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Supreme
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Notice This order is subject to further editing and modification. The final version will appear in the bound volume of the official reports. |
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In the matter of the Amendment to Supreme Court Rules relating to the Lawyer Regulation System |
FILED JAN 23, 2002 Cornelia G. Clark Clerk of Supreme Court Madison, WI |
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On September 20, 2001, the court held a public hearing on the petition filed on June 22, 2001, by the Director of the Office of Lawyer Regulation seeking to amend the Supreme Court Rules, including rules in chapters 10, 11, 12, 20, 21, 22, 31, 60, and 62, as they relate to the Lawyer Regulation System. The court has considered the matters presented at the public hearing and the materials filed in the matter. On November 14, 2001, the court filed an order addressing some of the amendments. The court now addresses the remaining amendments proposed by the petitioner.
IT IS ORDERED that the Supreme Court Rules are amended as follows:
Section 1. 10.03 (6m) of the Supreme Court Rules is created to read:
10.03 (6m) Petition for reinstatement from suspension for nonpayment of dues or failure to file a trust account certificate. (a) An attorney whose suspension for nonpayment of annual membership dues for state bar operations has been for a period of less than 3 consecutive years shall be reinstated as a member by the state bar board of governors if he or she makes full payment of the amount owing and an additional payment of $20 as a penalty. The secretary of the state bar shall certify the reinstatement to the clerk of the supreme court.
(b) An attorney whose suspension for nonpayment of annual membership dues for state bar operations has been for a period of 3 or more consecutive years may file a petition for reinstatement with the supreme court. A copy of the petition shall be served on the board of bar examiners and the office of lawyer regulation. Separate payments in the amount of $200 each shall be made to the board of bar examiners and the office of lawyer regulation and shall accompany the petition. Within 90 days after service of the petition for reinstatement, the board shall make a determination regarding compliance and file its finding with the supreme court. Within 90 days after service of the petition for reinstatement, the director of the office of lawyer regulation shall investigate the eligibility of the petitioner for reinstatement and file a response with the supreme court in support of or in opposition to the petition.
(c) An attorney suspended from the practice of law for failure to comply with the trust account certification requirement under SCR 20:1.15 (g) shall be reinstated as a member by the state bar board of governors if he or she files the prescribed certificate. The secretary of the state bar shall certify the reinstatement to the clerk of the supreme court.
Section 2. 10.03 (7) of the Supreme Court Rules is amended to read:
10.03 (7) Voluntary resignation of membership. If a member of the state bar files with the executive director a written notice of the member's surrender of his or her license to practice law and the acceptance by the supreme court of his or her resignation in the state bar, the person shall then cease to be a member of the state bar and his or her name shall be removed from the membership register. Before accepting a resignation, the supreme court shall request from the office of lawyer regulation information concerning whether the attorney is the subject of any pending grievances, investigations, or proceedings.
Section 3. 11.03 of the Supreme Court Rules is repealed.
Section 4. 21.05 (1) of the Supreme Court Rules is amended to read:
21.05 (1) Staff of the office of lawyer
regulation may include persons admitted to the practice of law in Wisconsin
whose duties are to conduct or assist in investigations, present matters to the
preliminary review panels, and prosecute complaints alleging attorney
misconduct and petitions alleging attorney medical incapacity, conduct or
assist in reinstatement investigations and represent the office of lawyer
regulation in hearings, and perform other duties assigned by the director.
Section 5. 21.05 (2) of the Supreme Court Rules is amended to read:
21.05 (2) The director may retain attorneys
engaged in the practice of law in Wisconsin to assist in the performance of the
director's duty to present matters to the preliminary review panels and,
to prosecute complaints alleging attorney misconduct and petitions alleging
attorney medical incapacity, and to conduct or assist in reinstatement
investigations and represent the office of lawyer regulation in hearings, and
perform other duties assigned by the director. Retained counsel are independent contractors and serve at the
pleasure of the director.
Section 6. 21.12 of the Supreme Court Rules is amended to read:
21.12 Roles of office of lawyer regulation, grievant, and district committees. In the investigation process and in the prosecution of complaints alleging attorney misconduct and petitions alleging attorney medical incapacity, the director and staff of the office of lawyer regulation and the district committees do not represent the complaining person, the attorney against whom a grievance has been made, the bar generally, or any other person or group. The director, staff of the office of lawyer regulation, and district committees represent the interests of the supreme court and the public in the integrity of the lawyer regulation system in its search for the truth. A grievant is not a party to a misconduct or medical incapacity proceeding brought by the office of lawyer regulation.
Section 7. 21.13 of the Supreme Court Rules is amended to read:
21.13 Official duties. When acting in the
course of their official duties under SCR chapters chs. 21 and
22, the following are acting on behalf of the supreme court in respect to
the statutes and supreme court rules and orders regulating the conduct of
attorneys:
(1) the The director and staff of
the office of lawyer regulation,.
