Tuesday, February 17, 2009

Bar Discipline Discovery

In an appeal of the Office of Lawyer Regulation ("OLR") from a referee's order granting an attorney charged with misconduct "full access" to OLR's internal case files, the Wisconsin Supreme Court held the the order was overbroad and therefore quashed the subpoena and remanded to the referee for further proceedings.

The bar case involves charges against both the prosecutor and defense counsel in a negligent homicide by motor vehicle case. The defense lawyer counterclaimed to the ethics charges by challenging the OLR's handling of the prosecutor's case. The court rejected the claim that, once there is a proceeding, all documents in the OLR files become public. However, the court also rejected the OLR's contention that all of its files are per se confidential.

The court concludes:

It is apparent from the record, the referee’s order, and Attorney Sommers’ arguments to the court that Attorney Sommers questions whether the OLR provided the Preliminary Review Committee (PRC) with all relevant evidence related to the allegations of misconduct against him and against Attorney Humphrey. Much of the evidence in question appears to be documentary evidence that Attorney Sommers himself provided to the OLR. Attorney Sommers wishes to know if the PRC was provided with this material. He notes that SCR 22.06(1) provides that “[t]he director shall submit investigative reports, including all relevant exculpatory and inculpatory information obtained and appendices and exhibits, if any, pursuant to SCR 22.05(1)(d) to the chairperson of the preliminary review committee. As the referee’s order implies, there is also some concern that certain documents may have been misfiled in the Humphrey file. Attorney Sommers also suggests that the OLR may have intentionally or negligently failed to include certain documents or evidence in the materials submitted to the PRC, particularly pertaining to the third count of the complaint against him. Essentially, he argues that he has the right not to be accused in bad faith, that a failure by the OLR to have complied with SCR 22.06 would evidence bad faith, and that only by reviewing the OLR’s files can he assess the state of the record evidence the PRC used to determine cause to proceed.

However, it does not appear that a specific, narrowly-tailored written discovery request was made for a copy of the documents the OLR provided to the PRC. SCR 22.16(1) provides that proceedings before a referee shall follow the rules of civil procedure. While we recognize that discovery in disciplinary matters may be conducted more informally than in circuit court proceedings, here, it appears that Attorney Sommers did not file any formal written motions or discovery requests requesting access to the OLR investigative files. It appears that the respondent’s discovery demands were often delivered orally rather than committed to writing. We cannot know, and we decline to speculate how the OLR would have responded to specific discovery requests. However, we are simply not persuaded that the referee should have unfettered access to the OLR’s files in this matter to search for documents that might have been obtained though normal discovery practices.

(Mike Frisch)


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