Tuesday, March 25, 2008

A Critique Of Sunday Incite And Of Sykes

The Illusory Tenant, who is wise in all things lawyerly, was alerted that are own Sykes was going to discuss the Supreme Court race on his weekly GOP infomercial.

Going in without the recommended safety gear, iT takes it upon himself to watch the show, or at least as much as one could humanly stomach. He shares with us some of his observations:
Charles J. Sykes, in short, is a buffoon, a performing ape. During the mercifully brief discussion of the Supreme Court election, Sykes managed to refer to Gableman as "Michael Gableman" or "Mike Gableman." But Butler may only be "Loophole Louie." Charming.

iT then goes on to peruse Sykes's blog and shares his findings on that with us:
Sykes's response to Bice's item is also funny: "Justice for sale?" is the headline at Sykes's "blog," without the slightest hint of evidence as to whether the question is even called for, let alone the clear suggestion of impropriety on the part of Justice Butler. That headline, by the way, is Sykes's sole contribution to the discussion. Despite this, Sykes has earned his own nickname, "the blogfather," from some of his fawning acolytes on the right.

Why this is is a bit of a mystery, since Sykes's blog contains almost entirely copy-and-paste jobs from other blogs and the occasional YouTube clip of scantily-clad, booty-shaking females. (If Sykes does provide any meaningful public service at all, it's those.)

If you aren't pointing and laughing yet, I'll leave you with an example of Sykes's legal acumen, the substance of which practically precludes him from commenting on this Supreme Court race at all, except that would deprive us of grist for the comedy mill, and that's not such a good thing.

iT then leaves us with his overall impression:
Anyway, here's what Sykes had to say about Knapp (he does write his own stuff occasionally, in between shouting on the radio, just not at his blog):

What stunned the dissenters and many court watchers, however, was the court’s decision to ignore the specific decision of the U.S. Supreme
Court in the case before it.
Now this is beyond merely comical, it's demonstrably idiotic, and if you want to know why, go and read my original post. Or, obviously, watch the Butler interview (which you should do anyway).Charlie Sykes, I'm told, is actually taken seriously among a certain local demographic, which is as much a mystery to me as was initially the red-shift of galaxies to Edwin Hubble. Hubble eventually figured it out, but I remain at a loss to explain Sykes's apparent popularity, aside from as, of course, an occasionally entertaining performing primate.
You can read his entire post here.



    Members of the Club

    Does a state system that uses lawyers to punish bad lawyers actually work? Or does it just protect the profession?
    by Geoff Davidian

    Wednesday 3/1/2006

    In June 1997, Winnebago Circuit Court Judge William H. Carver took the unusual step of ratting on his legal colleague, the county’s then district attorney, Joe Paulus. Carver lodged a complaint with the Board of Attorneys Professional Responsibility, which is overseen by the state Supreme Court. He accused an assistant attorney of trying to throw out a speeding ticket for the nephew of an influential contributor to the re-election campaign of Paulus.

    It would be nine months before Carver was summoned to the board’s district investigative committee, and what he found surprised him. One member of the committee was attorney Milt Schierland, the judge later noted in correspondence to the board.

    “Mr. Schierland is a personal friend of District Attorney Joe Paulus,” Carver wrote, and “has financially supported Mr. Paulus in all his elections, and Mr. Paulus has in the past financially supported and endorsed Mr. Schierland in his campaigns for public office.”

    The district committee actually recommended an investigation, despite ­Schierland’s participation, but the state board declined to pursue the case. And because the records of all unprosecuted complaints are destroyed, the entire episode disappeared immediately from public view. The corrupt regime of Joe Paulus would go on until an FBI investigation finally resulted in Paulus pleading guilty to racketeering and tax evasion in 2004, some seven years after Carver filed his complaint.

    The Paulus situation raises the issue of how lawyers in Wisconsin are regulated: The state Office of Lawyer Regulation, as it is now known, has seen its staff cut back, which may affect its ability to police misconduct. Worse, the office depends upon district committees of volunteers dominated by lawyers overseeing fellow lawyers.

    “Self-regulating disciplinary systems are more like guilds, and guild members tend to protect each other,” says Greg Keating, University of Southern California Law School professor.

    The problem is a national one, but statistics suggest that Wisconsin may have more to worry about than most states. The state led the Midwest, with complaints against 10.3 percent of licensed lawyers in 2004, compared to a range of 4.6 percent (in Minnesota) and 9.8 percent (in Michigan).