(2) retained Retained counsel,.
(3) members Members of district investigative
committees,.
(4) members of a special investigative panel
Special investigators,.
(5) members Members of the
preliminary review committee,.
(6) members Members of a special
preliminary review panel,;
(7) referees Referees,.
(8) members
Members of the board of administrative
oversight,and.
(9) attorneys Attorneys designated
by the director to monitor compliance with diversion agreements or with
conditions imposed by the supreme court in misconduct and medical incapacity
proceedings, or to investigate or conduct a hearing in a reinstatement
proceeding are acting on behalf of the supreme court in respect to the
statutes and supreme court rules and orders regulating the conduct of attorneys.
Section 8. 21.14 (1) of the Supreme Court Rules is amended to read:
21.14 (1) The following may not take part in
a matter in which they are a complaining person, grievant, or respondent or in
which their own interests outside of their official duties under SCR chs. 21
and 22 reasonably may be perceived to impair their impartiality or when a judge
similarly situated would be disqualified under s. 757.19, 1997 stats. or
recusal would be required under SCR 60.04(4):
(a) The director and staff of the office of
lawyer regulation,.
(b) retained Retained counsel,.
(c) members
Members of district investigative committees,. (d)
members of a special investigative panel Special
investigators,.
(e) members
Members of the preliminary review committee,. (f) members
Members of a special preliminary review panel,. (g)
referees Referees,.
(h) attorneys
Attorneys designated by the director to
monitor an attorney's
participation in a diversion from discipline program or compliance with
conditions imposed on the attorney's practice of law, and.
(i) members Members of the board
of administrative oversight may not take part in a matter in which they are
a complaining person, grievant or respondent or in which their own interests
outside of their official duties under SCR chapters 21 and 22 reasonably may be
perceived to impair their impartiality or when a judge similarly situated would
be disqualified under Wis. Stat. § 757.19 (1997-98) or required to recuse
himself or herself under SCR 60.04(4).
Section 9. 21.14 (2) of the Supreme Court Rules is amended to read:
21.14 (2) Allegations of misconduct or
malfeasance against the director, staff of the office of lawyer regulation,
retained counsel, a member of a district committee, a member of a
special investigative panel investigator, a member of the
preliminary review committee, a member of a special preliminary review panel,
a referee, an attorney designated by the director to monitor an attorney's
participation in a diversion from discipline program or compliance with
conditions imposed on the attorney's practice of law, or a member of the board
of administrative oversight shall be governed by the procedures set forth in
under SCR 22.25.
Section 10. 21.15 (5) of the Supreme Court Rules is created to read:
21.15 (5) An attorney found guilty or convicted of any crime on or after July 1, 2002, shall notify in writing the office of lawyer regulation and the clerk of the Supreme Court within 5 days after the finding or conviction, whichever first occurs. The notice shall include the identity of the attorney, the date of finding or conviction, the offenses, and the jurisdiction. An attorney’s failure to notify the office of lawyer regulation and clerk of the supreme court of being found guilty or his or her conviction is misconduct.
Section 11. 21.19 of the Supreme Court Rules is amended to read:
21.19 Privileges, Immunity. Communications with the director or,
staff of the office of lawyer regulation, a district committee, a member
of a special investigative panel investigator, retained
counsel, the preliminary review committee, and a special preliminary review
panel alleging attorney misconduct or medical incapacity and testimony given in
an investigation or proceeding under SCR chapter ch. 22 are
privileged, and no. No
lawsuit predicated on those these communications may be
instituted against any grievant or witness.
The director, staff of the office of lawyer regulation, members
of a district committee, members of a special investigative panel
investigators, retained counsel, members of the preliminary
review committee, members of a special preliminary review panel, referees,
and members of the board of administrative oversight, and attorneys
designated by the director to monitor compliance with diversion agreements or
with conditions imposed on the attorney's practice of law, shall be
immune from suit for any conduct in the course of their official duties.
Section 12. 21.21 of the Supreme Court Rules is amended to read:
21.21 Cost of lawyer regulation system. The cost
of the office of lawyer regulation, the district committees, the preliminary
review committee, all matters relating to investigation and prosecution of
possible attorney misconduct and medical incapacity, reinstatement
investigations and hearings, and the board of administrative oversight
shall be paid from the appropriation provided in Wis. Stat. § 20.680
(3) (h) (1997-98) s. 20.680 (3) (h), 1997 stats.
Section 13. 22.02 (4) of the Supreme Court Rules is amended to read:
22.02 (4) The staff shall notify the grievant in
writing that the grievant may obtain review by the director of the staff's
closure of a matter under sub. (2)(c) by submitting to the director a
written request to the director within 90 days after being notified. The request for review must be received by
the director within 30 days after the date of the letter notifying the grievant
of the closure. The director may,
upon a timely request by the grievant for additional time, extend the time for
submission of additional information relating to the request for review. The decision of the director affirming the
closure or referring the matter to staff for further evaluation is final, and
there shall be no review of the director's decision.
