Justices vote down proposal to make some OLR investigations public

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The public will not be privy to attorney misconduct investigations before a formal complaint is filed, the Wisconsin Supreme Court ruled Tuesday.

The court, in a 4-3 decision during its open rules conference, shot down a proposed rule change that would have given the justices a mechanism to notify the public in serious misconduct cases.

The proposal, filed in September by Office of Lawyer Regulation Director Keith Sellen and Board of Administrative Oversight Chairman Rod Rogahn, sought to notify the public only in cases involving possible criminal conduct or “if the attorney’s practicing law presents substantial risk of physical, financial or legal harm to the attorney’s clients or other persons.”

Justices Patrick Crooks, Michael Gableman, Patience Roggensack and Annette Ziegler were the majority voting to shoot the proposal down.

“I don’t view this as necessary,” Gableman said. He explained that the court already has a mechanism in place, even if it is not used often.

Chief Justice Shirley Abrahamson and Justices Ann Walsh Bradley and David Prosser voted against the motion to oppose the proposal. Abrahamson and Bradley said the proposal should not be shot down outright but instead sent back to the OLR and board so they could revise it with fixes that could appease some of the justice’s concerns.

Sellen has said the proposal was sparked by news articles highlighting attorneys with criminal records that were allowed to practice in Wisconsin. The proposed change was meant to keep the public properly informed, he said, since his office’s confidential investigations take an average of 158 days from the time it receives a complaint to the time a complaint is filed or it is dismissed.

The proposal followed 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, according to the report.

Still, most of Tuesday’s discussions didn’t circle around the proposal. Rather, Abrahamson and Prosser renewed their drive to do a full-scale inquiry into the OLR.

Such an inquiry hasn’t been done since the OLR was established in 2000, though the office was created following an inquiry into its predecessor, the Board of Attorneys Professional Responsibility.

Prosser said interest in doing an inquiry is not an indictment of Sellen or the organization as a whole. Rather, he said, it’s a way to see if the OLR can be run more efficiently.

“It’s not meant as hostility,” Prosser said, adding that he has sometimes, however, “strongly disagreed with some of its decisions.”

Abrahamson said she would work on the potential review this summer, and asked her fellow justices for what they feel should be investigated. Follow @eheisigWLJ