Madison ISTHMUS Cover Story
Week of 10-16 December 1999
By Tim Kelly
In most cases, the only thing this state board does with complaints against attorneys is to keep them secret.
Even when it does act, critics say, it's slow, ineffectual and rife with conflicts of interest.
By TIM KELLEY
Barely through her first day on the job, attorney Andrea Baker started to get a bad feeling about her new boss, John Asher.
Asher, head of the Waukesha-based Christian Law Center of Wisconsin, kept all the bankruptcy case files to himself, doling out documents to assistants like Baker only on a need-to-know basis.
Baker quickly figured out why: Asher was ripping off clients.
Just over a week after Baker was hired in November 1998, Asher fired her, and the Madison attorney and recent UW Law School graduate responded by doing what she thought was the right thing: She filed a complaint with the Board of Attorneys Professional Responsibility, which is supposed to police the state's legal profession.
Seven months later, Baker's complaint was still gathering dust.
Meanwhile, Asher's misconduct had escalated, as he took money from clients to handle cases that were never filed.
Asher now stands accused of stealing tens of thousands of dollars from dozens of cash-strapped bankruptcy clients.
He's surrendered his law license and claimed bankruptcy himself.
But the state disciplinary board did nothing to bring Asher down.
Instead, the Milwaukee County district attorney's office, armed with many of the same records that Baker sent the state board, took up the case and prosecuted Asher.
The state investigators' laggard response in the case "cost society tens, if not hundreds, of thousands of dollars," says Baker, who now works for a Madison law firm.
"Had [the board] investigated, this crook would have been shut down many months ago." Jeananne Danner, the Milwaukee-based administrator who oversaw the investigation of Baker's complaint, says she cannot "disclose or discuss" any details of the probe against Asher--because it is still in the pipeline.
The Asher complaint and similar cases highlight growing sentiment that the Board of Professional Responsibility protects lawyers instead of the public.
Two recent investigations have produced scathing reports that describe the board as a group of secretive insiders who micromanage the regulatory process, run roughshod over investigations and staff, and mete out decisions despite conflicts of interest.
The board's own staff members complained to an investigator of "cronyism" among board members who gossip about lawyers and clients during the board's frequently closed meetings.
Louise Trubek, senior attorney at the Center for Public Representation and a UW-Madison law professor, sees even deeper flaws.
She says Wisconsin's system purges a few bad apples every once in a while but fails to look at the overall quality of the service that the state's lawyers provide.
In other words, focusing on the few lawyers who break the law ignores the many more lawyers who fail to embrace high professional standards.
"Nobody looks at the quality of their work--that would require a total overhaul of the way the profession is regulated," Trubek says.
"Disciplining these attorneys on this arcane ethics code--it is a very small percentage of them." Yet the chance to improve--or dismantle--what some see as a lawyer-protection agency is passing virtually unnoticed outside a legal world with a vested interest in the status quo.
"The board is controlled by the lawyers, and it's a fight among the lawyers, really, for how it's going to be run," says Trubek.
Filing a written complaint with the Board of Attorneys Professional Responsibility (BAPR) is the only way a person who feels wronged can take on a lawyer short of hiring another lawyer to sue the first one.
The 12-member board--eight lawyers and four non-lawyers--is an arm of the Wisconsin Supreme Court.
The board, with a staff of 23 and 1999-2000 budget of $1.5 million funded through an annual fee on attorneys, each year screens up to 1,500 complaints of lawyer misconduct.
Most of these complaints are dismissed without investigation.
In 1998-99, the board and its staff dismissed 1,068 of the 1,256 complaints it reviewed after concluding that they lacked evidence or did not warrant investigation.
About 20% of all complaints, which are filed mostly by clients or other directly involved in cases, accuse lawyers of what the board terms "lack of diligence"--mishandling case work, missing court appearances or messing up legal filings.
Other grievances complain of dishonesty, lack of cooperation and communication, and other problems.
The disgruntled clients include people like Oregon's Regina Hinrichs, who says she and her husband have been threatened by Madison-area lawyers handling his divorce case.
