Committee seeking response to proposed changes to lawyer-ethics rules, disciplinary process

A committee convened by the Wisconsin Supreme Court is proposing various changes to the state’s lawyer-discipline procedures and rules, such as letting referees dole out license suspensions in certain circumstances without cases having to go before the high court.

One of the committee’s several rule-change proposals would let referees impose law-license suspensions lasting as long as three years without the related disciplinary matter having to be considered by the Wisconsin Supreme Court. Referees, under the proposed rule change, would also be able to approve consensual reprimands made in public or in private, as well as stipulations that, under certain conditions, might involve suspensions lasting as long as a year.

Current rules let referees only recommend license suspensions, as well as public and private reprimands. The Wisconsin Supreme Court is the entity ultimately responsible for making final decisions about what sorts of discipline ought to be imposed.

After taking more than a year to review lawyer-discipline procedures and the Office of Lawyer Regulation, the committee is also calling for:

• requiring the OLR to provide written explanations to grievants when it chooses to close a disciplinary matter;
• requiring lawyer-regulators to notify the law firms of lawyers who have been formally charged with misconduct;
• limiting the pool of appointed referees to 24 members who serve staggered four-year terms;
• requiring referees to attend an educational seminar upon appointment and additional training every two years during their terms;
• removing referees who do not complete such training;
• requiring referees to file a statement with the court if they cannot submit reports 30 days after a hearing has taken place, or hearing transcripts or post-hearing briefs have been filed;
• reducing the period in which grievances can be filed from 10 years to six years from when a grievant knew or reasonably should have known of lawyer misconduct;
• requiring lawyers to report misconduct by another lawyer if they “reasonably believe” a rule-violation has occurred. The current rule requires lawyers to report misconduct only if they “know” a violation has occurred.
• prohibiting lawyers from making agreements with clients that limit any person’s right to report a lawyer’s conduct to a disciplinary authority. The current rule prohibits lawyers from making agreements that place limits on clients’ ability to report a lawyer’s conduct.

In October, the committee presented the high court with the proposals in the form of a 70-page report. At a State Bar of Wisconsin Board of Governors meeting last week, two representatives of the committee, Marsha Mansfield and Paul Schwarzenbart, said they are seeking out recommendations and intend to start filing their rule-change proposals in the first quarter of 2018.

Some of the proposals got a chilly reception from the governors. Governor Steven Sorenson, for instance, said he was particularly concerned about the proposed rule change requiring law firms to be told of suspected misconduct.

“This is sweeping,” he said. “This is going to have ramifications for solos and smalls that are unique to those firms … I don’t like the concept of guilty until proven innocent. The investigative stage doesn’t have all the information.”

Governor Erik Guenther made a motion calling on the board to “register strong concern” with the proposed rule changes concerning the mandatory reporting of suspected misconduct and requiring law firms to be told of misconduct.

Governor Amy Wochos said it’s too early now to take action on the proposals.

“I would rather see us individually provide them with feedback rather than make statements at this time,” she said.

Schwarzenbart said changes like the ones he and Mansfield were proposing take time to put in place.

“It’s often years before a petition is filed and action is taken,” he said.

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