    Nationally, there were 127,171 complaints against lawyers filed with state oversight committees in 2004. Some 2,225 of them were filed in Wisconsin, where charges were much less likely to result: Just 1.6 percent of complaints investigated in Wisconsin resulted in formal charges against attorneys, compared to 4 percent nationally.

    “I have some concerns the Office of Lawyer Regulation has more interest in self-preservation than protecting the public,” says retired Winnebago County Judge Robert A. Haase.

    Does the public need better protection from bad lawyers? “On balance, the system works,” says former state Supreme Court Justice Janine Geske, now a professor at Marquette University’s law school. “There is a real attempt not to have cronyism.”

    Others disagree and point to Paulus as Exhibit Number 1 in the argument for better regulation.

    Joe Paulus graduated from William Mitchell College of Law in St. Paul, Minnesota, in 1984. He set up shop in the Fox River Valley and bounced from firm to firm until 1987, when Peg Lautenschlager, then Winnebago County’s prosecutor, hired him as an assistant district attorney. When she did not seek re-election in 1988, Paulus ran for and won the office.

    Almost immediately after his victory, the sharp, handsome prosecutor began to show a dark side. Paulus won the nickname “Hollywood Joe” for seeking out high-profile cases. One example was his prosecution against a grocery bagger for sexually assaulting Sarah, the nationally known victim who claimed to have 46 different personalities.

    After Paulus gained a conviction, his victim-witness coordinator, Sheila Berry, disclosed that the victim had had sex with several other men, including Paulus’ star witness, and that Paulus had concealed this evidence. Paulus was forced to move to dismiss the charges.

    When reporter Mary Jo Netzer, who covered the courts for the Oshkosh Northwestern, refused to write a sufficiently positive story about Paulus in the early 1990s, he called the newspaper and said that “as far as he’s concerned, the paper did not exist until she was off the beat,” recalls Stewart Rieckman, the paper’s executive editor. “Joe was very good at intimidating people.”

    To increase the pressure on Netzer and the paper, Paulus had employees in the court clerk’s office hide case filings when Netzer made her rounds, recalls clerk ­Julie A. Pagel. Pagel refused and reversed his instructions to her staff. “From there on, I was on his list,” she once said. “There was a vendetta.”

    Meanwhile, Paulus was having conflicts with Judge William Carver, who had served on the bench since 1973 and was himself a former Winnebago County district attorney. Paulus was trying to burnish a “tough on crime” image, Rieckman says, and felt Carver wasn’t handing out tough enough sentences on cases Paulus prosecuted.

    Rieckman says Paulus tried to intimidate Carver by pressuring a small-time bettor to link the judge to gambling.

    Carver describes the situation this way: “If you could get a judge for being with a professional gambler, you’ve got a statewide story.”

    Carver admits getting a letter from the accused gambler saying he was being pressured to perjure himself by Paulus. Carver angrily chastised the prosecutors for using their office for political purposes, then recused himself from the case. But he gave Paulus an opening to file a complaint of judicial misconduct against Carver for making inappropriate comments and an “appearance of partiality” in the courtroom. The state Supreme Court suspended ­Carver for 15 days without pay.

    Yet while the regulatory system had no problem suspending Carver, it dismissed Carver’s complaint that the DA’s office threw out a speeding ticket for political purposes. So the Paulus regime continued, with increasingly nasty results.

    WHBY-Oshkosh radio news anchor Jeanne Anthony claims Paulus let local television stations know he wanted to be covered by female reporters, whom he would then order to drink with him. Paulus’ assistant DA, Edmund Jelinski, taped a conversation where Paulus bragged about having sex with a woman in his office in the middle of the morning.

    Jelinski was still in his 20s, just a few months out of law school, when he was hired as assistant DAby Paulus in 2001. But he quickly came to the realization that something was rotten in this office. For starters, there was Paulus’ intimidating style.

    Paulus was preparing for a re-election campaign, Jelinski recalls, and wanted to win over his staff. So he decided to help make pancakes for them every Wednesday. “My secretary, Kristen, who was pregnant at the time,” Jelinski says, “wasn’t real hungry in the morning. And Joe puts a plate of pancakes down in front of her, she eats about half of one and comes into the kitchen and puts it in the garbage.”

    Paulus was enraged.

    “The rest of the morning, my job was to threaten Kristen,” Jelinski recalls, “because she slighted him.” Even after she apologized, Paulus continued to belittle her.

    Jelinski and his fellow assistant DA, Tom Chalcoff, who also started there in 2001, began to have suspicions about how Paulus was handling – or not handling – cases. File by file, they searched through the records in the District Attorney’s Office and photocopied police reports, transcripts and court records. They found a pattern of cases being inappropriately dismissed or reduced.