She says the board has dismissed her repeated complaints.
"I've had such bad luck with BAPR, I've given up on them," she says.
In fact, only a few consumer complaints fall under the narrow ethical code enforced by the board.
This is especially true for complaints filed by people against opposing counsel.
In an adversarial legal system, it is expected that lawyers will generate ill will among those they sue or prosecute.
And thus, in these cases, the bar (no pun intended) is sky high: While a prosecutor may bring charges against a person if there is "probable cause" to believe he/she committed a crime, that prosecutor won't be hauled before the disciplinary board unless you provide "clear and convincing" evidence of serious misconduct.
Only about 0.2% of complaints lead to public discipline of a lawyer, says interim board administrator James Martin, on leave from his job as an assistant city attorney in Madison.
Discipline ranges from a letter of warning, a private reprimand (sort of like a letter placed in a personnel file), a public reprimand, license suspension or revocation.
The state Supreme Court has the final say in the few disciplinary matters referred to it for action; it almost always imposes the penalty recommended by "referees," private attorneys who spearhead complaint reviews by the board.
In 1998-99, 34 of the state's 19,500 attorneys were publicly disciplined.
Another 18 received private reprimands and 41 received no penalty but got letters advising them to watch their step.
The process of sorting out which complaints lead to discipline and which are dismissed is cloaked in secrecy.
Want to find out how many complaints have been filed against a particular attorney? You can't, unless the offenses were egregious enough to send to the high court for review.
Want to know if your attorney has ever
been reprimanded by the state board? Again, you can't, unless the board
decides to issue a relatively rare public reprimand--or the attorney does
something really bad later and gets sent up before the Supreme Court, which
opens up the lawyer's disciplinary file.
What, me worry?
Many lawyers profess to live in fear of getting a letter stamped "personal and confidential" from the Board of Attorneys Professional Responsibility.
They say they never know when a client will turn on them because they didn't get the right result; indeed, for this reason, some lawyers refuse to represent difficult clients.
Other lawyers, however, seem to regard BAPR's authority as a big joke.
About half of the lawyers taken to the Supreme Court this year have been disciplined before, records show.
Criminals have a three-strikes-and-you're-out law, but habitual offenders in the legal profession face no such threat to their livelihood.
Madison attorney John Louderman III, who received secret reprimands three times between 1985 and 1996 for paperwork foul-ups, finally got a public wrist slap in October for taking two years to draft a paper finalizing a 1989 divorce--and another six years to file it.
James Dumke, a Janesville attorney, has been reprimanded and suspended five times by the board since 1992 for a variety of missteps, dishonesty and neglect in his client dealings.
Three of these came last year, as the board imposed consecutive one-year suspensions.
Board referee Cheryl Rosen Weston, the attorney who reviewed Dumke's latest case, noted that Dumke's neglect of clients seems to be a pattern.
But she and the Supreme Court justices were satisfied that keeping him out of the courtroom until April 2001 would be adequate punishment.
Perhaps the most serious recent disciplinary case to come before the state Supreme Court involved Milwaukee attorney Mario Martinez, who this May pled guilty to 13 charges of forgery and theft and received an eight-year prison sentence.
The board says Martinez bilked 27 clients of $157,900 between 1991 and 1998.
The court permanently revoked his license to practice law.
Similarly, Milwaukee attorney Francis Kortsch, convicted in federal court of embezzling and other crimes, was revoked this summer.
He billed a client nearly $50,000 for handling 42 lawsuits he never filed.
Martinez and Kortsch are the only revocations of the 22 cases to make it to the Supreme Court this year.
Attorneys who stop short of committing felonies rarely receive the professional death sentence of license revocation.
Madison attorney John Gibson, hired to help a couple navigate through bankruptcy in 1995, fouled up the case by failing to file a motion needed to protect the couple's home from foreclosure.
The home was sold in a sheriff's sale.
"These are people who could have kept their house if they wanted to," says the judge in the case.
