Ex-Wisconsin supreme court justice who led investigation into 2020 election slapped with professional misconduct charges

 Read the full story here.

Court of Appeals for the 7th Circuit upholds mandatory bar in Wisconsin

 One of the most debated issues in the Professional Responsibility arena in the past year has been whether states can force lawyers to join a bar association, or, in other words, whether it is a violation of a lawyer's constitutional rights to be forced to become a member of a bar association as a pre-requisite to practice law in the jurisdiction.  I have been posting updates on cases from around the nation on this for over a year.  See here, and scroll down for all the stories (from Texas, Michigan, Oregon and Utah, among others).  

Today I am writing with an update related to the rules in Wisconsin.  

The Seventh Circuit recently upheld a ruling against an attorney challenging rules enforced by the Wisconsin Supreme Court requiring all lawyers licensed to practice in the state to be members and pay dues to the state bar.  

The opinion of the court starts with a summary, as follows:

Under rules adopted and enforced by the Wisconsin Supreme Court, all lawyers licensed to practice in the state must be members of and pay dues to the State Bar of Wisconsin, a professional association created by the court. Attorney Schuyler File contends that requiring him to join and subsidize the State Bar violates his free speech and associational rights under the First Amendment.  Recognizing that Supreme Court precedent forecloses this claim, see Keller v. State Bar of Cal., 496 U.S. 1 (1990), File maintains that the Court’s more recent cases—particularly Janus v. American Federation of State, County, & Municipal Employees, Council 31, 138 S. Ct. 2448 (2018)—implicitly overruled Keller. 

The district court rejected this argument, and properly so. Keller may be difficult to square with the Supreme Court’s more recent First Amendment caselaw, but on multiple occasions and in no uncertain terms, the Court has instructed lower courts to resist invitations to find its decisions overruled by implication. Keller is binding. We affirm.

You can read the full opinion here. 

Pandemic-Related Legal Ethics Opinions: A Compendium

LawSites has a short list of recent ethics opinions generated because of the pandemic and the fact that so many lawyers are practicing law remotely.  Go here for the story.  It mentions (and provides links to) opinions from Florida, New York, the District of Columbia, Pennsylvania, Wisconsin and the ABA.  

In addition the San Francisco Bar Association has issued Ethics Opinion 2021-1 on working remotely.  See here also.

More on Sydney Powell's frivolous defense to a motion for sanctions for a frivolous lawsuit

Yesterday I commented on Sidney Powell's recent reply to a motion for sanctions for her complaint related the presidential election results in Wisconsin.  See here.  Here is an update: Law & Crime has more on the story here and given this new reporting, I can totally see the support for the state's argument.

Apparently, the main point of Powell’s argument is that her failed complaint cannot be found frivolous because it was rejected on procedural grounds such as standing and timeliness.  

This argument is itself frivolous.  Any second year law student can tell you that according to both rules of procedure and rules of professional conduct, lawyers have a duty to avoid frivolous litigation.  The most common source of sanctions for frivolous claims are the state equivalents of Rule 11 of the Federal Rules of Civil Procedure, which provide that all pleadings must be well grounded in fact and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that they must not be filed for any improper purpose.  The Model Rules of Professional Conduct mirror the duties expressed in the procedural rules in Model Rules 3.1 and 4.4(a).

If a lawyer files a complaint that is not well grounded in fact or warranted in law, the filing is frivolous, regardless of the reason for which it is eventually dismissed.  It is the fact that the court and the other parties brought to the suit have to waste time, effort and money for the filing that justifies the sanctions.  Lawyers can also be subject to discipline under both procedural and ethical rules  for pursuing claims for an “improper purpose.”   

If the claim is frivolous, there is no right to bring the claim to begin with and the lawyer is subject to sanctions for helping the client to do so.  

In her recent motion, Powell apparently is asking for an evidentiary hearing.  She shouldn't get one; but if she does, she is going to lose.  Badly.  The standard for imposing sanctions for frivolousness is based on an objective determination of whether the attorney made a reasonable inquiry into the facts and the law before filing the claim, for which the court could consider whether the attorney had sufficient time for investigation before filing, the extent to which the attorney had to rely on his or her client for the factual foundation underlying the claim, the complexity of the facts, and whether discovery was necessary to develop the underlying facts.  Many courts have made clear, however, that it is not permissible to use discovery as a “fishing expedition” or as the sole means to find out whether the claim is well grounded in fact or law. 

