Wisconsin Defense Counsel Defending Individuals And Businesses In Civil Litigation
2015 Winter Conference December 4, 2015
Hilton Milwaukee City Center 509 W. Wisconsin Ave. Milwaukee, WI 53203 Program Chair: Ariella Schreiber Rural Mutual Insurance
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CorVel Corporation | 888.587.0977 | www.corvel.com Wisconsin Defense Counsel Defending Individuals And Businesses In Civil Litigation Table of Contents Program Agenda...... 4 Speaker Biographies...... 6 Sponsors...... 9
Anatomy of a Statute of Repose Defense Gina Meierbachtol, Corneille Law Group, LLC...... 10 ADR Ethics Pinwheel: Mediating Within the SCR Marie Stanton, Hurley, Burish & Stanton, S.C. and Michael Crooks, Peterson, Johnson & Murray, S.C...... 17 Wisconsin’s Disciplinary Process - An Overview Elizabeth Estes, Deputy Director, Supreme Court of Wisconsin Office of Lawyer Regulation...... 34 Office of Lawyer Regulation System 2015-16 Report...... 46 A General Overview of Wisconsin’s Lawyer Discipline System Monte Weiss, Weiss Law Offices, S.C...... 100 Using the ACA to Recalibrate Claims for Future Medical Damages Thomas Geroulo, Weber Gallagher...... 111
3 Program Agenda – December 4, 2015 8:15 a.m. Registration and Continental Breakfast
8:55 a.m. Opening Remarks
9:00 a.m. – 9:50 a.m. Anatomy of a Statute of Repose Defense Gina Meierbachtol, Corneille Law Group, LLC
9:50 a.m. – 10:00 a.m. Break
10:00 a.m. – 10:50 a.m. ADR Ethics Pinwheel: Mediating Within the SCR Marie Stanton, Hurley, Burish & Stanton, S.C. and Michael Crooks, Peterson, Johnson & Murray, S.C.
10:50 a.m. – 11:00 a.m. Break
11:00 a.m. – 11:10 a.m. Talk with Wisconsin Supreme Court Candidate, Judge JoAnne Kloppenburg
11:10 a.m. – 12:40 p.m. Wisconsin’s Disciplinary Process - An Overview Elizabeth Estes, Deputy Director, Supreme Court of Wisconsin Office of Lawyer Regulation and Monte Weiss, Weiss Law Offices, S.C.
12:40 p.m. – 1:40 p.m. Lunch Talk with Wisconsin Supreme Court Candidate, Attorney Claude Covelli
1:40 p.m. – 2:30 p.m. Using the ACA to Recalibrate Claims for Future Medical Damages Thomas Geroulo, Weber Gallagher
2:30 p.m. – 2:40 p.m. Break
2:40 p.m. – 3:30 p.m. Technical Quandaries: New Challenges Imposed by Legal Technology and the Rules of Professional Conduct Todd Scott, Minnesota Lawyers Mutual Insurance Company
4 Your First Affirmative Defense
Madison, WI Milwaukee, WI Oakdale, MN Brian W. Baird Brian D. Baird Forrest G. Hopper Kathleen E. Grant Maile E. Beres Kevin J. Kennedy Patryk W. Silver Aaron R. Berndt Robert C. Burrell J. Patrick Condon Joshua B. Cronin Joseph P. Danas, Jr. James M. Fredericks Linda D. Kiemele Patrick D. McNally Steven L. Miracle Barbara A. O’Brien Alan W. Ray Julia B. Semenak Jacob A. Sosnay Frederick J. Strampe Karl A. VanDeHey
Attorneys & Counselors Since 1881
Licensed in Wisconsin, Minnesota and South Dakota 131 West Wilson Street Madison, WI 53701 • (608) 258-1711 735 N. Water Street Milwaukee, WI 53202 • (414) 276-3600 7825 3rd Street North Oakdale, MN 55128 • (651) 256-5000 Speaker Biographies Mike Crooks is a shareholder with the Milwaukee firm of Peterson, Johnson & Murray, S.C., where he runs the Madison office. His main areas of practice are commercial litigation, legal malpractice, medical mal- practice, accounting malpractice, insurance defense and coverage issues, bad faith litigation, products liability work, premises liability, defamation suits, breach of contract, personal injury defense and third-party recovery. He also spends about 35% of his time mediating cases. Mike received his B.A. degree, cum laude, from the University of Notre Dame and his J.D. degree, cum laude, from the University of Wisconsin. Since law school, he has lectured for the State Bar’s “Building Your Practice” series, for the Wisconsin Judicial College, for the Wisconsin Defense Counsel on litigation issues and municipal immunity, for the Wisconsin Law School on mediation, discovery practices, and various other litigation related topics for many other groups. In 2011, he taught Pre-Trial Practice for the University of Wisconsin Law School. In 2002-2015, he was named to the list of Dane County’s Top Lawyers. He became a Board Certified Trial Lawyer in 2004. In 2005-2006, he served as President of the Wisconsin Defense Counsel, and was a long time member of the Board of Directors for WDC. Additionally, he was formerly the Treasurer of the James E. Doyle Inn of Courts. He serves as a Special Investigator for the Office of Lawyer Regulation. He was listed in the 2006- 2015 Super Lawyers. He was inducted into the American Board of Trial Advocacy (ABOTA) in 2007 and became Treasurer in 2015. He was named to the Best Lawyers in America in 2007-2015. In 2008, he was appointed by Judge John Markson as a Court Commissioner. In 2009-2015, he was named to the Super Lawyers Top 50 in Wisconsin, and Top 25 in Dane County. He is admitted to practice in the State Courts of Wisconsin, Federal Courts of Wisconsin, and the Seventh Circuit Court of Appeals. He is AV rated by Martindale Hubbell. Attorney Elizabeth M. Estes has been a Deputy Director since 2004 at the Supreme Court of Wisconsin Office of Lawyer Regulation, where she previously worked as an investigator. She supervises Central Intake, which received 2,300 inquiries and grievances during FY 2014-15. She began her legal career as a law clerk at the Wisconsin Court of Appeals, District II, in Waukesha County before working for five years at a large Milwaukee law firm. She is admitted to practice before the U. S. District Court for the Eastern and Western Districts of Wisconsin, the U.S. Court of Appeals for the Seventh Circuit and the U. S. Supreme Court. She served on former U.S. Senator Herb Kohl’s Service Academy Selection Board and is a former appointee to the Supreme Court of Wisconsin Appointment Selection Committee. She has served as a past president of the Marquette University Law Alumni Association Board and as an alumni volunteer for Boston University. Liz previously served on the State Bar of Wisconsin’s Legal Assistance Committee and the Communications Committee as vice chair. She also served on the boards of Literacy Services of Wisconsin and Transitional Living Services, Inc. and on the local advisory committees of the Thurgood Marshall Scholarship Fund and the Children’s Service Society of Wisconsin. Tom Geroulo provides defense in general liability matters for healthcare providers, retailers, construction and commercial transportation companies, property managers and in cases of serious automobile accidents. He has crafted a portion of his practice to assist in nationwide coordination with local counsel, carriers, third party administrators and self insureds, on the applicability of the Affordable Care Act to claims of future medical damages in all types and disciplines of catastrophic loss matters across the country. The cost of future care has been altered by the ability for those with pre-existing conditions to obtain insurance. Tom is able to show the true cost of lifetime care in cases of catastrophic injuries. Tom has frequently presented on this topic and is consistently refining strategies to assist clients in all jurisdictions on this emerging issue in order to help demonstrate the potential for a dramatic reduction in exposure for his clients. Tom also defends against claims of wrongful termination, police brutality and municipal liability. His clients include individual drivers, homeowners, bars and large corporations. Tom is also a registered patent attorney.
6 In 2015, he was recognized by the publisher of the Pennsylvania edition of Super Lawyers magazine as a “Rising Star,” an honor given to the top 2.5 percent of attorneys in the Commonwealth. Gina Meierbachtol is an attorney with the Corneille Law Group in Green Bay. She received her Bachelor of Arts degree from DePauw University in 2003 and her law degree from the University of Wisconsin- Madison in 2009. Her practice covers a wide variety of insurance defense matters, including personal injury defense, premises liability, and construction defect. She also practices medical malpractice defense, and represents medical pro- viders in a variety of licensing issues before the Wisconsin Department of Safety and Professional Services. She has published and presented on numerous issues related to civil litigation. Todd Scott is the Vice President of Risk Management for Minnesota Lawyers Mutual Insurance Company. He is a frequent author and guest lecturer on the topics of malpractice, ethics, and practice management systems. Much of his duties include helping lawyers select and implement software systems appropriate to their particular practice. Mr. Scott had previously served as Attorney/Claims Representative for MLM, and was the head of their technology subsidiary, Mutual Software. Todd is also an adjunct professor in the Legal Studies Department at Hamline University in St. Paul, Minnesota. He is a graduate of Hamline University School of Law and is a member of the American Bar Association, and the Minnesota State Bar Association, where he has served as past Chair of the Practice Management & Marketing Section. A known and respected litigator/ mediator in Wisconsin, Marie A. Stanton brings 41 years of experience in civil litigation to her clients. For over three decades, she has tried a variety of civil cases and represented clients in professional liability matters. In 1994, Marie became the first woman admitted to the Wisconsin Chapter of the American Board of Trial Advocates, in 1999 she was Wisconsin’s first woman elected to the American College of Trial Lawyers. Having practiced as both plaintiff and defense counsel, she is a proven negotiator and is requested by her peers to mediate or arbitrate over 100 cases annually. Her success as a mediator is well known, with attorneys across the state returning to mediate a diverse range of cases in size, type and complexity. She is a frequent presenter at Continuing Education Seminars, the UW Law School and the UW School of Business. For the past 7 years, she has presented a live witness mediation demonstra- tion for casualty claim professionals, a seminar co-sponsored by Munich Re Insurance and the UW School of Business. Monte E. Weiss is the founder of Weiss Law Office, S.C. The bulk of his practice involves the defense of personal injury, property damage and products liability cases for insurance companies and self-insured companies. He routinely represents insurance carriers on insurance contract interpretation issues, claims of bad faith and other complex insurance coverage matters. He has drafted several personal lines insurance policies, including homeowner and automobile policies. Upon receiving a request from then Chief Justice Shirley Abrahamson to assist with the regulatory system that governs the conduct of Wisconsin’s attorneys, Attorney Weiss accepted. He serves on District Investigation Committee Two of the Office of Lawyer Regulation. This service helps him to represent his clients in the defense of legal malpractice claims as well as grievances with and complaints filed by the Office of Lawyer Regulation. Mr. Weiss has argued his clients’ cases before the Wisconsin Court of Appeals as well as the Wisconsin Supreme Court. He is the author of a number of articles regarding insurance coverage and other insurance industry-related topics and is a regular speaker on insurance issues. Mr. Weiss was recently honored by being selected as one of Wisconsin’s Top Rated Lawyers. He has also recently celebrated his 15th year with the highest recognition possible in the legal industry. He has also been and continues to be recognized as Super Lawyer – a status awarded to no more than 5% of the attorneys in the State of Wisconsin.
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ANATOMY OF A STATUTE OF REPOSE DEFENSE
Wis. Stat. s. 893.89
Gina Meierbachtol
Corneille Law Group, LLC
I. PURPOSE OF THE STATUTE OF REPOSE a. The purpose of the Statute of Repose is to preclude unlimited exposure to liability by imposing a reasonable time limit on the commencement of an action. It is designed to protect people from liability based upon actions that occur during their involvement in improving the property. See Hocking v. City of Dodgeville, 2010 WI 59, ¶ 22. i. The Statute of Repose is in a chapter entitled Limitations on Actions, but it has nothing to do with when a cause of action accrues, or when injury or damages are sustained. It is an immunity statute.
II. THE STATUTE: Wis. Stat. s. 893.89(2) a. Except as provided in sub. (3), no cause of action may accrue and no action may be commenced, including an action for contribution or indemnity, against the owner or occupier of the property or against any person involved in the improvement to real property after the end of the exposure period, to recover damages for any injury to property, for any injury to the person, or for wrongful death, arising out of any deficiency or defect in the design, land surveying, planning, supervision or observation of construction of, the construction of, or the furnishing of materials for, the improvement to real property. This subsection does not affect the rights of any person injured as the result of any defect in any material used in an improvement to real property to commence an action for damages against the manufacturer or producer of the material.
III. THE ELEMENTS a. Owner or occupier of real property or any person involved in the improvement to real property i. Applies to subsequent owners not involved in the improvement to real property. See Crisanto v. Heritage Relocation Services, Inc., 2014 WI App 75. b. Exposure period i. 893.89(1) The 10 years immediately following the date of substantial completion of the improvement to real property. ii. Do not need proof of when original construction took place 1. Show the “improvement” had not changed for 10 years prior to the loss. 2. The exact date of substantial completion of the property does not need to be known. 3. If the date of substantial completion had to be shown, few people could take advantage of Statute, and it would lead to an unlimited time period for exposure. c. To recover damages i. “Damages” means a legally compensable injury rather than a physical injury. Damages are pecuniary compensation or indemnity, which may be recovered in the
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courts by any person who has suffered loss, detriment, or injury, whether to his person, property, or rights, through the unlawful act or omission or negligence of another. Peter v. Sprinkmann Sons Corp., 2015 WI App 17. 1. In Peter, this was an issue because the plaintiff’s expert testified that the damages to plaintiff’s lungs from inhaling asbestos fibers occurred at the time the fibers were inhaled, which was long before the plaintiff had symptoms or a diagnosis of mesothelioma (the legally cognizable damages). d. Arising out of any deficiency or defect in the design, land surveying, planning, supervision or observation of construction of, the construction of, or the furnishing of materials for, (an improvement to real property). i. Examples of deficiency or defect in: 1. Design a. In Frewerd v. Beno, the plaintiff based his claims off of a negligent design of two front porch steps, which were of different riser heights, which allegedly caused his trip and fall. 2. Surveying a. In Tomczak v. Bailey, a surveyor (Bailey) staked lots for the plaintiffs before they built their home on the land. Six years later, the Anderson’s bought the adjacent lots. When the Anderson’s went to build, a survey revealed that the Tomczaks deck, patio and pier were on their property, and Bailey had staked the wrong lots for the Tomczaks. The Anderson’s sued the Tomczaks for trespass, and the Tomczaks sued Bailey. However, the Tomczaks claims against Bailey were barred by the Statute of Repose. 3. Planning a. Plaintiffs sued the Town of Burlington for water runoff from a subdivision northeast of their property, which ran through the plaintiff’s property before draining into Brown Lake. They claimed the Town was negligent in planning the drainage from the subdivision, and it constituting a taking of their property. Because the subdivision had been constructed 24 years before the lawsuit, the plaintiff’s claims were barred by the Statute of Repose. Tsamardinos v. Town of Burlington, 2012 WI App 11. 4. Construction a. In Wilde, the Oconto pharmacy was renovated in 1995, combining two buildings to create one larger building. A joint line ran across the floor of the pharmacy where the two buildings were combined. Because of the joint line, there was a gradual slope in the floor of each of the pharmacy aisles. Plaintiff tripped on a dip that was different than the slope in the floor. The issue had to do with the construction of joining the two buildings in 1995, and plaintiffs claim was barred by the Statute of Repose. Wilde v. Pharmacists Mutual, 2014 WI App 38. 5. Furnishing of Materials
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a. In Frewerd v. Beno, plaintiff punched his hand through the glass of his friend’s front door, after tripping on the steps. He claimed the glass was dangerous because it was not safety glass (which would have minimized his injuries). This was a criticism of a material used in the construction of door, which had been in place over 30 years. e. An improvement to real property i. A permanent addition to or betterment of real property that enhances its capital value and that involves the expenditure of labor or money and is designed to make the property more useful or valuable as distinguished from ordinary repairs. Kohn v. Darlington Community Schools, 2005 WI 99, ¶ 17. ii. One inquiry in determining if an item is a “permanent improvement” is whether the item can be readily dissembled and moved. Kohn v. Darlington Community Schools, 2005 WI 99. In Kohn, the plaintiff was injured on bleachers that had been installed in 1969. Plaintiff contended the bleachers were not an “improvement to real property” because they were not anchored to the ground and they were portable. The defense argued the bleachers were an improvement to real property because they are a permanent fixture on the property, they had not been moved since they were installed in 1969, and they enhanced the value and usefulness of the property. The Court agreed that the bleachers were an improvement to real property. iii. Daily repairs are not improvements to real property. Peter v. Sprinkmann Sons Corp., 2015 WI App 17. In Peter, the defense argued that its daily work on insulation at the subject property was “multiple installations” of insulation, and installing insulation was an improvement to real property. However, the court determined that this work was repairing insulation to keep the pipes in proper condition. iv. The “improvement” can be an original part of a structure, or a replacement. Wagner v. Cincinnati Casualty Co., 2011 WI App 85.
IV. CLOSING THE LOOP HOLE- 893.89 Subsection 3(a) a. Except as provided in pars. 3(b) and (c), if a person sustains damages as the result of a deficiency or defect in an improvement to real property, and the statute of limitations applicable to the damages bars commencement of the cause of action before the end of the exposure period, the statute of limitations applicable to the damages applies. i. If a cause of action is time-barred by a statute of limitation before it would be barred by the Statute of Repose, that statute of limitations applies. See Kalahari Development, LLC v. Iconica, Inc., 2012 WI App 34. b. Sub. (3)(b) If, as the result of a deficiency or defect in an improvement to real property, a person sustains damages during the period beginning on the first day of the 8th year and ending on the last day of the 10th year after the substantial completion of the improvement to real property, the time for commencing the action for the damages is extended for three years after the date on which the damages occurred.
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c. Sub. (3)(c) An action for contribution is not barred due to the accrual of the cause of action for contribution beyond the end of the exposure period if the underlying action that the contribution action is based on is extended under par. (b).
V. THE EXCEPTIONS a. The exceptions are to be strictly and reasonably construed to extend only so far as their language fairly warrants. See McNeil v. Hansen, 2007 WI 56, ¶ 10. b. The party that relies on an exception to a general rule or statute bears the burden of proving the exception applies. See State v. Hansen, 98 Wis.2d 80, 89, (Ct. App. 1980). c. Fraud/Concealment i. Sub. (4)(a), the Statute of Repose does not apply to: “A person who commits fraud, concealment or misrepresentation related to a deficiency or defect in the improvement to real property.” 1. In Wilde, the plaintiff contended that the dip in the floor that she tripped on was “concealed” by carpet. However, the dip could be plainly seen even with the carpet over it. Therefore, it was not concealed. Further, the court hinted that the defendants would have had to intentionally conceal a structural defect, for it to fall within the Sub. (4)(a) exception. d. Warranty Period i. Sub. (4)(b), the Statute of Repose does not apply to: “A person who expressly warrants or guarantees the improvements to real property, for the period of that warranty or guarantee.” ii. Must be an express warranty, not an implied warranty. Hocking v. City of Dodgeville, 2010 WI 59 1. In Hocking, city officials represented to affected landowners that measures would be taken to resolve numerous issues caused by the new subdivision. a. The Court of Appeals held this was not a warranty because the city officials were not authorized to bind the city, and there was no contractual relationship between the city and the landowners. 2. In Cianciola v. Milwaukee Metro Sewage District, 2011 WI App 35, “MMSD” contracted with Cianciola to run a sewage tunnel underneath Cianciola’s property. The tunnel caused settlement under Cianciola’s property. Per the contract, MMSD agreed to construct and maintain the sewer in good order and condition; and to indemnify and save harmless Cianciola from all loss or injury to its property and persons due to such construction, operation, maintenance, repair and reconstruction. Ciancola brought its action for damages more than 10 years after the date the tunnel was substantially completed, which would have meant an action should have been barred by the Statute of Repose. However, because MMSD warranted to maintain the tunnel, and to indemnify Cianciola from all loss, the Statute of Repose immunize the defendant from this promise.