Section 14. 22.02 (6) (a) of the Supreme Court Rules is amended to read:
22.02 (6) (a) Close the matter for lack of an allegation of possible misconduct or medical incapacity or lack of sufficient information of cause to proceed. The director shall notify the grievant in writing that the grievant may obtain review by a preliminary review panel of the director's closure by submitting a written request to the director. The request for review must be received by the director within 30 days after the date of the letter notifying the grievant of the closure. The director shall send the request for review to the chairperson of the preliminary review committee, who shall assign it to a preliminary review panel. Upon a timely request by the grievant for additional time, the director shall report the request to the chairperson of the preliminary review committee, who may extend the time for submission of additional information relating to the request for review.
Section 15. 22.03 (4) of the Supreme Court Rules is amended to read:
22.03 (4) If the respondent fails to respond to
the request for written response to an allegation of misconduct or fails to
cooperate in other respects in an investigation, the director, or a
special investigator acting under SCR 22.25, may file a motion with the
supreme court requesting that the court order the respondent to show cause why
his or her license to practice law should not be suspended for wilful willful
failure to respond or cooperate with the investigation. All papers, files, transcripts,
communications, and proceedings on the motion shall be confidential and shall
remain confidential until the supreme court has issued an order to show
cause. The license of an attorney
suspended for willful failure to respond or cooperate with an investigation may
be reinstated by the supreme court upon a showing of cooperation with the
investigation and compliance with the terms of suspension. The director or the special investigator
shall file a response in support of or in opposition to the reinstatement
within 20 days after the filing of an attorney's request for
reinstatement. Upon a showing of good
cause, the supreme court may extend the time for filing a response.
Section 16. 22.03 (8) of the Supreme Court Rules is amended to read:
22.03 (8) The director, or a special investigator acting under SCR 22.25, may subpoena the respondent and others and compel any person to produce pertinent books, papers, and documents. The director, or a special investigator acting under SCR 22.25, may obtain expert assistance in the course of an investigation.
Section 17. 22.04 (1) of the Supreme Court Rules is amended to read:
22.04 (1) The director may refer a matter to a
district committee for assistance in
the investigation. A respondent has the
duty to cooperate specified in SCR 21.15(4) and 22.03(2) in respect to the
district committee. The committee has
the power to may subpoena and compel the production of documents
specified in SCR 22.03(7) and 22.42.
Section 18. 22.04 (2) of the Supreme Court Rules is amended to read:
22.04 (2) When the director refers a matter to a committee, the respondent may make a written request for the substitution of the investigator assigned to the matter by the committee chairperson, or may provide a written waiver of the right to request substitution. The request for substitution shall be made within 14 days after receipt of notice of the assignment of the investigator. One timely request for substitution shall be granted as a matter of right. Additional requests for substitution shall be granted by the committee chairperson for good cause. When a request for substitution is granted, the investigator initially assigned shall not participate further in the matter.
Section 19. 22.05 (2) of the Supreme Court Rules is amended to read:
22.05 (2) The director shall notify the grievant
in writing that the grievant may obtain review by a preliminary review panel of
the director's dismissal of a matter under sub. (1) by submitting to the
director a written request to the director within 90 days after
being notified. The request for
review must be received by the director within 30 days after the date of the
letter notifying the grievant of the dismissal. The director shall send the request to the chairperson of the
preliminary review committee, who shall assign it to a preliminary review panel. Upon a timely request by the grievant for
additional time, the director shall report the request to the chairperson of
the preliminary review committee, who may extend the time for submission of
additional information relating to the request for review.
Section 20. 22.05 (3) of the Supreme Court Rules is amended to read:
22.05 (3)
The preliminary review panel may affirm the dismissal or, if it
determines that the director has exercised the director's discretion
erroneously, refer the matter to the director for further investigation. A majority vote of the panel is required
to find that the director has exercised discretion erroneously. The panel's decision is final, and there
shall be no review of the panel's decision.
The director chairperson of the preliminary review committee
shall notify the grievant and the respondent in writing of the panel's
decision.
Section 21. 22.08 (1) (a) of the Supreme Court Rules is amended to read:
22.08 (1) (a) If the preliminary review panel determines that the director has not established cause to proceed in the matter, the director may dismiss the matter, which is a final decision, or the director may continue the investigation and resubmit the matter to the same panel within a reasonable time after the panel's determination. The director shall notify the respondent and the grievant of the decision to dismiss the matter or continue the investigation.
Section 22. 22.08 (1) (c) of the Supreme Court Rules is amended to read:
22.08 (1) (c) The chairperson of the
committee shall notify the grievant in writing that the grievant may obtain
review by a referee of the chairperson's dismissal of a matter by filing
submitting to the director a written request with the director within
90 days after being notified of the dismissal. The referee shall be selected by the clerk of the supreme court,
based on availability and geographic proximity to the respondent's principal
office, and appointed by the chief justice or, in his or her absence, by the
senior justice. The request for review
must be received by the director within 30 days after the date of the letter
notifying the grievant of the dismissal.
