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COURT GESTURES: Abrahamson, Prosser sound off in Friday opinions

It seems like Chief Justice Shirley Abrahamson and Justice David Prosser had a lot more on their minds Friday than just the facts of the four Office of Lawyer Regulation cases for which they released opinions.

In separate opinions, both justices called for a review of the attorney discipline system in Wisconsin, something the court discussed in October at an open administrative conference where it took up OLR petitions to tweak the system.

“The OLR disciplinary system is about 15 years old,” Abrahamson wrote in OLR v. Kratz. “Several anomalies and proposed amendments have been brought to the court’s attention. It is time for the court to institute a review of the system rather than to make piecemeal adjustments at this time.”

On Friday, Abrahamson filed supplemental opinions in each of the four decisions the court rendered in attorney-discipline cases pending before them. Three were concurring opinions, while one was a dissent. Prosser filed dissents in three of them.

According to Prosser’s partial dissent in OLR v. Kratz, where he pointed out what he saw as unfair prosecution against former Calumet County District Attorney Ken Kratz, “apart from this single case, there are many reasons for this court to launch a thorough – strictly objective – review of the agency. If that review is undertaken, something useful may yet come out of this unfortunate tragedy.”

According to Abrahamson’s opinion in OLR v. Johns, “Delays in initiating and completing discipline cases are also evident in Osicka and Kratz. Other issues raised include OLR’s discretion in charging, dismissing charges, and diversion; whether and what consideration is given in lawyer discipline to OLR’s scarce resources; the extent to which the OLR should consider mercy, forgiveness, and the wishes of the victims; whether respondent lawyers should be able to appear before the Preliminary Review Committee; and whether the Preliminary Review Committee should be disbanded inasmuch as apparently over 90% of the OLR’s recommendations are accepted.

“The Kratz case raised the issue of the role of partisan politics and media publicity in discipline proceedings, as Justice Prosser’s dissent points out. Members of the Court have also raised the question of the wisdom of changing the rules to allow plea bargaining. These are only some of the significant and troubling issues illustrated in these cases and raised in rule petitions and the hearings on recent rule petitions.”

If the court does decide to review the OLR, it would be the second such examination in recent years. A group created by the state Supreme Court-appointed Board of Administrative Oversight examined the OLR in 2011. It released a report in February 2012 that found few problems with the system but included a number of recommendations to make the disciplinary process more fair and expeditious.

But Abrahamson and Prosser have made it clear they don’t feel that is enough. During the court’s discussions in October, they likened the review to what the court did for the OLR’s predecessor, the Board of Attorneys Professional Responsibility, in 1999.

A new review of the OLR came up again at the court’s meeting last month. Abrahamson said she would be working on it over the summer.

“This matter should be discussed by the court in open conference, not behind closed doors,” Abrahamson wrote in OLR v. Johns. “Lawyer discipline is of great importance to the court, the lawyers in the state, and the public.”

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