    To get the public to feed him more information on corruption in the DA’s office, Jelinski announced his candidacy for the 2002 Republican nomination for district attorney, opposing Paulus. Jelinski and Chalcoff also went to two local ­judges, Robert Haase and Barbara Key, to report their findings.

    Both Key and Haase filed complaints with the Office of Lawyer Regulation, reporting dozens of allegations that cases were being dismissed or reduced for no apparent reason. The OLRinvestigated and then sent Haase a letter saying it found no violations.

    Jelinski and Chalcoff also went to the FBI with their allegations. An incensed Paulus fired his two assistants, then filed an ­ethics complaint with the OLR, saying Jelinski’s allegations of corruption were a violation of Supreme Court rules. Once again, Paulus was using the system to try to silence critics.

    Still the Office of Lawyer Regulation did nothing about Paulus. Keith Sellen, state OLR director, notes that his office is a civil regulatory agency. Once a case becomes criminal and law enforcement gets involved, the OLR backs off.

    “We rely on criminal investigations a lot,” says Sellen. “The FBIuses covert methods that we would not use. We are not trained that way.”

    As it turned out, the voters were more proactive than the legal regulators, and the increasingly controversial Paulus lost his bid for re-election in a 2002 primary election. In 2004, he was found guilty of ­racketeering and tax evasion. His license to practice law was revoked and he is now serving a 58-month sentence in federal prison in Pensa-cola, Florida.

    Yet the reverberations from the reign of Paulus continue. William M. Lennon, who succeeded Paulus as district attorney, wrote Wisconsin Attorney General Peg Lautenschlager the day after Paulus was indicted, asking for another, more broad-ranging investigation.

    “Just because federal charges were filed, this should not relieve Mr. Paulus of answering to his criminal conduct in state court,” Lennon wrote. “In addition to charges of bribery, my office has received dozens of allegations by individuals indicating that attorney Paulus lied to police, judges, victims and other attorneys in an effort to win cases and to obtain favorable media coverage. We believe that an investigation is needed to root out other individuals who may have assisted Mr. Paulus in his misconduct.”

    Lautenschlager agreed to initiate a John Doe probe in the spring of 2004. To date, no charges have resulted. “It’s all beneath the radar screen,” Carver laments.

    The Winnebago County legal community was so devastated by the scandal that they considered launching a public relations offensive to rebuild public trust.

    “The Paulus case was a huge embarrassment to the judiciary,” says Rieckman.

    Amanda Todd, a public relations specialist for the state Supreme Court, says she traveled to Oshkosh to meet with judges to discuss the PReffort. Judge Carver says Todd was concerned about a broad-ranging campaign that might suggest any problem with regulating lawyers in the state and preferred one focused just on justice in Winnebago County. Todd says she has no authority over the judges’ decision and couldn’t recall making any suggestions. Ultimately, no campaign was launched. To Carver, the Supreme Court seemed quicker to take action on its image than on handling the ethical complaints against Paulus.

    Judge Carver’s original complaint against Paulus had accused his assistant DA, Bradley J. Priebe, of pushing to throw out the speeding ticket to benefit a friend of Paulus. But because all records of any case that is thrown out are destroyed, Priebe has gone on to win an appointment to a circuit judgeship in neighboring Outagamie County (although he was defeated a few months later when he first stood for election). Indeed, Paulus also benefited from the confidentiality rule and was nearly appointed U.S.attorney in 2001 after more than a decade of his crooked leadership as district attorney.

    Is the Paulus affair one of a kind? Or does it suggest a more wide-ranging problem of unethical lawyers who are not being properly policed?

    Naji Abu Lughod is a middle-aged Palestinian from Jordan who studied business at Marquette University before opening a Mequon insurance agency. Back in 1995, Abu Lughod needed a lawyer to handle a conflict he had with a business associate. He and his wife called several law offices to find one who would provide a free initial consultation. When Cedarburg-based attorney Sherman Abrahamson agreed to do this, Abu Lughod says, he made an appointment. A problem soon ensued.

    In a letter to the Office of Lawyer Regulation, Abu Lughod later complained that it took just a few moments to explain his problem to Abrahamson, and the rest of the 50-minute session was spent haggling over money. Abu Lughod claims the lawyer insisted on a lump sum payment of $2,500 if he took the case. When Abrahamson would accept no other payment arrangement, Abu Lughod says he left.