The director may, upon a timely request by the grievant for additional
time, extend the time for submission of additional information relating to the
request for review. The decision of
the referee affirming the dismissal or referring the matter to the director for
further investigation is final, and there shall be no review of the referee's
decision.
Section 23. 22.09 (2) of the Supreme Court Rules is amended to read:
22.09 (2) The director shall submit the
agreement to a referee selected by the request the appointment of a
referee by providing in confidence to the clerk of the supreme court the names of
the grievant and respondent, the address of the respondent's principal office,
and the date of the consent agreement.
The clerk of the supreme court, shall select a referee
based on availability and geographic proximity to the respondent's principal office,
and appointed by the. The
chief justice or, in his or her absence, the senior justice shall appoint
the referee. The director shall submit
the agreement, accompanied by the respondent's public and private disciplinary
history, to the appointed referee for review and approval and. The director shall send a copy of the
agreement to the grievant. The grievant
may submit a written response to the director within 30 days after being
notified of the agreement, and the director shall submit the response to the
referee. The respondent and the
director may submit comments to the referee regarding the grievant's
response. The agreement, the grievant's
response, and the comments of the respondent and director shall be considered
by the referee in confidence.
Section 24. 22.09 (4) of the Supreme Court Rules is amended to read:
22.09 (4) If the referee does determines
that the agreement is not supported by sufficient facts or that the sanction
falls outside the range of sanctions appropriate in similar cases, the referee
shall not approve the agreement, the. The referee shall, in those cases, inform the director,
the grievant, and the respondent in writing, and the stating the
basis and reasons for disapproval. The
director shall then proceed in the matter as the director may consider
appropriate.
Section 25. 22.13 (3) of the Supreme Court Rules is amended to read:
22.13 (3)
Except as provided in SCR 22.12, upon receipt of proof of service of the
complaint, the clerk of the supreme court shall select a referee from the panel
provided in SCR 21.08, based on availability and geographic proximity to the
respondent's principal office, and the chief justice or, in his or her
absence, the senior justice shall appoint the referee to conduct a hearing
on the complaint.
Section 26. 22.16 (4) of the Supreme Court Rules is renumbered 22.16 (4) (a) and amended to read:
22.16 (4) (a) If in the course of the proceeding the respondent claims to have a medical incapacity that makes the defense of the proceeding impossible, the referee shall conduct a hearing and make findings concerning whether a medical incapacity makes defense of the proceeding impossible. The referee may order the examination of the respondent by qualified medical or psychological experts.
(d) If the referee finds that a medical incapacity
makes the defense of the proceeding impossible, the referee shall file a
report promptly with the supreme court, and. If the court disapproves the referee’s
finding, the court shall direct the referee to proceed with the misconduct
action. If the court approves
the referee’s finding, the court shall abate the misconduct proceeding
and suspend the respondent's license to practice law for medical
incapacity until a determination of the respondent's capacity to continue
to practice law is made in a medical incapacity proceeding the court
orders reinstatement of the attorney’s license under SCR 22.36. Upon
reinstatement, the court shall direct the referee to proceed with the
misconduct action.
Section 27. 22.16 (4) (b) of the Supreme Court Rules is created to read:
Section 28. 22.16 (4) (c) of the Supreme Court Rules is created to read:
(c) If the referee finds no medical incapacity that would make the defense of the proceeding impossible, the referee shall proceed with the misconduct action.
Section 29. 22.19 (3) of the Supreme Court Rules is amended to read:
22.19 (3) If a complaint has not been filed, the
petition shall be filed in the supreme court and shall include the director's
summary of the misconduct allegations being investigated. The Within 20 days after the date
of filing of the petition, the director shall file in the supreme court a
recommendation on the petition. Upon
a showing of good cause, the supreme court may extend the time for filing a
recommendation.
Section 30. 22.19 (4) of the Supreme Court Rules is amended to read:
22.19 (4) If a complaint has been filed, the
petition shall be filed in the supreme court and served on the director and on
the referee to whom the proceeding has been assigned. The Within 20 days after the filing of the petition,
the director shall file in the supreme court a response in support of or in
opposition to the petition and serve a copy on the referee. Upon a showing of good cause, the supreme
court extend the time for filing a response. The referee shall file a report and recommendation on the
petition in the supreme court within 30 days after receipt of the director's
response.
Section 31. 22.21 (1) of the Supreme Court Rules is amended to read:
22.21 (1) The supreme court, on its own motion or,
upon the motion of the director, or upon the motion of a special investigator
acting under SCR 22.25, may suspend temporarily an attorney's license to
practice law where it appears that the attorney's continued practice of law
poses a threat to the interests of the public and the administration of
justice.
