Friday, January 11, 2008

A simple observation on the Ziegler matter

There is still a great deal of back and forth over what the proper sanction ought to be for Justice Ziegler's breach of rules that required her to recuse herself or to disclose her husband's directorship in some cases involving West Bend Saving. A panel of judges has recommended a public reprimand. Critics say that this is not enough.

I am privileged to serve the Wisconsin Supreme Court as a referee in attorney discipline cases. If I have a lawyer who I have found to have violated (or, as is often the case, he or she admits violating), I have to recommend the degree of discipline. (The final decision on violation and discipline is always with the Court.)

If you look through the reporters, discipline varies greatly and it is tough to compare one case to another because few are exactly the same. One of the things that you look for is intent. Did the person knowingly break the rules? If not, you make an assessment as to why he or she failed to follow them and try to make a judgment about the likelihood of it happening again. You look to see whether anyone was harmed by the violation (and, if so, what can be done to provide restitution). You ask whether the lawyer understands what he or she did wrong and why it is wrong. You look at whether the lawyer properly adjusted his or her attitude (although this is more important in cases involving reinstatement after suspension). You consider his or her past - what kind of a lawyer has he or she been? Has there been prior discipline?

Rightly or wrongly, in most cases where 1) the violation is unintentional and the lawyer had no intent to obtain an unjust benefit, 2) no one was harmed and 3) there is no prior history of discipline, the recommended (and accepted) discipline is a public (or, very often, a private, i.e., nonpublic) reprimand. This is why I have argued from the outset that this case looks like a public reprimand to me.

Maybe you think that we in the legal profession aren't hard enough on our sisters and brothers who stray. Perhaps you can argue that we ought to be more unforgiving with judges. There are far fewer judicial discipline cases to provide guidance. so I can't say whether my impression from attorney cases is, as we say, "on all fours" here.

I also know that it is hard to disentangle our preferences for one candidate or another from that we think the proper resolution ought to be. But, putting aside how it ought to be applied here, I am confident that the generalization that I just made is accurate.

I report, you decide.


Anonymous said...

Lawyers represent clients and Judges are suppose to represent justice whereby the rules must be absolute.

Is there American justice without the rules, or when rules are dedueced meaningless? It seems to me that we only have prolatariet morality in play without the rules. Discretionary justice is no justice at all.

We should only have judges that follow the rules that the justice system is founded on. Why do you want any other?

Rick Esenberg said...

Lawyers represent clients and Judges are suppose to represent justice whereby the rules must be absolute.

That's not a helpful distinction in this context. When lawyers are found to have violated, it is usually because they haven't represented their clients in the way that they ought to and those rules can be just as "absolute" as those to which judges are subject. Most people's legal issues are never resolved by a judge; what happens to them is pretty much the product of what the lawyers do and they can cause a lot of harm if they don't do it right.

We should only have judges that follow the rules that the justice system is founded on. Why do you want any other?

I don't, but that's not the question. The question is what we ought to do when they don't. I suppose that we could say that any rule violation leads to removal from the bench, but we haven't and I don't think that we should

Anonymous said...

Perhaps I should have taken my comments further but the distinction between a lawyer and a judge seems obvious to me. I could only add to it that if the Supreme Court can punish lawyers for smaller infractions than J. Ziegler committed (as they should), it should then do so with it's own by at least three times the severity. (This comparison with lawyers is only made because apparantly we have never had a Judge violate the rules before this.)

I think I try to see it from all sides as many people do. Part of me says that our courts are to far gone, that the devil has his hold on them and there is no hope of returning justice to them. But I'm impressed by the number of people that are speaking out and concerned about this and I think that offers hope.

Finally, the question is if we want Judges and Justices that break the rules. I don't want judges that are taking care of there friends, families and supporters at the expense of people that were victims first by there adversary and then by the very court where they are trying to resolve it. I do think the rules are absolute and that removal is the intended consequence. That is why I think there has been a reluctance to pursue complaints in the past.

Side Note: I rarely listen to the radio but the other day I turned it on and Belling was making a big deal how he feels that an asst. D.A. should follow a judges rule about wearing a tie. I thought, what a hypocrit when you consider that he doesn't speak out about a Judge that breaks the rules, which is far worse then not wearing a tie.

Anonymous said...

I say a recall election.
We voters decide.

We often change our minds, after facts come to light.