Does anyone really think that an objective application of this standard benefits Powell's position?  

Lawyers for Wisconsin Governor argue Sydney Powell's reply to motion seeking action against Sydney Powell is so improper it deserves its own sanctions

About two weeks ago I reported that Wisconsin filed a motion seeking hundreds of thousands of dollars in attorneys’ fees from Donald Trump and Sidney Powell for their attempts to overturn the state’s election results via lawsuits that were “frivolous, dilatory, and without merit.”  

Now, there is news that Powell filed a reply which the lawyers representing Wisconsin Gov. Tony Evers claim is so improper that the filing merits its own sanctions.  Law & Crime has the story here.

Wisconsin is seeking attorneys' fees from Trump and Sidney Powell for frivolous litigation attempting to overturn the results of the presidential election

Wisconsin is seeking hundreds of thousands of dollars in attorneys’ fees from Donald Trump and Sidney Powell for their attempts to overturn the state’s election results via lawsuits that were “frivolous, dilatory, and without merit.”  Above the Law has the details here.

Wisconsin Advisory Opinion Offers Cybersecurity Tips on Working Remotely

 Wisconsin Advisory Opinion offers cybersecurity tips on working remotely.  Ethical Grounds has the full story here.

Wisconsin reaffirms that criminal defendants must show actual innocence to support malpractice claim against former defense counsel

Long time readers of this blog may remember that I have posted many stories commenting on the fact that many (probably most) jurisdictions require former criminal defendants to prove actual innocence as a requirement to support malpractice claims against their criminal defense counsel.  In recent years, a number of jurisdictions have rejected this notion, but it still seems to be the majority approach.

I am writing about this again today to report that earlier this month, the Supreme Court of Wisconsin reaffirmed its position on this in a case called Skindzelewski v. Smith, which you can read here.

US Supreme Court denies review of mandatory bar membership case

Long time readers of this blog might remember that I have been following the many lawsuits filed around the country alleging that mandatory membership to state bar associations is unconstitutional.  See here and here for example.  My most recent post on this was on the case from Wisconsin in which two Wisconsin attorneys argued that a requirement to be members of the bar association and pay dues violated their First Amendment rights. See here.

Last Monday, the US Supreme Court on Monday denied a request to hear that Wisconsin case.  Justices Thomas and Gorsuch dissented.

For more on the story go to the SCOTUS blog, here, and to Courthouse News Services, here.  Jurist has a short report here.

Wisconsin: mandatory bar membership is not unconstitutional

Long time readers of this blog might remember that I have been following the many lawsuits filed around the country alleging that mandatory membership to state bar associations is unconstitutional. 

Today I am here to report that we now have a decision on the subject.  About two seeks ago, the State Bar of Wisconsin won dismissal of a suit alleging its requirement that attorneys pay bar dues to practice in the state unconstitutionally compels them to participate in the state bar’s advocacy.  The case is called Jarchow v. State Bar of Wis. and you can read it here.

Rather than address the issues head on, however, the court held that U.S. Supreme Court precedent requires dismissal of the plaintiffs’ First Amendment challenge. It cited a 1990 opinion in which the high court upheld similar requirements imposed by the California bar against free speech and free association challenges.  The trial court said it’s bound by the 1990 decision, and only the Supreme Court can say otherwise. “Plaintiffs must seek relief in a higher court,” it said.

Update on challenges to mandatory bar association membership around the country

As I have written before, the question of whether mandatory membership in a bar association violates the First Amendment is not a new issue, so it is interesting that it is making such a strong comeback.  At one point I think I labeled it the "hot issue" of the year because I kept seeing reports of lawsuits being filed around the country.

A few days ago, a decision from the 8th Circuit may have slowed down the trend a bit (in a case originating in North Dakota), but there are still a bunch of cases pending out there.  At last count, there were challenges filed in Texas, Oklahoma, Oregon, Wisconsin, Louisiana, Washington and Michigan.


Thanks to Mauricio Hernandez for the update and links.

Wisconsin Supreme Court to consider raising pay for private lawyers assigned to represent criminal defendants

Wisconsin's Public Defender's Office assigns private attorneys around 40 percent of its cases and pays them the lowest rate in the nation. Now, the office is having a difficult time finding lawyers willing to take those cases. Tomorrow, the state Supreme Court will take up a petition that would give attorneys a raise. Wisconsin Public Radio's Danielle Kaeding has more.