Section 32. 22.21 (2) of the Supreme Court Rules is amended to read:
22.21 (2) Before entering an order suspending an
attorney's license under sub. (1), the supreme court shall order the attorney
to show cause why the license to practice law should not be suspended temporarily. The attorney shall file with the supreme
court a written response to the order and serve a copy of the response on the
director within the time set forth in the order. The director, or special investigator acting under SCR 22.25,
may file a memorandum in support of or in opposition to the temporary license
suspension within 10 days after the attorney's response is filed. All papers, files, transcripts,
communications, and proceedings shall be confidential and shall remain
confidential until the supreme court has issued an order to show cause.
Section 33. 22.23 (1) of the Supreme Court Rules is renumbered 22.23 (1) (a) and amended to read:
22.23 (1) (a) With the exception
of the supreme court's disposition of a private reprimand or dismissal of a proceeding,
The the supreme court's disposition of a proceeding under this
chapter shall be published in an official publication of the state bar of
Wisconsin and in the official publications specified in SCR 80.01. A party may file a request to publish a dismissal
of a proceeding.
Section 34. 22.24 (1) of the Supreme Court Rules is amended to read:
22.24 (1) The supreme court may assess against
the respondent all or a portion of the costs of a disciplinary proceeding in
which misconduct is found, a medical incapacity proceeding in which it finds a
medical incapacity, or a reinstatement proceeding in which it imposes
discipline and may enter a judgment for costs. The director may assess all or a portion of
the costs of an investigation when discipline is imposed under SCR 22.09. Costs are payable to the office of lawyer
regulation.
Section 35. 22.25 (1) of the Supreme Court Rules is amended to read:
22.25 (1) Allegations of misconduct against
the director, a lawyer member of staff, retained counsel, a lawyer member of a
district committee, a lawyer member of the preliminary review committee, a
lawyer member of the board of administrative oversight, or a referee shall be referred
assigned by the director for investigation to a special investigative
panel investigator composed of six lawyers appointed by the.
The supreme court shall appoint lawyers who are not currently
participating in the lawyer regulation system and are not among the lawyers
from whom retained counsel is selected under SCR 21.05 to serve as special
investigators. A matter referred
by the director shall be assigned to a member of the special investigative
panel in rotation The director shall assign a special investigator in
rotation. A special investigator may
discuss confidential matters with other special investigators. All records of matters referred to a special
investigator or to the special preliminary review panel shall be retained by
the director as required under SCR 22.44 and 22.45.
Section 36. 22.25 (3) of the Supreme Court Rules is amended to read:
22.25 (3) If the special investigator
determines that there is not sufficient information to support an allegation of
possible misconduct, the special investigator may close the matter. The special investigator shall notify the
grievant in writing that the grievant may obtain review by the special
preliminary review panel of the closure by submitting a written request to the
special investigator. The request for
review must be received by the special investigator within 30 days after the
date of the letter notifying the grievant of the closure. The special investigator shall report
send the matter request for review to the special preliminary review panel
consisting of four 4 lawyers and two 3 nonlawyers
appointed by the supreme court and having a quorum of five 4
members. Members of the special
preliminary review panel serve staggered 3-year terms. A member may serve not more than 2
consecutive 3-year terms. Upon a timely
request by the grievant for additional time, the special investigator shall
report the request to the chairperson of the special preliminary review panel,
who may extend the time for submission of additional information relating to
the request for review. If the
panel affirms the investigator's determination, the special investigator
preliminary review panel shall close inform the grievant. The panel's decision affirming closure of
the matter is final. If the
panel does not concur in the investigator's determination, it shall direct the
investigator to initiate an investigation of the matter.
Section 37. 22.25 (4) of the Supreme Court Rules is renumbered 22.25 (4) (intro.) and amended to read:
22.25 (4) (intro.) If the special
investigator determines that the information provided is sufficient to support
an allegation of possible misconduct, the special investigator shall conduct an
investigation of the matter. Upon
completion of the investigation, the special investigator may dismiss the
matter or shall do one of the following:
(a) The special investigator may dismiss the matter and notify the grievant in writing that the grievant may obtain review of the dismissal by submitting to the special investigator a written request. The request for review must be received within 30 days after the date of the letter notifying the grievant of the dismissal. The special investigator shall send the request for review to the special preliminary review panel. Upon a timely request by the grievant for additional time, the special investigator shall report the request to the chairperson of the special preliminary review panel, who may extend the time for submission of additional information relating to the request for review. If the panel affirms the investigator's determination, the special preliminary review panel shall inform the grievant. The panel’s decision affirming dismissal of the matter is final. If the panel does not concur in the investigator's determination, the panel shall direct the investigator to investigate the matter further.
(b) The special investigator may prepare an investigative report and send a copy of it to the respondent and to the grievant. The respondent and grievant each may submit to the special investigator a written response to the report within 10 days after the copy of the report is sent.