    Later, Abu Lughod received a call at his office from Abrahamson, “who demanded money in a threatening tone,” the letter to state regulators claims. Three days later, a bill arrived from the lawyer charging $350 for the consultation. When Abu Lughod refused to pay, the lawyer sued him in small claims court in Ozaukee County, where the judge ruled in favor of the lawyer.

    Abu Lughod said he got no satisfaction in response to his demand to state regulators for “a full investigation” of the attorney “and his practice of luring potential clients into his office and lying under oath and practicing questionable activities to extort money from people like me.”

    Abrahamson, who has practiced for 43 years, said he couldn’t remember why he sued Abu Lughod. Representing his own firm, Abrahamson has sued 10 other clients over the past 10 years, court records show. He claims he has never sued a client over an “initial consultation fee” but concedes that some cases involved disagreements over fees.

    “They get everything they want from you, then they don’t pay you,” he complains. “People pay lawyers last.”

    If the Paulus case represented high-level criminality, the accusation by Abu Lughod is more representative of the kind of case that gets referred to the OLR. Complaints received by Wisconsin regulators in 2004-’05 include 220 for misrepresentation or dishonesty, 86 for trust account violations, 69 for failure to return property, 23 for criminal conduct, 81 for incompetence, 430 for lack of diligence and 240 for failing to communicate with a client.

    Since 2000 in Wisconsin, the Office of Lawyer Regulation received more than 11,000 misconduct complaints from judges, lawyers, clients and others, leading to at least two dozen disbarments – about two disbarments for every 1,000 complaints.

    The OLR has seen staff cuts that may affect its ability to police misconduct. Complaints against Wisconsin lawyers increased 16 percent between 2001 and 2003, while the number of OLRinvestigators dropped 30 percent. In 2001, the OLRhad an investigative staff of 20 and a support staff of 13 to handle 1,951 allegations of lawyer misconduct. In 2003, the agency was down to 14 investigators and five support staff handling 2,261 complaints.

    But the level of state staff may be less important than the 16 district committees that first investigate allegations of misconduct and make recommendations to the OLR. The volunteer committees are advisory and comprise both lawyers and non-lawyers, with lawyers predominating. District One (Jefferson, Kenosha, Walworth) has nine attorneys and two non-lawyers. District Two (Milwaukee County) has 40 members, including 26 attorneys.

    The integrity of district committees has come under criticism for conflicts of interest in recent years after it was discovered that Paulus confidante Milt Schierland had for years served on the District 3 committee representing Winnebago, Green Lake and Fond du Lac counties while he was bribing the DA. (Schierland pleaded guilty to filing a false tax return as a result of the ­Paulus investigation.)

    Some states, like Illinois, use statewide committees to reduce the chance a lawyer will face a conflict in analyzing complaints against a local lawyer. But Janine Geske says that may not be practical. “These are volunteers. They are not paid. So you’re more likely to get people who are willing to do this kind of work if they don’t have to drive halfway across the state to do it.”

    Geske believes that conflicts can be minimized with sensible rules. “Particularly in smaller districts, if you’re going to use volunteers, both people and lawyers, the fact that someone knows somebody should not be enough to disqualify someone. What is important is that everybody who takes on the responsibility also subscribes and commits to some kind of conflict of interest [rule].”

    The inclusion of non-lawyers on committees, as Wisconsin does, is intended to be a safeguard against cronyism. But Deborah L. Rhode, Ernest W. McFarland Professor of Law at Stanford University and author of In the Interests of Justice: Reforming the Legal Profession,says putting a few non-lawyers on a volunteer board is little more than a “cosmetic gesture.”

    Rhode believes wholesale reform is needed. “Structural deficiencies in the bar’s present governance system mandate reforms offering nonprofessionals more than a supporting role. Anointing a few laymen to serve on drafting commissions or disciplinary committees will not suffice,” she says.

    One state that has taken steps to change the system is Arizona. The state does not use voluntary district committees, and all charges of lawyer misconduct are public, regardless of whether discipline is imposed.

    Robert B. Van Wyck, chief bar counsel for the State Bar of Arizona, says the state supreme court had opted for transparency, and the openness serves to bolster public confidence in the system.

    If his agency receives continuous vague or unsubstantiated charges of misconduct from different sources about a single lawyer, Van Wyck notes, an investigator will be assigned to receive all future complaints about that attorney to make sure nothing is missed. And all of those previous unsubstantiated complaints are open to the public in case someone wants to research the attorney before signing a contract for services. Also open are the names of the persons making the allegations, so the public can decide whether the person complaining has credibility.

