A couple of things about the dust-up regarding Michael Best's representation of Justice Michael Gableman in ethics proceedings stemming from the Reuben Mitchell case. We've seen a ripple of uninformed commentary. I think the issue is worth discussing but it's not the scandal that some people seem to think it is.
Is the arrangement unusual? Any case brought by the Judicial Commission is a bit unusual, so we can't look at a large universe of judicial discipline cases. But considering cases of all types, the fee arrangement here really isn't uncommon. Because state law provides for the prevailing party to recover fees, this was what lawyers often call a "fee generating case," i.e., a case in which the law provides for payment of fees to the prevailing party or there is the potential for a monetary recovery from which fees can be paid. These arrangements allow lawyers to take a case in which the client could not otherwise afford to hire them.
We are all familiar with the typical contingency arrangement in personal injury cases. A lawyer provides services (clearly a thing of value) but is not paid unless there is a recovery. The lawyer agrees to do this because, if she does not, the client will be unable to afford to retain her. She makes an economic decision - it is better to have the opportunity to earn a fee than not. (This is one reason that a personal injury lawyer may not take your case if it is too weak or too small.)
We are less familiar with contingency arrangements under which the fee is paid not out of a recovery but because there is a statute that awards fees to a prevailing party. But they are also fairly common. They are, in fact, the bread and butter of lawyers who specialize in civil rights cases and class actions. The economic calculus is the same. The lawyer decides that a shot at fees (even if it means working a case "on the come") is better than no shot at all.
This latter arrangement was apparently the bargain between Justice Gableman and Michael Best. To say that contingency fee arrangements involving defendants are rare does not get us far because there are relatively few statutes permitting the award of attorney fees to a defendant.[i] But there was one in this case.[ii]
In a complaint filed today with the Judicial Commission, Mike McCabe and the Wisconsin Democracy Campaign say that the arrangement is unusual because the award of attorney fees in a case like this is discretionary. Because the controlling law, Wis. Stat. § 757.99, says that fees "may be" awarded, WCD’s McCabe – who is not a lawyer – says that agreement of a lawyer to accept only what might be awarded is unusual - even "unheard of."
That’s not true. The award of fees in civil rights cases is also discretionary. 42 U.S.C. § 1988(a) provides that a "court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs ...." Yet no one regards the agreement of a civil rights lawyer to limit herself to whatever fees a court might award as giving a gift or thing of value or otherwise entering into an unusual arrangement.
WCD's complaint also argues that sec. 757.99's reference to the "reimbursement" of fees means that Justice Gableman would have actually had to pay them or at least be obligated to pay them in order to recover. I am not aware that the statute has ever been construed that way and one could make the similar arguments with other fee shifting statutes. While they tend not to use terms like “reimbursement,” one could argue that, if there is no obligation to pay in the absence of an award, there are no fees. But these laws are not construed in that way and I doubt that the use of the term "reimbursement" would require a different result here.
In any event, that was not the interpretation of Justice Gableman and Michael Best. They seem to have believed that the he could be reimbursed for fees that were contingent upon an award. If they were wrong, that argument would go to the merits of a fee application that was never made and not to whether an arrangement of this type is unusual.
But, even if it is common, was it unethical? I don't think so. SCR 60.05(4)(e) prohibits judges from taking a gift subject to certain exceptions. Before even considering the applicability of the exceptions, it is necessary to determine whether the arrangement with Michael Best was a gift. SCR 60.01(7) defines a gift as "the payment or receipt of anything of value without valuable consideration."
But there was valuable consideration here. It was Justice Gableman's agreement to retain Michael Best in a potentially fee generating case. Whether or not you think that is "enough" consideration to warrant spending time on the case in the mere hope of recovery is immaterial. Every first year law student learns that courts do not examine whether the consideration underlying a contract is "enough" for whatever is promised in return. We all learn that a mere "peppercorn" will do.