Section 38. 22.25 (6) (a) of the Supreme Court Rules is amended to read:
22.25 (6) (a) If the special preliminary review panel determines that cause to proceed in the matter has not been established, the special investigator may dismiss the matter, which is a final decision, or the special investigator may continue the investigation and resubmit the matter to the special preliminary review panel within a reasonable time after the panel's determination.
Section 39. 22.25 (6) (c) of the Supreme Court Rules is amended to read:
Section 40. 22.25 (7) of the Supreme Court Rules is amended to read:
22.25 (7) If the special preliminary review panel determines that there is cause to proceed in the matter, the special investigator may take any of the actions set forth in SCR 22.08 (2). The special investigator need not obtain approval of a diversion agreement from the special preliminary review panel. In cases where the special investigator files a complaint with the supreme court, the special investigator may prosecute the complaint personally or may assign responsibility for filing, serving, and prosecuting the complaint to counsel retained by the director for such purposes.
Section 41. 22.28 (1) of the Supreme Court Rules is renumbered 22.28 (1) (intro.) and amended to read:
22.28 (1)
An attorney suspended from the practice of law for nonpayment of state
bar membership dues or failure to comply with continuing legal
education requirements or the trust account certification requirement under
SCR 20:1.15(g) or continuing legal education requirements shall
be reinstated pursuant to may seek reinstatement under the rules
governing suspension. following rules, as applicable:
Section 42. 22.28 (1) (a), (b), (c), (d), and (e) of the Supreme Court Rules are created to read:
22.28 (1) (a) An attorney whose suspension for nonpayment of state bar membership dues has been for a period of less than 3 consecutive years may seek reinstatement under SCR 10.03 (6m) (a).
(b) An attorney whose suspension for failure to comply with the continuing legal education requirements has been for a period of less than 3 consecutive years may seek reinstatement under SCR 31.11 (1).
(c) An attorney whose suspension for nonpayment of state bar membership dues has been for a period of 3 or more consecutive years may seek reinstatement under SCR 10.03 (6m) (b).
(d) An attorney whose suspension for failure to comply with the continuing legal education requirements has been for a period of 3 or more consecutive years may seek reinstatement under SCR 31.11 (2).
(e) An attorney who has been suspended for failure to comply with the trust account certification requirement under SCR 20:1.15 (g) may seek reinstatement under SCR 10.03 (6m) (c).
Section
43. 22.29 (3) of the Supreme Court
Rules is amended to read:
22.29 (3)
A petition for reinstatement shall be filed in the supreme court and
a. A copy of the
petition shall be served on the director and on the board of bar
examiners.
Section
44. 22.29 (3m) of the Supreme Court
Rules is created to read:
22.29 (3m) The petitioner shall file 9 copies of a petition for reinstatement.
Section 45. 22.30 (1) of the Supreme Court Rules is amended to read:
22.30 (1) The clerk of the supreme court shall
select a referee from the panel provided in SCR 21.08, based on availability
and geographic proximity to the petitioner's place of residence, and the chief
justice or, in his or her absence, the senior justice shall appoint the
referee to conduct a hearing on the petition for reinstatement. In the case of a license suspension, the
hearing shall not be held prior to the expiration of the period of suspension. Following the appointment of a referee,
the parties shall file all papers and pleadings with the supreme court and
serve a copy on the referee.
Section 46. 22.30 (2) of the Supreme Court Rules is amended to read:
22.30 (2) The director shall investigate the eligibility of the petitioner for reinstatement and file a response with the referee in support of or in opposition to the petition within the time period ordered by the referee.
Section 47. 22.30 (2m) of the Supreme Court Rules is created to read:
22.30 (2m) The board of bar examiners shall determine the attendance and reporting requirements of the petitioner as required by SCR 31.06 and file a report with the referee within the time period ordered by the referee.
Section 48. 22.31 (1) of the Supreme Court Rules is renumbered 22.31 (1) (intro.) and amended to read:
22.31 (1) (intro.) The petitioner has the burden of demonstrating, by clear, satisfactory, and convincing evidence, all of the following:
(a) that the petitioner That he or she
has the moral character to practice law in Wisconsin,.
(b) that the petitioner's That his or her
resumption of the practice of law will not be detrimental to the administration
of justice or subversive of the public interest, and that the petitioner.
(d) That he or she has complied fully with the terms of the order of suspension or revocation and with the requirements of SCR 22.26.
Section 49. 22.31 (1) (c) of the Supreme Court Rules is created to read:
22.31 (1) (c) That his or her representations in the petition, including the representations required by SCR 22.29(4)(a) to (m) and 22.29(5), are substantiated.
Section 50. 22.34 (8) of the Supreme Court Rules is amended to read:
22.34 (8) If the preliminary review panel determines that the director has established cause to proceed, the director shall file a petition with the supreme court for the suspension of the respondent's license to practice law or the imposition of conditions on the respondent's practice of law. A determination of cause to proceed shall be by the affirmative vote of 4 or more members of the panel and does not constitute a finding that there is clear, satisfactory, and convincing evidence of an attorney's medical incapacity.
