Commentary: Legal profession’s whistleblower bias harms the public

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By Michael Hupy

The September 2013 issue of the Wisconsin Law Journal pointed out a problem that has plagued our profession for years: Members of the public do not know of ongoing misconduct of a lawyer who directly could harm them.

The institutional bias of the legal profession against whistleblowers discourages lawyers from protecting the public by providing this vital information before charges are filed, even when the lawyer committing the misconduct already is in federal prison for that very conduct.

The only reason the legal profession exists is for the benefit of our clients and the public. We each have an individual responsibility to do what’s in the public’s best interest.

Unfortunately, lawyers are afraid to assume this role. So instead the press gives our profession a black eye by exposing the danger of certain lawyers that we already should have made the public aware of.

Only if someone has a platform to speak from or holds a position of authority and is willing to speak out, does an unsuspecting public have a chance to avoid a lawyer who, for example, might be stealing from clients or be engaged in a kickback scheme.

In order to adequately fulfill our obligation to protect the public, lawyers need to speak out when another member of our profession poses a danger. We certainly don’t have a problem speaking out about other members of our profession during campaigns for judicial office or in appellate court decisions.

Lawyers who speak up should be commended, not prosecuted, for putting the public first.

If we don’t speak up, the press will be sure to note not only a lawyer’s bad conduct but the fact that the legal profession has let it go on for years and never issued a warning. Lawyer watchdog groups such as HALT want to change that by making available to the public every complaint made to lawyer regulators.

There are numerous examples of our profession’s failure to protect the public. Some years ago a lawyer who advertised by direct mail in Wisconsin and Illinois went to prison for defrauding some 200 of his firm’s personal injury clients. There were 22,000 lawyers in Wisconsin and 80,000 in Illinois at that time. One lawyer spoke up to warn the public and a front-page article in the Journal Sentinel embarrassed the legal profession by exposing the situation.

Newspaper reporters called the State Bar office in Madison and, because a complaint had not yet been filed, only were told his year of graduation and that he was in good standing. No mention was made of the fact that the lawyer was in a federal prison.

More recently, the father of a lawyer with the Office of Lawyer Regulation had his license revoked. The investigation went on for years until the Wisconsin Supreme Court issued a decision that found he was running his trust account like a Ponzi scheme. The public should have been made aware of that situation long before a Journal Sentinel report exposed the problem. But instead, another front-page headline exposed a glaring failure on the part of the Wisconsin lawyer regulatory system.

When the public realizes our profession has failed them, there are repercussions. Some years back in Pennsylvania, for example, most lawyers sat by and did nothing when a judge routinely sent juveniles to jail for very minor offenses. The judge ultimately was sentenced to 28 years in prison for accepting bribes from the builder of a detention center. The public reacted by electing six new judges and replacing the district attorney with a lawyer who only had graduated two years prior.

Wisconsin lawyers need to speak up before it’s too late. And as a consumer advocate I need to say this: Lloyd Barbee had the courage to fight for years to integrate the Milwaukee Public Schools. Members of the legal profession need to muster up similar courage to better protect the public.

Michael Hupy is a shareholder at Hupy and Abraham SC, Milwaukee. He recently accepted a nomination as a fellow of the Wisconsin Law Foundation. To read more of his thoughts on this topic, see the four blogs he wrote for the Marquette University Law School Faculty Blog.