result of a February 2012 study that sought to identify problems in the way lawyers are investigated and disciplined for misconduct. The time between when an attorney becomes the subject of investigation, and when a complaint is filed, can be substantial.

Sellen said that the average time a case takes to finish – which includes cases that are dismissed, fully investigated and those that make it to the Supreme Court – is currently about 158 days, which is not much of a change from fiscal 2013.

Sellen also said that he and board members discussed the best way to make the public aware of these investigations. He said they discussed putting the notices in newspapers, but they felt that the public usually “doesn’t know that anything’s going to be there.”

“Nobody’s going to go through the archives of a newspaper,” he said. “It’s just not the way people would get information today.”

Still, the proposal has not seemed to elicit much interest from the attorneys who could potentially be affected. Most of those who have signed up to speak during the public hearing are or were affiliated with the OLR and the board.

The State Bar also did not take a position on the issue. And the proposal itself only elicited two written responses. Both were from a Wisconsin resident who brought up issues unrelated to the issue.

And the justices have expressed concern about the idea in the past.

At a rules conference in December, Justice Ann Walsh Bradley called the idea “dicey,” explaining that she understands “the need for it, but I also understand some of the danger.”

Chief Justice Shirley Abrahamson also took umbrage with a provision that allows the public notice if there is “good cause,” explaining that she felt it was too broad.

Justice David Prosser said during the conference that leaving the information vague could lead the public to unfairly assume the worst, however.

“They could think this person is engaged in a pattern of fraudulent and criminal conduct,” he said.

About Eric Heisig

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