Don’t panic when the OLR comes calling

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Ralph Cagle understands that moment of panic attorneys might feel when they hear from the Office of Lawyer Regulation.

“Each of those letters is marked ‘personal and confidential,’” said Cagle, a University of Wisconsin Law School professor and president-elect of the State Bar of Wisconsin, who has represented lawyers in hundreds of OLR inquiries. “I may get several letters a week. But every time I see one, I catch my breath.”

Some attorneys are so stressed by the letters, he said, that they simply don’t respond.

“They just don’t want to deal with it,” Cagle said. “But you have to deal with it. It will not ever go away.”

It might not go away, but it also does not mean an end to a career.

In fact, in about 5 percent of cases, that heart-stopping letter from the OLR simply states that a grievance was filed and dismissed, and it’s the first and only thing an attorney hears about the problem.

“Getting a call from the OLR is not automatically a bad thing,” said Keith Sellen, director of Wisconsin’s’ OLR, “despite the stress that I know it causes and that I would feel if I got one.”

But don’t ignore those letters, he warned.

“You have to open it. You have to read it,” he said. “And, if you need help to respond to it, get it. In fact, I think every lawyer should get help.”

Cagle said he often advises attorneys to consult a colleague, whether it’s just an informal session to brainstorm or to officially retain counsel.

In many cases, he said, the process of answering an OLR claim starts with getting angry.

“When these accusations are made, lawyers get very upset and they have in their inner core this very angry letter that they would write,” Cagle said. “And there is actually some value in writing that letter. Tell the OLR that this is not your fault and they were a terrible client and this is unfair.

“Make it as angry and accusatory as you want. After that, tear it up and get down to writing a useful answer.”

Phone calls vs. letters

Drafting a response, whether it’s a letter or verbal, requires some strategy.

Most attorneys expect the OLR to contact them via letter, and letters are sent to notify attorneys of formal investigations, which occur in about 20 percent of OLR cases, or about 500 every year.

But, in the past decade or so, the state’s four OLR intake investigators have turned to calling attorneys to gather information for preliminary reviews rather than relying on letters because, with an average of 2,500 cases a year, calling saves time.

More than 80 percent of OLR grievances are closed without investigation. Often, that’s because there is not enough evidence to support referral for a formal investigation. But, in many cases, grievances are closed based on information from the attorney in question, often provided during that initial phone call.

“In most cases, it resolves the grievance in the attorneys’ favor,” Sellen said. “So, when the call comes, we want the attorney to take a deep breath. We want the attorney to understand what the allegations are and who filed the grievance and, at that point, we want to make sure the attorney is ready to talk about it.”

Not that they have to. Under Wisconsin Supreme Court rules, attorneys are not required to participate in the OLR intake process. It’s only after the office initiates a formal investigation that an attorney must respond.

Still, Cagle said, it’s usually in an attorney’s best interest to participate from the start.

“I’ve advised people that, if they do get a phone call, obviously find out what it’s about,” he said. “And it’s perfectly legit to say, ‘Let me get my information and get back to you,’ so you can respond intelligently and accurately. Then respond within 20 days. And, if you need more time, just ask.”

Sellen said his office is willing to work with attorneys on timing.

“In a lot of these cases,” he said, “the lawyer might say, ‘Things are crazy today. I’ve got three court hearings and a trial next week. Can I talk to you in two weeks or 10 days?’ And we can make an appointment.”

Exercising caution

Then there’s the matter of how to answer the OLR inquiry. Cagle advised first deciding whether to hire representation.

“I don’t think every one of them requires hiring a lawyer to defend you,” he said. “If nothing else, I’d go down the hall and talk to someone else. I’d talk to a friend. I’d talk to someone other than myself because my experience is it’s human nature that our defensive mechanisms kick in at this point.

“And it’s very possible to get a defensive posture in these claims. And that can lead to really serious problems.”

Trying to answer questions, especially off the cuff, without reviewing files or organizing thoughts, also can lead to problems.

“It’s really important that the information we get is accurate,” Sellen said. “It tends to create unnecessary stress when the lawyer provides initial information that turns out to not be accurate.”

Once intake investigators have heard from the grievant and the respondent, they can recommend what, if any, action the office should take.

If a violation can be proven, sanctions run the gamut from private reprimand to license revocation.

But, often, violations are resolved through alternative methods.

“For instance,” Sellen said, “if a lawyer was not diligent in his representation, but there is no pattern of misconduct or harm, the office would order fee arbitration or educational programs.”

In 2013, 168 cases were resolved through alternative methods, while 24 ended in private reprimands and 40 led to public discipline, according to the office’s annual report.

“These things are very sensitive,” Sellen said. “We want to make sure we have a response to it that is measured and appropriate, so we don’t want to do too much.

“The aim is to help the attorney comply with ethical obligations. And we find that these alternative programs are helpful and, often, more effective than discipline. … If that means fewer grievances, that’s good for all of us.”