Sunday, January 08, 2012

One more word on ethics and recusal

My op-ed on the ethics allegations against Mike Gableman in last Thursday's Journal Sentinel is here.

I want to follow up because the editorial board and I missed each other. I did not know that what I wrote was going to be published as "Another View" or that the topic was recusal and not the ethics issue. All I knew is that they wanted to publish an edited version of a post on Shark and Shepherd. They offered to do the editing but also gave me the opportunity to do it myself. I chose the latter. Because of the difficulty in covering this stuff in 500-600 words, I decided to focus on the ethics question.

This isn't a criticism of the paper. This just came up at the last minute and I probably should have asked what the context was going to be. But since I didn't, I want to say a few things in response to what the paper wrote.

First, it is not true that all nine of the cases in which Gableman participated and MBF had a client came  before the Court during the period in which MBF represented the Justice. Some, including the Act 10, arose after the representation had ended.

Second, it continues to astonish me that neither the media nor commentators acknowledge the fact that this type of contingency arrangement is not uncommon. In fact, it is, from time to time, extended to public officials. For example, John Siefert, a Democrat and circuit court judge, appears to have had such an arrangement in an action challenging certain restrictions in the judicial code on speech and campaign activities by sitting judges and judicial candidates. When he won, his lawyers (Jim Bopp and Mike Dean) asked the court to award fees.

I recall representing American Family Insurance in a redlining case in which one of the plaintiffs was then alderman Marvin Pratt. The case was both a civil rights suit and a class action - two areas where contingency arrangements are ubiquitous. I don't know, but I would be surprised if Alderman Pratt's relationship with his lawyers was not similar. I do know that, when the case was settled, there was a negotiated fee award.

Third, in response to this, none of Gableman's critics engage the issue. They continually refer to the somewhat - but not completely - differing nature of a contingency in a personal injury case (which no one seems to thing an injured judge could not enter into) or just say "well, he didn't pay." But, as I and others have pointed out in painstaking detail, that doesn't answer the question of whether the relationship was a gift.
Because lawyers enter into these on a regular basis, it is reasonable to assume that the opportunity to recover fees is adequate consideration for the provision of representation. If that's so, then the arrangement is not a gift by the very terms of the Judicial Code.
While a lawyer who wants fees under sec. 757.99 may have had to get them approved by the legislature, this is also not unheard of . I've represented clients on claims that required such approval and they are considered by the legislature on a regular basis. It's another hoop to jump through, but it hardly precludes recovery in an appropriate case.

All of this, it seems to me bears on the issue of recusal. In a (relatively) recent piece in the Wake Forest Law Review, I argued that recusal in a court like the Wisconsin Supreme Court is different. That court is a law developing court of last resort that acts collegially, i.e., the justices hear cases and vote on the outcome. When a justice steps down, he or she is not replaced.

These facts suggest that aggressive recusal standards are inappropriate. While there are cases in which recusal is proper, it is not correct that a Supreme Court justice should "err" on the side of recusal or step aside whenever some one might think that his or her judgment might be affected.
Having published this view long before this controversy arose, I am fairly confident that it was not developed in order to defend Justice Gableman and I have argued for its applicability to more liberal members of the Court who sat on cases in which significant campaign contributors had an interest.

And keeping that view in mind, I am fairly confident in arguing that Justice Gableman was not required to recuse himself in the Ozanne case just as those justices whose campaigns had been handsomely supported by public employee unions or who stood to lose significant income if Act 10 were to become law (this would be all of them) were not so required.
His relationship with MBF had ended and neither party had any further obligation to the other.

My view is bolstered by the fact that a contrary view would make it very difficult for any sitting justice to obtain counsel. If there were a duty of recusal that "lingered" even after a representation had ended, few good lawyers would want to harm their practice in that way.


George mitchell said...

If the editorial board and Patrick marley were to report the totality of the issue the paper would have to acknowledge that its initial (and now continuing) slant was skewed. Won't happen.

Nevertheless, Rick's observations and insight is valuable for those who want to understand the bigger picture.

illusory tenant said...

Judge Seifert was a plaintiff, so the comparison is inapt. In some jurisdictions attorneys are forbidden from entering into contingent fee arrangements with defendants in criminal cases (see, e.g., ABA Model Rule of Professional Conduct 1.5(d)(2)). The latter is the more apt comparison to Gableman's situation as there is a potential criminal penalty attached to violations of the Wisconsin Code of Judicial Conduct and frankly it is troubling to witness a Marquette University Law School professor's continuing defense of Gableman's reported legal services contract.

