Defense of misconduct charges levied by the Office of Lawyer Regulation can often be costly for the accused attorney.
In accordance with Supreme Court rules, the vast majority of cases where a violation is found end with the respondent liable for not only his or her attorney’s fees, but those amassed by OLR.
Those costs can range from $6,000 to as much as $30,000 in heavily litigated cases, according to Professional Ethics Committee chair Dean R. Dietrich. Dietrich said in some situations, lawyers will concede to charges rather than risk the possibility of being saddled with a big bill.
But in a 4-3 vote on Oct. 4, the majority of the justices favored a change to SCR 22.24 which will permit referees to recommend what portion of costs should be paid by those found guilty of professional misconduct.
The State Bar of Wisconsin had lobbied for the change in 2005. Instead, the court revised the rule to generally impose all costs upon the respondent and only in “extraordinary circumstances” would a reduction be considered.
The new language has yet to be formalized and a final draft of the changes will come back to the court at its next open administrative conference on Oct. 18.
Dietrich said the revision to the rule will not eliminate or significantly reduce the assessment of full costs in most cases. But an evaluation of cost by a neutral party is something attorneys can consider when deciding whether or not to fight OLR charges.
“I think it gives attorneys the opportunity to make an argument if it’s worth making,” he said.
Even though referees are not currently encouraged to make recommendations on cost, some do, although as with proposed discipline, the Supreme Court makes the final determination.
Veteran referee Kim M. Peterson has made cost recommendations to the court in the past and welcomed the change as a way to provide input to the court on rare occasions where lower assessments may be warranted.
She suggested that a case in which OLR prevails on 48 of 50 counts may on the surface appear like a clear-cut situation where full costs would be imposed on the respondent. But if one or two of the other charges accounted for the majority of the prosecution costs and the attorney prevailed, a discount could be considered.
OLR rarely brings a charge that it doesn’t prove, said William J. Weigel, the agency’s Litigation Counsel and it has never had a case where “one out of 15 charges were proven.”
“I think we had one case where two of seven counts were proven, but the court imposed full costs in that case,” he said.
In addition, charges are rarely contested and some on the court questioned why a change was needed given that the current system appeared to be working just fine.
Weigel also expressed concern that the added responsibility of a referee to assess cost could overshadow his or her job of determining misconduct and recommending sanctions.
“Those are the bread and butter purposes of misconduct litigation,” he said.
In its decision, the court retained six criteria, such as nature of the misconduct and prior discipline, for considering cost reductions, but deleted from the rule a reference to “exceptional circumstances” to avoid confusion.
Referees will have discretion in making cost recommendations to the court and Peterson said time will tell whether justices concur with or disregard the proposals.
“It the court consistently goes against my recommendation, the way I’ll look at it is that my recommendation is off,” she said. “They are the ultimate authority and I’ll take my cues from what they are doing.”
Jack Zemlicka can be reached at firstname.lastname@example.org.