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Where have all the grievances gone?

Gregg Herman is a family law attorney with Loeb & Herman in Milwaukee. He is board certified in Family Law Trial Advocacy by the NBTA, a fellow of the American Academy of Matrimonial Lawyers and is a former chairman of the Wisconsin Bar Association and ABA Family Law Sections. In addition to writing for the Wisconsin Law Journal on family law issues, he operates Wisconsin Family Law Case Finder, a legal research site for family law practitioners. He welcomes comments at gherman@loebherman.com.

Gregg Herman is a family law attorney with Loeb & Herman in Milwaukee. He is board certified in Family Law Trial Advocacy by the NBTA, a fellow of the American Academy of Matrimonial Lawyers and is a former chairman of the Wisconsin Bar Association and ABA Family Law Sections. In addition to writing for the Wisconsin Law Journal on family law issues, he operates Wisconsin Family Law Case Finder, a legal research site for family law practitioners. He welcomes comments at gherman@loebherman.com.

For about the last thirty years, my side job has been to serve as retained counsel, first for BAPR, then for OLR.

When the staff at BAPR/OLR had more litigation than they could handle or there was a case with unusual aspects, I am one of the private attorneys who will be hired to represent the agency. Since the representation was mostly pro bono (the pay is substantially less than my hourly rate), I want to handle no more than one case at a time.

Yet, up until about two years ago, I always had two and sometimes three cases assigned to me. Then I stopped getting new cases. At first, I was worried that this was a result of losing my latest case before the Supreme Court. But I was assured that was not the case. Rather, I was told it was due to volume. That led me to look at the agency’s statistics and what I found was surprising.

According to the OLR annual reports, for fiscal year (FY) 2012, there were 2,677 new matters. This fell in FY 2013 to 2,364 new matters, a drop of over 11%. By FY 2016, the number was under 2,000. And the number continued to fall until the total for FY 2020 was 1,518, which is 43.3% lower – a huge drop. This could not have been because of COVID-19, as FY2020 covers through July 31, which means most of the year was before the shutdowns. Besides, grievances are made for past behavior, so the complained-about conduct would have occurred mostly or entirely pre-COVID.

The numbers are even more startling when considering that the number of attorneys in Wisconsin has increased each year, so percentage-wise, the number of new matters dropped from 10.9% of licensed lawyers to just under 6% of licensed lawyers. That’s huge. No wonder they don’t need me!

Since numbers don’t lie, that leaves some questions: Why are the numbers down? Are lawyers more ethical? If so, why? Does mandatory EPR really work? Will wonders never cease?

I asked Bill Weigel, General Counsel for OLR, for his take and he believes some of the reduction in grievances may be owing to there being less client-lawyer interaction amid the pandemic. But that does not explain the general trend over the past ten years. Bill also thinks some of the reduction may be owing to fewer lawyers being hired as on-line resources are making pro se “representation” easier and more likely.

This is certainly possible as the fewer lawyers hired, the fewer grievances would be filed against lawyers. Bill also feels that, due primarily to mediation, more civil cases are settling which results in less dissatisfaction with representation. Perhaps, but I’m not sure there is a correlation between grievances and trial results, although that is possible.

I have another theory which may account for at least part of the decrease. While I doubt anyone truly believes that the EPR requirement makes a scintilla of difference in the ethical practice of law, there is a (perhaps) unintended consequence. Each year there are a few lawyers whose license is suspended for failing to report CLE credits at all. While some of them finally get around to reporting and get reinstated, there are a few who remain suspended and, presumably, stop practicing law.

Despite common perception that lawyers are disciplined for minor infractions, it takes a lot of bad acts before sanctions are administered. If anything, our disciplinary system is far too tolerant of bad behavior. And even when sanctions are administered, the Supreme Court policy of progressive discipline is a joke as they often ignore their own rule.

So, maybe eliminating a few lawyers who cannot even get their act together to sit (or sleep as is sometimes the case) through a few CLE courses has eventually had an effect. Whether it’s worth the huge cost to fund the CLE industry is another question. But whatever the cause, it’s nice to see the numbers go down. Even if it eliminates an area of my practice.

One comment

  1. jdkrek@ks-lawfirm.com

    Gregg–There is far more education about ethics today than there was when I began practicing. While you may be correct that the EPR does not make a difference, perhaps on the other hand it does. Perhaps the constant exposure yields some improvment in compliance.

    There is also mcuh more exposure today than in many years past, of lawyers who are disciplined. One of the purposes of punsihment is deterrence, so perhaps some marginal group of lawyers is deterred by the fear of being outted.

    Finally, perhaps the education/rehabilitation programs OLR has created work for some.

    There are probably other factors at work, but the reduction in grievances is lekly a good sign and a good result.

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