Section 51. 22.34 (10) of the Supreme Court Rules is amended to read:
22.34 (10) The petition may be accompanied by a stipulation of the director and the respondent to a suspension or to the imposition of conditions on the respondent's practice of law. The supreme court may consider the petition and stipulation without the appointment of a referee. If the supreme court approves the stipulation, it shall issue an order consistent with the stipulation. If the supreme court rejects the stipulation, the clerk of the supreme court shall select a referee from the panel provided in SCR 21.08, based on availability and geographic proximity to the respondent's place of residence, the chief justice or, in his or her absence, the senior justice shall appoint the referee, and the matter shall proceed as a petition filed without a stipulation. A stipulation rejected by the supreme court has no evidentiary value and is without prejudice to the respondent's defense of the proceeding or the prosecution of the petition.
Section 52. 22.34 (11) of the Supreme Court Rules is renumbered 22.34 (11) (a) (intro.) and amended to read:
22.34 (11) (a) An attorney who is the
subject of an investigation or petition for possible medical incapacity may
request the revocation of or indefinite suspension of the attorney's
license to practice law. The request
shall state that it is filed because the petitioner cannot successfully defend
against the allegations of medical incapacity.
A request for suspension shall be filed with whichever of the
following is applicable:
1. Prior to the filing of a petition by the
director, a request for revocation or suspension shall be filed in the
supreme court and include the director's summary of the medical incapacity
allegations being investigated. The
Within 20 days after the filing of the request, the director shall file
with the supreme court a response in support of or in opposition to the
request.
2. After the director has filed a petition, the
request for revocation or suspension shall be filed in the supreme court
and served on the director and on the referee to whom the matter is
assigned. The Within 20 days
after the filing of the request, the director shall file a response in
support of or in opposition to the request.
The referee shall file a report and recommendation with the supreme court
within 30 days after the filing of the director's response.
(b) The supreme court shall grant the request and suspend indefinitely the attorney's license to practice law or deny the request and remand the matter to the director or to the referee for further proceedings.
Section 53. 22.34 (14) of the Supreme Court Rules is renumbered 22.341 (1) and amended to read:
22.341 (1) The director, or the respondent, may file an appeal of the referee's report with the supreme court within 20 days after the report is filed.
(3) An appeal from the report of a referee is conducted under the rules governing civil appeals to the supreme court. The supreme court shall place the appeal on its first assignment of cases after the briefs are filed.
Section 54. 22.34 (15) of the Supreme Court Rules is renumbered 22.341 (2).
Section 55. 22.34 (15m) of the Supreme Court Rules is created to read:
22.34 (15m) Following appointment of a referee, the parties shall file all papers and pleadings with the supreme court and serve a copy of those documents on the referee.
Section 56. 22.36 (5) of the Supreme Court Rules is amended to read:
22.36 (5) Following the investigation, the
petition shall be submitted to a referee selected by the clerk of the supreme
court, based on geographic proximity to the respondent's place of residence,
and appointed by the chief justice or, in his or her absence, the senior
justice.
Section 57. 22.39 of the Supreme Court Rules is amended to read:
22.39 Burden of proof. The director, or a special investigator acting under SCR 22.25, has the burden of proof in proceedings seeking discipline for misconduct or license suspension or the imposition of conditions for medical incapacity. In proceedings seeking license reinstatement, readmission to the practice of law, removal of a medical incapacity, removal of conditions imposed on the practice of law, the discipline different from that imposed in another jurisdiction, the proponent has the burden of proof.
Section 58. 22.40 (1) of the Supreme Court Rules is amended to read:
22.40 (1) Prior to the filing of a misconduct complaint, medical incapacity petition, or petition for temporary license suspension, all papers, files, transcripts, and communications in any matter involving the office of lawyer regulation are to be held in confidence by the director and staff of the office of lawyer regulation, the members of the district committees, special investigators, the members of the special preliminary review panel, and the members of the preliminary review committee. Following the filing of a complaint or petition, the proceeding and all papers filed in it are public, except where expressly provided otherwise in this chapter or by law.
Section 59. 22.42 (1) of the Supreme Court Rules is amended to read:
22.42 (1) In any matter under investigation, the
director or, district committee, or a special investigator
acting under SCR 22.25, may require the attendance of lawyers, and witnesses and the production of
documentary evidence. A subpoena issued
in connection with a confidential investigation must so indicate on its face.
It is not a breach of confidentiality for a person subpoenaed to consult with an
attorney.
Section 60. 22.42 (2) of the Supreme Court Rules is amended to read:
22.42 (2)
In any disciplinary proceeding before a referee, the director or,
the director's counsel, a special investigator acting under SCR 22.25
and the respondent or counsel for the respondent may require the attendance of
witnesses and the production of documentary evidence. The use of subpoenas for discovery in a matter pending before a
referee shall be pursuant to an order of the referee. The issuance of subpoenas under this rule shall be governed by Wis.
