Sunday's article by Patrick Marley makes an effort to respond to the arguments that I and others have made that the relationship between Justice Michael Gableman and Michael Best was neither unethical nor unlawful.
Let's review the bidding. It is pretty clear that the relationship between Justice Gableman and the law frim did not result in favorable treatment of Michael Best's clients. Gableman's votes in those cases did not differ materially from those of other members of the conservative majority.
But that doesn't close the issue with respect to either the state or judicial ethics code. My argument - and that of Gableman's lawyer (Viet Dinh who is a quite accomplished and nationally respected lawyer) - has been that the arrangement is supported by consideration and, in fact, bears significant resemblance to arrangements that lawyers and clients make every day. While Marley and those he quotes have chosen to focus on the contingency arrangements in personal injury cases, a better analogy is the agreement of lawyers in cases involving civil rights claims, class actions or other "fee shifting" statutes to limit themselves to whatever fees a court or other tribunal might award.
In such cases, a lawyer must prevail, persuade the court to award fees and then justify the amount of the fee request. A lawyer will often be compensated at a lower rate and for fewer hours than would be the case in a purely private arrangement. In such arrangements, there is not, as one of Marley's sources - a lawyer named Paul Gossens - says of personal injury contingencies, a guarantee of "X number of dollars if you prevail...." Mr. Gossens is wrong. The universe of contingency arrangements is larger than that.
So, in response, Marley's sources want to say that the probability of Michael Best obtaining a fee was "clearly" below some threshold below which such an arrangement must be a gift. In setting forth my argument, I anticipated that objection. Normally, we don't look behind the fact of consideration to ask whether it was "enough" or whether one side could have gotten a better deal.
Beyond determining that the potential for a fee award is real, I don't know that an extended analysis of the likelihood of recovery is warranted (or, as noted below, even possible). Lawyers often take cases in which the potential for actually recovering a fee is remote. Sometime they do it out of optimism. Often, they do it because they believe that the case presents issues that ought to be heard or interesting questions that the lawyer would like to work on.
Some (but not all) of the professors quoted in the article are apparently certain that they know that this was "too contingent" for any lawyer to take. I am not sure how they arrive at that certainty. I am unaware of any standard for them to apply other than personal judgment. Sometimes that's all we have, but we ought to be reluctant to brand others as unethical and criminal because their judgment differed from ours.
It seems to me, then, that critics of the arrangement have to argue that the possibility of fees was illusory - something that would never really happen. In my original post, I suggested that we wouldn't have much precedent with how the contingency models works in the world of judicial complaints because there are so few complaints. Sure enough, the article reports that there have only been twenty four in forty years and only one in which the judge prevails and could have asked for fees.
The Journal Sentinel article makes much of this case - a 24 year old case in which a Racine County Circuit judge was only able to recover a portion of his fees. What would have happened in a far more prominent case involving a Supreme Court justice may have been quite different. Even were it necessary for the legislature to approve fees, it is not unusual for the legislature to approve claims against the state. The fact is that we have very little precedent from which to form a judgment.
While we can accept that it would have been tougher to get fees than in a traditional personal injury case, that doesn't mean that the possibility of recovering them was nonexistent or so insubstantial that it must be ignored for purposes of applying the state or judicial code. I assume that Professor Gillers, one of the law professors quoted in the article, must agree because he does not believe that the arrangement was improper.
My position is bolstered, I think, by the fact that we are not dealing with discounted car rental rates but the provision of legal counsel in a case of substantial public importance. This raises due process implications and I would suggest that we be reluctant to interpret general ethical standards in a way that makes it harder - perhaps even impossible - for people to get competent counsel. In fact, although it is not necessary to resolve the case, I would want to think a lot more before I announced that a public official cannot be represented on a pro bono basis.
It is not clear to me that there was an alternative arrangement under which Justice Gableman could have obtained counsel. He did not have the money. Although both the Judicial Code and Chapter 19 make an exception for campaign contributions, contributions to defray the costs of a defense against ethical charges are not that and would presumably themselves be indicted (with far more justification) as impermissible "gifts."
In any event, the standards for determining criminal or ethical violations ought to be clear. The gratuitous and subjective off the cuff judgments offered by Marley's sources - to the effect that, based on one case almost a quarter of a century ago, the prospect of fees are too remote - don't cut it.
Of course, an arrangement need not be unethical to warrant recusal. And, conversely, not all arrangements that might lead to some judges or lawyers to call for recusal are unethical. That's an issue I'll return to in my next post on the matter.