Saturday, June 7, 2014

Calls To Reform Wisconsin Attorney Discipline

In the post below on the Kratz case, we noted that Chief Justice Abrahamson and Justice Prosser had expressed agreement on the need to study and reform the Wisconsin attorney discipline system.

The court issued three other decisions (two involving the same  attorney)  that echo the point.

One case involves an attorney who was convicted of homicide by vehicle arising out of a December 28, 2002 incident. The attorney (age 29 at the time) drove a pickup truck leaving a family event. He was intoxicated and lost control of the truck. His brother died in the single-car accident.

He failed to provide the required written notice of the conviction to disciplinary authorities, although it appears that there was phone call notice to the Office of Lawyer Regulation (OLR).

He went to jail, served his time, retained his law license throughout the process and has gone on to a career as a respected attorney.

Enter the Milwaukee Journal Sentinel, which (laudibly) looked into the Wisconsin disciplinary system.

At least 135 attorneys with criminal convictions are practicing law today in Wisconsin - including some who kept their licenses while serving time and others who got them back before they were off probation, a Journal Sentinel investigation has found.

The roster includes lawyers with felony or misdemeanor convictions for fraud, theft, battery and repeat drunken driving, as well as offenses involving political corruption, drugs and sex. A child-sex offender got probation for his crime but never lost his law license. A politician convicted in a check-kiting scheme was reprimanded but also kept his license.

Another 70 lawyers were charged with crimes but succeeded in having the charges reduced or avoided conviction by completing a deferred prosecution plan. All were given the green light to practice law.

Also from the same story

"The system is run by lawyers and is for lawyers," said Michael Frisch, a national expert in legal discipline who teaches law at Georgetown University. "It's called self-regulation, and it's a pretty good system for lawyers."

After the newspaper's inquiries, the OLR opened a case against the attorney and filed charges in November 2011.

The referee rejected the charge that the conviction reflected adversely on his fitness to practice but found he had failed to comply with the written notice requirement. The referee proposed a private or public reprimand.

OLR appealed and sought a 60-day suspension.

The per curiam court found that the notice violation was "too technical" and agreed that the felony homicide did not violate Rule 8.4(b). No discipline was imposed.

Chief Justice Abrahamson dissented.

She would find both violations but, more notably, calls for reform of the system

...the very prosecution of this case 10 years after the incident seems to have troubled the referee and is troubling the court, as is the wisdom of OLR's appeal.  Delays in initiating and completing discipline cases are also evident in Osicka and Kratz.  Other issues raised include OLR's discretion in charging, dismissing charges, and diversion; whether and what consideration is given in lawyer discipline to OLR's scarce resources; the extent to which the OLR should consider mercy, forgiveness, and the wishes of the victims; whether respondent lawyers should be able to appear before the Preliminary Review Committee; and whether the Preliminary Review Committee should be disbanded inasmuch as apparently over 90% of the OLR's recommendations are accepted. 

The Kratz case raised the issue of the role of partisan politics and media publicity in discipline proceedings, as Justice Prosser's dissent points out.  Members of the Court have also raised the question of the wisdom of changing the rules to allow plea bargaining.  These are only some of the significant and troubling issues illustrated in these cases and raised in rule petitions and the hearings on recent rule petitions. 

My view:

Regardless of the level of sanction, a felony DUI that causes a death violates Rule 8.4(b). I think the per curiam court improperly considered the attorney's post-conviction record in determining whether the circumstances of the offense itself violated the rule. The court may regret the day it held a felony conviction was not a disciplinary offense.

The third case involved an attorney who practiced while suspended. He had a lengthy record of discipline. He was prosecuted by OLR in two successive matters. The per curiam court ordered concurrent  60-day suspensions in the two matters.

Justice Prosser dissented

This fifth prosecution is based on events that occurred in the summer and fall of 2011.  OLR knew about and monitored these events.  But when OLR filed its fourth complaint against Attorney Osicka on January 11, 2012, it did not include the events from 2011 in its fourth complaint.  OLR has not explained its reasons.  However, filing a fifth complaint instead of incorporating the 2011 events into the fourth complaint, enabled OLR to ask for another 60-day suspension, which it justified as "progressive discipline."  It also required the appointment of another referee and leads now to the assessment against Attorney Osicka of more than $1,000 in additional costs.

Attorney Osicka gave up resistance to this complaint in July 2013 by signing a stipulation.  The referee filed his report in late August 2013.  OLR filed a statement of costs on September 12, 2013, but it never moved to lift Attorney Osicka's "temporary" suspension.  In sum, OLR sought a 60-day suspension, even though Attorney Osicka had been suspended for a CLE violation since June 6, 2011, and had closed his practice.  He has been "temporarily" suspended for one of the grounds in this complaint since February 23, 2012.  He has now been suspended on this count for more than two years...

Looking at this case, it is obvious that only criminals are entitled to "sentence credit."

The court's opinion in this fifth prosecution, like its opinion in the fourth prosecution, is one-sided.  The court portrays itself as fair and reasonable by making Attorney Osicka's 60-day suspension here concurrent with his 60-day suspension in the fourth case.  If the court were seriously interested in being equitable, however, it would make the effective date of this suspension retroactive to February 13, 2013, and eliminate the costs in this case.

Justice Prosser also dissented in the other matter involving the same attorney

Attorney Tim Osicka (Osicka) is not an angel.  He has been disciplined on several occasions.  Nonetheless, after looking at his recent prosecutions, one has to wonder whether Osicka's conduct warrants the zealous attention it has consistently received from the Office of Lawyer Regulation (OLR), or whether Osicka has simply become an easy target because he can no longer afford to defend himself.  Osicka understands from experience that, unless he prevails on every allegation of misconduct against him, he will be required to pay all or substantially all costs of the OLR prosecution.

This policy has troubled me for years.  The supreme court must be vigilant in protecting the public from attorneys who do not comply with the ethical obligations of the legal profession.  But not all violations of the code of professional responsibility are equal in importance.  Some violations are mala in se, others are merely mala prohibitum.  Given its limited resources, OLR should give priority to the former and balance to the latter.  In my view, it has not met that test in this case...

Why is OLR continuing to file charges against an attorney who has ceased practicing law?  Why is it piling up legal costs that it expects Osicka to pay?

These prosecutions raise questions about how OLR uses its limited resources to protect the public interest——questions about its priorities.

Because the answers to questions of this sort are seldom addressed, I feel compelled to respectfully dissent.

All in all, an eventful day for Wisconsin bar discipline.

These cases ( and the Kratz case ) underscore the vital importance of investigative journalism in shedding light on the operation of bar discipline processes.

The media in Washington, D.C. has entirely failed to provide that much needed scrutiny. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2014/06/in-the-post-below-we-note-that-chief-justice-abrahamson-and-justice-prosser-epressed-agreement-on-the-need-to-study-and-refo.html

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Thanks for this awesome article on this particular topic

Posted by: INCORP | Jun 9, 2014 4:28:21 AM

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