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e. Negligent Maintenance i. Sub. (4)(c), the Statute of Repose does not apply to: “An owner or occupier of real property for damages resulting from negligence in the maintenance, operation or inspection of an improvement to real property.” 1. Hocking v. City of Dodgeville: Design or construction of city streets caused a water drainage problem, the failure to alter the streets to remedy the problem was not a failure to “maintain” the streets. 2. Rosario v. Acuity: The failure to warn of a structural defect (a step) did not turn it into an on-going nuisance or repair issue. 3. Wilde: the failure to warn of the “dip” in the floor, did not turn it into a negligent maintenance issue. ii. Safe Place Similarities 1. Structural Defects v. Conditions Associated with the Structure a. Under the safe place statute the Statute of Repose bars claims based on structural defects, but not injuries caused by unsafe conditions associated with the structure. Mair v. Trollhaugen Ski Resort, 2006 WI 61. b. Under the safe place statute something is a structural defect if it resulted from materials used in its construction or from improper layout or construction. i. An owner can be liable regardless of knowledge of the defect. ii. The limit to liability is the Statute of Repose c. Conditions Associated with the Structure involve the structure being out of repair or not maintained in a safe manner. i. The limit to liability is the notice requirement. No liability can attach without actual or constructive notice. Barry v. Employers Mutual Casualty Co. 2001 WI 101. f. Sub. (4)(d) Damages that were sustained before April 29, 1994 (which is the effective date of the current Statute of Repose) i. The purpose of this exception is to make sure that someone who had a valid claim before the Statute took effect, could act on that claim. ii. In Peter, this was an issue because the plaintiff’s claims for mesothelioma as a result of exposure to asbestos were barred by the statute of repose, unless he could show he sustained damages before April 29, 1994. 2015 WI App 17. iii. Plaintiff’s expert in Peter testified that plaintiff sustained physical injuries when he inhaled asbestos fibers beginning in 1959. However, the plaintiff did not manifest symptoms of the injury until decades later, and he was not diagnosed with mesothelioma until 2012. Therefore, he did not sustain legally actionable damages until well after April 29, 1994.
VI. MISCELLANEOUS a. Notice of a structural defect does not eviscerate the protections of the Statute of Repose. See Crisanto v. Heritage Relocation Services, Inc., 2014 WI App 75. If this was not the case,
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every improvement that is negligently designed could be considered an ongoing nuisance that the owner or operator negligently maintained by failing to correct.
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WISCONSIN’S DISCIPLINARY PROCESS – AN OVERVIEW
Review of Intake Procedures and Selected Rules and Cases
Atty. Elizabeth Estes, Deputy Director Supreme Court of Wisconsin Office of Lawyer Regulation 110 E. Main St., Ste. 315 Madison, WI 53703 (608) 267-7274 [email protected]
I. INTAKE PROCEDURES
WISCONSIN SUPREME COURT RULES
SCR Chapter 22 - Procedures for the Lawyer Regulation System
SCR 22.01 Inquiries and grievances.
Any person may make an inquiry or a grievance to the office of lawyer regulation concerning the conduct of an attorney. Inquiries and grievances, except those from incarcerated persons, may be made by telephone. The staff may assist the person making an inquiry or a grievance in clearly stating the inquiry or grievance. If assistance is given, staff may send the person making the inquiry or grievance a written statement, and if it accurately sets forth the inquiry or grievance, the person shall sign it and return it to the office of lawyer regulation.
SCR 22.02 Intake.
(1) The staff of the office of lawyer regulation shall receive and evaluate all inquiries and grievances concerning attorney conduct.
(2) The staff shall conduct a preliminary evaluation of the inquiry or grievance and may do any of the following:
(a) Forward the matter to another agency.
(b) Attempt to reconcile the matter between the grievant and the attorney if it is a minor dispute.
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(c) Close the matter if it does not present sufficient information of cause to proceed.
(d) Refer the matter to the director with a recommendation that the matter be investigated by staff or diverted.
(3) If staff forwards the matter to another agency, it shall provide the grievant the reasons for doing so. The decision of staff is final, and there shall be no review of the decision.
(4) The staff shall notify the grievant in writing that the grievant may obtain review by the director of the staff's closure of a matter under sub. (2)(c) by submitting to the director a written request. The request for review must be received by the director within 30 days after the date of the letter notifying the grievant of the closure. The director may, upon a timely request by the grievant for additional time, extend the time for submission of additional information relating to the request for review. The decision of the director affirming the closure or referring the matter to staff for further evaluation is final, and there shall be no review of the director's decision.
(5) In the performance of duties under this chapter, staff may not give legal advice.
(6) The director shall review each matter referred by staff and do one or more of the following:
(a) Close the matter for lack of an allegation of possible misconduct or medical incapacity or lack of sufficient information of cause to proceed. The director shall notify the grievant in writing that the grievant may obtain review by a preliminary review panel of the director's closure by submitting a written request to the director. The request for review must be received by the director within 30 days after the date of the letter notifying the grievant of the closure. The director shall send the request for review to the chairperson of the preliminary review committee, who shall assign it to a preliminary review panel. Upon a timely request by the grievant for additional time, the director shall report the request to the chairperson of the preliminary review committee, who may extend the time for submission of additional information relating to the request for review.
(b) Divert the matter to an alternatives to discipline program as provided in SCR 22.10.
(c) Commence an investigation when there is sufficient information to support an allegation of possible misconduct or medical incapacity.
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II. SUPREME COURT RULES COMMONLY ALLEGED IN GRIEVANCES1
. SCR 20:1.3 Diligence
A lawyer shall act with reasonable diligence and promptness in representing a client.
. SCR 20:1.4 Communication
(a) A lawyer shall:
(1) Promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in SCR 20:1.0(f), is required by these rules;
(2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests by the client for information;2 and
(5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
1 See Report of the Lawyer Regulation System, Fiscal Year 2014-2015, App. 8A.
2 See SCR 20:1.5(b); see also State Bar of Wisconsin Ethics Opinion E-09-03: Communications Concerning Attorneys Fees and Expenses.
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III. THE ROLE OF INFORMED CONSENT IN COMMUNICATIONS
SCR 20:1.0 Terminology . . . .
(f) “Informed consent” denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.
“Informed Consent” within the Rules of Professional Conduct for Attorneys
The following SCRs and/or their comments may include the types of decisions and circumstances that require prompt communication and a client’s “informed consent” as referenced in SCRs 20:1.0(f) and 20:1.4(a)(1):
Rule Number Title
SCR 20:1.2(c) Scope of representation and allocation of authority between lawyer and client
SCR 20:1.6(a) Confidentiality
SCR 20:1.7(b)(4) Conflicts of interest: current clients
SCR 20:1.8(a)(3), Conflict of interest: (b), (f)(1), (g) prohibited transactions
SCR 20:1.9(a), Duties to former clients (b)(2)
SCR 20:1.10 Imputed disqualification: (Comment) general rule
SCR 20:1.11(a)(2), Special conflicts of interest (d)(2)(i) for former and current government officers and employees
SCR 20:1.12(d) Former judge, arbitrator, mediator or other 3rd-party neutral
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SCR 20:1.15(g)(2) Safekeeping property; trust accounts and fiduciary accounts
SCR 20:1.17 Sale of law practice (Comment)
SCR 20:1.18(d)(1) Duties to prospective clients
SCR 20:2.3(b) Evaluation for use by 3rd persons
SCR 20:3.7 Lawyer as witness (Comment)
SCR 20:5.4 Professional independence (Comment) of a lawyer
SCR 20:6.5 Nonprofit and court-annexed (Comment) limited legal services programs
SCR 20:7.2(b)(4)(ii) Advertising
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IV. EXAMPLES OF DISCIPLINABLE MISCONDUCT SCR 20:1.15(g)(2) Safekeeping property; trust accounts and fiduciary accounts Suspension
SCR 20:1.17 Sale of law practice (Criminal Law) (Comment) The attorney was paid $3,500.00 to pursue a criminal appeal. After reviewing the SCR 20:1.18(d)(1) Duties to prospective clients transcript and speaking to trial counsel, he decided the appeal was without merit and decided not to pursue the appeal. He did not inform the client of his decision SCR 20:2.3(b) Evaluation for use by 3rd and did not return the retainer. The Supreme Court suspended the attorney’s persons license for 90 days on the condition of a refund of the retainer. Disciplinary Proceedings Against Henke, 121 Wis. 2d 689, 359 N.W.2d 924 (1985). SCR 20:3.7 Lawyer as witness (Comment) Public Reprimands SCR 20:5.4 Professional independence (Comment) of a lawyer (Bankruptcy)
SCR 20:6.5 Nonprofit and court-annexed The attorney was publicly reprimanded for lacking diligence and for failing to (Comment) limited legal services programs keep two clients informed of the status of their legal matters in violation of SCR 1.3 and former SCR 20:1.4(a). In the first matter, the attorney was retained by a SCR 20:7.2(b)(4)(ii) Advertising couple in May 1996 to file a bankruptcy petition, for which they paid him $1,000.00. He performed limited services in the matter, performing no work after mid-June 1996. The clients’ numerous attempts to contact him during June were unsuccessful, and he did not respond to any of their telephone calls or to a registered letter terminating him and asking for a refund. At the Board’s suggestion, he made restitution of $1,000.00 in November 1997, more than 16 months after his termination.
In the second matter, a client gave the attorney $500.00 of an agreed-upon fee of $975.00 in July 1994. The client attempted unsuccessfully to contact the attorney during 1995 and 1996, and she made additional payments of $200.00 towards his fee in May 1996 and $300.00 in March 1997. The attorney did not respond to messages his client left at his home or office, and he did not reply to her letters. The attorney did not file the bankruptcy petition until June 1997. Disciplinary Proceedings Against Halverson, 225 Wis. 2d 215, 591 N.W.2d 821 (1999).
(Criminal Law)
The attorney represented an incarcerated client in appealing two criminal convictions. He improperly filed one notice of appeal and appeal for both convictions. Although the court assigned separate appellate case numbers, it later dismissed the appeal of the case with a 64-year sentence when the attorney failed to file a separate docketing statement and referred to only one appeal case
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number. He did not inform the client of the dismissal and abandoned the appeal, and he later alleged to the Board that there was no merit to the dismissed appeal.
The appellate court struck the brief and ordered the filing of a new one in the surviving appeal. The attorney did not inform the client of the court’s action. He filed a second brief but ignored the requests of the client and the public defender’s office to send a copy to the client. The Wisconsin Supreme Court found that the attorney violated SCR 20:1.3 when he failed to file the docketing statement and failed to move to reinstate the dismissed appeal. The attorney also failed to communicate with his client in violation of former SCR 20:1.4(a) and provided incompetent representation, see SCR 20:1.1. The Court also determined that, by failing to inform the client that one appeal had no merit, the attorney failed to explain a matter to the client to the extent reasonably necessary to permit the client to make informed decisions regarding the appeal, contrary to SCR 20:1.4(b). Disciplinary Proceedings Against Stokes, 190 Wis. 2d 480, 526 N.W.2d 507 (1995).
(Estate/Probate)
The decedent died in November 1993, and a first attorney was hired to probate the estate. The first attorney withdrew in January 1995, and the subsequent attorney was paid $400.00. There was no activity on the matter from then until September 1996, when the attorney wrote to the decedent’s daughter. In August 1997, the attorney wrote to the daughter to say he needed a court-appointed guardianship to probate the estate. In October 1997, the attorney wrote to the tenant of the decedent’s duplex and to the daughter’s aunt regarding taxes owed on the duplex, and he later contacted a bank regarding the mortgage. The daughter and aunt picked up the file in February 1999 after the attorney had not opened the estate, resolved the tax matter or taken any other steps to advance the matter. The city eventually acquired the property due to unpaid property taxes. The Board determined that the attorney failed to act with reasonable diligence pursuant to SCR 20:1.3 and failed to explain a matter to the extent reasonably necessary to permit the client to make informed decisions, in violation of SCR 20:1.4(b). The reprimand was conditioned upon the attorney returning the $400.00. Public Reprimand of Alan A. Olshan, 2000-9.
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Private Reprimand Summaries
(Construction Law)
An attorney represented a building contractor as the plaintiff in a suit to recover an unpaid debt. The defendant brought a third-party defendant into the suit. Without consulting the plaintiff or obtaining the client’s written consent, the attorney also represented the adverse third-party defendant in the suit and in other matters, in violation of SCR 20:1.7(a). The attorney did not object to the defendant’s motion for a change of venue. The defendant also moved for the attorney’s removal based on the apparent conflict of interest, and prior to withdrawing, the attorney consolidated four cases involving his two clients and signed a stipulation on behalf of adverse parties. The attorney did not explain to the contractor the ramifications of any of these developments nor did he consult with the contractor, in violation of SCR 20:1.2(a) and 1.4(b). The attorney eventually withdrew, but when the contractor and successor counsel requested the attorney’s file, the attorney delayed in turning over the file for three months, in violation of SCR 20:1.16(d). OLR Private Reprimand 2008-10.
(Estate/Probate)
Two brothers hired a lawyer to represent them in their roles as co-personal representatives of their father’s estate. They agreed that the estate would file the Qualified Terminable Interest Property (QTIP) election on the Wisconsin estate tax return with the intent that the election would defer until the death of the decedent’s widow certain taxes otherwise due on the filing of the estate’s return. The decedent’s accountant agreed to prepare the return due on October 1, 2008. On September 25, the accountant informed the lawyer that he did not feel competent to complete the return. On September 30, the successor accountant advised the lawyer that he did not believe the estate qualified for the QTIP election.
On October 1, 2008, the lawyer’s paralegal informed the co-PRs that the QTIP election would not be filed and the estate needed to pay $79,622.00 in taxes with the return that was due to be filed that day. The lawyer violated SCR 20:1.4(a)(2) and (b) by failing, before the return was filed, to explain to the co-PRs: (i) the basis for the successor accountant’s opinion; (ii) that the estate was entitled to consider whether to follow the advice, seek other opinions or to proceed with making the election; and (iii) the potential risks if the estate decided to file the election despite the accountant’s advice. OLR Private Reprimand 2014-5.
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(Estate/Probate)
An attorney was hired to probate an estate but failed to take reasonable steps to correctly file estate tax returns, failed for five months to take any action in the matter, and failed to appear for a show-cause hearing, in violation of SCR 20:1.1 and 1.3. The attorney violated SCR 20:1.4(a)(3) and (4) by failing to respond to the client’s repeated inquiries about the taxes and the estate closing. OLR Private Reprimand 2009-26.
(Family Law)
An attorney who represented a client in a post-divorce matter was ordered to prepare and file a Qualified Domestic Relations Order (QDRO) dividing the adverse party’s 401K account as of the date of the divorce. The attorney: (1) failed to provide a copy of the QDRO to the client and failed to explain to the client, who believed that she was entitled to immediate payment, the basis for the minimum age requirement attached to payment under the QDRO, thereby violating SCR 20:1.4(b); and (2) failed to respond to her inquiries about the minimum age requirement, in violation of SCR 20:1.4(a)(4). The attorney also failed to return the client’s documents, in violation of SCR 20:1.16(d), and failed to cooperate with OLR’s investigation, in violation of SCRs 22.03(2),(6) and 20:8.4(f). OLR Private Reprimand 2014-8.
(Family Law)
The attorney represented a woman in a post-divorce child custody matter. A hearing was scheduled for the month of March. Two months before the hearing, the guardian ad litem notified the client of the documents the GAL would need to represent the child. In February, the court changed the hearing to June and ordered the woman to provide information about the child by March and also to meet with the GAL, provide financial information and disclose witnesses by May. The client acknowledged that, in late February, the attorney telephonically communicated some deadlines.
The attorney received correspondence in February and March from the GAL and opposing counsel reminding the attorney that the client needed to provide information to them. The attorney passed the information to the client in April, who sent information for the GAL and opposing counsel; however, the information was incomplete. In early May, opposing counsel filed a notice of motion and motion for sanctions for failing to comply with the scheduling order. The woman spoke with the attorney about the custody issues in early May, but it was the GAL who informed the client of the sanctions, which the client eventually paid to opposing counsel. The attorney was found to have violated former SCR
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20:1.4(a) for failing to notify the client of the scheduling order and specific deadline dates and of the impending hearing on the motion for sanctions. OLR Private Reprimand 2003-22.
(Government and Administrative Law)
In 2012, an attorney was privately reprimanded for misconduct in two Social Security Disability matters. In one case, the attorney represented a client in a Social Security Disability claim that awarded benefits for a closed period. The Notice of Decision advised the client of her rights to appeal and to file a new claim. The lawyer’s assistant advised the client to sign the new claim forms and return them to the firm, which the client did. The lawyer did not advise the client that the client also was expected to file the claim herself. Believing that her attorney would file her claim forms, the client did not file. The matter was not resolved for approximately one year. The attorney was found to have violated SCR 20:1.4(b).
In the second matter, the attorney represented a client whose Social Security Disability claim was denied. The agency initially determined the lawyer’s request for a hearing was untimely; however, it later granted the request. There was a delay of several more months, during which the lawyer failed to relay correspondence to the client or respond to the client’s request for information, thereby violating SCRs 20:1.4(a)(3) & 4. OLR Private Reprimand 2012-15.
(Landlord/Tenant)
An attorney was privately reprimanded regarding the representation of tenant farmers in an eviction. The attorney allowed the clients’ third-party complaint to languish for three years, in violation of SCR 20:1.3. The attorney did not advise his clients that the court dismissed their complaint and imposed sanctions for his failure to respond to discovery, in violation of former SCR 20:1.4(a) and (b). OLR Private Reprimand 2005-1.
(Litigation)
An attorney was privately reprimanded for failing to communicate with a client for approximately nine months, in violation of former SCR 20:1.4(a). The attorney did not return any of his calls or advise the client that the trial had been adjourned at opposing counsel’s request. The attorney, who practiced law for 20 years, had no prior discipline. BAPR Private Reprimand 1996-16.
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(Medicaid / Real Property)
An attorney was privately reprimanded regarding representation of an elderly client regarding the sale of her farm to a relative because he took all instructions from the relative, never discussing the terms with the client. The attorney also failed to discuss the implications of the sale despite being aware that the transfer potentially threatened her eligibility for Medicaid. The Board found that the attorney had thereby violated former SCR 20:1.4(b). The attorney also made a false statement to a third party in a related matter in violation of SCR 20:4.1(a). The Board noted that the attorney had practiced for 40 years without prior discipline. BAPR Private Reprimand 1997-2.
(Worker’s Compensation)
A client hired an attorney in March 2003 to appeal the denial of her worker’s compensation claim. In 2003 and early 2004, the attorney obtained the client’s medical records and had the client examined by medical providers. Between late 2003 and June 2007, however, the attorney did not communicate with the client. In June 2007, the client’s daughter asked the attorney to draft a power of attorney appointing her as agent because the client had begun experiencing symptoms of Alzheimer’s disease. The attorney drafted the POA and suggested hiring a medical expert in response to the woman’s request that the attorney attempt to pursue the worker’s compensation case to obtain $1500 for unpaid medical bills.
In February 2008, a physician examined the woman and forwarded his report to her on February 19, 2008. Between February 2008 and February 2009, there was no communication from the attorney. The client’s daughter wrote to the attorney in February and April 2009, and when there was no response, she filed a grievance with OLR. In August 2009, after OLR notified the attorney of the grievance, the attorney informed the client and her representative that he reviewed the woman’s file and determined that she did not have a viable claim. The attorney’s actions violated former SCR 20:1.4(a) and current SCR 20:1.4(a)(3) and (4). OLR Private Reprimand 2011-26.
www.wicourts.gov/olr
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REGULATION OF THE LEGAL PROFESSION IN WISCONSIN ______
FISCAL YEAR 2014-2015 ______
Report of the Lawyer Regulation System
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Keith L. Sellen, Director Attorney Rod Rogahn, Chairperson Office of Lawyer Regulation Board of Administrative Oversight
110 East Main Street, Suite 315, Madison, WI 53703 (608) 267-7274
www.wicourts.gov/olr
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ANNUAL REPORT FISCAL YEAR 2014-2015
Introduction
Pursuant to Supreme Court Rule (SCR) 21.03(6)(n) and 21.10(2)(e), the Office of Lawyer Regulation and Board of Administrative Oversight are filing this fiscal year 2014-2015 report on the lawyer regulation system.
