By: dmc-admin//August 18, 2008//
In a profession that essentially polices itself, attorneys receive their share of criticism for the way they handle disciplinary matters.
A recent grievance filed by one Milwaukee attorney against a former colleague has again raised the question of whether or not an entity other than the state Supreme Court and the Office of Lawyer Regulation should be responsible for monitoring the legal profession.
“When a disciplinary matter is before me, people want to know if I’m a lawyer,” said OLR Director Keith Sellen.
But Sellen stated that having a law license does not supersede his professional obligation to help dish out discipline to offending attorneys, and allowing another state agency to regulate lawyers would likely complicate the process.
Grievance Filed
Prior to his retirement from Weigel, Carlson, Blau & Clemens, S.C., in April 2007, attorney Joseph A. Bradley filed a formal grievance against named partner Joseph W. Weigel.
Bradley alleged that Weigel and partners let the deadline for filing suit expire for 24 clients from 2002 to 2004, which meant two dozen people lost their right to sue.
After receiving a letter from OLR on June 17, 2007 that an investigation was underway, Bradley, 77, is still awaiting a status update. Most cases take a year to process. That delay, combined with what he calls “disgusting” actions by Weigel and other mitigating factors prompted Bradley to call for revisions to the regulatory system.
“The system in itself is not flawed, but the execution is flawed,” said Bradley. “When a system is flawed or broken, you at least have to put a finger in the hole.”
Weigel, whose son William Weigel is chief litigation counsel for OLR, could not be reached for comment.
Attorney Paul W. Schwarzenbart, whom Bradley indicated was the special investigator appointed by the court, said Supreme Court rules prohibit him from even confirming whether or not an investigation is in progress until a formal complaint is filed.
One of the options suggested by Bradley is to place the legal profession under the disciplinary umbrella of the Wisconsin Department of Licensing and Regulation (DLR), which has jurisdiction over 57 professions, including doctors.
DLR Communications Director David Carlson would not speak about whether the legal profession could or will ever fall under the agency’s authority. He did say that when the DLR receives a complaint, staff determines whether or not an investigation is warranted and then makes a recommendation to the appropriate board in the respective profession.
“For example, absent us, a medical examination board could have their own investigative staff, but the board doesn’t have its own employees,” said Carlson. “We do the work for them.”
Good Enough
Sellen, who declined to comment on the Weigel case, said that while he occasionally hears from disgruntled attorneys who accuse the system of operating like a “fox guarding the hen house,” a change is unnecessary.
He points to the fact that non-attorney figures are involved at almost every level of disciplinary proceedings, from the preliminary review committee to the board of administrative oversight.
“You don’t want people covering for their friends, but you do want someone who will understand and act and compete with someone who is going to be able to handle the work that is required,” said Sellen.
Similarly, attorney Daniel L. Shneidman said that regulation of the legal profession is uniquely covered by the constitution and executed exclusively by the state Supreme Court.
While the justices are attorneys, Shneidman does not expect any challenge to their authority to discipline legal professionals will hold merit.
“That exception [to discipline] is based upon constitutional law, so I think that would be the court’s response to anyone who tried to upset this in a lawsuit or otherwise,” said Shneidman, who has represented attorneys in disciplinary hearings.
Sellen also noted that because justices are elected officials, unlike agents of the DLR, they can be held accountable by the public for their actions.
“If you give authority to some entity that has only lawyers, no one is accountable to the public,” said Sellen. “If you give it to an entity with no lawyers, then you are not going to have the understanding of the profession.”
Keeping Tabs
Attorney Dean R. Dietrich has also represented colleagues on a number of occasions. He conceded that the system has its flaws, especially when it comes to reporting misconduct.
“I’ve given advice over the years to lawyers whether or not they have to report on another lawyer,” said Dietrich. “It’s a very difficult decision and I think it’s weighed very heavily by the lawyer in deciding what the right thing is to do.”
But Dietrich said he is not an advocate of changing the current system and in his experience, attorneys who serve on the OLR regulatory boards are often more vigorous in seeking discipline than non-attorney members.
Attorneys are also liable for discipline if they don’t report the misconduct of a fellow lawyer, said Dietrich.
“Lawyers have said to me, if I’m going to get in trouble, I’m going to report it and make sure I’m acting appropriately,” said Dietrich.