    Nationally, there is a growing awareness that the process of lawyer regulation needs more openness. A New Jersey Supreme Court ruling in November lifted a gag order that had once prevented individuals who file complaints from speaking openly about their cases. The Colorado state bar now has a Web site that allows people to search for a lawyer’s name on the list of complaints.

    Still, the general picture remains one of lawyers policing fellow lawyers, and the practice of deferring complaints in deference to criminal investigations is common.

    “If the FBI says, ‘Stop lurking around, you’re interfering with a criminal investigation,’ what are you going to do?” asks G. Fred Ours, deputy disciplinary counsel and president of the National Organization of Bar Counsel. “When two agencies have jurisdiction, the agency with the lesser resources defers.”

    In practice, that may leave the public unaware of a problem involving the attorney until the investigation goes public. That can contradict what Illinois Chief Disciplinary Counsel James Grogan says is a critical component of lawyer regulation: “If there is misconduct, it is important for the disciplinary people to get it to the Supreme Court fast, and where there is no impediment, there is strong discipline.”

    Ultimately, the biggest deterrent to making any improvements in the system of lawyer regulation is the domination by attorneys of courts, legislatures and oversight committees. But Geske is among many in the legal fraternity who argue that the system needs tinkering, not wholesale reform.

    “No system, including this one, obviously, is perfect,” she says. “There are things that should be looked at in hindsight.” Still, she adds, “I think the system, for the most part, works.”

    Many Kinds of Misconduct
    The range of attorney misconduct is wide, as suggested by several recent examples of lawyers who faced disbarment or a license suspension.

    Waukesha County attorney Jennifer L. Abbott now faces 10 years in prison and a $25,000 fine for two counts of theft. She was disbarred in 2005, but as in the case of Joe Paulus, it was a criminal charge that led to this. Abbott was also under investigation by the Office of Lawyer Regulation for some 20 allegations of misconduct dating back to 2002, but these complaints became moot given Abbot’s criminal charge and disbarment.

    Among the allegations of misconduct against her: overdrawing money from a trust account, failing to preserve evidence and arrange for testimony of a key witness when handling an operating-while-intoxicated case, failing to return records or files in violation of court orders and failing to return unearned retainers or fees.

    The law license of Waukesha attorney Carlos Gamino was suspended for six months in December 2005. The suspension is based on a complaint filed in 2002 alleging that Gamino engaged in inappropriate sexual relations with two clients, which is a violation of Supreme Court rules, then lied about it under oath.

    The state regulator or “referee” found that on two separate occasions, “Gamino entered into a sexual relationship with a female client in a vulnerable personal situation very shortly after he was retained by them.… One of these clients was dealing with drug and alcohol dependency and facing the loss of her children, home, possessions.… She was desperate and vulnerable, and attorney Gamino should have been aware of this fact. This disturbing behavior, combined with the finding of his misrepresentations about the nature of the relationship, evidences a troubling pattern.”

    Milwaukee attorney Allen E. Schatz has been practicing in Wisconsin since 1984, and the first complaint against him was filed in April 2001. Among several complaints and more than 30 counts of alleged misconduct were the following: failure to put client money in a trust account, forgery, failure to provide competent representation, failure to file the petition in a bankruptcy, failing to return a client’s papers and fees that were not earned, lying to the OLR during the investigation, failure to take necessary steps to allow an appeal to occur in a first-degree intentional homicide conviction and failure to do anything on a family court case after payment of a $750 retainer.

    Prosecution by the OLR resulted in a February 2005 decision revoking Schatz’s license and made retroactive to August 13, 2003.– Geoff Davidian

    Can Elections Solve the Problem?
    The state Supreme Court oversees the Office of Lawyer Regulation and bears ultimate responsibility for policing bad lawyers. Will this issue ever arise in an election for the Supreme Court? Milwaukee attorney Walter Kelly, who ran unsuccessfully for the court in 1997, doubts it. In the typical race, he says, issues die fast and campaigns are mostly about candidate biographies.

    Mike McCabe, executive director of the watchdog group Wisconsin Democracy Campaign, says Supreme Court elections are heavily influenced by campaign contributions, which come mostly from lawyers and lobbyists. They probably aren’t looking for tough enforcement of ethical mandates,
    he says.

    McCabe says only when money from lawyers and special interests is removed from campaigns will the court have a freer hand to watchdog the legal profession. McCabe cites proposed legislation, the “Impartial Justice” bill, that would make the justices independent through public financing of the races. If the bill passes, McCabe says, the Supreme Court “would be in a much better position to police the lawyers in this state.”– Geoff Davidian

    Geoff Davidian is a Milwaukee-based freelance writer.




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  2. anony

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