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Monday, February 07, 2011

Courts - More on "Convicted attorneys are still practicing: Some even have kept their licenses while serving time for their crimes"

Updating this Jan. 30, 2011 ILB entry re Wisconsin, headed "Convicted attorneys are still practicing: Some even have kept their licenses while serving time for their crimes," the same Milwaukee Journal Sentinel reporters, Cary Spivak and Ben Poston, had this story on Sunday, Feb. 6, headed "Lawyers' clients kept in dark on past issues." Some quotes from the lengthy story:

What the Krnak family didn't know was that the state Office of Lawyer Regulation - the policing arm of the Wisconsin Supreme Court - had started looking into Elliott in December 2007, an investigation that led to his 2010 disbarment for pocketing his client's money. He was ordered to pay $1.3 million restitution.

The existence of that probe was kept secret, standard practice for all citizen complaints received by the office. Additional complaints were filed in 2008, creating a growing roster of victims.

It's one more example of how a closed, slow-moving system can favor lawyers over their clients. The Journal Sentinel reported last week at least 135 practicing attorneys have criminal records. Some of those lawyers kept their licenses even while behind bars.

Today, Elliott is a disbarred attorney serving a 10-year federal prison sentence for embezzling more than $3.6 million from clients - including $131,101 from the Krnak family's estate. He was charged in July 2009 with masterminding the fraud that involved a $35 million check kiting scheme. He pleaded guilty in February 2010.

While awaiting sentencing, Elliott was arrested and charged in June 2010 with robbing a Waukesha County bank. He is awaiting trial on separate bank robbery charges.

When Wrezenski and other clients entrusted Elliott with their money, he was simply a gregarious attorney who had been practicing since 1974. * * *

The Office of Lawyer Regulation operates under a veil of court-mandated confidentiality that keeps information about complaints filed by the public against lawyers secret. Disciplinary information is made available only if an attorney is publicly sanctioned or the agency files a formal complaint against the lawyer. Some disciplinary actions, including some reprimands, are issued behind closed doors.

Even today - three years after the formal complaint was filed and three months since Elliott was disbarred - the actual citizen complaints filed against Elliott remain closed.

Wrezenski said the sting of the financial loss is increased by the knowledge that regulators were on Elliott's trail when she gave him the check for investment. She said she would have never given him the $100,000 check had she known about the investigation. * * *

"There should be a clearinghouse where  . . .  you plug his name in and we'll give you the information."

That attorney clearinghouse would post citizen complaints as soon as they are filed - that is, before regulators investigated them - as well as discipline actions such as reprimands and suspension that have been imposed against a lawyer.
Privacy vs. protection

Balancing the public's need to know against a lawyer's desire for privacy is a difficult issue, said Keith Sellen, director of the Office of Lawyer Regulation. He noted many complaints filed against lawyers by citizens are without merit.

"It's been something I've thought about for a long time, but without a real good solution," Sellen said, adding the issue is particularly troubling when "the lawyer continues on with a pattern of misconduct, taking on new clients."

Oregon - the state with the most open lawyer discipline system in the nation - decided it was more important to protect the public.

Complaints from the public against lawyers become public records immediately in Oregon, and they stay public no matter what the outcome of the investigation. If the complaint is found to be without merit, that information is also public.

A companion story is headed "Lawyers get plenty of protection in Wisconsin: Other states more open on regulation." Some quotes:
The Wisconsin Attorneys' Professional Discipline Compendium on the state courts website is the only online source to find out whether an attorney has been disciplined in the past. The compendium is maintained by the Office of Lawyer Regulation, the policing arm of the Wisconsin Supreme Court. But it's not an easy link to find.

A consumer's best bet is to do an Internet search for the term "Wisconsin OLR compendium" and click on the first link. Once there, users can browse lawyers by name, topic or area of legal practice. The results provide details about public sanctions taken against the lawyer.

However, the compendium site is relatively unknown and not widely used - it got an average of 2,200 page views a week from public users near the end of 2010, according to data provided by the office of state Supreme Court Chief Justice Shirley S. Abrahamson.

By comparison, the more popular State Bar of Wisconsin website logged nearly 52,000 lawyer searches a week in December, according to data from the State Bar.

On the State Bar site, visitors can look up attorneys to get basic contact information and see whether their law licenses are in "good standing." The State Bar site will show whether an attorney's license is currently suspended or revoked but does not show any prior discipline or reprimands.

For example, attorney Joseph Engl's status is listed as "good standing" even though he was convicted in 2004 for using a computer to facilitate an attempted child sex crime. He was sentenced to four years of probation for the felony.

Bob Fellmeth, a law professor at the University of San Diego and former State Bar discipline monitor in California, is a critic of state bars that don't provide easy access to a lawyer's disciplinary record. He said he considers Oregon, California, New York and Illinois as leaders in openness on lawyer discipline.

"There is no excuse for not having the record of the attorney on the bar membership site," Fellmeth said. "The state bar should disclose everything, including criminal and regulatory charges, the outcome, sanctions, if the attorney has been convicted of anything and whether he has malpractice insurance - and how much. You have a right to know."

ILB: Indiana provides the very minimum of information through the Roll of Attorneys.

One can find some disciplinary information about Indiana attorneys by looking at the Roll of Attorneys. I checked "Grant W. Hawkins," who has been in the news, and found this standardized entry:

"(*)“Concluded Discipline:” “YES” indicates this lawyer has been the subject of a professional disciplinary proceeding at least once in the past. To get more information about the lawyer’s disciplinary history, contact the Roll of Attorneys Administrator at (317) 232-5861. Without further information, you should not draw any conclusions about past discipline. Some cases end with minor discipline or are dismissed with no discipline."
I've called that number in the past. The result - It is the Court of the Court archives. They will mail you a copy of the relevant documents for $1.00/per page, in advance. They will not tell you what they contain. They will not send only select pages. (I'm sure you can go to the office in person and view the documents.)

Note, for instance, that there is no online tie-in between the Roll of Attorneys and the disciplinary orders issued by the Court. And even the docket entry, which is linked while the action is pending, is deleted once the action has concluded. So the only lead the public has is the notation reading "YES."

Posted by Marcia Oddi on February 7, 2011 06:51 PM
Posted to Courts in general