Justices discuss proposal to make some OLR investigations public

Listen to this article

A public hearing over whether to make public certain investigations into alleged attorney misconduct dredged up concerns state justices have about the attorney discipline system.

The discussion before the state Supreme Court on Monday went far beyond the proposal, which would require justices to authorize each notification and give the attorney in question a chance to argue why the investigation should remain private.

Instead, Chief Justice Shirley Abrahamson questioned Office of Lawyer Regulation Director Keith Sellen about the length of time that OLR investigations take, and why the problem the proposal seeks to address can’t be handled in other ways.

“Why don’t you just speed up the process?” Abrahamson said. “I would … take three investigators off [other cases] and put it on John Smith. Put everything on it and within two months, three months, you have enough to go to the [Preliminary Review Committee] and have a probable cause hearing.”

The proposal, which was filed in September by Sellen and Board of Administrative Oversight Chairman Rod Rogahn, states that public notification only would be sought in certain situations, such as those involving possible criminal conduct or, according to the proposed rule change, “if the attorney’s practicing law presents substantial risk of physical, financial or legal harm to the attorney’s clients or other persons.”

Once the justices give authorization, the notice would then be put on the OLR’s website.

The court did not vote on the proposal Monday, though it is expected to discuss it at a later date.

Other justices also expressed concern about the proposal, as well as the system. Justice Michael Gableman again brought up the idea of attorney plea agreements, a matter discussed by the court during a rules conference in November.

In defending the proposal, Sellen noted the example of Christopher Mutschler, a former Fond du Lac attorney who was convicted of crimes in 2008 and continued to practice law while under investigation. Sellen said his was as an example of a case he would want to notify the public about.

“It was very clear … that he would continue to solicit clients,” Sellen said.

Claire Fowler, who has served on the BOAO and PRE, said she feels the attorney discipline system is “very heavily weighted for the lawyers,” and that the proposed change is needed so the public can more quickly know about an attorney’s alleged bad deeds.

“It is not the end of the world,” Fowler said of such early notification. “The lawyer will live.”

Still, attorney Dean Dietrich, an attorney with Ruder Ware LLSC in Wausau who represents attorneys embroiled in OLR cases, said he had mixed feelings about the proposal.

He said the rule, as drafted, does not clearly spell out what alleged misconduct could lead to a public disclosure. He also pointed out that a suspension or revocation of a license is the “death penalty for a lawyer,” and that these cases need to be carefully considered.

“There is a need to protect the public,” Dietrich said. “There is a need to protect the lawyer as well.”

The proposal 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 time between when an attorney becomes the subject of investigation, and when a complaint is filed, can be substantial, the report found.

Sellen has said the average time a case takes to finish – which includes cases that are dismissed, fully investigated and those that make it to the Supreme Court – is currently about 158 days. Follow @eheisigWLJ