While we may not wish to interpret SCR 60 in the same way - it is possible that there could be sweetheart deals that are tantamount to gifts even though there is some form of consideration - this doesn't seem like a particularly inviting case to do so. Lawyers generally do regard the opportunity to be retained in fee generating cases as valuable. This is is one of the reason that they advertise so heavily to get cases in which they will only be paid if they win. Don't believe me? Consider David Gruber and the Law Offices of Hupy & Abraham. TV time ain't cheap.
Even were that not the case, a lawyer's obligation to consider the need for provision of legal services to those who could otherwise not afford it militates against an overly expansive interpretation of the term "gift." As noted above, disciplinary proceedings against a sitting justice who lacked adequate representation would not serve the public interest.[iii]
State ethics law governing "state public officials" doesn't change the analysis. Sec. 19.45(2) prohibits state public officials from using their position to obtain a thing of value and sec. 19.45(3) prohibits a state public official from accepting a thing of value if it could reasonably be expected to influence him or be seen as a reward for this past conduct.
Assuming that this provision applies, receiving a thing of value for consideration - particularly pursuant to a fairly common arrangement between lawyers and clients - does not fall within the proscriptions of ss. 19.45(2) or (3). A common arrangement that lawyers and clients typically enter into does not suggest undue influence (19.45(2)) or influence or reward (19.45(3)). To suggest otherwise would bring all sorts of standard business relationships and transactions within the scope of the chapter 19 and its preface makes clear that this was not the legislature's intention.
This is not to say that there aren't issues raised by lawyers representing judges. But those issues are better addressed through recusal to which I turn next.
Will it - or did it - require Justice Gableman to recuse himself? This is a completely different question. A lawyer-client relationship between an attorney and a judge may create an appearance or risk of bias when the lawyer appears before the judge. This may lead to a duty on the part of the judge to recuse. In some instances, that might apply to members of that lawyer's firm. We all talked about this with respect to whether Justice Prosser should sit in a case in which Jim Troupis was involved after Jim had represented the judge with respect to the recount of last spring's Supreme Court election.[iv]
In today's Milwaukee Journal Sentinel, I am quoted as listing the factors that would inform a decision to recuse or not and describing the process as a judgment call. The quote is accurate.
That is the law. There are no clear or objective guidelines for the resolution of these questions. The determination of whether to recuse and how long to do so is committed almost entirely to the Justice who must weight a variety of factors including his or her ability to remain impartial, the extent to which a reasonable person might question his impartiality and the public interest in having a matter considered by the full court. That determination - in matters before the Wisconsin Supreme Court - is final and subject only to correction only in unusual and extraordinary cases by the United States Supreme Court.[v]
The article then refers to the opinion of two law professors, Stephen Gillers and Charles Geyh, who are not Wisconsin lawyers, who said they "believed" that Gableman should have recused himself. "Believed" is the operative word. Their conclusions reflect the way in which those professors thought - at least during the few seconds it took them to respond to a reporter's inquiry - they would have reacted. They may be right but I doubt that they knew all of the facts or spent the type of time on the question that an actual judge does.
In the paper's coverage, Professors Gillers and Geyh seem to be heavily influenced by the fact that Justice Gableman did not pay by the hour.. But is it really correct that judges may not retain counsel on a contingency fee basis? What if a justice or member of her family was in a car wreck? Do Professors Gillers and Geyh believe that a judge may hire counsel on a contingency basis, but that the lawyer is (indefinitely?) barred from appearing before the judge if the case is lost? What if, as was the case here, the matter involves important constitutional questions? What if, as I assume was the case here, a judge lacks the financial resources to hire competent counsel?
The idea must be that Justice Gableman owes Michael Best a "debt of gratitude" because they agreed to represent him on a contingency basis. But this certainly doesn't comport with our common understanding of what constitutes a gift. If I hire Bill Cannon to represent me in a medical malpractice case and he doesn't get paid because he loses the case, I don't think that he gave me a gift or that I owe him anything. If I retain Walt Kelly to represent me in a civil rights case after the police beat me up and he doesn't get paid because the case gets tossed on summary judgment, I don't owe him a debt of gratitude for working for "free."
