Sunday morning's Milwaukee Journal Sentinel informed us that at least 135 lawyers with felony convictions are practcing law. Inside, it had the mug shots of twelve whose licenses and been suspended or revoked for criminal behavior. I looked over those mug shots and, sure enough, it seemed accurate. I was the referee who recommended that two of them be allowed to practice again. (I was initially the referee in Brian Burke's case but wound up recusing myself because I had written that no one should have gone to jail behind the caucus scandal.)
The article raised some interesting issues. Maybe we should automatically suspend lawyers upon conviction of a felony, although I will note that OLR not infrequently gets emergency suspensions pending completion of a full disciplinary proceeding. Perhaps there are certain crimes that should result in permanent suspension, although I am skeptical that we can write a rule that is better than the Court's exercise of judgment on this question. There are other issues that the reporters may want to pursue such as who gets disciplined, the resources devoted to the system and the exercise of charging discretion. I am also aware that there are a few notorious repeat offenders that the Court seems to have given a few too many chances.
But I don't believe that the system is "easy on lawyers." Reinstatement - whether from revocation or suspension (suspended lawyers are not automatically accepted back to the bar when the period of suspension is completed)- is not easy. One must retain counsel, file a petition requesting reinstatement, provide OLR with essentially any information it asks for and then have a public hearing before a referee. I recommended the reinstatement of Charlie Hausmann and Hazel Washington after evidentiary hearings in which I heard OLR's opposition and from witnesses called by both parties.
After the best deliberation I am capable of, I was convinced that both Mr. Hausmann and Ms. Washington understood what he or she did wrong, were remorseful, had paid a sufficient price and were unlikely to reoffend. When I have not been convinced of these things, I have recommended that reinstatement be denied. (My report in the Washington case was 22 pages.) The Journal Sentinel's statement that 60% of lawyers who apply for reinstatement get it does not shock me. Given the work involved, people whose cases are such that reinstatement is unlikely don't apply.
I do not believe that either attorneys Washington or Hausmann has gotten into more trouble. In fact, Mr. Hausmann later accepted my invitation to speak to law students about how he came to break the law and wind up in federal prison. He was not easy on himself. (I think he still gives this talk.)
It has never seemed to me that OLR is particularly easy on lawyers. As the paper noted, very few lawyers get charged but that's a meaningless number without knowing how many complaints the office gets. I can say that the office does not have a great deal of resources which may be one reason why more lawyers are not disciplined. It's easy to say that "lawyers should not regulate lawyers" and "doctors should not regulate doctors." But the intractable fact is that no one else can. Practicing law involves the application of professional expertise and judgment. While some cases are easy, others are not. It's hard for me to see how a system of discipline in which the decisionmakers lack the training and experience to assess the conduct of the accused would be "better."
A lot of this comes from the notorious case of Calument County DA Ken Krantz who made sexual advances upon a victim in a domestic abuse case. I don't know why OLR whiffed on that one and I am mindful of the fact that it can't defend itself. The facts as we know them (which I suspect are accurate) may not be same as the facts that were available to it. Putting that aside, he violated a number of rules and the alleged offense was serious - very serious. But one failure does not define the system.