Proposal offers options for problem applicants

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What options does the Board of Bar Examiners have when considering a prospective lawyer who has problems resulting in financial mismanagement, alcohol abuse or drug addiction?

Currently, the choices in Wisconsin are to accept or reject the applicant, but a proposal would allow the BBE to temporarily license someone dealing with one of those types of problems.

Robert J. Asti, Chairman of the BBE Review Committee formally presented the idea of conditional admission at the Dec. 7 State Bar Board of Governors’ meeting.

He pitched the proposal as a third option for the Board of Bar Examiners (BBE) when considering bar admission and indicated that some circumstances call for a more flexible approach.

“In Wisconsin there is no third option for the licensing of someone with character and fitness problems,” said Asti. “There are two choices — to approve or not approve.”

The Board of Governors supported the concept of a provisional rule by a majority voice vote, but debated several details including confidentiality, consumer protection and qualifications.

Asti indicated that the initial proposal was only a rough draft, but ultimately a petition is expected to be drafted and submitted to the Supreme Court. No timetable was set for when a petition will come before the board.

Possible Qualifications

Eligible behaviors targeted in the proposal included alcohol or drug abuse, criminal conduct, mental illness and financial mismanagement.

Recommendations for conditional admission would be made on a “case by case” basis according to Asti, who said an individual’s circumstances would dictate the extent of his or her supervision.

Some board members took issue with proposed problem areas, which would be investigated.

Gov. Elizabeth G. Rich said it would be “intrusive” for the Bar to make judgments about the spending habits of law students and determine whether that disqualifies them from being credible attorneys.

The majority of questionable cases coming before the BBE involve “frivolous” debt, according to BBE Director John Kosobucki.

“Overall, there are not a substantial amount of people who come with problems, but I do think it is a valid concern as to whether there should be a third option,” said Kosobucki.

At the same time, Kosobucki said the current review process does work.

He cited a recent instance where an applicant came before the board with several drunken driving citations. After an Alcohol and Other Drug Assessment (AODA), the applicant’s license was approved.

“We found this applicant was in remission and there was no indication of problems which would prevent this person from practicing law,” said Kosobucki, who added that the BBE had not taken a formal position in support of or opposition to conditional admission.

Privileged Information

Preliminary language in the proposal suggests that conditional admission will remain confidential from clients.

Gov. Lynn R. Laufenberg questioned whether that would raise public protection concerns.

“I’m not unsympathetic to those attorneys with needs, but how do we approve a concept to help people who may have difficulties in performing the duties of a lawyer,” said Laufenberg.

As indicated in the draft submitted to the board, conditional admission would be for one year, with the possibility of a one-year extension if deemed appropriate by the BBE.

Kosobucki also expressed concern as to what restrictions should be set with regards to public disclosure.

“You don’t want to put a ‘scarlet A’ on the attorney, but what are the limits?” said Kosobucki.

Currently, attorneys who participate in the Wisconsin Lawyer’s Assistance Program (WisLAP) remain confidential and the organization is exempt from reporting professional misconduct to the Office of Lawyer Regulation (OLR) under Wisconsin Supreme Courdt Rule 20:8.3(c)(2). WisLAP also does not keep case records.

What roles OLR and WisLAP will have in the execution of a conditional license or regulation is yet to be determined, but Asti anticipated an agreement could be reached to satisfy client protection concerns.

“There have been thoughts on both sides as far as always telling the consumer about conditional licenses or only disclosing in severe cases,” said Asti. “It’s something that still needs to be worked out.”