Composition of the Lawyer Regulation System
“The lawyer regulation system is established to carry out the Supreme Court’s constitutional responsibility to supervise the practice of law and protect the public from misconduct by persons practicing law in Wisconsin.” SCR Chapter 21, Preamble. The composition and organization of the lawyer regulation system is depicted in Appendix 1. The persons currently serving in these organizations are identified in Appendix 2. Following is a description of the components.
Supreme Court
The Supreme Court supervises the lawyer regulation system, determines attorney misconduct and medical incapacity, and imposes discipline or directs other appropriate action in proceedings filed with the Court.
Office of Lawyer Regulation
The Office of Lawyer Regulation (OLR) consists of the Director, investigative and support staff, litigation counsel, and retained counsel. The office has the following duties.
To receive and to respond to inquiries and grievances relating to attorneys. To investigate allegations of attorney misconduct or medical incapacity. To divert matters into an alternative to discipline program. To prosecute misconduct or medical incapacity proceedings. To investigate license reinstatement petitions.
District Committees
District Committees exist in each of the sixteen state bar districts, and consist of lawyers and public members appointed by the Supreme Court. District Committees perform the following duties under the supervision of the Director.
To educate the bar and the public about the legal profession and ethical practice of law. To refer to the Director possible misconduct or medical incapacity matters.
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To assist in the investigation of possible misconduct or medical incapacity. To recommend to the Director the appropriate disposition of matters it investigated. To monitor an attorney’s participation in an alternatives to discipline program or an attorney’s compliance with conditions on practice. To assist in resolving minor disputes between an attorney and a client.
Preliminary Review Committee
The Preliminary Review Committee consists of fourteen members, nine lawyers and five public members appointed by the Court. The Committee is comprised of two seven- member panels, each having at least four lawyers and at least two public members. The panels have the following duties.
To review the results of OLR and District Committee investigations and to determine whether there is cause to proceed in the matter. To review, upon request by a grievant, decisions by the Director to dismiss a grievance after investigation. To confer with the Board of Administrative Oversight and to suggest improvements in the operation of the Committee and its panels.
Board of Administrative Oversight
The Board of Administrative Oversight consists of twelve members, eight lawyers and four public members appointed by the Court. The Board has the following duties.
To monitor the fairness, productivity, effectiveness, and efficiency of the system. To monitor the implementation of new procedures. To assess public and bar perceptions of the integrity of the system. To report its findings to the Supreme Court. To review the operation of the system with the Court, and to file an annual report. To propose substantive and procedural rules. To inform and educate the public and bar about the system. To propose an annual budget.
Special Investigative Panel
The Special Investigative Panel is composed of lawyers appointed by the Supreme Court who are not currently participating in the lawyer regulation system. The Director refers allegations of misconduct against attorneys currently participating in the system to a special investigator. In a referred matter, the special investigator performs the functions that the Director would normally perform, which may include evaluating, investigating, dismissing, diverting, or prosecuting the matter.
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Special Preliminary Review Panel
The Special Preliminary Review Panel is composed of four lawyers and three public members appointed by the Supreme Court. In matters involving allegations against current participants in the lawyer regulation system, the panel reviews the special investigator’s decision to close a matter without investigation or dismiss a matter after investigation, and reviews an investigative report to determine whether there is cause to proceed.
Referees
Referees are attorneys or reserve judges appointed by the Supreme Court to perform the following duties.
To conduct hearings in proceedings alleging misconduct or medical incapacity. To conduct hearings on petitions for license reinstatement. To review consensual public or private reprimands submitted by the Director.
Overview of the Lawyer Regulation System
The Wisconsin Supreme Court created the lawyer regulation system to carry out the Court’s constitutional responsibility to supervise the practice of law and protect the public from misconduct by persons practicing law in Wisconsin. The Court has adopted standards of professional conduct for attorneys. The Court confers the privilege to practice law on an attorney conditioned on his or her compliance with those standards. SCR 21.15(2). A failure to comply with the Court’s standards may constitute misconduct or may be evidence of a medical problem.
The Director of the Office of Lawyer Regulation (OLR) is required to investigate any possible misconduct or medical incapacity of an attorney licensed to practice in the State of Wisconsin. SCR 21.03(6)(a). Communications with OLR alleging lawyer misconduct are privileged, and no lawsuit predicated on those communications may be instituted against any grievant or witness. SCR 21.19. Attorneys and grievants may consult with and be represented by counsel at any stage of an investigation. Prior to the filing of a formal complaint or petition, all papers, files, transcripts and communications in an OLR investigation must be kept confidential by OLR. SCR 22.40(1). OLR may, however, provide relevant information to the respondent and the grievant. SCR 22.40(2). Although the Supreme Court Rules provide no sanction for disclosure of a grievance by the respondent or the grievant, OLR requests that those involved in an OLR investigation keep confidential all documents generated by the investigation.
Initially, OLR staff screens all inquiries and grievances concerning attorney conduct. If the allegations made are not within OLR’s jurisdiction, or if the allegations are not supported by a sufficient factual basis, staff will close the file. The grievant may make a written request for the Director’s review of the closure. The Director’s decision is final. After preliminary evaluation, staff may also forward the matter to another agency;
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attempt to reconcile the matter between the grievant and attorney if it is a minor dispute; or refer the matter to the Director for diversion or investigation. Before or after investigation, the Director may divert the matter to an alternative to discipline program, providing that nothing more than minor misconduct is involved, the respondent agrees, and the respondent is eligible to participate. Alternatives to discipline are usually educational programs or monitoring arrangements designed to assist an attorney in improving the quality of his or her practice.
If the grievance sets forth sufficient information to support an allegation of misconduct or medical incapacity, OLR initiates an investigation. OLR sends a letter to the respondent enclosing the grievance and requesting a response within 20 days. In most instances, OLR will forward the attorney’s response to the grievant for comments.
Although OLR staff investigates most matters, OLR refers many matters for investigation by district committee. The committee chairperson can assign the matter to one of the committee’s investigators. Pursuant to SCR 22.04(2), the respondent may request a substitution of a district committee investigator within 14 days of receiving notice of the assignment of the investigator. The respondent shall be granted one such substitution as a matter of right, and any other requests for substitution shall be granted by the committee chairperson for good cause shown. If the committee decides to take sworn testimony regarding a grievance at an investigative meeting, the respondent and the grievant will receive timely notice of the meeting. Committee members elicit pertinent information from witnesses at such a meeting. In any matter referred to committee, the committee will prepare a report summarizing the facts and potential disciplinary violations. That report will be sent to the respondent and grievant for comment.
After the investigation is completed, the Director may dismiss the matter for lack of sufficient evidence of cause to proceed, divert the matter to an alternatives to discipline program, obtain respondent’s consent to a private or public reprimand, or present the matter to the Preliminary Review Committee for a determination of whether there is cause to proceed. In those cases in which the Director dismisses, the grievant may request review of the decision by the Preliminary Review Committee. The decision of the Preliminary Review Committee is final.
If the Preliminary Review Committee determines that the Director has established cause to proceed, the Director may file a complaint with the Supreme Court alleging misconduct. OLR, rather than the grievant, is the complainant in such a matter. If the Director files a complaint, an answer is required within 20 days of service of the complaint. Upon proof of service, the Supreme Court appoints a referee to hear the matter pursuant to SCR 22.13(3). The referee holds a scheduling conference to define the issues and to determine the extent of discovery. The referee then presides at a public hearing which is conducted as a trial of a civil action to the court. SCR 22.16. OLR must prove misconduct or medical incapacity by clear, satisfactory and convincing evidence. SCR 22.38.
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Within 30 days after the conclusion of the hearing, the referee will submit his or her report to the Supreme Court, including findings of fact, conclusions of law, and a recommendation of dismissal or imposition of discipline. OLR or a respondent may file an appeal of the referee's report within 20 days after the report is filed. If no appeal is timely filed, the Supreme Court reviews the referee's report and determines appropriate discipline in cases of misconduct and appropriate action in cases of medical incapacity. The Supreme Court's final dispositions of disciplinary and medical incapacity proceedings are published in the Wisconsin Reports and in The Wisconsin Lawyer.
The Year in Review
Significant Lawyer Regulation System Developments
The number of pending matters declined significantly this year. At the end of the fiscal year, there were a total of 744 matters (including 333 formal investigations), down from 1085 (including 457 formal investigations) at the end of last year.
Processing times decreased. The average processing time for intake matters decreased from 64 days last year to 55 this year. The average processing time for formal investigations decreased from 422 days last year to 386 this year. Overall average processing time increased from 161 days last year to 182 days this year. The percentage of matters completed within 90 days remained the same as last year at 67%. The percentage of matters completed within 180 days decreased from 84% last year to 82% this year.
There was a decrease in the number of older matters during the past year. The number of matters over a year old decreased from 365 last year to 226 this year.
The Preliminary Review Committee elected Attorney Frank LoCoco of Milwaukee chairperson and Attorney Timothy Nixon of Green Bay vice chairperson. The Committee met to consider matters on September 12, 2014, December 12, 2014, March 6, 2015 and June 12, 2015. The Committee considered whether cause to proceed existed in 107 matters, and reviewed the Director’s dismissals in 26 matters. The Board and Office of Lawyer Regulation appreciate the Committee’s exceptional service this past year. Committee meetings will continue quarterly.
The Board of Administrative Oversight elected Attorney Rod Rogahn of Waukesha chairperson and Attorney John P. McNamara of Lancaster vice chairperson. The Board held meetings on September 5, 2014, December 5, 2014, March 6, 2015 and June 3, 2015. The Board made recommendations concerning the budget, monitored implementation of changes recommended by the Gleason – Larkin study, and voted to support petition 14-06 regarding OLR discretion and petition 14-07 regarding electronic procedures for Lawyer trust accounts. Information about these petitions is available on the Supreme Court’s website: www.wicourts.gov.
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The District Committees continue to make a valuable contribution to the system, and are instrumental in resolving matters requiring a depth and breadth of legal and other professional expertise. While the committee’s work involves a significant commitment of time and talent, the results are beneficial and worthwhile.
Special Investigators and the Special Preliminary Review Panel process matters involving allegations against attorneys who serve with the regular components of the regulation system. During fiscal year 2014-2015, special investigators received 32 matters and resolved 34 matters. The Special Preliminary Review Panel met on October 3, 2014, December 5, 2014, March 6, 2015 and June 2, 2015. The Panel considered 2 matters for cause and 9 matters on review.
The alternative to discipline program provides an effective way to improve an attorney’s ability to practice in accordance with high professional standards. Frequently, this is a more effective measure than professional discipline. The Court has authorized diversion to an alternative program in situations where the program will likely benefit the attorney, and where the attorney will not likely harm the public. Alternative programs may include mediation, fee arbitration, law office management assistance, evaluation and treatment for alcohol and other substance abuse, psychological evaluation and treatment, medical evaluation and treatment, monitoring of practice or trust account procedures, continuing legal education, ethics school, and the multi-state professional responsibility examination. During the fiscal year, 148 attorneys were diverted to alternative programs and 151 attorneys completed diversions.
The central intake program provides for the receipt of inquiries and grievances concerning attorney conduct, and for the preliminary evaluation of grievances prior to any formal investigation. Inquiries and grievances may be received by telephone; callers may use a toll free number to contact the Office of Lawyer Regulation. After the preliminary evaluation, the Central Intake staff may forward the matter to another appropriate agency, attempt to reconcile the matter if it is a minor dispute, close the matter if it does not present sufficient information to support an ethical allegation, or refer the matter for investigation or diversion to an alternative to discipline.
Central Intake received 2,300 inquiries and grievances. This is 221 less than the prior year. Of the matters evaluated in Central Intake this past year, approximately fourteen (14%) were forwarded for formal investigation. Eight percent (8%) involved the resolution of minor disputes or grievances that were withdrawn. Four (4%) involved diversion programs. The remaining seventy-four (74%) were closed for lack of sufficient information to suggest an allegation of potential ethical misconduct.
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Trust Account Program
The Trust Account Program is responsible for the administration of Wisconsin’s overdraft notification rule, SCR 20:1.15(h), which requires attorneys to authorize their financial institutions to notify the Office of Lawyer Regulation of overdrafts on their trust accounts and fiduciary accounts. In addition, the Trust Account Program provides education and resources for lawyers and financial institutions regarding trust account regulations and the management of trust and fiduciary accounts.
In April 2015, OLR’s Intake staff began screening all incoming reports of overdrafts on lawyer trust and fiduciary accounts. This work had previously been performed by Trust Account Program staff. Overdrafts reported to OLR due to bank errors and those that meet other criterion for closure without a full investigation are now handled by that department. Prior to the re-assignment of these responsibilities, Intake Program Assistants and Investigators received training from Trust Account Program staff. Overdrafts requiring full investigation continued to be handled by Trust Account Program staff. Formal Investigators will begin handling some of this work in the coming fiscal year.
During Fiscal Year 2015, 107 overdrafts were reported to the OLR, a 20% increase from FY 2014. Overdraft notifications resulted in the following dispositions:
Closed pending Reinstatement 1 Special Investigator – Insufficient Evidence 1 Public Reprimand 2 Private Reprimand 6 Diversion 16 Dismissal after Diversion Program Successfully Completed 12 Dismissal after Investigation 6 Dismissal after Investigation/Advisory Letter 23 Closed without Investigation – Bank Errors 11 Closed without Investigation – Bank Errors/Advisory Letter 3 Closed without Investigation – Collection Account Exception 5
Overdraft investigations occasionally lead to the discovery of record-keeping deficiencies and other concerns that do not warrant the imposition of discipline. In such situations, an advisory letter is sent to the lawyer or law firm, explaining the concerns and providing information and guidance on the requirements of SCR 20:1.15. During Fiscal 2015, OLR sent 26 advisory letters, which included guidance on one or more of the following issues and record keeping requirements:
Availability of Funds for Disbursement 8 Checks – Memo, Signatory and Endorsement Issues 5 Maintenance Account (to cover bank charges) 4 Monthly Reconciliation Deficiencies 9 Transaction Register/Client Ledger Deficiencies 7 Other: Credit Card Trust Accounts, Deposit Slips, Internet 12 Transactions, Software Deficiencies, Supervision of Non-lawyers
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Mary Hoeft Smith, OLR’s Trust Account Program Administrator along with Travis Stieren and Robert Weber, OLR Overdraft Investigators, presented ½-day seminars on trust account management on October 3, 2014, and May 1, 2015. Attorneys Edward Hannan (Waukesha) and Mark A. Peterson (Milwaukee) assisted OLR at these seminars. For the first time, the spring seminar included a presentation by Atty. Hannan on lawyers’ fiduciary roles and obligations while Atty. Peterson presented the practitioner’s perspective on trust account record keeping. The seminars are open to lawyers and law office staff members, and are required in connection with trust account diversions. Trust account management was also one of the topics covered at the Professionalism Seminar on November 7, 2014.
The Committee on E-Banking concluded its work on the trust account rule, which had begun in June of 2012. The proposed rule changes will enable lawyers to utilize electronic banking in connection with their trust accounts. Safeguarding funds and assuring auditable electronic records maintained by both the financial institution and the lawyer were of primary concern. The Committee’s final meeting was held on July 14, 2014. On December 17, 2014, the Office of Lawyer Regulation filed a Petition for Amendment to Rules relating to Electronic Banking (Rule Petition 14-07). The State Bar Board of Governors considered the petition at its meetings on January 30, 2015 and April 24, 2015. At the April meeting, the Board of Governors voted to support the petition. As of June 30, 2015, the Supreme Court had not yet scheduled a public hearing on it.
The members of the E-Banking Committee were: Atty. Kristine Cleven (Wisconsin Bankers Association); Atty. Diane Diel (Family Law); Atty. Dean Dietrich (Ethics/Defense Counsel); Claire Fowler (PRC); Mary Gilmeister (Wisconsin ACH Association-WACHA); Mary Hoeft Smith (OLR); Atty. Aviva Kaiser (State Bar); Matthew Katz (WI Association of Legal Administrators-WALA) Rick McGuigan (Community Bankers of Wisconsin-CBW); Atty. John McNamara (BAO); Robert Mueller (Estates and Trusts); Atty. Gerry Mowris (Criminal Law); Atty. Tim Pierce (State Bar); Atty. Keith Sellen (OLR); Atty. Tom Shellander (Real Estate); Atty. Bill Sturm (Collections); De Ette Tomlinson (WI Trust Account Foundation-WisTAF); Atty. Adam Wiensch (Estates and Trusts); and Atty. Jo Whiting (WI Credit Union League).
In October of 2013, in connection with its work on the trust account rule and related rules, the E-Banking Committee questioned whether it would be possible for lawyers to generate their trust account records via the same data that would direct their financial institutions to move funds to and from their trust accounts. A Banking Interface Committee was subsequently formed. That Committee met on September 30, 2014. Development of an interface between law firms and their financial institutions remains a goal; however, financial considerations will affect its implementation.
The members of the Banking Interface Committee are: Mary Gilmeister (WACHA); Mary Hoeft Smith (OLR); Matthew Katz (WALA); Rick McGuigan (CBW); Nerino Petro (former Practice Management Advisor, LOMAP); Tison Rhine (LOMAP) Atty. Keith Sellen (OLR); and Atty. Bill Sturm (Collections); with Pam Kelly and Tim Hinz (FIPCO) as consultants.
Further information regarding the Trust Account Program is available on the Office of Lawyer Regulation’s web page: www.wicourts.gov/olr.
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Survey of Matters
Overall Processing
The pending caseload is 744 matters, 341 matters less than a year ago. The average processing time increased from 161 days to 182 days. The percentage of matters resolved within 90 days remained the same as last fiscal year at 67%. Those resolved in 180 days decreased from 84% last fiscal year to 82% this fiscal year. The number of pending matters over a year old decreased significantly this year, from 365 to 226.
Grievances
In an effort to inform the Supreme Court, the Bar, and the public of the source and nature of the grievances received and the areas of practice from which grievances arise, Appendices 8A – 8C break down by category the grievances received between July 1, 2014 and June 30, 2015. In describing the nature of the grievances, only the most serious allegation is reflected.
The allegations most commonly made in a grievance were lack of diligence by the lawyer entrusted with the legal matter (19.87%), improper advocacy (16.2%), and lack of communication (10.83%). See Appendix 8A. The two areas of practice that produced the largest number of grievances during the year were criminal law and family law (see Appendix 8B). It is important to point out that while clients file the majority of grievances, anyone can file a grievance. Appendix 8C illustrates the sources from which grievances were received during the fiscal year.
Discipline
In fiscal year 2014-2015, 58 attorneys received a public disciplinary sanction, including 6 revocations, 5 revocations by consent and 26 suspensions. There were 13 public reprimands imposed by the Supreme Court and 8 consent reprimands issued by Supreme Court Referees. Additionally, the court temporarily suspended 14 attorneys, and dismissed 2 disciplinary complaints. At the end of the year, 107 formal disciplinary matters were pending in the Supreme Court, down from 176 last year. Appendix 9 shows the numbers and percentages of attorneys receiving public discipline since fiscal year 1979-1980. Appendix 10 shows the type of misconduct found in public discipline decisions. Appendix 11 shows the areas of practice in which discipline was found in public decisions.
A Referee has authority, under SCR 22.09(3), to issue private reprimands pursuant to an agreement between the Director and the attorney. Typically, a private reprimand is imposed for an isolated act of misconduct that caused relatively minor harm. The Director does not enter an agreement for a private reprimand if public disclosure of the attorney’s misconduct is necessary to protect the public. Private reprimands are retained
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permanently and are available as an aggravating factor on the issue of sanction if the attorney commits subsequent misconduct. As a means of educating the Bar, summaries of private reprimands, without any reference to or identification of the attorney involved, are printed every six months in the Wisconsin Lawyer magazine.
