Professional Responsibility

Week 2

• Review of previous class
  • Doug: Law as a profession, ABA model rules vs. state rules
  • Beth: Legal profession can be prone to ethical conflicts
  • Kate: The fact that the profession is self-governing can be a problem
  • Paul: mystery
• Personality survey, Bar Admission, What criteria should the board of bar examiners have? Then mechanisms for enforcing the rules (the disciplinary system: SCR 21, 22).
• Personality survey is 6/9 #1 (collected)
• In the Matter of the Bar Admission of Anderson, 290 Wis. 2d 722, 2006 WI 57

  His only actual conviction was for providing alcohol to an underage person.

  Supreme Court says there's passage of time, and also these are kind of minor issues. They tried to find ways to be deferential to the board, but they essentially overrule them. Generally, the facts and their credibility are not subject to review on appeal. The board made a finding that he lied to them, and it is essentially set aside.

  So denial by the board can still be appealed, and the Supreme Court is concerned only with major issues. Note that over 2 years go by between his initial appeal and this remand. So even a favorable ruling can imply a significant postponement of one's career.

• What sort of things should be per se disqualifiers?
  • Practicing without license
  • Fraud
Kate: armed crime.
Doug: Class A, B felonies
Beth: convicted by SEC, etc., of fraud. (i.e., major fraud).

The scope of inquiry for bar admission can lead to abuses, but this is vanishingly rare.

• Handout #2: draft of a plan to grant probationary admission to the bar. Conditional admission, actually. There are privacy issues (how do you notify people about the conditionality, e.g.)?
• Regulation of lawyers: the profession is self-regulated. Rules are made through what is effectively a branch of government (the Supreme Court). That branch is composed of lawyers, and has no electoral oversight. Note that the ABA does not actually regulate the profession.
• WI is a mandatory bar (SCR 21). Steve Levine actually filed a suit challenging this (on the basis of freedom of association?), and lost. Levine v. Heffernan is footnoted in the text (SCR 21): a person doesn't have to pay dues for lobbying work (i.e., your dues can be reduced based on the percentage of activity spent on lobbying). It would be unconstitutional to require dues for access to the political process, or something.
• 67% of the lawyers disciplined are solo practicioners (p. 67, by coincidence).
• Note that rulings on professional discipline are like caselaw in any other context. So there's more than just the rules.
• Handout #3: Statement of the purposes of discipline (Carroll). This is an oft-cited thing: ¶40. Discipline is sometimes imposed for deterrant purposes, even when there's no practical chance of repeat offense.
• Handout #4: This is one of Schweitzer's cases (Felli). This guy did estate planning (life trusts, etc.) for folks in retirement homes. He tended to violate the rules about who could be a beneficiary, etc. There were three cases brought, but the implication was that there were many, many more. If the license were taken away, he'd be subject to no oversight (and could go be a beneficiary).
• Handout #5: Wisconsin Lawyer gives a monthly summary about disciplinary findings. This is a much-read section.
• Handout #6: wisbar.org ethics opinions. You can search them by topic. Tim Pierce is the current ethics advisor at wisbar-- you can call him with questions... hard ones will go to the committee.
• SCR 8.4: defines misconduct, allows regulatory authorities to exercise their powers. The ABA rule part (d): engage in conduct which is prejudicial... (WI drops this because it keeps getting challenged as unconsitutionally vague). Wisconsin is very specific, and explicitly mentions that violations of caselaw are a problem. (h) is very important (cooperation with an investigation). (i) is in the ABA, in a comment: discrimination/harrassment.
• Handout #7: another reprimand (misrepresentation).

---

• Chapter 21
  • Highlights marked in the book
  • The system is mostly driven by complaints from individuals, opposing counsel, judges
  • Director has to go through a process (preliminary review committee) before a complaint can be filed
  • A matter comes to OLR, director may consult a local district, investigation, review by committee, then file a complaint.
• Chapter 22
  • Again, highlights in the text.
  • Your handling of a complaint may be misconduct, even if the allegations in the complaint lack merit
• Handout #8: flowchart and org chart for lawyer regulation
• Lawyer's oath: "offensive personality--" promise not to be an ass.
• Handout #9: report on the lawyer regulation system This may be on the exam, regarding where complaints come from, which areas of practice produce most complaints, etc. Lack of diligence and lack of communication are the two biggest. Improper advocacy is a big one too, but it's not clear what that means.
• SCR 20:1.8 - even as new attorneys we may have the chance to influence the law. Likewise the rules governing lawyers. (j) and (k) are the same as the ABA. They were added to WI rules after 1995. It was handled as a matter of caselaw, which was insufficient notice, basically. Anyway, the process of changing the rules starts with filing a petition. WA and 1 other state had these rules. The WI bar opposed it, and wanted an alternative covering only vulnerable clients. Schweitzer proposes the amendment. ABA adopes it.
• Handout #10: summaries of cases involving violations of SCR 20:1.8(j).
• Handout #11: Adoption of 20:1.8(j).
• Handout #12: summaries of violations of 20:1.8.
• For next week, 4 problems + review of this class; review also Jeff Peters (law school admissions guy case).