President's Perspective

On Regulating Our Legal Profession

By Susan R. Steingass

Maintaining a fair, effective, and efficient system of lawyer regulation within the judicial branch of government is critical to both the image of the legal profession and its actual performance. But we lawyers also must be confident that our conduct is judged by a body that understands our professional lives and, mostly important, the rules that guide us.

We lawyers are unique in assuming the cost of policing our own profession through a yearly assessment on all of us. With that obligation comes another - to have a lawyer regulation system worthy of the respect of the public and our colleagues through fair, even-handed, and speedy resolution of legitimate grievances against lawyers for violating the rules and for medical incapacity.

As many of you know, during the recent political campaign, the Board of Attorneys Professional Responsibility (BAPR) became something of a political football in the Wisconsin Supreme Court race. During that time BAPR came under fire. However, I, as most of you, continue to believe that our system of lawyer regulation works.

Perhaps a bit of basic history is in order. Lawyer discipline used to be administered by the Board of State Bar Commissioners appointed by the Wisconsin Supreme Court. District committees appointed by the State Bar had responsibility for investigating the majority of the grievances. The State Bar was empowered to mete out minor discipline. Serious matters were handled by the supreme court. By regulation effective Jan. 7, 1978, the supreme court created a statewide Board of Attorneys Professional Responsibility, to which grievances about lawyer misconduct and/or medical incapacity were made. However, the district committees remained, and to this day investigate grievances and provide local peer review.

In fact, significant work is done through the 16 district committees, which range in size from 10 to 40 members, one or more of whom are nonlawyers. Their nearly 250 members are appointed by State Bar presidents and come from diverse areas of professional life, from diverse areas of practice, from big firms and small, from government service, and from the public and private sectors.

The 12 lawyer members of BAPR also are from all over the state and are from diverse areas of practice. With them are four public members, including a family practice physician, a forensic document examiner, the president of a title insurance company, and the executive director of the Wisconsin Conservation Corps.

BAPR investigates and, if warranted, prosecutes grievances. It also makes dispositional decisions in the great majority of grievances. Where a matter is prosecuted, the supreme court has established a panel of referees from which it designates one to preside over the proceeding. The referee oversees the progress of the case after the filing of a formal complaint, hears the case, then makes a report to the supreme court with findings of fact, conclusions of law, and a recommendation to the court. The court then makes the final decision.

In the process BAPR, and ultimately the supreme court, has a number of dispositional options. If the grievance falls outside of the rules - in other words, a grievance voices a dissatisfaction with the lawyer or the result of the case, but does not allege a violation of the ethical rules - the grievance is closed without investigation. If it is clear from the grievant's response and/or the respondent attorney's response that no ethical violation can be shown by clear and satisfactory evidence, the grievance is dismissed. Even if a rule is violated, a case may be dismissed with a caution, particularly where there has been a first-time technical violation of the rules but no harm has occurred. An attorney also may receive a private reprimand and, in a more serious case, a public reprimand.

More serious by far are those cases that call for suspending a lawyer's law license. What happens next depends upon the period of suspension. If the suspension is for less than six months, the lawyer's license is returned after that time has expired, upon proof that the lawyer has satisfied the conditions of suspension. However, if the suspension is for six months or more, or if the license is revoked (a minimum of five years), the lawyer must petition the supreme court for reinstatement.

It was my privilege, during my year as president-elect, to sit as an ex officio member of BAPR. Incoming president Leonard Loeb was an ex officio member this year, and he will be followed by president-elect Gary Bakke. From my experience, I know that this is an extremely hardworking body that devotes substantial time and effort to the fair and expeditious resolution of grievances.

In addition, I know that BAPR and its staff participate in educational efforts to help attorneys avoid professional misconduct and avoid the grievance system altogether. They participate in an increased number of ethics programs for lawyers throughout the state. BAPR also attempts to raise public awareness of its work through outreach activities to local bars and civic organizations.

The recent press attention given to the BAPR process doesn't mean that our system of attorney regulation doesn't work. It does. But there is, as there should be, an ongoing effort involving BAPR and the supreme court to improve the process.

As you may know, almost 18 months ago, a supreme court commissioner was asked to interview BAPR staff and board members, assess the functioning of BAPR, and report to the supreme court. Though kept confidential by the court at the time, a redacted version of the Mann report was released by Justice Ann Walsh Bradley within the last month. Many of you may have read it. For those of you who did not, you can find the downloadable Mann report and BAPR counsel's responses to it (first and second) on WisBar.

In response to the issues raised in the Mann report, about a year ago the supreme court issued a statement of principles, policies, and procedures and appointed a facilitator to meet with BAPR and its staff and members of the court to iron out the policies and procedures to govern BAPR. The Mann report was made to the court. The court, pursuant to its constitutional authority to supervise the practice of law, indicated that it would propose internal operating procedures for BAPR, with consideration given to the internal operating procedures submitted by BAPR, the administrator, the staff, and the facilitator's report. The supreme court stated an intention to hold a public hearing on the court's proposed procedures. That has not happened yet.

What the supreme court has done to date is to appoint a highly respected reserve judge, Hon. Mark J. Farnum, to act as a liaison between the court and BAPR. He has been acting in this capacity, in a way productive for BAPR, the court, the public, and the legal community. BAPR also is beginning the search for a new administrator to replace Gerald C. Sternberg, who resigned last November, and James L. Martin, who now serves as interim administrator.

It is critical that we as lawyers support the maintenance of a fair, effective, and efficient system of lawyer regulation within, not outside, the judicial branch of government. I urge you to support BAPR as it continues in its long tradition of fair treatment of grievances, as well as its efforts to keep improving, under the aegis of the judicial branch. This is the way we can ensure results that are fair to the grievant, attorneys grieved against, to the legal system, and to the public's image of lawyers.

Wisconsin Lawyer