State high court to consider shrinking OLR referee pool

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The state Supreme Court is considering whether to significantly reduce the number of referees who handle lawyer discipline cases on a regular basis.

The proposal is one of two up for a public hearing during the justices’ open rules conference Friday. If passed, the rule would ensure that four referees would handle the majority of discipline cases brought by the Office of Lawyer Regulation. Other referees would be brought in, according to the rule change proposal, but “only when no members of the permanent panel are available.”

It would also require that referees chosen would have “substantial judicial or litigation experience.” Exactly what that is has not been decided, but the OLR said in a filing that they recommend a minimum of five years of judicial experience or 10 years of litigation experience.

After the public hearing, the justices are expected to review the measure and, if they choose, vote on it.

The idea was put forth in May by the State Bar, the Office of Lawyer Regulation and the Board of Administrative Oversight in the wake of a report compiled in February 2012 that identified weaknesses in the lawyer discipline system.

The idea behind having a set number of referees, said Board of Administrative Oversight Chairman Rod Rogahn, is that those who handle OLR cases on “a more consistent basis will do a better job.” Right now, there are 32 referees handling OLR cases, and Rogahn said it could potentially be problematic “if you have so many people out there who are doing a few of these cases on an ad hoc basis.”

Richard Esenberg, who works as a Supreme Court referee, said it can often be “hard to find a pattern that would provide particularly clear guidance for what you should do.”

Rulings for similar disciplinary cases can vary, he said, though it’s usually a very minor variance.

“It might even become less so with more specialization,” Rogahn said.

So far, reception among interested parties has been mixed. Some have praised the efforts, saying this could ensure a more fair system for the lawyers who are charged and ultimately disciplined.

“If there is a weakness with some referees, it is that hearings are not conducted strictly in accordance with the rules of evidence and are sometimes conducted in a fashion that departs significantly and inappropriately from trial proceedings,” wrote attorney Terry Johnson, of Peterson, Johnson & Murray SC, in a Sept. 10 letter.

Still, others are concerned that a small panel of referees will ensure that their workload will increase and will take away from a referee’s private practice.

“Four … referees, working on their own, will not be able to handle the number of disciplinary cases that are in the system,” wrote Oneida County reserve judge and referee Timothy Vocke in an Oct. 15 letter. “Without a staff, much of the work that will have to be done is not judicial in nature, but administrative.”

OLR director Keith Sellen said, however, referees on the panel would most likely work a combined 30 hours a week.

Another proposal up for public hearing would give the justices guidance on how to enforce sanctions placed on a disciplined attorney. That proposal, also put forth by the same group, stemmed from an order the court made in a disciplinary case against Wausau attorney Ryan Lister.

Lister fell behind on restitution payments he made for another OLR case, and the OLR asked the justices to enforce the original order. The court, in their order against Lister, asked the OLR to file a rule petition to address the issue.

The rules conference starts at 9:30 a.m. Friday in the Wisconsin Supreme Court’s hearing room.