"I'm just staggered by it." Gibson, who has been previously disciplined for continuing to practice law while suspended and for making sexual advances to a client, got a six-month suspension that starts Dec. 10.
Milwaukee lawyer Jane Gilbert, entrusted with handling affairs for a sick, depressed 63-year-old man, paid herself $112,000 from his bank account over a few months in 1993, more than a third of the assets left to support him in his final years, court records say.
She received a two-year license suspension in July, meaning she could resume practicing law in mid-2001.
Another Milwaukee attorney, Charles Glynn, siphoned money from the accounts of three mentally disabled clients, including a 93-year-old woman suffering from dementia.
Records show that he paid himself $83,000 over two-and-a-half years "while performing no services of commensurate value." Then he falsified documents to show he repaid money to two clients.
The BAPR attorney in charge of refereeing Glynn's case recommended a six-month suspension.
The Supreme Court doubled the sanction to a year, the same penalty it gave Two Rivers lawyer Daniel Kanara five months after he was put on probation for growing 11 marijuana plants.
Suspended in July, Glynn is already almost halfway to the day he'll be able to ask for his license back.
Even if the vast majority of complaints filed against attorneys in Wisconsin are baseless, the questions remain: How fast and how fairly does the current system sort out bad apples? The board's track record on both counts is uneven at best.
Among other obstacles, the board has created its own operating procedures that seem to conflict with Supreme Court rules.
Critics of the board's recent practices charge that board members meddle in investigations, serving as both investigator and judge of complaints.
"To whatever extent the board is involved in staff investigation, its impartiality is impaired when later involved in making the final decision as to whether to proceed," says Frank Tuerkheimer, a UW law professor and former U.S. attorney whose handled a dozen disciplinary cases for the board.
Beyond micromanaging cases, the board operates a lawyer-controlled bureaucracy consisting of 16 districts set up around the state.
In 1997-98, these local groups reviewed a total of 165 cases.
The groups, which vary widely in membership and investigatory practices, consist primarily of lawyers who have ties to local firms.
Complaints shuffled off to these local committees may languish for months.
Menomonee Falls engineer Francis Biehl, for example, says he waited two years for a decision in a complaint referred to a local committee that met only quarterly.
Says Tuerkheimer, "Virtually every critique I have seen of the disciplinary process laments the length of time it takes from the filing of a grievance to its resolution." During the past decade, the lawyer discipline system has cut the time it takes to process complaints from nearly a year, on average, to about 4.7 months.
And more than 90% of cases now are closed within a year, according to the board's calculations.
But that accomplishment looks less impressive in light of the fact that the vast majority of grievances are dismissed without any serious investigation.
This year, disciplinary cases sent to the Supreme Court typically involve incidents that are two or more years old.
Several cases stretch back five to seven years and one involves a complicated divorce that took from 1977 to 1984.
Nevertheless, some lawyers fiercely defend the local committee system.
In a letter to the Supreme Court, Attorney Ed Thompson of Delavan bluntly says these committees ensure that accused attorneys get a fair shake.
"We have knowledge of the attorney's reputation, financial condition, general ethical character and other important factors," writes Thompson, a committee member for five years.
"I have personal knowledge about attorneys who come into the disciplinary process.
I submit that that knowledge is invaluable." Tuerkheimer, a zealous investigator in a dozen board cases until he was curiously removed as an attorney for the board, sees it differently.
He says "superfluous" local committees should be eliminated.
He says the committee members only slowed
progress in the cases he worked on and sometimes inadvertently weakened
the board's case with repetitive interviews of witnesses: "It [the committee
structure] certainly is not essential and in light of the delay and other
consequences it engenders, not desirable, either."
Driving the current rethinking of the role of BAPR are two harshly critical assessments.
The first, released this spring, was a report prepared by Supreme Court Commissioner William Mann.
It says complaints about
the board fall into several general categories:
But board defenders says the review itself is tainted with personalities and politics.