During this fiscal year, 28 attorneys received private reprimands. The Supreme Court issued 1 private reprimand. One Hundred Forty Eight attorneys entered the alternatives to discipline program and One Hundred Fifty One attorneys completed an alternative program.
Other dispositions included:
1910 inquiries that did not warrant investigation. These matters were closed after the initial intake evaluation because there was insufficient information to support an allegation of misconduct or were disputes that were resolved without investigation.
69 dismissals after investigation in cases where there was insufficient evidence of a violation.
53 dismissals with an advisory letter. This disposition occurs in cases where the evidence is insufficient to prove a violation, but where practical advice would be helpful to an attorney.
52 closed pending petition for reinstatement.
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SUMMARY OF PUBLIC DISCIPLINE Office of Lawyer Regulation July 1, 2014 thru June 30, 2015
Attorney Admitted Location Decided Effective
Revocation Booker, Emory H., III 6/20/2000 Mequon, WI 1/16/2015 1/16/2015 Lamb, William R. 4/18/1989 Menomonie, WI 6/9/2015 6/9/2015 Lister, Ryan D. 1/20/1976 Wausau, WI 1/28/2015 2/27/2015 Mandelman, Michael D. 1/16/1980 Mequon, WI 8/1/2014 5/29/2009 Semancik, Jolie M. 5/23/1994 Greenfield, WI 3/18/2015 3/18/2015 Trewin, Michael G. 6/17/1985 New London, WI 10/7/2014 11/7/2014
Revocation by Consent Boyle, Bridget Eileen 5/22/1995 Milwaukee, WI 7/8/2014 7/8/2014 Cannaday, Erika A. 9/19/2005 Oconomowoc, WI 2/10/2015 2/10/2015 Carranza, Pablo 6/21/2005 Beloit, WI 11/13/2014 11/13/2014 Laux, Sarah E.K. 5/17/2004 Mequon, WI 6/24/2015 6/24/2015 Stubbins, Joshua F. 1/23/2007 Rockville, MD 10/14/2014 10/14/2014
Three Year Suspension Bryant, Andrew J. 9/22/1992 Verona, WI 1/28/2015 1/28/2015 Carter, John J. 5/20/1974 Greenfield, WI 12/12/2014 1/11/2015 D’Arruda, Robert P. 5/24/1993 Milwaukee, WI 6/25/2015 6/25/2015
Two Year Suspension Armstrong, Jenny 6/19/1979 Middleton, WI 6/24/2015 7/24/2015 Koenig, John F. 9/30/1997 Milton, WI 2/17/2015 3/19/2015 Kranitz, Richard A. 6/13/1969 Grafton, WI 7/1/2014 8/9/2013 Moss, David 7/9/2009 Poulsbo, WA 7/30/2014 7/30/2014
One Year Suspension Chavez, Ernesto 9/27/2000 Olympia, WA 4/17/2015 4/17/2015 Guenther, Arik J. 9/14/1981 Jackson, WI 11/7/2014 11/7/2014 Isaacson, Naomi 9/27/2000 St. Paul, MN 3/20/2015 3/20/2015 Nett, Rebekah M. 12/17/2002 Inver Grove, MN 8/20/2014 8/20/2014
Thirty Month Susp. Dahle, Tina M. 1/28/2002 Green Bay, WI 3/18/2015 3/18/2015 Evenson, Jon 8/23/2001 Madison, WI 4/16/2015 4/16/2015
Eighteen Month Susp. Voss, Richard W. 6/7/1976 Rhinelander, WI 7/18/2014 9/5/2014
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Attorney Admitted Location Decided Effective
Six Month Suspension Stockman, Louis, A. 8/24/1999 Duluth, MN 10/7/2014 10/7/2014
Five Month Suspension McClure, Thomas J. 12/16/1980 Delafield, WI 3/10/2015 4/9/2015
Four Month Suspension Belke, Paul G. 6/18/1996 Princeton, WI 4/24/2015 5/24/2015
90 Day Suspension Briggs, Michael J. 6/20/1975 Madison, WI 10/28/2014 11/28/2014 Carson, Christopher S. 5/18/1992 New Berlin, WI 3/10/2015 4/9/2015 Dade, John R. 1/11/1983 Whitewater, WI 8/21/2014 9/25/2014 Hammis, James E. 5/23/1988 Stoughton, WI 2/17/2015 3/9/2015 Wood, Everett E. 6/17/1992 Richfield, WI 10/21/2014 10/21/2014
60 Day Suspension Bartz, David J. 9/13/1989 Madison, WI 6/25/2015 6/25/2015 Lemanski, David A. 10/21/2002 Dubuque, IA 2/5/2015 3/7/2015 McKinley, Geneva E. 4/23/1996 Milwaukee, WI 7/1/2014 7/31/2014 Strizic, Michael 10/20/1975 Mesa, AZ 6/19/2015 6/19/2015
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SUMMARY OF PUBLIC DISCIPLINE Office of Lawyer Regulation July 1, 2014 thru June 30, 2015
Attorney Admitted Location Decided____
Court Public Reprimand Albert, Jerry R. 5/24/1971 Tucson, AZ 8/20/2014 Creedy, Carl H. 6/18/1980 Beloit, WI 10/14/2014 Curtin, John M. 8/25/1987 Phoenix, AZ 7/24/2014 Din, Khaja M. 7/18/2007 Chicago, IL 1/22/2015 Fischer, B. C. 4/23/2002 Duluth, MN 8/20/2014 Hudec, Patrick J. 5/21/1979 East Troy, WI 7/1/2014 Mitz, Howard B. 8/28/1973 Mequon, WI 4/3/2015 Ruppelt, Mark A. 5/23/1994 Milwaukee, WI 7/8/2014 Sayaovong, Amoun Vang 4/9/2007 St. Paul, MN 7/30/2014 Sommers, Joseph L. 9/3/1992 Oregon, WI 8/5/2014 Steffes, Richard W. 5/26/1970 Beaver Dam, WI 12/18/2014 Stobbe, Jeff 5/20/2002 Muskego, WI 4/28/2015 Tishberg, Mark S. 4/4/1990 Milwaukee, WI 10/28/14
Consent Public Reprimand Grace, David L. 9/29/1978 Wisconsin Rapids, WI 4/21/2015 Goode, Robert M. 11/12/2001 Portland, OR 7/24/2014 Delforge, Dean P. 5/21/1984 Brookfield, WI 7/14/2014 Nikolay, Dale R. 5/22/1989 Glendale, WI 1/27/2015 Tarara, Mario J. 9/29/1998 Rockford, IL 1/7/2015 Strouse, Paul A. 10/3/1991 Milwaukee, WI 5/12/2015 Saldana, David 6/19/1984 Racine, WI 2/4/2015 Polacek, Paul D. 4/24/2001 Wisconsin Dells, WI 4/29/2015
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Reinstatements
During fiscal year 2014 – 2015, the Court completed action on 37 reinstatement petitions, 32 administrative and 5 disciplinary. Following is a summary of reinstatements.
SUMMARY OF REINSTATEMENTS Office of Lawyer Regulation July 1, 2014 thru June 30, 2015
Attorney Location Received Decided Outcome
Administrative Arellano, Isela C. Bolingbrook, IL 10/28/14 3/26/15 Granted Beckstedt, Carl A. III Christiansted, VI 12/2/14 5/19/15 Granted Biese, Melita M. Milwaukee, WI 2/11/14 8/25/14 Granted Blumenthal, Lauren A. Milwaukee, WI 10/30/14 4/13/15 Granted Butler, Kenneth D. Duluth, MN 6/10/14 11/6/14 Granted Cook, Jonathan D. Manchester, 3/4/14 7/25/14 Granted England Dodge, Michael A. Provo, UT 12/26/13 7/16/14 Dismissed Dotson, Mark A. Lansing, MI 11/10/14 2/26/15 Granted Espinosa, Anthony A. Newmarket, ON 6/5/14 1/6/15 Granted Fina, Mark Seattle, WA 11/3/14 4/14/15 Granted Frank, Susan Edina, MN 10/24/14 10/16/15 Granted Giampietro, Gordon P. Milwaukee, WI 6/26/13 10/6/14 Dismissed Greco, Amedeo Madison, WI 7/14/14 10/7/14 Granted Guerin, Ralph J. Deforest, WI 1/29/14 1/17/14 Granted Hauff, Charles F., Jr. Phoenix, AZ 5/28/14 1/22/15 Granted June, Adam D. Buffalo Grove, IL 5/9/14 9/26/14 Granted Kauffman, Kurt A. Chicago, IL 5/28/13 7/22/14 Granted Kaufman, Oliver Portland, OR 12/11/13 9/9/14 Granted Klem, Jonathan P. Kansas City, MO 9/25/14 1/28/15 Granted Ledbetter, Darryl O. Smyrna, GA 2/26/13 8/28/14 Granted Leib, Robert E. Mequon, WI 9/22/14 12/15/14 Granted Liang, Fan Beijing 1/14/14 7/22/14 Granted Mahoney, Kathleen M. Minneapolis, MN 6/25/14 12/8/14 Granted Murua, Tina A. Yacker Grand Rapids, MI 9/4/13 10/9/14 Granted Oemichen, Mary Anne New Glarus, WI 5/6/14 9/9/14 Granted Pham, Andrew T. Modesto, CA 2/19/14 7/29/14 Granted Seifert, James J. Saint Paul, MN 10/16/14 3/31/15 Granted Sloan, Denmark V. Clinton Township, MI 3/25/14 3/3/15 Denied Spangler, Georlen K. Las Vegas, NV 12/10/14 4/16/15 Granted Tumm, Brian R. Milwaukee, WI 4/29/14 9/12/14 Granted Williams, JoAnne M. Vernon Hills, IL 9/23/14 2/13/15 Granted Yunek, Jay P. Eden Prairie, MN 5/6/13 9/24/14 Dismissed
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Disciplinary Balistrieri, John J. Milwaukee, WI 3/30/12 8/12/14 Denied Jaconi, Jevon J. Green Bay, WI 8/7/13 10/7/14 Denied Knickmeier, Jeffrey D. McFarland, WI 4/8/13 11/14/14 Dismissed Reitz, Jeffrey A. Milwaukee, WI 2/12/14 2/4/15 Granted Siderits, Matthew C. Pewaukee, WI 10/15/14 6/4/15 Granted
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Finances
The legal profession is unique in assuming the costs for policing itself. An assessment on every member of the State Bar of Wisconsin pays the costs and expenses of the lawyer regulation system, including all the costs and expenses of the Office of Lawyer Regulation, District Committees, Preliminary Review Committee, and Board of Administrative Oversight. To help offset the costs, the Office of Lawyer Regulation collects costs from attorneys disciplined in formal court proceedings, and fees on petitions for reinstatement and pro hac vice applications. Collections for fiscal year 2014-2015 were approximately $233,800.
The budget for fiscal year 2015-2016 is $3,556,400, down from $3,614,000 last year. The assessment will remain $155.00. The assessment is in line with disciplinary assessments for neighboring jurisdictions: $200.00 for Illinois, $175.00 for Iowa, $110.00 for Michigan, and $122.00 for Minnesota. The assessment for Colorado, which has a similar program and lawyer population, is $185.00.
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APPENDIX I
ORGANIZATIONAL CHART OF THE LAWYER REGULATION SYSTEM
SUPREME COURT
PRELIMINARY BOARD OF OFFICE OF SPECIAL SPECIAL REVIEW ADMIMISTRATIVE LAWYER INVESTIGATIVE PRELIMINARY REFEREES COMMITTEE OVERSIGHT REGULATION PANEL REVIEW PANEL
CENTRAL FORMAL TRUST ACCOUNT DISTRICT INTAKE INVESTIGATIONS PROGRAM LITIGATION COMMITTEES
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APPENDIX 2
COMPOSITION OF THE LAWYER REGULATION SYSTEM
WISCONSIN SUPREME COURT
Chief Justice Patience D. Roggensack Justice Shirley S. Abrahamson Justice Ann Walsh Bradley Justice N. Patrick Crooks Justice David T. Prosser, Jr. Justice Annette Kingsland Ziegler Justice Michael J. Gableman
OFFICE OF LAWYER REGULATION
Keith L. Sellen, Director
William Weigel, Litigation Counsel Julie M. Spoke, Assistant Litigation Counsel Sheryl St. Ores, Assistant Litigation Counsel Jonathan E. Hendrix, Assistant Litigation Counsel
John K. O’Connell, Deputy Director-Investigations Elizabeth Estes, Deputy Director-Intake Mary Hoeft Smith, Trust Account Program Administrator Heidi T. Johnson, Office Manager
Investigative Staff:
Kori Anderson Anne Blood Kenneth E. Broderick Lorry Eldien Cathe Hahn Emily Kokie Beth M. Kugler Michael Losse Alice O’Mahar Sarah Peterson Melody Rader-Johnson Cynthia Schally Michael Shull Travis Stieren David Sussens Robert F. Weber Karl Wyler Jonathan Zeisser
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Support Staff:
Janet Byrne Maura Ekstrom Jennifer Hanrahan Mary McMillan Annette Smith Susan Stock Deborah White
RETAINED COUNSEL
Matthew F. Anich Ashland Wayne A. Arnold Rice Lake William F. Bedker, Jr. Watertown Gregg M. Herman Milwaukee Kim M. Kluck Madison Robert G. Krohn Janesville Ronald P. LeFever Brookfield Anne MacArthur Lake Mills Richard Mozinski Manitowoc Matthew J. Price Milwaukee James C. Reiher Waukesha Paul W. Schwarzenbart Madison Gregory P. Seibold Florence Brenda Sunby Merrill Denis R. Vogel Madison
DISTRICT COMMITTEE MEMBERS *Public Members
District No. 1 (Jefferson, Kenosha, Walworth Counties) (Chairperson) F. Mark Bromley Whitewater (Vice Chair) Timothy J. Geraghty Kenosha Patrick J. Anderson Kenosha *William J. Brydges Kenosha *Dr. Randall J. Hammett Kenosha *Jerome Honore Kenosha C. Bennett Penwell Whitewater Brenda J. Dahl Kenosha *Charles F. Taylor Whitewater Christine Tomas Lake Geneva *Jerome K. Laurent Whitewater Heather Iverson Kenosah *Charles P. Frandson Fort Atkinson
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District No. 2 (Milwaukee County) (Chairperson) Bradley S. Foley Milwaukee (Vice Chair) Christopher J. MacGillis Wauwatosa *William Ward Milwaukee Keith D. O’Donnell Racine David W. Simon Milwaukee Rebecca K. Blemberg Milwaukee Michele M. Ford Milwaukee Thomas A. Merkle Milwaukee Colleen D. Ball Wauwatosa James B. Gehrke Wauwatosa Frank R. Terschan Milwaukee *Neiland Cohen Milwaukee *Frank Valentine Bialek West Allis *Richard Ippolito Milwaukee *Gary Nosacek Milwaukee Monte Weiss Milwaukee William T. Stuart Milwaukee Sarah Fry Bruch Milwaukee Lynn Laufenberg Milwaukee *Carlos A. Buritica Whitefish Bay *J. Dain Maddox Wauwatosa Brett Ludwig Milwaukee Joseph Welcenbach Milwaukee James Moczydlowski South Milwaukee Cedric Cornwall Milwaukee Heather Gatewood Milwaukee Jacques C. Condon Milwaukee *Arlyn Adams Sturtevant Thomas Whipp Shorewood *Ron Blazel Milwaukee *Keith J. Roberts Greendale Robert E. Nailen Milwaukee Christopher J. MacGillis Wauwatosa David B. Karp Milwaukee Michael Laufenberg Milwaukee Paul Bargren Milwaukee *Kristina Ehnert Oak Creek *Bruce Harvey Milwaukee Richard Casper Milwaukee Roy E. Wagner Milwaukee *Barbara J. Miller Milwaukee Daniel Treuden Oak Creek Donal M. Demet Milwaukee Harvey Kurtz Milwaukee David N. Iancu Milwaukee
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District No. 3 (Winnebago, Fond du Lac, Green Lake Counties) (Chairperson)Timothy R. Young Oshkosh Kristi L. Fry Fond du Lac Elizabeth J. Nevitt Neenah Beth Osowski Oshkosh *Kristy Bradish Oshkosh *Mary Jo Keating Fond du Lac Peter Culp Oshkosh Kennard N. Friedman Oshkosh *Susan T. Vette Oshkosh *Thomas E. Kelroy Fond du Lac *John Fairhurst Fond du Lac Katherine Seifert Menasha *Paul M. Baker Winneconne *Julitte Sterkens Oshkosh
District No. 4 (Door, Kewaunee, Manitowoc, Calumet, Sheboygan Counties) (Chairperson) Natasha Torry-Morgan Sheboygan (Vice Chair) Roberta A. Heckes Adell Judge Robert Landry Egg Harbor Mary Lynn Donohue Sheboygan *Dr. Alan V. White Manitowoc *Rev. Richard York Plymouth *Donald A. Schwobe New Holstein Barry S. Cohen Elkhart Lake *James Stecker New Holstein William F. Fale Sheboygan *Suzanne J. Wegner Plymouth Susan Schleisner Elkhart Lake *Victoria Cerinich Sturgeon Bay
District No. 5 (Crawford, LaCrosse, Richland, Vernon, Monroe, Trempealeau, Jackson, Clark, Buffalo, Pepin Counties) (Chairperson) Kara M. Burgos La Crosse Paul B. Millis Black River Falls Jon D. Seifert Durand Michael C. Ablan LaCrosse Bruce J. Brovold Arcadia *James W. Geissner La Crosse Stephanie M. Hopkins Viroqua Daniel C. Arndt Sparta Christopher Doerfler La Crosse *James Hanson Viroqua *Richard A. Mertig Black River Falls David Russell La Crosse 22 67 Back to Table of Contents
*David Campbell La Crosse Bernardo Cueto La Crosse
District No. 6 (Waukesha County) (Chairperson) Gary Kuphall Waukesha Rosemary June Goreta Brookfield Professor Ramon A. Klitzke Waukesha Daniel P. Murray Waukesha *Robert F. Hamilton Hartland Martin Ditkof Brookfield Michael J. Jassak Milwaukee Linda S. Coyle Waukesha Margaret G. Zickuhr Grafton Paul E. Schwemer Delafield Brad A. Markvart Brookfield Nelson E. Shafer Menomonee Falls *Theresa M. Peterman Waukesha *Gregory J. Ksicinski Waukesha Stephen C. Raymonds Menomonee Falls *Telemachos Agoudemos Big Bend *James C. Wenzler Johnson Creek Raymond Schrank Muskego
District No. 7 (Wood, Portage, Waupaca, Waushara, Adams, Juneau, Marquette, Sauk, Columbia Counties) (Chairperson) Thomas M. Kubasta Wautoma *David A. Korth Marshfield *LaVinda L. Carlson Reedsburg Leo L. Grill Baraboo Kaye E. Anderson Waupaca Stephen D. Chiquoine Reedsburg *Alan K. Peterson Mauston *Susan G. Martin Portage *Philip Baebler Lodi Erik C. Johnson Montello *Charles W. Nason Stevens Point
District No. 8 (Dunn, Eau Claire, Pierce, St. Croix Counties) (Chairperson) Jay E. Heit Eau Claire R. Michael Waterman Hudson *Edward Hass Ellsworth *Paul W. Schommer Hudson Tracy N. Tool River Falls Carol N. Skinner Hudson Phillip M. Steans Menomonie Gregory S. Nicastro Altoona *Theresa Johnson Hudson 23 68 Back to Table of Contents
Mark N. Mathias Eau Claire *Kristen Ainsworth River Falls *Brad Nemec Somerset *Linda M. Jorgenson River Falls
District No. 9 (Dane County) (Chairperson) Thomas S. Hornig Madison (Vice Chair) Jennifer Nashold Madison Thomas Shellander Madison Anne M. Blood Madison Andrew Clarkowski Madison *Patrick Delmore Madison Jesus Garza Madison Aaron N. Halstead Madison *Norman Jensen Madison Robert J. Kasieta Madison Jennifer S. Lattis Madison *Larry McCray Madison *Larry Nesper Madison *Robert G. Owens Madison *Theron E. Parsons IV Madison *Kathleen M. Raab Madison Megan A. Senatori Madison *Consuelo Lopez Springfield Madison Janice K. Wexler Middleton *Kenneth H. Yuska Madison *John Zerbe Madison Michele Perreault Madison James R. Troupis Middleton Briane F. Pagel Jr. Madison *Barbara Mortensen Madison *Richard C. Seaman Fitchburg *Lynn M. Leazer Verona Jon Callaway Madison Davis S. Kowalski Madison Jennifer M. Krueger Madison Timothy Edwards Madison Jason J. Knutson Madison *Jeffrey B. Roberts Madison James W. McNeilly Madison Roger Flores Verona Betty Eberle Madison *Christopher D. Washburn Blue Mounds Harvey Wendel Madison
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District No. 10 (Marinette, Menominee, Oconto, Outagamie, Shawano Counties) (Vice Chair) Michael F. Brown Appleton *Guy T. Gooding Sobieski *Stephen C. Ware Appleton Gerald L. Wilson Marinette Laura C. Smythe Appleton *Connie M. Seefeldt Coleman Tony A. Kordus Bonduel Robert Sisson Appleton *Terry Hilgenberg Shawano Hon. Leonard Kachinsky Neenah Hon. Catherine C. Stichmann Crivitz
District No. 11 (Douglas, Bayfield, Iron, Ashland, Sawyer, Washburn, Burnett, Price, Polk, Barron, Rusk, Taylor, Chippewa Counties) (Chairperson) Craig Haukaas Washburn *Mary Ann King Chippewa Falls *Gene Anderson Bloomer Timothy T. Sempf Amery *Elizabeth Esser Spooner Deborah Asher Chippewa Falls *Ms. Erny Heiden Conrath Annette M. Barna Ladysmith John R. Carlson Washburn Amanda L. Wieckowic Chetek *John Bennett Washburn Parrish J. Jones Superior
District No. 12 (Green, Rock, Lafayette, Iowa, Grant Counties) (Chairperson) Dan D. Gartzke New Glarus James A. Carney Janesville *Michael L. Furgal Monroe Jody L. Cooper Janesville Melissa Brooke Joos Beloit Carolyn L. Smith Dodgeville Margaret M. Koehler Mineral Point *William Hustad Monticello *Dennis L. Everson Monroe James D. Wickhem Janesville *Sheriff Robert D. Spooden Janesville *Larry Wolf Lancaster *Lori R. Bienema Janesville Kelly Mattingly Janesville Peter Herman Madison
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District No. 13 (Dodge, Ozaukee, Washington Counties) (Chairperson) Joseph G. Doherty West Bend *Bonnie L. Schwid Mequon Daniel L. Vande Zande Waupun Christine Eisenmann Knudtson West Bend *Mark L. Born Beaver Dam Michael P. Herbrand Grafton John A. Best West Bend *Mr. Robert Blazich Thiensville *Ramona Larson Mequon Annamarie A. Wineke Watertown
District No. 14 (Brown County) (Chairperson) Bruce R. Bachhuber Green Bay *Richard Allcox Green Bay Thomas V. Rohan Green Bay *Debra L. Bursik DePere Edward J. Vopal Green Bay *Joseph Neidenbach Green Bay Robert Gagan Green Bay *Jim Marshall Green Bay Ann C. Weiss Green Bay Jodi Arnt Labs Green Bay Melissa Thiel Collar Green Bay Robert Janssen De Pere *Wendy Scattergood Green Bay
District No. 15 (Racine County) (Chairperson) Mark F. Nielsen Racine (Vice Chair) Robert Keller Racine *Rev. Thomas Chryst Racine *Patricia Hoffman Burlington *Peter Smet Burlington John J. Buchaklian Racine Patricia J. Hanson Racine Timothy J. Pruitt Racine Robert K. Weber Racine *Frank Konieska Burlington Kristin Cafferty Racine Lincoln K. Murphy Racine
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District No. 16 (Forest, Florence, Langlade, Lincoln, Marathon, Oneida, Vilas Counties) Ginger Murray Madison Laura K. Fitzsimmons Ringle Lisa Brouillette Florence *Monty Raskin Wausau *John P. Coleman Rothschild James P. Lonsdorf Schofield Daniel R. Peters Wausau Peter M. Young Wausau
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PRELIMINARY REVIEW COMMITTEE
Attorney Frank Lo Coco, Chairperson Milwaukee, WI
Frank Lo Coco is a share holder in the Milwaukee office of Whyte, Hirschboeck, Dudek, S.C. where he is a Practice Group Leader for the firm’s litigation group. He is a 1983 graduate of the University of Dallas (B.A. Philosophy) and a 1986 graduate of the University of Wisconsin law school. He practices primarily in the area of civil litigation and he has tried cases to verdict in Wisconsin and across the country. For nine years he served as an investigator for the District 2 Investigative committee of OLR in Milwaukee. Thereafter, he served for six years as a Special Investigator for the Wisconsin Supreme Court. He has also been actively involved in the community serving as a member of the board of directors for Marquette University High School for six years, with three years as its chair. He has been married for 28 years to his wife Lydia. Together they are raising their eight children, one of whom is also admitted to the Wisconsin bar.