Comments on how disciplinary system does not work to protect the interests of those it is supposed to protect

The Legal Ethics Forum has a story on (and link to) a recent report that concluded the disciplinary system in Wisconsin is inadequate in a number of ways.  Mike Frisch, of the Legal Profession blog, has some thoughts on the same issue about the Washington DC system.  Mike's point is very interesting because it suggests the current system is apparently based on conflicting interests.  And, as I have said before in other contexts, I agree with him in that protecting the "dignity" of the profession should not be a standard used to make disciplinary decisions.

What do you have to do to get disbarred in Wisconsin?! Court rejects request to disbar attorney who misappropriated money from a client with diminished capacity while serving as guardian

Misappropriation of clients' funds is often considered to be one of the worst types of misconduct and usually results in disbarment.  In fact, it should result in disbarment.  If you steal money from your client, you should be disbarred.  Period; end of story.  That's always been my position and, typically, courts agree with it.  But every now and then there are exceptions.  Recently I wrote about an Illinois Review Board decision that suggested an attorney should not be disbarred for stealing client's money because the client did not know the lawyer had stolen the money and because the attorney had a good reason to steal the money.  As I said in my original post, that's absurd.

Not to be outdone, now comes an opinion by the Wisconsin Supreme Court rejecting the Office of Lawyer Regulation's recommendation to disbar an attorney who misappropriated almost $50,000 from a client with diminished capacity while serving as a guardian.  

One big problem in this case was that the attorney did not set a separate account to manage the money in guardianship.  He simply deposited the money in his trust account, which is a problem in and of itself.  Then, on top of that, as in many of these cases, the attorney claimed he had poor accounting or record keeping, and thus that he did not keep good records of the money going in and coming out of his trust account.

The attorney's claims are designed to suggest that he was merely negligent and that the fact he ended up misappropriating client money was not intentional.  Making the distinction between negligence and intent can be critical to avoid disbarment, of course; and here the court apparently bought the lawyer's argument.

I guess I understand there can be a distinction between negligence and intent, but at some point we have to decide how serious we are about misappropriation.  For me, the distinction is irrelevant.  If an attorney is so negligent that he or she can't figure out they are stealing client money, they should not be allowed to represent clients.  

The Wisconsin case is even worse because the attorney had been disciplined in the past for trust account violations.  So here we are dealing with an attorney who claims he was negligent when, in fact, he had been disciplined in the past.  I don't buy it.  Although I tend to be a hard-liner on this issue, I will not discard the possibility that I can be convinced to not disbar an attorney for a first offense if I am convinced the problem was caused by pure negligence.  But here we are dealing with an attorney who knew, or should have known, what he was supposed to do and decided not to change his practices.  I agree with the OLR's recommendation.  The attorney should have been disbarred.

Calls To Reform Wisconsin Attorney Discipline

The Legal Profession blog has an article on calls to reform the disciplinary system in Wisconsin.

Wisconsin Supreme Court finds ethical obligation to disclose exculpatory evidence is not broader than the obligation under Brady v. Maryland

The Wisconsin Supreme Court recently held in a disciplinary proceeding (In re Riek) that prosecutors' ethical obligation to disclose exculpatory evidence is not broader than the constitutional standards that apply under Brady v. Maryland.  

The accepted interpretation of the ABA Model Rules, and an ABA Formal Opinion, take the view that the ethical obligation is broader.  See  ABA Formal Ethics Op. 09-454.  But not all jurisdictions agree.  For example, the Ohio Supreme Court rejected the ABA's position in Disciplinary Counsel v. Kellogg-Martin, 923 N.E.2d 125 (Ohio 2010), while North Dakota has embraced it (In re Feland, 820 N.W.2d 672 (N.D. 2012)).  Louisiana and Colorado have also ruled on the subject before the ABA's Opinion in In re Jordan, 913 So. 2d 775 (La. 2005 and In re Attorney C, 47 P.3d 1167 (Colo. 2002).

Also, the professional responsibility rules in at least two jurisdictions state, or can be fairly understood to say, that a prosecutors' duty is not broader under the rules than under Brady.  See D.C. R. Prof'l Conduct 3.8 cmt. 1 (2012) and  N.C. R. Prof'l Conduct 3.8(d) (2012).

Most jurisdictions, however, have yet to decide the issue directly.  It will be interesting to see the case law that develops.

Thanks to the ABA/BNA Laywers' Manual on Professional Conduct for the update and link.