OLR seeks increase in citizen participation

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More members of the general public may serve in the lawyer discipline process if the Wisconsin Supreme Court approves rule changes proposed in a petition the director of the Office of Lawyer Regulation filed in early November.

Among other revisions, the petition proposes an increase in the goal for the proportion of non-lawyer membership in district committees to two-fifths, up from one-third under the present rule. The prior goal of one-third public membership would be converted to a required minimum.

The Lawyer Regulation System’s Board of Administrative Oversight recommended the increase, and OLR’s director, Keith Sellen, said that it was in line with the variety of approaches in other states.

“I know there is a balance struck with respect to the lawyer regulation systems throughout the country, and there are public members involved at different levels and in different proportions,” he said.

The board suggested the increase in a report issued in March pursuant to a Supreme Court order that the board recommend whether district committees should be retained and, if so, how the Court’s rules could be amended to improve the committees’ operation.

In cases in which, after preliminary staff investigation, Sellen determines that referral to a district committee — rather than further staff investigation or other action — is appropriate, committees investigate allegations of lawyer misconduct and prepare reports that may contain disciplinary recommendations. Whether investigations are conducted by staff or committees, Sellen ultimately decides how to proceed after the investigations conclude.

Perception of “Lawyers Investigating Lawyers”

According to the board’s report, the proposed increase in public members “would help blunt the perception that lawyers investigating lawyers is unfair.”

Krista Ginger, a non-lawyer member of the board, said that in her recollection, the major reason for the proposal was that “people thought that two-fifths public members was not going to be perceived as not being fair to lawyers and it could actually help the perception of [the system as] being more fair to the public.”

Public members, as they would be called under the proposed rule changes, normally conduct committee investigations in tandem with lawyer members, said William H. Levit, Jr., the board’s chairperson.

“I spent nine years on the district committee here in Milwaukee, and also was the chair of that committee,” Levit added. “Not all, but many cases that you get at the district committee level are pretty clear cut. They are things that involve really basic kinds of transgressions, [and] you don’t have to be a genius or a lawyer or an ethics expert to understand that somebody’s doing something that is improper.”

Sellen’s petition also proposes changes designed to implement a board recommendation that all committee members be required to attend OLR training on procedural and substantive ethics rules within the first year of appointment.

No “Bloc Vote” by Public Members

Ralph M. Cagle, who represents lawyers in disciplinary matters, said that he does not see the proposed increase in public members on committees as likely to substantially affect outcomes.

“I’ve seen public members do a very good job of conducting the mechanics of the investigations in some cases, certainly making wise decisions,” he said. “My overall experience has been that there is no bloc vote of how the lawyers vote versus the public members, that public members split on issues in much the same way that lawyers split on these issues.”

But it might be difficult to get more public members to fill the increased slots, because the committee work can entail long hours of investigation, interviewing, and meetings, said Cagle, who also teaches professional ethics at the University of Wisconsin Law School and serves on the State Bar of Wisconsin committee that studies lawyer regulation.

“So I guess if I had a vote in the matter, I would be prone to stay with the current one-third until there’s some real indication that we have a substantial cadre of public members wanting to get on these committees,” he said.

While they make a valuable contribution and add credibility to the system, Cagle said, an increase in public members that in effect reduces the proportion of lawyer membership could mean that in some cases, committees may be less likely to have members who practice in the substantive areas in which grievances arise.

Retention of District Committees Recommended

The district committees’ ability to apply local experience and knowledge of specific areas of legal practice in grievance investigations was one of several reasons cited for the board’s unanimous recommendation that the committees be retained.

But despite the board’s accompanying recommendation that OLR refer “as many grievances as feasible” to district committees, Sellen acknowledged that the number of committee referrals is down recently.

“From our perspective, making this fairly substantial pitch in our report for the value of district committees, and why they’re important, and so forth and so on, it’s of great concern to us that OLR has not been using them as extensively and effectively as we feel is appropriate,” Levit said.

While he shares the board’s concern about the low numbers of committee referrals last year, Sellen said there are cases in which it doesn’t make sense to refer.

Changes in the Lawyer Regulation System since the 1990s mean that a smaller number of cases require district committee work, he said.

“We want [the committees]
to be engaged and involved in the system, so if anything, I’ll err on the side of giving them something to do,” Sellen said. “But on the other hand, I don’t want to send them something that’s meaningless to do that we already know the answer to. You don’t want to tell a volunteer, ‘Here’s some busy work for you, just because you’re there.’”

Caseload Backlog Eliminated

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District committees aided in investigations the OLR staff normally would have handled while they worked to eliminate the substantial backlog of cases that OLR inherited at the inception of the new regulation system, Sellen said. The backlog is now gone, he said.

Some are now saying that OLR processed their grievances too fast, Sellen said, although in some cases those complaints may be related to determinations unfavorable to the complaining parties.

The percentage of lawyers publicly disciplined during the Lawyer Regulation System’s 2003-04 fiscal year, which ended in June, increased to .3 from .2 in the prior fiscal year and .1 two years ago, a change that also can be explained by the work accomplished during backlog reduction, Sellen said.

“I don’t think there’s an increase in the incidence of misconduct by lawyers, or the incidence of reporting or anything like that,” he said. “I think that it’s directly attributable to the fact that we got an excessive amount of cases done in order to get our caseload down to our capacity.”

According to the statistics compiled in the 2003-04 fiscal year report, the practice areas that generated the largest numbers of grievances were, as in the prior year, criminal law and family law, respectively.