For example, they note, the board's former chief administrator, Gerald Sternberg, was at odds with Schoone and Rose, who have more aggressively asserted control of the agency and its investigations.
Sternberg set off the first alarm bell about the disciplinary system when he resigned following a no-confidence vote of the board two years ago.
The political roots spring from this year's bitter Supreme Court race, in which Rose unsuccessfully sought to unseat Supreme Court Chief Justice Shirley Abrahamson.
The two are still sparring, most recently over the court's failure to fill vacancies on the board prior to its own review of the disciplinary system.
"A lot of people think this came out of the election and there's no need for any overhaul at all," says Trubek.
But a more recent critical American Bar Association review, conducted by a group of outside reviewers, makes it difficult to dismiss the complaints as election-year grandstanding.
The ABA largely substantiated the most serious allegations in the Mann report.
"Committees inappropriately consider information about a respondent [the accused lawyer] from outside the investigative record," the ABA charges.
"The resolution of cases at the committee level lacks consistency." The ABA called on the Supreme Court to reign in the board, curtail its power to screen complaints and direct investigations, and overhaul state regulation of the legal profession.
Under the ABA recommendations, the court would have to hire more staff to handle cases now reviewed by volunteer board members and committees.
According to ABA reviewers, the board's laborious committee review bolsters perceptions that the system favors attorneys over clients filing complaints.
The reviewers say that at a minimum, the committees must be restructured to eliminate "local bias and promote fairness." (For the ABA report, check Document Feed at www.thedailypage.com.) If changes are made, the cost would likely be borne by Wisconsin attorneys, who in 1999-2000 will each pay $89 in regulatory assessments.
One idea for reforming BAPR comes from Steinberg, the agency's former head.
He says the board should be evenly divided between lawyers and non-lawyers.
The state Judicial Commission, in fact, has a majority of non-lawyers to review allegations of misconduct by judges.
Surprisingly, consumer advocate Trubek casts doubt on this idea of increasing public oversight of lawyering.
"Without providing backup and training for the public members, the numbers may not make a difference," she says.
"I think it's dangerous to think that you will make a self-regulatory board substantially more responsive to consumer interests merely by increasing the number of consumer members." CPR's past studies of state boards indicate that most public members are appointed because of political connections, not because they have some expertise in--or even enthusiasm for--watchdogging a profession.
"They are more tied to political figures," says Trubek.
But unless changes are made, Wisconsin will continue to be a place where there are little checks on lawyers who refrain from outright criminality.
Even State Bar President-elect Gary Bakke acknowledges that the Board of Attorneys Professional Responsibility hurts its reputation--and by extension, all lawyers--by failing to deal with consumer complaints that don't qualify as outright ethics violations.
"The current system is not designed to handle these consumer complaints which do not rise to the level of ethical violations," Bakke writes in a letter to the court.
"Such complaints are a major source of dissatisfaction with the lawyer disciplinary system." Bakke's comments echo the ABA report, which says other states take a broader consumer protection role in regulating the legal profession, offering dispute resolution services for dissatisfied clients, more schooling for lawyers in how to handle client trusts and other sensitive matters, and peer review, mentoring and other assistance for attorneys who need help managing their practices and representing clients effectively.
Bakke suggests a "parallel" system for handling client complaints that don't allege serious ethical breaches by lawyers.
Martin says the board stands ready to try a central intake system for complaints and has studied alternatives to traditional discipline, such as mediation or other dispute resolution.
Such a system would need the State Bar's support, cooperation and, very likely, members' money.
In January, Supreme Court justices plan to decide if or how they will restructure the system.
In the face of concerted opposition from most lawyers, getting even minor changes to the disciplinary system may be a tall order.
Tuerkheimer is nevertheless heartened that the latest call for change comes from inside the American Bar Association.
"Its proposals are not of a patch and paste variety; they call for total structural overhaul," he observes.
"The proposals are made by disinterested professionals with no local ax to grind.
They constitute a wake-up call that
should be heeded."
TEXT reprinted by permission of reporter Tim Kelley and Isthmus Editor