Stat. chapter 885 (1997-98) ch.
885, 1997 stats., except as otherwise provided in this chapter.
Section 61. 31.11 (1) of the Supreme Court Rules is amended to read:
31.11 (1)
Suspension of less than 3 consecutive years. (a)
A lawyer suspended whose suspension for noncompliance
under SCR 31.10(1) has been for a period of less than 3 consecutive years
may file a petition with the board for reinstatement to
membership in the state bar. The
petition for reinstatement shall be served on the board and shall state in
detail the manner in which the lawyer has complied with all requirements under
this chapter. Only verified attendance
at sufficient hours of approved continuing legal education activities for the
period of suspension shall be deemed to be full compliance with the attendance
requirements of this chapter.
Payment in the amount of $100 and any applicable late fee shall
accompany the petition.
Section 62. 31.11 (1) (c) of the Supreme Court Rules is amended to read:
31.11 (1) (c) If the board denies a petition for
reinstatement is denied, the board shall serve a notice of denial
shall be served on the lawyer. After denial, a hearing shall be held by the
board only upon written petition of the lawyer made within 30 days of service
of the notice of denial, which petition for hearing shall be served on the
board. The board shall conduct the hearing within 60 days after service of the
petition for hearing and shall make and serve its findings and recommendations
on the lawyer within 60 days after the close
of the hearing, and, if adverse to the lawyer, shall notify the supreme
court of its action. If reinstatement is denied, the findings and
recommendations of the board shall be reviewed by the supreme court only upon
written petition by the lawyer filed within 30 days of the date of the action
of the board.
Section 63. 31.11 (2) of the Supreme Court Rules is renumbered 31.11 (4) and amended to read:
31.11 (4) Disciplinary suspension. A lawyer suspended as a result of disciplinary action following referral under SCR 31.10(2) may petition for reinstatement under SCR 22.28.
Section 64. 31.11 (1m) of the Supreme Court Rules is created to read:
31.11 (1m) Suspension of 3 or more consecutive years. (a) A lawyer whose suspension has been for a period of 3 or more consecutive years may file a petition for reinstatement with the supreme court and serve a copy on the board and the office of lawyer regulation. Separate payments in the amount of $200 each shall be made to the board of bar examiners and the office of lawyer regulation shall accompany the petition.
(b) Within 90 days after service of the petition, the board shall make a determination regarding compliance and file its finding with the supreme court.
(c) Within 90 days after service of the petition, the director of the office of lawyer regulation shall investigate the eligibility of the petitioner for reinstatement and file a response with the supreme court in support of or opposition to the petition.
Section 65. 31.11 (3) of the Supreme Court Rules is created to read:
31.11 (3) Petition for reinstatement. The petition for reinstatement shall state in detail the manner in which the lawyer has complied with all requirements under this chapter. Only verified attendance at sufficient hours of approved continuing legal education activities for the period of suspension shall be considered full compliance with the attendance requirements of this chapter.
Section 66. 60.05 (8) (b) of the Supreme Court Rules is amended* to read:
60.05 (8) (b) Financial reports. Except as provided in SCR 60.07, a judge shall file with the ethics board a timely financial report as required by section 19.43 of the statutes.
The report shall also be filed by commissioners of the supreme court, staff attorneys of the court of appeals, and the director
of state courts, members of
the board of administrative oversight and preliminary review committees, and
members of the board of bar examiners.
Section 67. 62.01 of the Supreme Court Rules is amended to read:
62.01 Scope.
The uniform standards of
courtroom courtesy and decorum in SCR 62.02, adopted to enhance the
administration of justice by promoting good manners and civility among all who
participate in the administration of justice in Wisconsin this state,
are applicable to judges, court commissioners, lawyers, court personnel,
and the public in all Wisconsin courts.
Notwithstanding SCR 20:8.4 (f), the standards under SCR 62.02 are not
enforceable by the office of lawyer regulation. Conduct by a lawyer that violates chapter SCR ch.
20 of the supreme court rules
* Chief Justice Abrahamson, Justice Bradley, and Justice Crooks dissent to the amendment of SCR 60.05 (8) (b).
or SCR 40.15 is subject to the authority of the office of lawyer regulation.
IT IS ORDERED that the amendment of these Supreme Court Rules shall be effective April 1, 2002, with the exception of the creation of SCR 21.15 (5), which shall be effective July 1, 2002. The amendment of SCR 60.05 (8) (b) shall be effective April 1, 2002 and apply to the 2001 calendar year.
IT IS FURTHER ORDERED that notice of the amendment of these Supreme Court Rules be given by a single publication of a copy of this order in the official state newspaper and in an official publication of the State Bar of Wisconsin.
Dated at Madison, Wisconsin, this 23rd day of January, 2002.
BY THE COURT:
Cornelia G. Clark
Clerk of Supreme Court