When “Revocation” isn’t Revocation

Hi, everyone. It’s been a minute. It may be another minute, or several, before I write again, or it could be tomorrow. (Remember when I launched this blog in 2019 and I thought I would be writing weekly or more and then a few months later everything went sideways? Good times.)

I write to revisit a topic I wrote about a couple of years ago—the fact that Wisconsin does not have true, lifetime “disbarment.” My position hasn’t changed since 2022—I remain opposed to permanent revocation. Sure, there are absolutely some people who should never have a law license again, but petitions for reinstatement, which require character and fitness investigations, (in most circumstances) a referee hearing, and Supreme Court review provide an appropriate safeguard.

Today, the Court released in re Merry, 2024 WI 16. While this case has some interesting facts, two parts of the decision jumped out at me.

First, the Referee recommended a one-year suspension of Attorney Merry’s license, and neither party appealed that recommendation. When there’s no appeal, the Court reviews the report and decides what to do with it (and, in rare cases, remands the matter to the Referee for additional findings or orders the parties to file briefs). The Court is not bound by the Referee’s recommendation disciplinary recommendation, but may be guided by it.

In this case, the Court decided to revoke Attorney Merry’s license. Again, it can do that, and it has (see, e.g., in re Meyer, 2022 WI 39). The Court can also deviate from a suspension recommendation (see, e.g., in re Ritland, 2021 WI 36 where a referee recommended three months, the respondent appealed seeking a reprimand, the OLR cross-appealed seeking six months, and the Court imposed two years). It feels like this is happening more often, though I haven’t done a study to determine whether my “feeling” is just bias or whether there is truly a shift.

Second, Chief Justice Annette Kingston Ziegler concurred in judgment but pointed out that true, permanent revocation does not exist in Wisconsin and maybe it should. This concurrence has become customary in revocation cases since her December 18, 2019 dissent from Supreme Court Order No. 19-10 (denying a rule petition to permit the Court to order permanent revocation of an attorney’s license). But, what is new is that Justice Ziegler is being joined by more and more of her colleagues, across ideological lines. Her concurrence in the Meyer case, decided less than two years ago, was joined by Justices R.G. Bradley and Brian Hagedorn. Her concurrence in the Merry case was joined by Justice Karofsky (who recently started joining these concurrences), for the first time, Justice Protasiewicz. In other words, five out of seven Justices seemingly share this opinion that there are “cases that would warrant the permanent revocation of an attorney’s license to practice law.”

This seems to be a critical mass, and could become even more overwhelming in 2025, as Justice Ann Walsh Bradley (who, thus far, has not joined any of these concurrences) retires.

Stay tuned…