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Editorial: Attorneys deserve objective rulings

By: WISCONSIN LAW JOURNAL STAFF//February 18, 2013//

Editorial: Attorneys deserve objective rulings

By: WISCONSIN LAW JOURNAL STAFF//February 18, 2013//

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The ghost of U.S. Supreme Court Associate Justice Potter Stewart is whispering in the rooms where Wisconsin’s suspended attorneys go to learn their fates.

Someone should respectfully ask him to leave. A reinstatement hearing is no place to apply the equivalent of Stewart’s subjective assessment of obscenity.

But that’s exactly what Wisconsin Supreme Court rules require of the referees who cast judgment in those hearings. They must decide if the suspended attorney “has the moral character to practice law in Wisconsin.”

Frankly, the stakes of such a decision make Stewart’s quandary in Jacobellis v. Ohio look no graver than choosing whether to get fries with that burger.

The referees acknowledge wrestling with such imprecise language. And none who were interviewed for this month’s cover story came up with a clear definition of moral character.

There is no answer. Ten different referees would offer 10 different definitions because moral character is viewed through the lens of the beholder’s personal experience.

Who is to say that a devout Roman Catholic referee could not see a lack of moral character in a divorced petitioner? It’s an extreme example, but there is no way to rule out the extremes without first creating some boundaries.

All that exists now is the assumption that referees have the moral character to distinguish between their personal beliefs and the standards that should apply to other lawyers.

Even former state Supreme Court Justice Janine Geske, who emphasized the importance of the standard, said, “The question of moral character, it’s always vague.”

It should not be that way.

Attorneys should, as Geske said, hold themselves to a higher moral standard than laymen. Attorneys are in positions to do more harm than those who do not practice law. An attorney with questionable ethics can cost clients millions of dollars or even their lives.

With an inflated interpretation of “moral character,” a referee can slam the door on an attorney who has served the suspension, shown a clean record and paid the required restitution. Only a petitioner who meets such objective standards deserves reinstatement. But with “moral character” undefined, a referee presiding over a reinstatement hearing can withhold a license for a perceived lack of sincerity in “I’m sorry” or a poorly timed smirk.

If that’s the case, then suspended attorneys seeking reinstatement deserve to know that ahead of time because those who judge their colleagues cannot be absolved from providing clarity.

How can petitioners prove they have moral character if the referees cannot define it?

As well as it might have worked for Stewart, “I know it when I see it” is just not good enough when careers hang in the balance.

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