Attorney Timothy Nixon, Vice Chairperson Green Bay, WI
Tim Nixon is a commercial lawyer representing clients in state and federal courts as the lead attorney for Godfrey & Kahn S.C.’s Business Finance and Restructuring practice group. Tim earned his master’s degree in public policy and administration and his law degree from the University of Wisconsin Madison. Prior to graduate school, Tim served as a ship’s officer in the Merchant Marine for nine years. In addition, he has taught for ten years as an adjunct faculty member at his alma matre, the University of Wisconsin Green Bay. Tim has received a number of awards in recognition of his community service including the “Leaders in the Law” award from the Wisconsin Law Journal, “The Judge John W. Reynolds Community Building Award” from the Eastern District of Wisconsin Bar Association, and the “Distinguished Alumni Award” from the UW-Green Bay Alumni Association.
Attorney Robert J. Asti Cedarburg, WI
Attorney Robert J. Asti has practiced in Milwaukee, and in 1983 he joined the Cedarburg Wisconsin law firm of Levy & Levy S.C. where he focuses primarily on litigation. He is admitted to practice before all Wisconsin State Courts, Federal Courts for the Eastern and Western Districts of Wisconsin, 7th Circuit U.S. Court of Appeals, and the U.S. Supreme Court. He is a member of the State Bar of Wisconsin, the American Association for Justice, and the Ozaukee County Bar Association (past president). Attorney Asti received a B.B.A. from the University of Wisconsin – Milwaukee, and a M.B.A. and a J.D. from Marquette University.
Attorney Asti has served as a member on several Wisconsin State Bar Committee’s, such as, the Professionalism Committee (2011 to 2013), two terms on the Board of Governors Committee (2005 to 2007 and 2007 to 2009), the Board of Bar Examiners Review
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Committee (1997 to 2011) and past Chair (2004 to 2011), and the Alternative Dispute Resolution Section Board of Directors (1996 to 2003) and past Secretary.
Mr. Dennis Blasius Waukesha, WI
Dennis Blasius is currently the Director of Field Operations in the U.S. Consumer Product Safety Commission’s (CPSC) Office of Compliance and Field Operations. He has been with CPSC for 24 years, serving in a variety of supervisory and management roles in both the Compliance and Field Investigations Directorates. Dennis is responsible for working with the compliance, epidemiology and legal staffs to coordinate civil and criminal product safety investigations nationwide. He is responsible for CPSC’s nationwide field staff and also coordinates the CPSC’s internet surveillance unit. Dennis is a frequent trainer and speaker throughout the U.S. and internationally regarding consumer product safety compliance and enforcement topics. Before moving to the federal government, Dennis was a Detective with the Waukesha County Sheriff’s Department. Dennis has a B.S. degree in Criminal Justice, a Master’s degree in Managerial Communication and a Certificate in Executive Leadership from Cornell University. He served a three year term as a commissioner on the City of Pewaukee Police and Fire Commission (2008-2010) and also served on the committee that developed the city’s current ethics policies for employees and elected officials. Dennis is a previous volunteer with the Office of Lawyer Regulation, serving as a member of the District Six Investigative Committee from 2003-2005.
Ms. Kristine M. Deiss West Bend, WI
Kris was born, raised and educated in West Bend, Wisconsin. She obtained her Bachelor Degree in Liberal Studies from the University of Wisconsin, Oshkosh. She has worked in the Washington County court system for 30 years as a Judicial Assistant, Register in Probate and Clerk of Juvenile Court and for 14 of those years as the elected Clerk of Courts retiring in 2011. She has served on several court committees including Records Management Committee and the Policy and Planning Advisory Committee for the Supreme Court. She has also served on the Common Council for the City of West Bend and was elected West Bend’s first woman Mayor serving from 2008-11. She currently serves on the Washington County Board of Supervisors.
Mr. John Flannery Green Bay, WI
John Flannery has served as a law enforcement officer for the past twenty years, starting his career as a reserve police officer with the Village of Saukville, WI. In 2009, he retired from the Brown County Sheriff’s Department, Green Bay, to accept a full time faculty position at Northeast Wisconsin Technical College. Presently John instructs police recruits in legal, tactical and relational components of the law enforcement profession. His duties also include performing as a law enforcement planner for 4th Class Cities and Villages. John advises smaller departments on issues ranging from policy 29 74 Back to Table of Contents
development, crime analysis, emergency management, crime prevention and grant funding. John retains his sworn policing certification, working as a police officer for the Village of Pulaski and the University of Wisconsin – Green Bay Public Safety Department.
During his tenure at the Brown County Sheriff’s Department, John performed as a lead officer for a contract municipality, the Village of Allouez. He was responsible for the preparation of budget reports, review of legal documents and RFPS, ordinance development and reporting of crime trends in the village. In 2001 John was awarded the ‘Wisconsin Law Enforcement Officer of the Year’ by then Attorney General, James Doyle. In 2009, the Wisconsin League of Municipalities recognized John with the ‘Good Government Award’ for his development of the police cadet program that currently serves local communities in northeastern Wisconsin.
John presently serves on the Police Training and Standards Advisory Committee for the Wisconsin Department of Justice. For the past four years he has been actively collaborating with Professor Michael Scott of UW-Madison Law School to promote problem oriented policing strategies to the Wisconsin law enforcement community. John created the first Financial Abuse Specialist Team (FAST) in Brown County; a committee of service professionals dedicated to protecting senior citizens from financial abuse and fraud. From 2005 to the present, John has served as a member of the Bishop’s Independent Review Board for the Catholic Diocese of Green Bay.
Attorney Lance Grady Waukesha, WI
Lance S. Grady was awarded a J.D. by Marquette University Law School in 1985. He is one of the founding members of Grady, Hayes & Neary, LLC, a law firm specializing in civil trial litigation. He was recently nominated to the 2014 Wisconsin Super Lawyers list in the area of insurance coverage and was the recipient of the Wisconsin Law Journal’s 2004 Leaders in the Law Award. In 2001, he was appointed to serve as a referee. In 2004, he was appointed to serve as an investigator on District Committee 6. He remained in this capacity until 2009 when he was appointed to chair the committee. He is further active in his community serving as a lieutenant on the Town of Delafield Fire Department and holds a valid Emergency Medical Technician-Intermediate 99 license issued by the State of Wisconsin. He further is in charge of the Town of Delafield Fire Department Search and Rescue Dive Team and has been awarded the “Humanitarian of the Year” award by the Wisconsin Federated Humane Societies, Inc. and the “Firefighter of the Year” award by the Town of Delafield.
Attorney Martin W. Harrison Whitewater, WI
Martin Harrison received his undergraduate degree at the University of Wisconsin- Milwaukee, and attended Marquette Law School. He has been licensed in Wisconsin as an attorney for 43 years. He belongs to the Wisconsin State Bar, Jefferson County Bar, Walworth County Bar, as well as the Wisconsin Association for Justice. His primary focus has been in trial work and he is also an attorney for the city of Whitewater. He has 30 75 Back to Table of Contents
volunteered with regard to legal educational programs for high school students, and provided pro bono legal services. He previously served as Chairperson for the Wisconsin Supreme Court’s Professional Responsibility Committee for District I. Currently he is volunteering as a mediator in the Walworth County Foreclosure Mediation program. He presently is serving on the Board of Directors for Rainbow Hospice of Jefferson County, Wisconsin.
Attorney Olivia Kelley Brookfield, WI
Olivia Kelley is an attorney in the Milwaukee office of DeWitt Ross & Stevens S.C., although she frequently practices from DeWitt’s Madison and Minneapolis offices as well. Olivia graduated from Marquette University (B.A. Philosophy and Political Science) in 2000 and graduated cum laude from Marquette University Law School in 2009. She practices primarily in the area of civil litigation, with an emphasis on assisting clients in the preservation, production and acquisition of electronic information. Olivia is active in her community, serving as a past president and current member of the Rotary Club of New Berlin and a Girl Scout leader. Olivia and her college sweetheart, Jason, have been married for 13 years, and are raising their two daughters to be future lawyers.
Mr. Michael Kindschi Madison, WI
Mike Kindschi received a Computer Technology degree from Milwaukee School of Engineering in 1963. He retired from the I.T. division of American Family Insurance in 2004. He has been working as a Realtor with First Weber Group Realty since 1995. He is a member of Greater Madison Board of Realtors, Wisconsin Realtors Association, National Association of Realtors, Multiple Listing Service, PHH Real Estate Network, Cottage Grove Chamber of Commerce, and Cottage Grove Town Board. He has served on the Cottage Grove Town Board (1983-1993; 2008-present), Director of Dane County Towns Association (1990-1993), and Director of Cottage Grove Chamber of Commerce (2006-2007).
Attorney William F. Mundt Madison, WI
Attorney Mundt received his BA in 1964 and his J.D. in 1967 from the University of Wisconsin Madison and has been in law practice with Murphy Desmond, S.C. in Madison, or its predecessors since graduation from law school. His primary areas of practice are estate planning and probate; charitable foundation law; employment law for management, real estate law, and corporate law. He is a member of the Dane County Bar Association, Wisconsin State Bar and American Bar Association; Fellow of American College of Trust and Estate Counsel; Past President and member of Madison Estate Council; member Madison Benefits Council; member and Past President of Madison South Rotary Club; past Board member of Madison South Rotary Foundation; past Board member and President of Bethesda Lutheran Communities; past Board Member and Chairman of Bethesda Lutheran Foundation; past Board member and Chairman of Lakeside Lutheran High School Foundation and WELS Foundation. He served as a 31 76 Back to Table of Contents
member of District 9’s BAPR Committee from 1980-1995 and was Chair of that Committee from 1991 to 1995. He was a member of District 9’s OLR Committee from 2003 thru 2011. He is also a former co-author of the Wisconsin Probate System.
Mr. Michael D. Novak Mercer, WI
Mike Novak is retired from the Milwaukee Metropolitan Sewerage District. He was employed as a Contract Administrator in the Contract Compliance Office that administered the privatization agreement for operation and maintenance of the District’s collection and water reclamation facilities. Mike has a B.S. in Industrial Technology from the University of Wisconsin – Platteville and an MPA from the University of Wisconsin – Parkside. When Mike resided in St. Francis, he served as Alderman and then Municipal Judge. He served on the Supreme Court Municipal Judge Education Committee for two years and when he left St. Francis, Mike was appointed Reserve Municipal Judge for Milwaukee County. He is currently the treasurer and secretary of the Wilson Lake Association, Inc.
Attorney Nora M. Platt Milwaukee, WI
Nora Platt is an Assistant General Counsel and Assistant Secretary in the Law Department of The Northwestern Mutual Life Insurance Company. Her legal work focuses on compliance with the laws and regulations governing sales practices in the securities and insurance industries, as well as issues related to elder financial exploitation, privacy, unfair competition, employment law, and general business law matters as they impact Northwestern Mutual’s field force. She also manages the non-attorney personnel in the Law Department, and serves as Chair of the Law Department Diversity and Inclusion Committee. She was previously a partner in the litigation group at Quarles & Brady, LLP, focusing on product liability, toxic tort, and commercial litigation. While at Quarles, Nora served as Chair of the Summer Associate Committee, and was a charter member of the firm’s Diversity Committee. She was active in associate training and mentoring. Nora earned her J.D. from Marquette University Law School in 1992, and her B.S. in English/Secondary Education from the University of Wisconsin – Madison in 1986. She taught high school before attending law school. Nora is a member of the Board of Trustees of the Legal Aid Society of Milwaukee and a former member of the Milwaukee Bar Association Legal Services to the Indigent Committee. She helped establish a pro bono policy for attorneys in the Northwestern Mutual Law Department, which was a recipient of the Milwaukee Bar Association Pro Bono Publico award in 2009. She has volunteered at the Milwaukee Justice Center and Legal Action of Wisconsin’s Tenants’ Rights Clinic. She is also co-president of the Whitefish Bay High School Band Boosters. She lives in Whitefish Bay with her husband, Rob. They have two daughters.
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Attorney Dustin T. Woehl Milwaukee, WI
Dustin Woehl is a shareholder at Kasdorf, Lewis & Swietlik, S.C. in Milwaukee. He grew up in south Florida, graduated from Carleton College in 1997 with a B.A. in Philosophy, and graduated in 2000 from the University of Pennsylvania School of Law. He practices in state and federal court, primarily in the areas of civil appeals and constitutional law. Dustin also volunteers with Milwaukee’s Volunteer Lawyers Project and as a judge in Wisconsin’s mock trial program.
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BOARD OF ADMINISTRATIVE OVERSIGHT
Attorney Rod W. Rogahn, CHAIRPERSON Waukesha, WI
Rod W. Rogahn is the CEO of Rogahn Kelly, LLC and former Vice President and General Counsel of Generac Power Systems in Waukesha, Wisconsin. Rogahn Kelly, LLC is located in Waukesha, Wisconsin and focuses on commercial litigation and business transactions. Prior to his role at Generac, Rod was the owner of his own firm, Rogahn Law Offices in Delafield. He has extensive litigation experience, and has handled matters nationally for Generac in both state and federal courts. Also, Rod served six years with the District 6 Investigative Committee in Waukesha, Wisconsin.
Attorney John P. McNamara, VICE CHAIRPERSON Lancaster, WI
John P. McNamara is a partner in the Lancaster law firm of McNamara, Reinicke & Vogelsberg, LLP. He received his undergraduate degree from UW-Eau Claire and his law degree from Thomas Cooley Law School, Lansing, Michigan. Attorney McNamara has been in private practice for over 30 years. His practice includes civil litigation, estate planning, probate, real estate and transactional law. He is a past President of the Grant County Bar Association and currently serves as a reserve Court Commissioner in Grant County.
John J. Blahnik Washburn, WI
John J. Blahnik is a retired C.E.O. of Victory Medical Center, Stanley, WI. He received his B.S. from Northland College, Ashland, WI. He is the past Vice Chairman of the Board of Supervisors for Bayfield County, WI. He is the past Chairman of the Board of the Wisconsin Counties Association, Group Health Trust, a non profit Health Insurance Company. He is the past Chairman of the Board of Botanic Oil Innovations and Pharmaceutical Co., working in concert with the University of Minnesota relative to tumor reduction support the immune system and improve heart health. He also served as Vice Chairman of the Northwest Regional Planning. Too, he was very active in community affiliations, professional activities and was appointed to a number of boards and committees including appointments by three Wisconsin Governors.
