Supreme Court considers making it easier to report lawyer misconduct

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The Wisconsin Supreme Court is considering making it easier to report lawyers for misconduct.

The justices held a public hearing for Rule Petition 19-12 on Monday. The petition asked the high court to amend rules governing the reporting of lawyer misconduct. The proposed change would change the word “client” to “person” when making reference to those who can report misconduct. Even more notably, in its guidance for when lawyers should report misconduct, it would change the word “knows” to “reasonably believes.”

“While I would suggest that there’s no question that these proposed changes are meant to lower, in some small way, the threshold of reporting, I would respectfully submit that the standard is no more unreasonable than a knowledge standard,” said Paul Schwartzenbart, partner at Stafford Rosenbaum and member of the OLR Procedure Review Committee.

The justices raised questions about the need for the change, the definition of “reasonable belief” and the possibility that someone might use the “reasonable belief” standard for malicious purposes.

Chief Justice Pat Roggensack said staff employees couldn’t find another state that uses the phrase “reasonable belief” instead of knowledge. Schwartzenbart said this wouldn’t be the only instance in which state rules differ from American Bar Association standards.

“Do we want more lawyers reporting other lawyers?” Roggensack asked.

Schwartzenbart said one of the reasons the OLR has been asked to look at the rules is that there seems to be public perception that the Bar and judiciary have been acting in their own self-interest and protecting those who behave unethically. He said some lawyers, although few in number, look for ways to avoid reporting misconduct. The proposed rule change is meant to counter that tendency.

“This is a unique, small and decided way reinforcing members of the Bar and officers of the court cannot turn a blind eye to misconduct,” Schwartzenbart said.

Dean Dietrich, a lawyer appearing on behalf of the Board of Governors for the State Bar of Wisconsin, said the board is against the proposed change from “reasonably believes” to “knows,” saying the current rule provides appropriate clarity and a new rule would muddle only things.

“Reasonably is in the eyes of the beholder,” Dietrich said. “The concept of ‘knows’ is found in the model rules and found in all other states. I believe that Wisconsin lawyers will be left without guidance about what does this mean.”

Proposed charging-process changes

The justices also discussed Rule Petition 19-11, which pertains to the charging process used in attorney-disciplinary proceedings.

Three sections would give greater notice and grievance explanations for matters that are closed. Schawartzenbart said this is the OLR’s current practice, and now, the OLR is asking for it to be made the rule.

The fourth section would allow a presentation of a matter to be waived to a preliminary review committee if the lawyers working on a particular case find themselves in disagreement with the OLR director. Schwartzenbart said such a change would expedite matters at times when defendants don’t dispute the complaints against them.

The justices asked if there is a requirement that probable cause be established before an agreement can be entered.

“When a lawyer receives a notice from the OLR, it strikes terror to their heart,” said Roggensack. “I don’t want people to be stampeded into consent decrees when your office hasn’t taken the steps necessary to have the foundation for a disciplinary action.”

Keith Sellen, director of the OLR, said there is already probable cause when entering an agreement.

The recommended changes are part of nine proposals that the OLR Procedure Review Committee filed in March. The committee convened in 2016 to examine various concerns justices have had over the years about the lawyer-regulation system and OLR procedures. Follow @WLJReporter