Rick Esenberg said...

But it's not a criminal case and the rule is inapplicable. I would hope that a graduate of Marquette University Law School would recognize that an ethics violation cannot be predicated on a prohibition that he wished existed but does not.

Ironically, the rule against contingency fees in criminal cases is based, in part, on the vulnerable nature of the defendant - a situation that I am sure Tom wouldn't say is applicable here.

As to whether one is a plaintiff or defendant (or, more accurately, a respondent), please explain why that should matter in a case where fees may be awarded to a defendant.

Anonymous said...

I'm just a regular person but I pay for legal representation or I don't get it... just saying...the smell test for corruption does't seem to bother some folk.

illusory tenant said...

I said that the model rule pertaining to a defense's contingent fee arrangements is more analogous to the adversarial circumstances of Gableman's case than are comparisons to plaintiffs' contingent fee arrangements in personal injury actions, the latter being similarly Gableman's own attorney's contention, per his commentary on JSOnline (if that was indeed Mr. Dinh who deposited the commentary). Gableman was no plaintiff, that is indisputable. And what was at issue in this case was not simply Gableman's having violated the Supreme Court Rules of Judicial Conduct but a statutory provision governing judicial misconduct.

illusory tenant said...

(Re "Potential criminal penalty" - this is incorrect, however, and I withdraw it, although the potential penalties for judicial misconduct are arguably even more severe than for a lower class misdemeanor.)

John said...

You have yet to come up with a similar case where a judge under an ethics complaint has a similar arrangement that Justice Gabelman had with his lawyers. You are really stretching to find an example, but you have not found one yet.

Anonymous said...

Imagine the wailing and gnashing of teeth here if the Justice in question was the Chief Justice and the lawyer in question was from Rubbish, Rubbish and Rottier. The Professor would be calling for the death penalty.

jimspice said...

I did not realize until now that you had relinquished your faculty status for that of adjunct, and worse, much much worse, gone all Bradley and shit on our asses. I do not know how this slipped by me, but now that I'm aware, it explains a lot. So much for the opportunity of a gavel -- though I'm sure you can buy any you'd like now.

Rick Esenberg said...


But you haven't explained why it matters that he was in the position of a defendant and not a plaintiff when he, just like a plaintiff in a civil rights action, had the right to collect fees if he prevailed.

It seems to me that you ought to be able to articulate a distinction before you issue your haughty dismissals and suggest that someone else has committed an unethical and potentially criminal act.

Sean Duffey said...

As a civil litigation lawyer for 25 years, it strikes me that there is a significant difference between a contingency fee agreement in a personal injury case and the contingency fee agreement in Justice Gableman's ethics case.

When a jury awards a plaintiff damages for personal injury, that entire sum becomes the plaintiff's money in compensation for his/her injury. Then, because of the contingent fee, the plaintiff pays a portion of his/her money to his/her attorney in compensation for the attorney's work.

In the Gableman case, there was no prospect of an award of damages to Justice Gableman. He would therefore never be called upon to take a portion of his own money award and turn it over to his attorney.

Instead, the only money Justice Gableman could collect in his ethics case was reimbursement for his legal fees.

The statute setting forth the procedure by which Justice Gableman would have sought this reimbursement is, confusingly enough, primarily directed toward claims for reimbursement of travel expenses by state employees. It is telling, however, that it requires such claims to be supported by an invoice, and that the amount actually had to be paid out by the claimant.

If MB&F never billed Justice Gableman for its legal work, then how could Justice Gableman provide an invoice for his attorney fees and state on penalty of perjury that those attorney fees were actually paid?

In any event, it seems to me that the issue of whether Justice Gableman received special treatment because of his state office could be easily resolved by MB&F providing a stack of similar contingency fee agreements - appropriately redacted to protect client identities - showing that Justice Gableman was just being treated as an ordinary client.

The more troubling issue is whether Justice Gableman received a thing of value from a firm likely to come before him, and that he participated in cases involving that firm without any disclosure. I'm not sure that even a stack of similar agreements would change the fact that Justice Gableman received tens of thousands of legal fees for which he could never be personally liable to pay.