Daniel C. Bruch Hudson, WI
Daniel C. Bruch is a retired pastor, professor, editor, and consultant. He has earned six degrees (including a D.Min., Ph.D. {UW-Madison}, & Sc.D.) and has served as a college, university, and seminary professor, both in the USA and internationally. He has been a police, emergency room, and university chaplain and is a certified and experienced mediator and arbitrator. He has lived and taught in Hungary, Indonesia, and Chile, and has lectured in Romania, Serbia, the Czech Republic, and Slovakia. His last academic position was with the Yale University-based Civic Education Project and his 34 79 Back to Table of Contents
last pastoral position was at a two-campus parish of 2200 members in Hudson, Bar Association Foundation, Business Planning Institute and Wisconsin Employee Wisconsin. He is the founder and an owner of The Purple Tree (www.thepurpletree.org) Benefits Association; Chairman of the State Bar Committee on Resolution of Fee in Hudson. Disputes and Supreme Court Committee on Professional Fees; and member of these and many other professional organizations. He has lectured nationally and internationally, Charles A. Bunge edited the Journal of Pension Benefits, and co-authored Professional Corporations and the Madison, WI Alternatives. His other public service includes positions as president or other officer in local community organizations including the Boy Scouts and other charitable Charles Bunge is Professor Emeritus, University of Wisconsin-Madison School of organizations. Library and Information Studies. He has a Bachelor of Arts from the University of Missouri and Master’s and Ph.D. degrees from the University of Illinois. He practiced, Attorney Margadette Demet taught, researched, and wrote about library reference services for some 40 years. He Milwaukee, WI worked as a reference librarian in both public and academic libraries. He taught reference sources and services at the beginning and advanced levels for 30 years. During Margadette Moffatt Demet is a partner in the firm of Demet & Demet, LLC., Milwaukee, his sabbatical leaves, he returned to the reference desk, so as to enrich his teaching with Wisconsin. She received a B.A. from College of St. Francis, (now University of St. fresh knowledge of and appreciation for practical reference services. His research and Francis), Joliet, Illinois, and an LL.B. from Marquette University Law School. She publication activities concentrated on the evaluation of reference services, stress and concentrates her practice in estate planning, probate, guardianship, family law, and burnout among public services staff members, reference sources, and the reference collaborative practice and is a certified mediator. She provides volunteer mediation interview. He authored the popular and useful column, “Current Reference Books” in services to Milwaukee Children’s Court and has previously provided mediation services Wilson Library Bulletin for some ten years. With his colleague, Marjorie Murfin, he to the Milwaukee County Circuit Court Family Division. Atty Demet is a Fellow of the developed the Wisconsin-Ohio Reference Evaluation Program, which has been widely American Bar Association and of the Wisconsin Law Foundation. She has served on the used to measure and analyze patron and librarian perceptions of reference question Board of Governors, and as an officer of the State Bar of Wisconsin, and has served answering success. many committees of the Bar. She is a member of the Seventh Circuit Bar Association, the Milwaukee Bar Association, Milwaukee Estate Planning Forum, the Association of Professor Bunge served as president of the Reference and Adult Services Division Women Lawyers, the International Academy of Collaborative Professionals, and the (RASD, now RUSA) of the American Library Association, as well as president of both Collaborative Family Law Council of Wisconsin. Over the years she has served on the Wisconsin Library Association and the Association for Library and Information numerous nonprofit and civic boards. She is a past member of the City of Milwaukee Science Education (ALISE). He has been honored at the local, state, and national levels Ethics Board. She is a past board member of the Milwaukee Bar and its Foundation, the for his contributions to reference librarianship, library education, and library development Advisory Board of the Sisters of Divine Savior, Sacred Heart Seminary and Clement in general, including the ALA/RASD Mudge award for distinguished contributions to Manor. Currently she continues as a member of the Board of Columbia St. Mary's reference librarianship, the ALISE Award for Professional Contribution to Library and Foundation and an Advisory Board Member of Friends of Villa Terrace. She received a Information Science Education, and the ALA Beta Phi Mu Award for outstanding Distinguished Service Award from the Fellows of the American Bar Association, in contributions as a library educator. November of 2012, and a Life Time Achievement Award from the Alumni Association of Marquette University Law School, in April, 2013. She is the widow of Attorney While retired from active involvement in the profession, Professor Bunge continues to Francis J. Demet who died in 1993, mother of eight children, grandmother of twenty-five, give lectures to classes in reference services. His personal interests include and great grandmother of a granddaughter born in February of 2015. woodworking, travel and gardening with his wife, Joanne, and involvement in the lives and activities of their three children, eight grandchildren, and two great-grandchildren. Honorable Charles P. Dykman His volunteer and community service activities include hospice care, Habitat for Monona, WI Humanity ReStores, and the Wisconsin lawyer regulation system. Charles P. Dykman, Presiding Judge for the Wisconsin Court of Appeals, District IV, Attorney Donald J. Christl was first elected to the court in 1978 and was presiding judge from 1996 to 2001 and Milwaukee, WI again in 2009-10. He was successful in three contested elections; 1978, 1980 and 1992. Judge Dykman received a Bachelor's of Science degree in 1961 from the University of Donald J. Christl is of counsel to Reinhart Boerner Van Deuren SC in Milwaukee. He Wisconsin Madison and a LLB. in 1965 from the University of Wisconsin Law School. received his B.A from St. Mary's University in Winona Minnesota and his J.D. from From 1965 to 1970, Judge Dykman was an associate with the firm Oldenburg and Lent. University of Chicago Law School. He has served in numerous professional leadership He was a sole practitioner from 1970-1978. positions in his firm and throughout the community and state, including the Board of Directors of his firm; President of the Milwaukee County Bar Association, Milwaukee 35 36 80 Back to Table of Contents
Bar Association Foundation, Business Planning Institute and Wisconsin Employee Benefits Association; Chairman of the State Bar Committee on Resolution of Fee Disputes and Supreme Court Committee on Professional Fees; and member of these and many other professional organizations. He has lectured nationally and internationally, edited the Journal of Pension Benefits, and co-authored Professional Corporations and the Alternatives. His other public service includes positions as president or other officer in local community organizations including the Boy Scouts and other charitable organizations.
Attorney Margadette Demet Milwaukee, WI
Margadette Moffatt Demet is a partner in the firm of Demet & Demet, LLC., Milwaukee, Wisconsin. She received a B.A. from College of St. Francis, (now University of St. Francis), Joliet, Illinois, and an LL.B. from Marquette University Law School. She concentrates her practice in estate planning, probate, guardianship, family law, and collaborative practice and is a certified mediator. She provides volunteer mediation services to Milwaukee Children’s Court and has previously provided mediation services to the Milwaukee County Circuit Court Family Division. Atty Demet is a Fellow of the American Bar Association and of the Wisconsin Law Foundation. She has served on the Board of Governors, and as an officer of the State Bar of Wisconsin, and has served many committees of the Bar. She is a member of the Seventh Circuit Bar Association, the Milwaukee Bar Association, Milwaukee Estate Planning Forum, the Association of Women Lawyers, the International Academy of Collaborative Professionals, and the Collaborative Family Law Council of Wisconsin. Over the years she has served on numerous nonprofit and civic boards. She is a past member of the City of Milwaukee Ethics Board. She is a past board member of the Milwaukee Bar and its Foundation, the Advisory Board of the Sisters of Divine Savior, Sacred Heart Seminary and Clement Manor. Currently she continues as a member of the Board of Columbia St. Mary's Foundation and an Advisory Board Member of Friends of Villa Terrace. She received a Distinguished Service Award from the Fellows of the American Bar Association, in November of 2012, and a Life Time Achievement Award from the Alumni Association of Marquette University Law School, in April, 2013. She is the widow of Attorney Francis J. Demet who died in 1993, mother of eight children, grandmother of twenty-five, and great grandmother of a granddaughter born in February of 2015.
Honorable Charles P. Dykman Monona, WI
Charles P. Dykman, Presiding Judge for the Wisconsin Court of Appeals, District IV, was first elected to the court in 1978 and was presiding judge from 1996 to 2001 and again in 2009-10. He was successful in three contested elections; 1978, 1980 and 1992. Judge Dykman received a Bachelor's of Science degree in 1961 from the University of Wisconsin Madison and a LLB. in 1965 from the University of Wisconsin Law School. From 1965 to 1970, Judge Dykman was an associate with the firm Oldenburg and Lent. He was a sole practitioner from 1970-1978.
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Judge Dykman has served on various judicial educational panels and at Wisconsin Judicial Conferences and has been a speaker for continuing legal education programs. He was a member of the Judicial Conference Planning Committee (2002-03), Judicial Conference Executive Committee (2001-04), the Civil Law Seminar Planning Committee (2006), and has served on the Fairchild Commission on Judicial Elections and Ethics. Judge Dykman was appointed to the Judicial Commission August 1, 1998 through August 2004 and elected chair in August 2003. He was appointed to the Government Accountability Board Candidate Committee in March of 2009 for a two-year term. He was appointed to the Board of Bar Examiners in 2009 and the Board of Administrative Oversight in 2012. He is currently a member of the State Bar of Wisconsin, Dane County Bar Association, James E. Doyle Inns of Court, Legal Association for Women, and the Seventh Circuit Bar Association. Since the fall of 2010, Judge Dykman has taught a class in negligence methodology at the University of Wisconsin Law School. In early 2011 he was honored as a Leader in the Law by the Wisconsin Law Journal and was given Lifetime Achievement recognition. Judge Dykman is married to Bonnie who is a speech and language therapist with the Madison public schools. He enjoys sailing, gardening and teaching seed-starting and canning classes.
Tom Heine Madison, WI
Tom Heine, Citizen member is a native of Madison, is married to Merrilee Pickett, and has two children one of whom is Secretary of Transportation for the State of Washington. Tom has a Masters in Health Care Administration from St Francis University in Joliet Illinois. He spent much of his professional life as Executive Director of several statewide associations including the Wisconsin Association on Alcohol and Drug Abuse, Community Health Charities of Wisconsin and the Wisconsin Trust Account Foundation (WisTAF). Tom served on the Board of Governors of the State Bar Association, was Interim CEO of the Wisconsin Pooled and Community Trust, has served on numerous state and local boards, and is currently on the Board of the South Madison Coalition for the Elderly.
Lawrence J. Quam Superior, WI
Larry is a lifetime resident of Superior, WI. He has a bachelor’s degree in political science from the University of Wisconsin – Superior, with minors in Psychology, Sociology and History. He retired from Douglas County Sheriff’s Department as Administrative Sergeant after serving for 36 years.
He has served on the Wisconsin Supreme Court’s Special Preliminary Review Committee for six years. In the past 17 years, Larry has served in many capacities for the Douglas County Board including, Chairperson for the Health & Human Services, and as an Executive and Administrative member.
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Larry is a long time volunteer and community member for many local organizations such as the Shriner’s, and the Cub Scouts. He has raised money for the American Cancer Society, March of Dimes and the American Heart Association. He is active in the United Commercial Traveler’s of America (UCT), presently serving at the Officer level locally, nationally and internationally, and has held the position of President of the International Secretary/Treasurer’s Association and Imperial Ruler of Bagman for UCT.
He is an active member of Concordia Lutheran Church serving his community through active involvement on Church committees such as the Benevolent Committee and the Cares Committee.
Larry has been married to his loving wife Yvonne for 60 years. He has 5 children, 14 grandchildren and 4 great grandchildren. He enjoys spending time with family, hunting, fishing and attending sporting events.
Attorney Joseph E. Redding Milwaukee, WI
Attorney Redding is an Administrative Law Judge with the Wisconsin Department of Workforce Development conducting Unemployment Insurance proceedings in the Milwaukee hearing office. Prior to becoming an ALJ, he was in private practice for twenty years with a small firm in West Allis, Wisconsin. He graduated from UW- Platteville in 1991 with a bachelor of science in Criminal Justice and earned his law degree from Marquette University in 1994. He is married with three children. He is involved in various community groups including: the Village of Hales Corners Ethics Board; the Ethics Committee at Southern Center for the Developmentally Disabled, President of the West Allis Central Wrestling Alumni Society (DAWGS, Inc.), and a former member of the Wisconsin Parent Coalition for the Retarded. He served as the Attorney Coach for the Brookfield Academy Mock Trial team from 1995 to 2014. Attorney Redding has been a member of various rugby football clubs since 1989, and a former assistant coach for both the Marquette University Men’s and Women’s Rugby Football clubs - finally declaring “old-boy status” with the Milwaukee Westside Harlequin Rugby Football Club, where he continues to help with club matters off the pitch.
Gary J. Van Domelen LaCrescent, MN
Gary is a De Pere native and graduate of St. Norbert College and Marquette University Law School. While at Marquette, he served as Managing Editor of the Law Review. Gary began his legal career as a litigator for Kasdorf, Lewis & Swietlik, S.C. A Milwaukee based insurance and product liability and insurance defense firm. In 1986, he joined S.C. Johnson & Son, Inc. to manage the company’s worldwide product liability litigation. During the ten years he spent at Johnson Gary also drafted and negotiated a variety of agreements, assisted with regulatory matters and investigations and was the lead lawyer for the worldwide air care business. In 1998, he accepted the positon of Vice
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President & General Counsel of Fisher Scientific Company, L.L.C. in Pittsburgh, PA. While at Fisher Gary also worked in a number of acquisitions and co-managed the quality assurance function. In 2001, Gary and his family moved back to LaCrosse, Wisconsin where he accepted a position as Chief Legal Counsel, the Trane Company, and a division of American Standard Companies, Inc. In 2003, Gary accepted an invitation from American Standard to move to New Jersey and serve as Vice President, Chief Corporate Counsel and assistant secretary. In that capacity, Gary managed the legal-SEC reporting issues, M&A and the law department budget. In 2005, Gary joined Wagner, Falconer & Judd, a Minneapolis firm. Gary was named a partner in 2010 and led the firm’s marketing activities and business practice group. In May 2014, he opened his own corporate and business practice. Gary is an Adjunct Faculty member in the MBA program at the Dahl School of Business, Viterbo University. He lives in LaCrescent, MN with his wife Karmin.
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SPECIAL INVESTIGATIVE PANEL
Attorney Terence J. Bouressa De Pere Attorney Eileen Brownlee Fennimore Attorney Nathaniel Cade Jr. Milwaukee Attorney Steven M. Cain Cedarburg Attorney Esther Cohen Lee Madison Attorney Sherry D. Coley Green Bay Attorney Timothy S. Crisp Madison Attorney Matthew Cromheecke Onalaska Attorney Sam Filippo Saxon Attorney Mark J. Goldstein Milwaukee Attorney William A. Grunewald Medford Attorney Robert Hagness Mondovi Attorney Anthony P. Hahn Racine Attorney Victor C. Harding Milwaukee Attorney Thomas W. Harnisch Neilsville Attorney David P. Kaiser Burlington Attorney Nicole L. Kreklau Minneapolis, MN Attorney Angela Kujak Baraboo Attorney Myron E. LaRowe Reedsburg Attorney John R. McDonald La Crosse Attorney Neil C. McGinn Germantown Attorney Maxfield E. Neuhaus River Falls Attorney William Retert Fond du Lac Attorney Lauri Roman Madison Attorney Meredith J. Ross Wautoma Attorney Sarah L. Ruffi Wausau Attorney Deborah M. Smith Madison Attorney Todd Smith Madison Attorney Ronald S. Stadler Milwaukee Attorney Richard J. Summerfield Ladysmith Attorney Michael D. Zell Stevens Point
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SPECIAL PRELIMINARY REVIEW PANEL *Public Members
(Chairperson) Thomas A. Cabush Milwaukee Catherine La Fleur Milwaukee *Dee Kittleson Washburn Robert A. Mathers Oshkosh *Daniel Adams Cameron *Jane Snilsberg Iron River Bruce Ehlke Madison
SUPREME COURT REFEREES
Norman C. Anderson Madison Linda S. Balisle Madison Allan Beatty Sparta James C. Boll Madison Kathleen Brady Wauwatosa James G. Curtis La Crosse John R. Decker Evansville Michael Francis Dubis Waterford Hannah C. Dugan Milwaukee William Eich Madison Judge James R. Erickson Balsam Lake Richard M. Esenberg Milwaukee Kevin L. Ferguson Milwaukee Henry A. Field Jr. Madison John A. Fiorenza Pewaukee Curry First Glendale Dennis J. Flynn Racine David R. Friedman Madison Lisa C. Goldman Madison Jonathan V. Goodman Milwaukee Stanley F. Hack Mequon Russell L. Hanson Westby Daniel L. Icenogle Readstown Robert E. Kinney Rhinelander James W. Mohr Hartford James B. Murphy Waunakee Richard Ninneman Milwaukee Kim M. Peterson Oconomowoc Catherine M. Rottier Madison John N. Schweitzer Madison Christine Harris Taylor Milwaukee Cheryl Rosen Weston Madison
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APPENDIX 3 NEW MATTERS & DISPOSITIONS FOR FISCAL YEARS 2005 - 2015
NUMBER OF NUMBER *ADJUSTMENTS New Dispositions Pending ATTORNEYS OF Matters at Close MATTERS of PENDING Fiscal AT Year BEGINNING OF FY FY 2005 21,837 738 (162) 2,105 2,150 855 FY 2006 22,225 855 (103) 2,061 2,202 817 FY 2007 22,637 817 (100) 1,896 2,194 619 FY 2008 23,013 619 (31) 2,066 2,065 651 FY 2009 23,425 651 (106) 2,228 2,239 746 FY 2010 23,827 746 (152) 2,307 2,224 981 FY 2011 24,158 981 (156) 2,377 2,448 1,066 FY 2012 24,532 1,066 (186) 2,677 2,759 1,170 FY 2013 24,896 1,170 (198) 2,324 2,606 1,086 FY 2014 25,003 1,086 (185) 2,521 2,707 1,085 FY 2015 25,149 1,085 (156) 2,300 2,797 744
*Adjustments include appealed matters that are reopened and other administrative changes made during the fiscal year.
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APPENDIX 4
PENDING CASELOAD
Fiscal Years 2005 - 2015
1200
1000
800
600 Pending Caseload 400
200
0 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015
Fiscal Year End
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APPENDIX 5 EFFICIENCY AND PRODUCTIVITY FOR FISCAL YEAR 2005 - 2015
*AVERAGE MATTERS PERCENTAGE PERCENTAGE PERCENTAGE TIME FOR OVER OF MATTERS OF MATTERS OF MATTERS DISPOSTION ONE OVER ONE CLOSED CLOSED YEAR YEAR OLD WITHING 90 WITHIN 180 OLD DAYS DAYS FY 2005 170 DAYS 290 34% 71% 81% FY 2006 201 DAYS 236 29% 63% 76% FY 2007 163 DAYS 216 35% 66% 80% FY 2008 115 DAYS 193 27% 80% 87% FY 2009 118 DAYS 224 27% 78% 88% FY 2010 115 DAYS 313 33% 77% 88% FY 2011 136 DAYS 393 36% 69% 85% FY 2012 142 DAYS 414 34% 70% 85% FY 2013 157 DAYS 445 41% 67% 84% FY 2014 161 DAYS 365 34% 67% 84% FY 2015 182 DAYS 226 30% 67% 82%
*Average time for disposition is calculated by averaging length of time it took to process a case and calculates the time for each case when matters are completed.
