Justices consider alerting public to ongoing attorney investigations (UPDATE)

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A proposal in front of the state Supreme Court would allow officials to notify the public of certain ongoing investigations into alleged attorney misconduct, before charges are filed.

Currently, an attorney’s alleged misconduct is made public when the Office of Lawyer Regulation files a formal complaint. But the time between when an attorney becomes the subject of investigation, and when a complaint is filed, can be substantial.

OLR Director Keith Sellen said it takes the OLR 60 days, on average, to determine whether investigators should formally look into a complaint. The formal investigation then takes about 382 days, he said.

The rule change, proposed Aug. 28, would give the OLR or investigator a mechanism to notify the public that a formal investigation is underway.

Under the proposal, state justices would have to authorize each notification and give the attorney in question a chance to argue why notice of investigation should be kept private. The justices would also give the accused attorney a chance to argue why the public should not be notified.

The proposed rule would grant the justices authority to notify of investigations in certain situations, such as those involving possible criminal conduct or “if the attorney’s practicing law resents substantial risk of physical, financial or legal harm to the attorney’s clients or other persons.”

“Public notice would issue only for good cause,” the supporting memo reads, “and only after due process and consideration by the [state] Supreme Court.”

State justices are expected to discuss the proposal at a conference starting at 9:30 a.m. Sept. 12 in the Supreme Court’s hearing room in Madison.

The proposal was authored by Sellen and Rod Rogahn, chairman of the Board of Administrative Oversight.

“We’re trying not only to balance a lawyer’s interest but the interest of a grievant,” Rogahn said. “In a lot of situations, [attorneys] want confidentiality … and that’s baked into the process.”

The proposal, according to the supporting filings, came as a result of a February 2012 study that sought to identify problems in the way lawyers are investigated and disciplined for misconduct.

The study acknowledged that disclosing an investigation before a complaint is filed “could subject an attorney to … adverse consequences.”

“On the other hand,” the study states, “a lengthy period of confidentiality prior to disclosure of complaints that do have merit could result in further harm to the public by an attorney who may be engaging in a pattern of misconduct.”

If accepted, the notices of investigation would be listed on the OLR’s website. Sellen said he and others also discussed a provision to publish the notification in newspapers, but they also considered that “once it’s in print, it’s always in print.”

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“This could be issued, and within a couple weeks or months … we could find there’s no basis for it,” he said, adding he expected the justices to ask about this issue as they discuss the rule.

And while the proposal has not yet been heard, open-government advocates said the proposal is a step in the right direction for transparency.

Bob Dreps, a media law attorney at Godfrey & Kahn SC, said he has long questioned why complaints against attorneys and judges are not public until formal charges are filed, while complaints in other professions are automatically made public.

Still, he said his media clients “would certainly being interested in getting access sooner rather than later.”

“From an open government perspective, anything the court can do to open to public scrutiny is a good thing,” Dreps said.

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