The bottom line is that these issues are not easy and not properly the stuff of sound bites and partisan attacks.
Today's article report that Justice Gableman sat on some cases involving Michael Best during a period that included (but was not coterminous with) the period in which he was represented by Michael Best. Should he have recused himself during that period?
Perhaps. I'd want to know precisely when these cases arose, who the actual lawyers were and the public interest in each. The three cases that the article refers to, for example, were argued and submitted to the court after Michael Best's representation of Justice Gableman had ended[vi] - although one had also been argued earlier and then set for additional briefing and reargument.
It does appear, however, that there were other cases in which Michael Best was involved and in which Justice Gableman participated during the period in which he was being represented by the firm. Even if I – or Professors Gillers or Geyh – might have decided to stand down during this period does not mean that someone else might reach a different conclusion.
The one thing I can say is that Michael Best's representation of Justice Gableman does not seem to have much of an impact on his voting which was pretty much split down the middle.[vii] Although the recusal issue goes beyond the issue of actual bias, if, as some intemperate bloggers have charged, Michael Best thought it was "buying a Justice" (and it didn't; it thought it was acting in the public interest), then it got a raw deal.
There is an ethics issue to be raised that does not involve Justice Gableman. SCR 20:1.6 prohibits a lawyer from disclosing information "relating to the representation of a client” without authorization. From press reports and other sources, it appears that the firm disclosed Justice Gableman's fee arrangement to other members of the court and to the press. Did Justice Gableman authorize the disclosure? If not, was there a legal justification to do so?
I am not accusing anyone of anything and my experience with large law firms is that they do not act rashly. There may well be an explanation and we ought to be willing to hear it if and when the proper time comes.
But, as a member of the bar, I am naturally curious about this type of disclosure of a client confidence. I think it is important to raise it because the public ought to be confident that lawyers will respect the confidentiality of their matters.
Why was it OK to disclose a confidential fee arrangement?
[i] It is possible for a defendant in an action brought under the federal civil rights law to recover fees but there are additional requirements imposed by case law (essentially that the position of plaintiff have been frivolous) that makes it hard to do.
[ii] It would be unfair to Michael Best, however, not to point out that it may also have been motivated by altruism and consideration of the public interest. There were important constitutional issues raised in the Gableman disciplinary matter and it would have been contrary to the public interest for a sitting Supreme Court justice to lack adequate representation. (As noted below, it is apparent that what Michael Best has not gotten was favorable treatment for its clients.)
[iii]Unless Michael Gableman is independently wealthy, he could not afford to hire Michael Best & Friedrich by the hour on a justice's salary. Anyone who thinks otherwise has never seen a bill from a large law firm. However, matters as complex and important as those presented in his disciplinary matter required retention of counsel of comparable talent. Lawyers like that don't come cheap.
[iv] By way of full disclosure, I was also involved in that case although not the recount. Jim Troupis withdrew, Justice Prosser recused himself and I argued the case which is pending.
[v]The reason that I say federal review would be limited is because the opinion in the controlling case, Caperton v Massey Coal Co., repeatedly stated that a federal constitutional duty to recuse only arises in "unusual," "rare" and "special" circumstances.
[vi] The cases are Metropolitan Milwaukee Ass’n of Commerce v. City of Milwaukee (argued October 1, 2010); Metropolitan Associates v. City of Milwaukee (argued October 7, 2010) and State ex rel. Ozanne v. Fitzgerald (argued June 6, 2011)
[vii] Apparently, Gableman voted for Michael Best's position five times and against it four times. The three other "conservative" justices, Prosser, Roggensack and Ziegler, broke 4-5, 4-4 and 4-4. That difference is not statistically significant. The "liberal" wing - Chief Justice Abrahamson and Justice Bradley and Crooks (to whom the liberal label should be applied lightly) - all went 1-8. This suggests that the outcomes were a matter of philosophy and not some external bias.