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APPENDIX 6
AVERAGE MATTER PROCESSING TIME
Fiscal Years 2005 – 2015
250
200
150
100 Days to Disposition Days to
50
0 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015
Fiscal Year End
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APPENDIX 7
GRIEVANCES PENDING MORE THAN ONE YEAR
Fiscal Years 2005-2015
450
400
350
300
250
200
150 Pending More Than One Than More Year Pending
100
50
0 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015
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APPENDIX 8A
SURVEY OF GRIEVANCES RECEIVED DURING
FISCAL YEAR 2014-2015
Categorized by Allegation
ALLEGATIONS PERCENTAGE OF TOTAL ALLEGATIONS Conflict of Interest 4.61% Criminal Conduct 1.43% Failure to Return Property 1.79% False Statement/Tribunal 1.7% Frivolous Action 1.21% IFOR 1.83% Improper Advertising 0.27% Improper Advocacy 16.2% Improper Communications 1.92% Improper Termination 2.28% Incompetence 3.89% Lack of Communication 10.83% Lack of Diligence 19.87% Medical Incapacity 0.09% Misrepresentation/Dishonesty 8.1% Neglect 0% Reciprocal Discipline 0.22% Revealing Confidences 1.03% Scope of Representation 5.15% Statutory Violation 0.45% Supervise Subordinates 1.12% Trust Account Violations 4.74% Unauthorized Practice 1.43% Unearned Fee 0.45% Unreasonable Fees 6.04% Violation of Decision 0.58% Violation of Oath 1.79% No Allegation Listed, Not Available, Other .98%
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APPENDIX 8B
SURVEY OF GRIEVANCES RECEIVED DURING
FISCAL YEAR 2014-2015
Categorized by Area of Practice
AREA OF PRACTICE PERCENTAGE OF TOTAL ALLEGATIONS Administrative & Government Law 2.24% Bankruptcy-Receivership 3% Collections, Garnishments 1.74% Contracts, Commercial, Consumer Law 0.85% Corporate-Banking 0.45% Criminal Law 35.47% Environmental 0% Estate-Probate, Guardianship & Wills 8.09% Family Law & Juvenile 18.52% Immigration & Naturalization 1.61% Insurance 0% Labor, Unemployment Compensation 0.58% Landlord-Tenant 1.07% Litigation 5.37% Patent/Trademark 0.4% Real Property Law 3.98% Taxation 0.37% Torts-Civil Rights 5.55% Workers Compensation, Social Security 2.86% Not Available-Other 7.82%
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APPENDIX 8C
SURVEY OF GRIEVANCES RECEIVED DURING
FISCAL YEAR 2014 - 2015
Categorized by Source of Grievance
SOURCE OF GRIEVANCE PERCENTAGE OF TOTAL SOURCE OF GRIEVANCE Adverse Party 17.95% Attorney 2.19% Client 51.81% Guardian ad Litem 3.8% Judge 0.27% OLR Staff 7.1% Other Party 16.84% No Source Listed 0.04%
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APPENDIX 9
PUBLICLY DISCIPLINED LAWYERS AS A PERCENTAGE OF TOTAL LAWYER POPULATION
NUMBER OF PERCENTAGE LAWYERS OF LAWYERS PUBLICLY STATE BAR PUBLICLY YEAR DISCIPLINED MEMBERSHIP DISCIPLINED 2014-15 58 25,149 0.2 2013-14 40 25,003 0.1 2012-13 58 24,896 0.2 2011-12 46 24,532 0.2 2010-11 34 24,158 0.1 2009-10 46 23,827 0.2 2008-09 40 23,425 0.2 2007-08 38 23,013 0.2 2006-07 58 22,637 0.3 2005-06 62 22,225 0.3 2004-05 44 21,837 0.2 2003-04 66 21,518 0.3 2002-03 46 21,112 0.2 2001-02 20 20,772 0.1 2000-01 37 20,551 0.2 1999-00 24 20,167 0.1 1998-99 34 19,984 0.2 1997-98 37 19,581 0.2 1996-97 28 19,301 0.1 1995-96 33 18,938 0.2 1994-95 47 18,558 0.3 1993-94 55 17,974 0.3 1992-93 69 17,648 0.4 1991-92 50 17,407 0.3 1990-91 45 16,334 0.3 1989-90 33 15,876 0.2 1988-89 38 15,451 0.2 1987-88 39 14,942 0.3 1986-87 32 14,533 0.2 1985-86 45 14,312 0.3 1984-85 38 14,096 0.3 1983-84 45 13,536 0.3 1982-83 36 13,300 0.3 1981-82 28 12,700 0.2 1980-81 20 12,300 0.2 1979-80 16 11,900 0.1
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APPENDIX 10 APPENDIX 11
VIOLATIONS FOR WHICH MISCONDUCT WAS FOUND IN AREAS OF PRACTICE IN WHICH MISCONDUCT WAS FOUND PUBLIC DISCIPLINE DECISIONS IN PUBLIC DISCIPLINE DECISIONS FISCAL YEAR 2014 – 2015 FISCAL YEAR 2014 – 2015
The Report in which this information is obtained from is not pulling the correct information and is currently being worked on by CCAP.
OTHER
Administrative/Government Collections/Garnishment Contracts/Consumer Corporate Banking Immigration/Naturalization Landlord-Tenant Real Property Law Taxation Torts, Personal Injury Workers Comp/Social Security
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APPENDIX 11
AREAS OF PRACTICE IN WHICH MISCONDUCT WAS FOUND IN PUBLIC DISCIPLINE DECISIONS
FISCAL YEAR 2014 – 2015
OTHER
Administrative/Government Collections/Garnishment Contracts/Consumer Corporate Banking Immigration/Naturalization Landlord-Tenant Real Property Law Taxation Torts, Personal Injury Workers Comp/Social Security
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APPENDIX 12
OFFICE OF LAWYER REGULATION 2014-2015
OUTREACH EFFORTS
DATE PRESENTER EVENT 7/31/2014 Sellen Presentation to DOJ Interns, Madison 8/7/2014 Weigel Current Developments in Discipline Law, (NOBC, Boston) 9/22/2014 Sellen Presentation at UW Law School, Madison 9/29/2015 Sellen Presentation at Marquette Law School, Milwaukee 10/2/2014 Sellen Presentation at WI Assc. of Corporate Counsel Seminar, Brookfield 10/3/2014 Hoeft Smith Trust Account Fall Seminar, Madison 10/9/2014 O’Connell Dist. Committee New Member Training, Menomonie 10/9/2014 Sellen Legal Ethics 2014, Milwaukee 10/10/2014 Sellen Legal Ethics 2014, Madison 10/13/2014 Sellen Presentation at UW School, Madison 10/24/2014 Weigel Brown Bag Ethics, Madison and Streaming 10/30/2014 Sellen Presentation to DOJ Interns, Madison 11/3/2014 Sellen Legal Action of WI Ethics Seminar, Waukesha 11/7/2014 Sellen, Estes WI Attorneys Professionalism Seminar, Madison O’Connell 12/18/2014 Hoeft Smith Trust Account Rule Presentation, Oshkosh 1/8/2015 Weigel Ethics for Family Lawyers, Madison 1/14/2015 Sellen Milwaukee Area Paralegal Association, Milwaukee 1/21/2015 Weigel Legal Writing-Civil Complaints, Madison 1/29/2015 Weigel Government Lawyers, UW Law School, Madison 2/6/2015 Weigel Deposition Skills Workshop, Houston Texas 2/19/2015 Sellen Madison Area Paralegal Association, Madison 2/24/2015 Sellen NBI Ethics Webcast, Eau Claire 3/13/2015 Sellen Ashland/Bayfield Bar Association, Bayfield 3/17/2015 Sellen Presentation at UW Law School, Madison 3/19/2015 Weigel Judicial Ethics, Brookfield 4/9/2015 Sellen Presentation to DOJ Interns, Madison 4/17/2015 Sellen Marquette Law School, Milwaukee 4/24/2015 Sellen Madison College Ethics Seminar, Madison 4/30/2015 Sellen Presentation to Milwaukee Office of SPD, Milwaukee 5/1/2015 Hoeft Smith Trust Account Management Seminar, Madison 5/29/2015 Sellen Presentation to NBI Ethics Seminar, Madison 6/17/2015 Weigel Municipal Attorneys Ethics, Delevan 6/25/2015 Weigel Government Lawyer Ethics, Lake Geneva
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A General Overview of Wisconsin’s Lawyer Discipline System
By
Monte E. Weiss, Esq.1 WEISS LAW OFFICE, S.C.
1017 W. Glen Oaks Lane Suite 207 Mequon, WI 53092 (262) 240‐9663 [email protected] www.mweisslaw.net
Wisconsin’s Lawyer Disciplinary System is a rather complex system that is designed to provide for an ample opportunity for the Grievant to present concerns about the conduct of attorneys, for the attorney to have a full and fair opportunity to defend the claims asserted against him / her, and for the system to have sufficient checks and balances to make sure that the interests of all are taken into account and protected.
The initial starting point of the system involves the submission of an inquiry or a grievance.
An Inquiry or Grievance Initially, if an inquiry or grievance is submitted, the staff of the Office of Lawyer Regulation (“OLR”) has the first line of evaluation. SCR 22.01. The inquiry or grievance is filed with the OLR. SCR 22.02. Upon receipt of the inquiry / grievance, the staff can:
(1) forward the matter to another agency;
(2) attempt to reconcile the dispute if it is minor;
(3) close the matter based on insufficiency of the grievance to demonstrate that no Supreme Court rule has been violated; or
(4) refer the matter to the Director for an investigation. SCR 22.02(2)(a)‐(d).
1 I would like to acknowledge and express my appreciation for the assistance in creating these materials provided by Justin M. Schuessler, Esq., Hannah R. Jahn, Esq., and Cheryl Eberfeld of my office.
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If the staff chooses or selects the option to forward it to another agency for review and processing, at that point, the office must provide the grievant with a basis for the referral. SCR 22.02(3). There is no review of this decision. The decision for a referral is final. SCR 22.02(4).
As noted, the OLR staff can attempt to reconcile the dispute. However, OLR’s staff’s limitation is the seriousness of the dispute. If it is a relatively minor dispute, OLR is permitted to attempt to resolve the dispute. SCR 22.02(2)(b).
If OLR staff believes that the grievance does not demonstrate any possible rule violation, OLR can close the matter. SCR 22.02(2)(c). However, a review is possible of the OLR’s decision to close the matter. SCR 22.02(4). A request must be made to the Director of the Office of Lawyer Regulation (“Director”). The Director, at that point, has two options. The Director can either close the matter or investigate the matter. Id. If the matter is closed, there is no review. Id.
The OLR staff can refer the matter to the Director for an investigation. Once the Director has the grievance, the Director has options. The Director can:
(1) close the matter; (2) utilize a diversion agreement; or (3) commence an investigation for misconduct or mental incapacity. SCR 22.02(6)(a)‐(c).
If the Director chooses to close the matter, review is possible. The grievant is given notice of the Director’s decision to close the matter. The grievant must then request the Director to have the decision to close reviewed. If that happens, then the matter is referred to the Preliminary Review Panel for a review. SCR 22.02(6)(a).
If the Director chooses, a diversion program is a possible resolution. There is a limitation as to what types of claims are potentially referable to the diversion program. Diversion programs are authorized pursuant to SCR 22.10. Diversion programs can include, but are not limited to, referral to mediation, fee arbitration, law office management assistance, continuing legal education, alcohol and substance abuse programs, monitoring of an attorney’s practice or trust account procedures. SCR 22.10(2). An attorney must meet specific criteria in order to be eligible for participation in this program. SCR 22.10(3).
Please note that referral to a diversion program is not considered discipline. SCR 22.10(1). This is important in that the Office of Lawyer Regulation and the Supreme Court follow a practice of progressive discipline. In re Disciplinary Proceedings Against Lister, 2010 WI 108, ¶40, 329 Wis. 2d 289, 308, 787 N.W.2d 802, 829. That is, each succeeding disciplinary matter has an increased penalty.
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Finally, the Director has the opportunity or discretion to commence an investigation to determine if there is misconduct or mental incapacity. SCR 22.02(6)(c)
Investigation Process The SCRs require that the Director shall investigate all grievances where sufficient information exists to support an allegation of possible misconduct. SCR 22.03(1). Once this happens, the attorney must be notified. SCR 22.03(2). The notification is done by US mail. At that point, there is an obligation imposed upon the attorney. The attorney must fully and fairly disclose all facts and circumstances within 20 days of receipt of the inquiry by the Director. SCR 22.03(2). This is important because the failure to fully and fairly disclose all facts within that time period, unless an extension is otherwise granted, could constitute a failure to cooperate with the Office of Lawyer Regulation, and could consequently result in allegations of misconduct by the OLR. SCR 22.03(4); SCR 22.03(6).
A failure to cooperate with OLR can result in penalties. If an attorney fails to respond to OLR, it can file a motion with the Supreme Court to show cause why the license of the attorney should not be suspended. SCR 22.03(4). It is then incumbent upon the Respondent to oppose the motion to demonstrate why the license should not be suspended.
Once a substantive response to OLR’s inquiries and requests are provided by the attorney, then OLR may decide to conduct a further investigation. There is a fair amount of discovery the Director can require of the attorney. The attorney can be required to answer questions, furnish documents and present any other information relevant to the investigation. SCR 22.03(8). As part of the power to investigate, the Director also has the authority to refer the matter to a District Committee. SCR 22.04(1).
Here, like in other parts of the process, it is important to note that a failure to cooperate with the OLR is a violation of SCR 22.03(6). The failure to cooperate is considered to be independent misconduct. It is misconduct regardless of the merit of the grievance. That is, the attorney can be found to have violated the Supreme Court Rule regarding cooperation which would support an independent penalty that is separate and apart from any penalty that might be imposed due to misconduct that supports the grievance itself. Id.
In referring the matter to the Director for an investigation, the Office of Lawyer Regulation staff must provide all exculpatory and inculpatory evidence for the Director’s evaluation. SCR 22.03(3). As part of the investigation, the Director does have subpoena authority.
District Committee Investigation Referral to the District Committee is a different level of investigation. The attorney must be notified of the investigation. The Respondent will not only be notified of the investigation but
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will be notified of the identity of the investigator of the District Committee. SCR 22.04(2). The attorney has the opportunity and right to request a substitution of the investigator. This is a timely issue. That is, the attorney must make the request for substitution within 14 days of receipt of the notice. Id. The substitution is granted as a matter of right. If that request is made and granted, then the investigator initially assigned to the matter can no longer participate in the process. Id. That is, the investigator cannot not participate in the investigation and cannot participate in the District Committee’s review of the matter, including any discussion and recommendation following the investigator’s report.
If the matter is referred to the District Committee for an investigation, the attorney must cooperate with the District Committee’s investigation. SCR 22.03(6). The only limitation on the attorney’s obligation to cooperate is that of the refusal to answer questions if the Fifth Amendment interests are impacted. SCR 22.03(7). Absent that, the Respondent must cooperate fully.
The District Committee must complete the investigation and submit a report within 90 days of when the right of substitution terminates. However, it should be noted that extensions may be granted. SCR 22.01(3).
In terms of the process, it is wide ranging. The investigator will typically meet with the grievant(s), as well as with the attorney. The investigator will have the complete OLR file that is generated in the matter, along with a referral letter from the OLR outlining the essential nature of the grievance and a recommendation to investigate the matter with particular reference to certain Supreme Court rules. The investigator, after meeting with the grievant and attorney, may ask for additional documents, conduct interviews with other witnesses or people of interest. The investigator also has the ability to consult with attorneys or others in the public who have knowledge in a particular area that may be helpful to understanding the issues associated with the grievant.
Once the investigator has compiled sufficient information, the investigator will then draft a report and present it to the District Committee. SCR 22.04(3). The District Committee will then hear from the investigator. Discussion will ensue regarding the matter. The investigator will then make recommendations as to any potential rule violations and of any potential penalties. The report is then completed and then submitted to the Director for further handling as appropriate. Id.
Once the report is completed, the copy must be given to the grievant as well as the attorney. SCR 22.04(4). Once the investigation is completed, the Director has the discretion to take various actions:
1) Dismiss the matter for lack of evidence;
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2) Attempt to use the diversion program for the attorney;
3) Consider a public or private reprimand; or
4) Submit the matter to the Preliminary Review Committee for determination of whether there is cause to proceed. SCR 22.05(1)(a)‐(d).
If the Director chooses to dismiss the matter for lack of evidence supporting a rule violation, notice must be given of the dismissal to the grievant. SCR 22.05(2). The grievant can seek review by requesting that the Director forward the matter to the Chair of the Preliminary Review Panel. Id.
Preliminary Review Panel If the matter is referred to the Preliminary Review Panel, the chairperson will then assign the matter to the panel for review. SCR 22.06(1). The review of the panel will be whether the Director erroneously exercised his discretion in dismissing the matter. SCR 22.05(2). If the panel does conclude that the Director erroneously exercised his discretion in dismissing the matter, then the matter will be referred to the Director for further investigation. SCR 22.08(1)(a). It is significant to note that a majority of the vote is needed by the Preliminary Review Panel to find an erroneous exercise of discretion. It is important to also note that the decision of the panel is final. Notice of the decision will be provided to the Grievant as well as the Respondent. SCR 22.08(1)(b).
Once the matter is submitted to the Chairperson of the Preliminary Review Panel, the Chair submits it to the panel for consideration. SCR 22.06(1). Discussions amongst the panel are private and confidential. SCR 22.07(2). If there is cause to continue, four or more members must vote in favor of moving forward. SCR 22.07(3). It is significant to note that this does not mean that there is clear and convincing evidence of misconduct. Rather, that there is sufficient evidence to support a cause to continue the matter. Id.
If the panel concludes that the Director failed to establish cause to proceed, then it shall report to the Chairperson who then will report to the Director, the attorney and the grievant. SCR 22.07(4). The Director, at that point, can either dismiss the matter or continue the investigation and resubmit to a different Preliminary Review Committee Panel. SCR 22.08(1)(a). If there is a resubmission, and the Director again fails to establish cause to proceed, then the Preliminary Review Committee’s decision is final and no review is possible. SCR 22.08(1)(b). If
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cause is established, then the Director may either look to a private or public reprimand, a diversion program, or file a Complaint with the Supreme Court. SCR 22.08(2)(a)‐(c).
The Proceedings If a complaint is filed by the Office of Lawyer Regulation, it is handled in many ways like a traditional lawsuit. An answer is required. SCR 22.11(1). Discovery can and often does ensue. SCR 22.03(8). A hearing is held. SCR 22.13(3). Witnesses can be called to testify and documents produced. A recommendation of rule violations and proposed penalties is made by an appointed referee. The recommendation can be appealed by either side: the OLR or the Respondent. The review of the recommendation is conducted by the Wisconsin Supreme Court. SCR 22.16(6). Oral argument may be required after briefing. A decision is issued.
Once a complaint is filed, the proceedings must be limited to those misconduct allegations for which the preliminary review panel concluded there was cause to proceed. SCR 22.11(2). The exception to this prohibition is that any potential violations of SCR 20.20 and SCR 22.22 may be asserted even if the panel has not found cause to proceed on those proposed violations. Id.
A stipulation by the Office and the Respondent as to the facts, conclusions of law and of the discipline accompanies the complaint, the Supreme Court can consider the stipulation and impose the penalty without the necessity of a referee or a hearing. SCR 22.12(2). However, if the Supreme Court does not approve the stipulation, then the matter will proceed forward as if there was no stipulation attached to the complaint. SCR 22.12(3). The Supreme Court can also make modifications to the stipulation and request that the parties review and agree to the modified stipulation. SCR 22.12(3m). If the parties agree to the modifications and submit a revised stipulation within the time period provided, then the Supreme Court will adopt the findings of fact, conclusions of law and impose the penalty agreed to via the stipulation. Id.
Under SCR 22.14(1), the Respondent must file an answer with OLR within 20 days after service of the Complaint. A failure to do so has the potential obvious penalty of a default. SCR 22.15(1). In addition, a failure to answer could give rise to a violation of the Supreme Court Rules. For example, SCR 21.15(4) imposes the obligation of cooperation by the Respondent. Most importantly, the referee will be deemed to have properly relied on the allegations of the complaint, which were deemed admitted by the failure to answer. In re Disciplinary Proceedings Against Coplien, 2010 WI 109, ¶10, 329 Wis. 2d 311, 788 N.W.2d 376.
Like other civil cases, if the matter is contested, a scheduling conference is held. SCR 22.15(1). The typical scheduling activities are undertaken at that conference, including the scheduling of a hearing. If the matter does not resolve prior to the hearing, then the hearing will take place before the referee. The referee has the same powers as a judge in a civil case and must conduct the hearing in a similar manner. SCR 22.16(1). Within 30 days after the hearing is
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concluded or the transcript is filed, the referee must file with the Supreme Court a report with the findings of fact, conclusions of law and a recommendation for either a dismissal or imposition of discipline. SCR 22.16(6). In addition, the report must contain a recommendation as to the assessment of costs of the proceedings. SCR 22.16(7).
