Has the Bar No Common Sense?

Joseph Corsmeier of the Lawyer Ethics Alert Blogs recently brought to my attention through his blog post a Wisconsin discipline case which really got under my skin.  In his post, Joseph discusses the case of Richard J. Podell, a Wisconsin lawyer who has been in practice since 1969 with no history of discipline, who has served on various ABA committees and had a distinguished career.  Apparently Mr. Podell accidentally submitted duplicate reimbursement requests to the ABA for expenses incurred on ABA business; the errors were discovered and he quickly made good with the ABA.  The grand total of the overpayment was about $1100 for a period covering several years.  Mr. Podell and the ABA were happy with their resolution, and that should have been the end of it.

However, as detailed in the Wisconsin Supreme Court decision, another lawyer and former ABA officer T. Maxfield Bahner decided to take the matter to the Wisconsin disciplinary authority and pressed hard for ethics sanctions against Mr. Podell.  The Office of Lawyer Regulation filed charges that Mr. Podell engaged in “professional misconduct involving dishonesty, fraud, deceit or misrepresentation.”  Thankfully the Wisconsin Supreme Court declined to impose discipline.

I am happy to see that Mr. Podell was not sanctioned, but what bothers me so much about this is that it appears that common sense has left the building at the Wisconsin Office of Lawyer Regulation, and I suspect it has at many ethics regulators around the country.  Could no one in that office see that this case did not warrant prosecution?  Could no one stand up and say that Mr. Podell should not be dragged through a disciplinary proceeding over a small and now rectified error?

Besides it being obvious to anyone reading about this case that Mr. Podell should not be prosecuted, I also have an issue with an ethics prosecutor  pursuing a case where a lawyer rectifies an error in a private matter and all involved parties are satisfied.  The notion that people not involved in a dispute, such as Mr. Bahner, can urge a prosecution on a private matter is a perversion of the disciplinary system.  I understand having some provision in the ethics rules for a non-party complainant to alert to the authorities to misconduct; however, when the alleged misconduct is a private matter resolved between the attorney and the other party, the prosecutor should leave well enough alone.

Too many of our discipline cases stem from an underlying belief that attorneys are to be held to such a high standard of conduct that we may not make mistakes without facing disciplinary proceedings.  In California attorneys must self-report certain criminal convictions, but not simple misdemeanor traffic violations, yet the State Bar can take information from a private party about an attorney’s traffic violation and open a disciplinary proceeding.  We may have a high moral and ethical obligation, but we are still human and entitled to make mistakes without facing a fight for our licenses to practice law at every turn.  If we inject a little common sense into the discipline system, these fights that should not be would be avoided.  It sounds like Mr. Podell had simply made an enemy of Mr. Bahner in some unrelated way, and he decided to make Mr. Podell’s life hellish in return.  The prosecutors should be protecting the profession from unnecessary nastiness rather than feeding into it and prosecuting attorneys for conduct clearly not warranting discipline.

I notice that the Wisconsin Supreme Court did not award any costs (thank goodness), but someone really should make Mr. Podell whole for  having to defend against such a nonsensical prosecution.

3 comments

  1. This is not the first time that the Office of Lawyer Regulation has apparently been used because of a vendetta. I have heard of such a thing from others. There is a well known video of one attorney blasting the Supreme Court at a hearing where he was under OLR scrutiny for something which seemed equally preposterous. His sin was apparently taking a case against attorneys Goliath where he was a David. The issue made him somewhat famous, but the time and energy it took from him to continue to defend himself was frightening.

  2. Similar stories in California. It really is a horrible world of lawyer cannibalism, where our high ideals of innocent until proven guilty are thrown out the window along with the rules of procedure, and angry adversaries and prosecutors can take down a good lawyer who did nothing unethical. It can drain the respondent attorney of energy and resources and ruin a career. It is far from the intended purpose of our ethics system.

  3. Frankly, I am a bit awestruck anyone, especially ethics defense counsel, is surprised at the prosecutorial zeal of bar disciplinary regimes and their well establihed predilection for sua sponte probable cause investigations/prosecutions. They do this all the time in every jurisdiction. Mandatory bars perceive their missions adversarially viz a viz their members and consider themselves de facto consumer protection agencies.

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