Attorney-Discipline Cases, 2014-15 and 2015-16

For years, SCOWstats has steered clear of attorney-discipline cases when studying the supreme court’s rulings, but today we’ll change course and explore these waters.  Filings from the last two terms should provide a sufficiently large sample (88 decisions) to reveal themes of interest and suggest questions that could be pursued later.[1]

All but one of the 88 attorney-discipline decisions from 2014-15 and 2015-16 were per curiam, but in 22 cases at least one justice wrote a separate opinion.  Justices Shirley Abrahamson and Ann Walsh Bradley were by far the most active authors of these concurrences and dissents, filing them in all but one of the 22 cases that included such opinions.  The other six justices[2] who served on the court for at least a portion of the period under consideration combined to file separate opinions in only four cases.

This by itself may not be surprising, as Justices Abrahamson and A. W. Bradley also filed the most separate opinions in cases of other sorts during these two terms—slightly more (66) than the total (59) written by all the other justices combined.[3]  However, it is noteworthy that, in their separate opinions associated with attorney-discipline cases, Justices Abrahamson and Bradley (the court’s two liberals) have been more inclined to advocate tougher punishments for offending lawyers than have the court’s conservative justices.  The difference is vivid—and, of course, in stark contrast to the justices’ handling of criminal cases, where the conservative justices are much more severe than the liberals.

More specifically, Justice Abrahamson authored 16 separate opinions and joined three more written by Justice Bradley—who in turn authored five separate opinions and joined six opinions written by Justice Abrahamson.  Altogether, then, these two justices put their names 30 times on concurrences and dissents—and 19 of these “votes” presented opinions on what the justices deemed an appropriate level of discipline for the lawyer in question.[4]  Of the 19 “votes,” 16 favored sanctions for malfeasant lawyers that were stricter than the discipline applied by the conservative majority, while only three called for lesser penalties than the court ordered.  In contrast, the six conservative justices authored or joined separate opinions seven times—and six of these preferred lighter punishments than those approved by the majority, while the seventh argued that the court did not possess enough facts to impose a precise amount of discipline.

As for the outcomes in these attorney-discipline cases, the supreme court nearly always accepted (in 75 out of the 88 cases) recommendations from referees or OLR regarding the status of an attorney’s license to practice law—with the justices’ decisions distributed as follows: 10 licenses revoked, 43 licenses suspended, 12 public reprimands, eight licenses reinstated, and two petitions for reinstatement denied.  The rulings generally included monetary sanctions as well—often payment of a proceeding’s costs and, sometimes, restitution.[5]

In the 13 cases where the justices declined a referee’s recommendation concerning license suspension, their decisions were more lenient than the referee’s suggestion in nine cases, and harsher in four.[6]  Of the four harsher decisions, three involved suspensions for longer periods than those proposed by the referees, and one dismissed a referee’s recommendation that a lawyer’s license be reinstated.  Of the nine more-indulgent decisions, six pertained to cases in which the court reduced or (in one instance) rejected suspensions advocated by referees, and, in another case, the justices opted for suspension rather than revocation.[7]

 

[1] The 88 cases originated as complaints received by the Office of Lawyer Regulation (OLR) and were subsequently presented for review to the Supreme Court, which usually appointed referees to hear the matters and submit recommendations to the justices.  In some instances, OLR and a lawyer stipulated to a resolution for the court to consider, and a case might also dispense with the services of a referee if it simply involved imposing a “reciprocal” sanction that a lawyer had already received in another state.
According to the supreme court’s internal operating procedures, “per curiam opinions in judicial and attorney disciplinary proceedings are prepared by a court commissioner for the court’s consideration.  The decisions in all cases are made by the court, and the per curiam opinions are reviewed by the entire court and are approved as to form and substance by the court prior to issuance.”
I am not including a handful of cases arriving from the Board of Bar Examiners, with one exception—a case (2013AP1769-D & 2014XX817-BA) that featured both an OLR complaint and a motion from the Board of Bar Examiners.

[2] Justices Prosser, Crooks (2014-15), Roggensack, Ziegler, Gableman, and Rebecca Bradley (2015-16).

[3] These figures are for separate opinions authored; they do not include instances where a justice joined a concurrence or dissent written by another justice.

[4] The 11 remaining “votes”—rather than call for harsher or more-lenient punishment of the lawyer under scrutiny—concerned such issues as reform of OLR procedures, employment of the term “lead opinion,” and clarification of various points.  In one or two instances, an opinion objected to the considerable disparity between the severity of sanctions applied in two similar cases, without making it entirely clear whether the author endorsed the more-lenient or the stricter discipline.

[5] In a few of these 75 cases, the court accepted the primary recommendation—on the question of whether the attorney’s license should be suspended, revoked, or reinstated—but disagreed over how much the lawyer should be required to pay in costs or restitution.

[6] If both the court and the referee agreed that a suspension was in order, but they disagreed on how long the suspension should be, I classified the decision as a rejection of the referee’s recommendation.

[7] In one of the two remaining cases, the justices agreed with the referee that the lawyer should be publicly reprimanded.  However, they ruled that the lawyer’s trust account should be monitored by OLR for six months rather than the two years recommended by the referee (OLR agreed that six months would be sufficient).  The court also ruled that no restitution be paid—rather than the $1,000 recommended by the referee and the $10,810 recommended by OLR.  In the second case, the referee recommended a public reprimand along with $18,761 in costs.  The justices decided to impose no discipline and reduced the costs to $8,500.

About Alan Ball

Alan Ball is a Professor of History at Marquette University in Milwaukee, WI.

alan.ball@marquette.edu

SCOWstats offers numerical descriptions of the voting by Wisconsin Supreme Court justices on diverse issues over the past 35 years.

Comments

  1. Allen Kenyon says:

    Has anybody researched the connection between SPD appointments and OLR complains? I believe it is the old ”no cost = no value” problem. I am not paying my lawyer, so she is not doing a good job for me. Therefore she was ineffective and I was wrongfully convicted. So I am going to complain to OLR about my lawyer.
    OLR cuts you no slack at all for doing pro bono or semi pro bono work. What is the fix? Either accept the risk of a frivolous OLR complaint or refuse SPD appointments. Not a hard choice for me.
    My favorite is a client who complained to OLR that I got the charges dismissed, depriving him of his right to prove to a jury that he was not guilty. Silly? Yes. But still resulted in hours responding to OLR; hours that I didn’t spend help somebody else that needed help.

    • Alan Ball says:

      An interesting idea–and perhaps someone with access to this information has explored it. However, I am not aware of such an undertaking.

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