Typically, the full amount of the costs is imposed, even if the Respondent is successful in defeating one or more claims. SCR 22.24(1m). However, the rules do provide for some latitude. Id. In doing so, the assessment of costs will involve the consideration of the following factors:
(1) number of counts charged, contested and proven; (2) the nature of the misconduct; (3) the level of discipline sought by the parties and recommended by the referee; (4) the attorney’s cooperation with the disciplinary process; (5) prior discipline, if any; (6) any other relevant circumstances. Id.
Within 20 days after the referee’s report is filed, both the Office of Lawyer Regulation and the Respondent may file for a review. SCR 22.17(1). The review is before the Wisconsin Supreme Court. When reviewing a referee's report and recommendation, the Supreme Court will affirm the referee's findings of fact unless they are clearly erroneous. In re Disciplinary Proceedings Against Inglimo, 2007 WI 126, ¶5, 305 Wis. 2d 71, 740 N.W.2d 125. The Court will review the referee's conclusions of law de novo. In re Disciplinary Proceedings Against Alia, 2006 WI 12, ¶39, 288 Wis.2d 299, 709 N.W.2d 399. It is also important to note that when reviewing a referee's report and recommendation, the referee, as the finder of fact, is the ultimate arbiter of the credibility of the witnesses. In re Disciplinary Proceedings Against Alia, 2006 WI 12, ¶71, 288 Wis. 2d 299, 709 N.W.2d 399.
After the Wisconsin Supreme Court has issued its opinion, a motion for reconsideration can be filed. SCR 22.18
Penalties The purpose of imposing professional discipline is to impress upon the attorney the seriousness of the misconduct, to deter other attorneys from engaging in similar misconduct, and to protect the public, the courts, and the legal system from a repetition of the misconduct. In re Disciplinary Proceedings Against Grogan, 2011 WI 7, ¶17, 331 Wis. 2d 341, 795 N.W.2d 745. Suspension or revocation of an attorney’s license to practice is part of the discipline process. The Supreme Court will determine the appropriate level of discipline to impose given the particular facts of each case, independent of the referee's recommendation, but benefitting from it. In re Disciplinary Proceedings Against Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686.
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In assessing a proper sanction, the Court considers the following factors: (1) the seriousness, nature, and extent of the misconduct; (2) the level of discipline needed to protect the public, the courts, and the legal system from repetition of the attorney's misconduct; (3) the need to impress upon the attorney the seriousness of the misconduct; and (4) the need to deter other attorneys from committing similar misconduct. In re Disciplinary Proceedings Against Hammis, 2011 WI 3, ¶39, 331 Wis. 2d 19, 793 N.W.2d 884. As noted earlier, the Supreme Court follows the concept of progressive discipline. In re Disciplinary Proceedings Against Brandt, 2012 WI 8, ¶21, 338 Wis. 2d 524, 808 N.W.2d 687; In re Disciplinary Proceedings Against Nussberger, 2006 WI 111, ¶27, 296 Wis. 2d 47, 719 N.W.2d 501.
An attorney’s license and thus, right to practice can be suspended for a period of time. Usually, the first suspension is for a 30‐day period. If an attorney’s license is suspended or revoked, additional obligations and limitations are imposed. SCR 22.26(1)(a)‐(e). On or prior to the effective date of the suspension or revocation, the attorney must:
(1) notify all clients by certified mail of the suspension or revocation and thus, the inability to serve as counsel; (2) advise the clients to seek legal advice elsewhere; (3) provide timely notice to all tribunals before which the attorney has any pending matters; (4) within 15 days of the effective date of the suspension or revocation, make arrangements to permanently close or wind up practice; (5) within 25 days of the effective date of the suspension or revocation, file an affidavit with the Director an affidavit detailing, in essence, compliance with the obligations imposed under this SCR. Id.
Reinstatement Three months prior to the expiration of the suspension period, an attorney can file a petition for reinstatement. SCR 22.29. The petition must be filed with the Supreme Court of Wisconsin and a copy served upon the director and the board of bar examiners. The petition must show full compliance with the terms of the suspension or revocation order as well as other requirements. SCR 22.29(4)(a)‐(k). The petition must also be accompanied by an advance deposit for all or a portion of the reinstatement proceedings cost. SCR 22.29(5).
The reinstatement procedure requires the appointment of a referee in the geographical area of the attorney where possible. SCR 22.30(1). The Director will investigate the attorney’s eligibility for reinstatement and provide a report to the referee. SCR 22.30(2). The Board of Bar Examiners will also investigate the attorney’s eligibility for reinstatement and provide a similar report to the referee. SCR 22.30(2m). The Director must also publish a notice regarding the
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hearing for reinstatement in a newspaper of general circulation in a county in which the attorney had practiced. SCR 22.30(3).
SCR 22.30(1) provides that a reinstatement hearing will be conducted by the referee. At the hearing, the attorney has the burden to demonstrate that he or she is entitled to reinstatement. SCR 22.31(1). Specifically, the attorney must show by clear, satisfactory, and convincing evidence that he or she has the moral character to practice law, that his or her resumption of the practice of law will not be detrimental to the administration of justice or subversive to the public interest, and that he or she has complied with SCR 22.26 and the terms of the order of suspension. In addition to these requirements, SCR 22.29(4)(a)‐(4m) provides additional requirements that a petition for reinstatement must show. SCR 22.31(1)(a)‐(d).
Within 30 days after the conclusion of the hearing, or filing of the hearing transcript (whichever is later), the referee will file a report with the Wisconsin Supreme Court with the recommendation on the petition. SCR 22.32(1). Within 10 days after the later of those two dates, the petitioner may file a response to the referee’s report. If the petitioner would like to appeal, he or she must do so within 20 days after the filing of the referee’s report. SCR 22.33(1).
As noted from the outset, the disciplinary process is a rather complex one with several levels of review. The different checks and balances ensure that all receive a fair and full opportunity to address the issues. The purposes of the disciplinary system are to protect the public and courts from attorney misconduct, to impress upon the attorney the consequences of his / her misconduct, and to deter other attorneys from engaging in similar misconduct. It is important that the Respondent be sure to comply with all rules pertaining to the investigation and disciplinary proceedings, to avoid additional sanctions.
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© Monte E. Weiss, Esq. – all rights reserved.
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11/23/15
Round 1: Breezing Through the Basics – THREE PILLARS OF THE ACA • INDIVIDUAL MANDATE – every ci:zen in the US must have insurance – upheld by the US Supreme Court in NFIB v Sebelius (2012) 132 The Gloves Are Off: S.Ct. 2566 The ACA in Real Li:ga:on • GUARANTEED ISSUE – prohibit insurance companies from denying coverage, and can’t charge higher premiums §§300gg, gg-‐1, gg-‐3, gg-‐4. • SUBSIDIES – King v Burwell
REASONBLE COST OF REASONABLY REASONABLE COST OF REASONABLY NECESSARY MEDICAL CARE-‐ PAST NECESSARY MEDICAL CARE -‐ FUTURE • MEDICARE, MEDICAID – Plain:ff can only • Plain:ff is required by law to have health recover what was paid by Federal Plan insurance – ACA (upheld by US Supreme • FULL AMOUNT BILLED – by medical providers Court) is not an accurate measure of services • Treat this defense like it belongs provided. (see, Howell v Hamilton Meats • Purchase a Pla:num PPO plan to cover (2011) 52 Cal.4th 541, 560-‐563. Good medical care/out of pocket expenses discussion why this does not involve a • You will need mul:ple experts to lay the collateral source) founda:on
FOUNDATION SET IN LEUNG – IT HAS ROUND 2: Tale of the Tape TO BE REASONABLY CERTAIN • Some new opinions are emerging—we will • Link par:cular coverage and coverage touch on those later amounts to par:cular items of care and treatment in life care plan • Leung remains a persuasive roadmap to date for court op:ons-‐-‐-‐because it makes sense! • Present a reasonable basis on which to believe that this par:cular plain:ff is reasonably • Deeds in PA rejected cross exam on the issue certain to have that coverage • Vazquez Sierra in MN called on legislature to • Provide a basis on which to calculate with amend collateral source rule reasonable certainty the :me period coverage will exist
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11/23/15
Round 3: A few early jabs Round 4: Pace Yourself
• Raise the issue as an affirma:ve defense to • This defense has real psychology built into it— the Complaint-‐-‐-‐Make it seem as if it belongs! this defense sells uncertainty…to Plain:ff’s counsel • Serve interrogatories covering every conceivable source of coverage for Plain:ff • As Plain:ff raises ques:ons or objec:ons to early tac:cs—have counsel ready to stay cool and act • Serve version of a discovery subpoena to like it belongs-‐-‐-‐because it does understand insurance contracts covering Plain:ff—this is overlooked discovery material • Prime your Co-‐Defendants and their counsel for a joint defense on the ACA—it benefits all and • Ask follow up deposi:on ques:ons that lay costs can be shared, should be shared and a groundwork for health insurance coverage united front is more persuasive
Round 5: Talk to Your Trainer Build Your "Claims Network"
• Build your expert team • Establish a peer group • Get them sooner than later (you are going to • We are in this together need them anyway) • Informally share what is working (or not) • Make sure your expert plan has two :ers (one • How are plain:ff’s/mediators/judges with ACA and one without). responding? • You will probably need some of these experts • Refine strategy and con:nue regular dialogue regardless thus addi:onal ACA materials and – "punch and counter-‐punch!" costs are minimal investment
Round 6: Who should be Round 6: Who should be in your corner? in your corner? • Insurance Broker • Insurance Broker – Real world experience selling actual plans in the • Life Care Planner marketplace and making sure individuals are covered • Economist – Cer:fica:ons by NAHU to add creden:al to tes:mony – do not have to be able to place coverage in the exchange • Structured Seklement Broker familiar with • Life Care Planner ACA? – Links actual treatments in life care plan to actual insurance coverage – Provides tradi:onal life care plan op:ons and separate ACA based op:on to provide maximum value for tes:mony and protect against challenges from Plain:ff
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Round 6: Who should be ROUND 7: Plain:ffs Punch Back in your corner? • Economist • ACA is specula:ve – Provides obvious support on future insurance numbers as well as tradi:onal economic tes:mony—ACA add on is a minor cost considera:on that can easily boost your defense overall • ACA will be repealed • Seklement Broker • ACA precludes choice and availability of – If seklement is a desirable op:on, having a broker with ACA experience lends addi:onal weight to team—you want to be benefits able to say that the whole team has done this before many :mes • "The ACA does not require everyone to have • ACA legisla:on policy insurance"—Source: Plain:ff magazine – Frequent challenge to ACA arguments is that the ACA will be repealed or heavily replaced with new system – We have developed sophis:cated briefing on this issue
Round 8: Plain:ff Backs Us Into THE ROUNDHOUSE BACK Corner 1) Upheld by the US Supreme Court-‐-‐-‐TWICE! • The collateral source rule makes this en:re 2) Pla:num PPO plan provides choice and approach a waste of :me availability of benefits • ACA based insurance does not cover 3) Maximum out of pocket expenses are being akendant/long term care assumed and subsidies are being ignored to • What about subroga:on? keep the analysis conserva:ve
Round 9: The Collateral Source Round 9—Collateral Source Slugfest Slugfest • Make no mistake, this concept is an outright assault on the • Wisconsin Collateral Source law collateral source rule • Strict construc:on—Medicare rates, Medicaid rates, and private • Collateral source rule is an:quated when it comes to health insurance reimbursement rates are not admissible insurance-‐-‐-‐it simply is not reality – CSR dates to 1921 in Wisconsin—hardly modern • Collateral Source Rule v. Individual Mandate – Wisconsin re-‐evaluates CSR where there is no subroga:on interest-‐-‐-‐ the ACA likely does not have subroga:on – California has Howell, Corenbaum, Ochoa providing billed rates are not considered reasonable evidence – “an injured party’s recovery cannot be reduced by payments or benefits from sources collateral to, or aside from, the torreasor” – De – Pennsylvania says in Beechwoods that defendants cannot take La Cruz v. St Mary’s (2015) (Appeals District 4) advantage of the fortuitous existence of insurance-‐-‐-‐the Individual Mandate makes that seem absurd • What if the insurance is not collateral to or aside from the torreasor? – “…[the collateral source rule ensures that the defendant cannot – Taransky (3rd Cir using NJ law)-‐-‐-‐Medicare is not a collateral source (however should only recover what was paid) receive a windfall] simply because the vic:m had the foresight to arrange or the good fortune to receive benefits from a collateral – Stayton (Delaware)-‐-‐-‐ Discoun:ng is the rule rather than excep:on in source….” Blumenfeld v. Jeans 2011 WI. App. 107 healthcare today. Only a small frac:on of persons receiving medical • What Plain:ff currently has “foresight” or “good fortune” to receive mandated services actually pay original amounts billed insurance?
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Round 10: Figh:ng Back on ROUND 11: Deliver a Haymaker Akendant Care • Oven the biggest single cost in a given life care plan and usually not covered by • Duty to Mi:gate Damages-‐-‐-‐Very strong rhetorical op:on private insurance….with some limited excep:ons – Insurance plans all over have home health care allowances (unskilled help) – If Plain:ff has a cheaper op:on that provides real coverage, how can they ignore it? – Many states have limits ranging from 60-‐120 days per calendar year – Some states (such as NJ or Illinois) have plans that do not appear to place a limit on this • What if ACA exchange based plans cannot be subrogated? – Plans are not covered by ERISA, Medicaid or Medicare legisla:on • Combine private insurance with Medicaid? which create most of the subroga:on framework we are familiar with – Medicaid covers long term care/akendant care at rates far below those projected by Plain:ffs in LCP’s – Trial Magazine (from the Associa:on of Jus:ce): – Combina:on is permiked in most states and heavily overlooked • “The ACA does not have a subroga:on or reimbursement provision” – What if a trust is established to fund private insurance and maintain eligibility for Medicaid? • Many states have an:-‐subroga:on laws that were trumped by federal – Plain:ff magazine says: “If Plain:ff structures their seklement, they can s:ll be eligible for legisla:on-‐-‐-‐not yet the case with the ACA Medicaid. This would negate the need to purchase private insurance or it can be used in tandem with private insurance” “strategy can save the Plain8ff thousands of dollars • “It appears likely that the ACA may allow more tort vic:ms to retain a larger annually” –Plain:ff magazine January 2013 part of their seklements. It also means that Plain:ff lawyers will have to apply greater scru:ny to their clients’ health plan—and shake off an8quated – This en:re approach demonstrates a commitment to providing real treatment to Plain:ff at heavily reduced figures while simultaneously proving the fallacy of the Collateral Source Rule assump8ons about how health coverage ” is provided • Ar:cle was wriken April 2014 – What if subroga:on is illegal under the ACA?
Round 11: Deliver a Haymaker Round 12: Bakling to a Decision
• " Therefore, while it is true that the full affect of the ACA on nurse life care planners remains uncertain, it is also true, necessary and • Seklement vs. trial appropriate for nurse life care planners to discuss, debate, and con:nue to analyze the ACA’s affect" • Media:ons are the front line for ACA work and • "The ACA is expected to reduce health care costs and will likely allow for maximum crea:vity and flexibility require changes to tradi:onal personal injury life care plans to account for the expanded availability of health insurance resul:ng • Mediators are always looking for tools to help from the individual mandate and elimina:on of pre-‐exis:ng condi:ons" sekle a case-‐-‐-‐they don’t need to believe this, • "Nurse life care planners are encouraged to con:nue monitoring they just need to have tools to sell it and studying the ACA and its state specific affect on personal injury damage analysis" • With a skilled structure broker in place and full – Source December 2014 Journal of Nurse Life Care Planning • Peer reviewed publica:on, many life care planners belong to this expert support, a real package can be built and group or did at one :me offered crea:ng leverage
The Scorecard: What do these cases Round 12: Bakling to a Decision really look like • If you are going to trial: • WG cases – Pennsylvania: Pending case with court with full expert workup on ACA, took _ Lay the founda:on for introduc:on of health insurance $5M LCP down to $350,000, filed proac:ve mo:on in limine and trial judge – Use all of your expert support and these materials to prepare states “I am afraid of becoming famous or infamous for gran:ng the first for cross of Plain:ff’s experts either in deposi:on or at trial opinion in the country on this” – Pennsylvania: Took $9 Million life care plan down to $200,000 for kidney – Challenge Plain:ff’s Life Care Planner for failing to consider or transplant/dialysis issues against top flight Plain:ff’s counsel—sekled for properly addressing ACA based on Journal ar:cle frac:on of Plain:ff’s demand aver court used our mo:on in limine as leverage to broker a seklement – Grab the narra:ve: File a proac:ve Trial Brief/Mo:on in Limine – Actual mo:ons in limine rely on our expert tes:mony in the reports, challenge to admit this evidence. Try to control the story from outset Plain:ff for failing to address the issue, threat of juror confusion before Plain:ff does. – Pennsylvania media:on: Plain:ff’s counsel refused to speak to me at – Preserve issues for appeal because the appeals are coming and media:on, expressed direct vitriol about en:re theory, and nego:ated high they need to be strong—Mo:on in Limine strategy helps with level catastrophic claim down using ACA as a direct component that – Recent Pennsylvania media:on where full ACA presenta:on was given in a case with no liability defense, drama:c downward shiv in seklement figures – Numerous cases pending where strategy was refined for Texas, New Jersey, California, Oregon, Illinois, Michigan, Wisconsin, Oklahoma and Ohio
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The Scorecard: What does the crowd The next fight think? • Jurors undoubtedly know about ACA • The appeals are here and are sure to pop up – Constant commercials on TV – Filing taxes this year includes ACA por:on na:onwide (Pennsylvania, Ohio, California and – Constant press on ACA Hawaii seem like venues to watch) • Current sta:s:cs show that approximately 87% of Americans na:onwide have health insurance in some form; ( hkp://www.gallup.com/poll/180425/uninsured-‐rate-‐sinks.aspx) • GL cases have been mostly silent and en:rely (directly akributable to the ACA’s impact) underu:lized • Na:onally, 77% of Americans are generally aware of the individual mandate component of the ACA ( hkp://kff.org/health-‐reform/poll-‐finding/kaiser-‐health-‐policy-‐tracking-‐poll-‐ • Have to keep an eye on na:onal poli:cs december-‐2014); • So why are we not allowed to talk about it in court? Great argument to be made that jury is thinking about it already and might make incorrect assump:ons that are detrimental to either side • Plain:ffs assump:on that pa:ent will pay list price in the US is wrong
Recent Defense Victories Biggest Defense Victory?
• Jones v. Metrohealth (Ohio) • Brewington (California federal court) – Post verdict collateral source reduc:on hearing – Plain:ff argues that verdict may render child Plain:ff ineligible for Medicaid/ – In a bench trial, Judge takes Judicial No:ce of ACA as a May not get an SNT – Court rules that child will certainly qualify for Medicare by age 20 and that poten:al benefit to Plain:ff and awards damages “the ACA will fill the gap during any lapse. At most, his premium under the based on insurance calcula:ons at a cost of nearly $2 ACA will be $8,000 per year, with $6,500 for maximum out of pocket expenses.” Recovery for those eight years of “lapsed” coverage reduced to Million less than Plain:ff claimed $116,000. • Christy v. Humility of Mary Health Partners (Ohio) • Donaldson (Michigan) – “The Court finds it cannot restrict reference to the Affordable Care Act as it is the law of the land.” • “The Court finds that health insurance provided • Sivels v. Memorial Medical Center (Illinois) under the Affordable Care Act is reasonably likely to – “Defendants may produce evidence of the Affordable Care Act only as to its con8nue into the future and that its discussion effect on the actual reasonable costs of medical services. Defendants may not refer in any manner to the Act’s effect on out of pocket costs payable by before the jury is not precluded by the [collateral Plain:ff or on insurance coverage that may be available to Plain:ff.” source statute].
Takeaways
• Lay the Founda:on of the ACA Defense—low risk, high reward • Minimal legal cost investment for a viable defense • U:lize emerging law from other states to influence your state/jurisdic:on • This defense is taking hold but the fight will go on for some :me
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