Eight years ago, a post commented on supreme court decisions filed in 2014/15 and 2015/16 concerning attorneys subject to disciplinary proceedings. Today, we’ll compare these findings with those for 2022/23 and 2023/24 to see what has changed, and what has not.
Number of cases
The most striking development is the decline in the volume of disciplinary cases reaching the court[1] and the consequent reduction in the quantity of decisions filed by the justices to resolve the matters. As displayed in the graph, these recent decisions amounted to only about a third of the totals for 2014/15 and 2015/16.[2]
The justices do not set the number of disciplinary cases they hear, so the reasons for the downward trajectory of the graph must be sought elsewhere, most likely with the Office of Lawyer Regulation (OLR). OLR processes complaints alleging misconduct by attorneys and closes many of these before they reach the supreme court. Some complaints are dismissed as meritless, for instance, while others are handled with non-punitive measures or with consent to a public or private reprimand. By no means all, then, proceed through subsequent steps that bring them to the justices’ attention.
Perhaps fewer people are registering complaints with OLR in the first place, or OLR is concluding more cases short of the supreme court by methods described above. Maybe both. From an outsider’s viewpoint, these seem the most plausible explanations for the plummeting number of OLR cases arriving on the justices’ doorstep, but I’d be grateful to learn from readers about other factors that might be in play.
Agreeing with OLR?
According to the supreme court’s internal operating procedures, “per curiam opinions in judicial and attorney disciplinary proceedings are prepared by a commissioner for the court’s consideration. The decisions in all cases are made by the court, and per curiam opinions are reviewed by the entire court and are approved as to form and substance by the court prior to issuance.” Once the justices receive draft opinions from court commissioners, they may accept or modify the discipline proposed by OLR or a referee. They generally authorize the suggested discipline—but not always. In 2014/15‒2015/16 they amended OLR/referee recommendations in 15% (13/88) of cases, and in 2022/23‒2023/24 they did so in 11% (3/28) of their rulings.[3]
Types of discipline
In both periods under our gaze, suspension of law licenses for varying intervals was the most common punishment, and the percentage of cases with this outcome was nearly equal—59% in 2014/15‒2015/16 and 57% in 2022/23‒2023/24. However, such close similarity disappeared from all other categories of discipline, as shown in the following table. License revocations occurred more regularly in the later period, while public reprimands and license reinstatements figured more frequently during the first two terms.[4]
Separate opinions
Although the decisions filed by the court are almost exclusively anonymous rulings, justices are free to author concurrences and dissents—a means of involvement beyond “silent” assent to a per curiam judgment.[5] And here we find a disparity between the two periods under consideration, as justices were much more inclined to dispute the majority’s per curiam mandates in 2014/15‒2015/16 than they were in 2022/23‒2023/24.
More specifically, in 15 of the decisions filed during 2014/15‒2015/16, separate opinions argued for different sanctions—harsher in 9 cases, more lenient in 6 cases—than the punishment applied by the majority opinion. Compare this with 2022/23‒2023/24 when not even one of the separate opinions contested the level of discipline approved by the majority. In fact, most were essentially identical concurrences all written by Justice Ziegler in cases revoking an attorney’s license. She voiced support for each of these orders but expressed discomfort with existing rules that allow an attorney to petition for reinstatement after five years. There might be “rare and unusual” cases, Justice Ziegler contended, where an attorney’s misconduct was so egregious that license revocation should be permanent.
[1] Figures on this point are provided on the court’s website.
[2] The figures do not include rare decisions disciplining judges.
[3] For details on the 2014/15‒2015/16 modifications, see the original post. In 2022/23‒2023/24, the justices rejected one recommendation in Office of Lawyer Regulation v. Roger G. Merry (2022AP35-D), concluding that a license should be revoked rather than suspended. We can also include two other cases: (1) Office of Lawyer Regulation v. Matthew T. Luening (2020AP2166-D), where the justices decided that OLR should have handled certain immigration charges in a federal tribunal and remanded to the referee the question of appropriate sanctions for non-immigration charges of misconduct; and (2) Office of Lawyer Regulation v. Nathan E. DeLadurantey (2020AP1616-D), where OLR itself appealed the referee’s conclusion. Here, the justices sided with OLR, which advocated a tougher stance than did the referee, and they ordered that the attorney receive a public (rather than a private) reprimand and pay $17,570.10 in costs.
In Office of Lawyer Regulation v. Brian T. Stevens (2022AP12-D), the justices accepted the referee’s recommendation that an attorney’s license be suspended for 60 days, though they defined somewhat more strictly than did the referee the conditions that should be placed on the attorney’s license to practice law following the suspension. Cases with such minor (and rare) modifications of OLR/referee recommendations are not included in the percentages associated with this footnote.
[4] Monetary assessments (generally for the cost of the proceedings and sometimes restitution) often accompanied all types of rulings, including license reinstatements.
[5] Among the 88 decisions filed during the first two terms, 25% (22/88) included a separate opinion from at least one of the justices. In 2022/23‒2023/24, 21% (6/28) of the decisions had separate opinions.
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