When an attorney hears from the Office of Lawyer Regulation, it isn’t for a pat on the back.
OLR is best known for its ability to investigate and recommend disciplinary action against lawyers. But it will soon have an alternative to punishment available to protect attorneys and clients from harm.
Starting July 1, OLR will be able to directly refer attorneys thought to have a debilitating addiction or other impairment to the Wisconsin Lawyers Assistance Program (WisLAP) for monitoring.
Currently, the agency is required to keep those matters confidential and is prohibited from informing WisLAP.
OLR Director Keith L. Sellen applauded the state Supreme Court’s adoption of a petition, jointly filed by the agency and the State Bar on April 27, that established the referral procedure.
While he anticipates that only “eight to 12” instances annually may require a referral, Sellen said it is a preventative measure which could cut down on the number of disciplinary actions recommended by his office.
“Early response to a problem that could arise and an earlier opportunity for lawyers to understand a concern and engage in self-help is a new part that could result in less discipline and less harm to the public,” he said.
Currently, the court can authorize diversion agreements with attorneys as part of their discipline, but in many cases, detection of an addition or other problem doesn’t come until after the damage has been done. Beyond those agreements, the new rule will allow OLR to recommend treatment as an alternative to an attorney losing his or her license.
According to Kathryn L. Norton, chair of the WisLAP Committee, addiction or impairment often goes hand-in-hand with misconduct.
“There is a very high coincidence for disciplinary actions and attorneys having problems with addiction,” she said. “So if we can help attorneys through the disciplinary process and keep their livelihood while still protecting the public, I’m glad to do it.”
But the onus is still on the attorney to comply with a recommendation, since it is voluntary on their part to seek help.
Norton said she expects that there will be attorneys referred by OLR who will resist treatment and take their chances with a disciplinary hearing.
However, she said that because the recommendation is coming from OLR, attorneys may have more of an incentive to seek help.
“It’s certainly a big hammer,” she said. “I’m sure it will hold some weight.”
Norton said there are concerns that the new rule may be overreaching on the part of OLR, but she anticipates that its new authority will be judiciously used.
“I’m pretty sure OLR is not involved until someone files a grievance,” she said. “It’s not as if they will have people wandering around the bar convention seeing who had one too many and sending in referrals.”
While the new rules allow OLR to share relevant information about an attorney’s condition with WisLAP, Sellen said confidentiality provisions are intact to protect attorneys.
Prior to a referral, OLR must notify the attorney in question.
Unless the attorney consents to further contact with OLR or it is a monitoring condition, communications with an assistance committee member, staff, or volunteer, along with all records of program assistance to a person are confidential.
“Where there is not a diversion agreement or court conditions, WisLAP would not have an obligation to report any information back to us,” Sellen said.
In addition to the confidentiality provisions, the new rule also provides extensive immunity from lawsuits for those involved in the process.
Communications with assistance committee members, staff, or volunteers by people providing information in good faith are privileged and no lawsuit based upon those interactions may be instituted by any person.
Service providers, staff and volunteers are also immune from being sued “for any conduct in the course of their official duties.”
In a written dissent, Chief Justice Shirley S. Abrahamson said the protection was “broader than is needed” and she would have preferred a more narrow provision.
The court requested that OLR provide a written report on the impact of the immunity and confidentiality aspects in three years.
In the fall, the justices will revisit the issue of monitoring when it reviews a petition proposing conditional admission to the bar of attorneys dealing with addiction.
Currently, the Board of Bar Examiners only has only two options when considering an applicant for admission to the bar: certify the applicant or deny certification.
Professional ethics attorney Daniel L. Shneidman expressed concern as to how the two petitions would fit and which court agency, OLR or BBE, would be in charge of the process.
“I don’t know how these are going to be intertwined,” he said. “I wouldn’t want a bright, competent lawyer having difficulty with a dependency issue to have a big star on their forehead.”
Jack Zemlicka can be reached at email@example.com.