The ABA Journal has reported the curious case of a solo practitioner, Donald Brown, who was suspended for misrepresenting his attendance at Internet-based CLE (and, also, reprimanded him for representing a client in a divorce case after they had been in an intimate relationship, giving rise to a material limitation conflict under its version of Rule 1.7 that was not consented to in writing by the client).
This caught my eye for both the reason for the suspension and the potential impossibility of fulfilling conditions of staying the suspension.
First, the suspension. Wisconsin online CLE is mostly on the honor system—you sign in, you watch, you learn something, you log off and report your attendance at the end of your two-year cycle. (Right? You don’t minimize the presentation in the lower right corner of your right screen and mute it?) There are no codes to enter and nothing you need to click to prove you’re there and awake.
Anyway, this lawyer, like many of his peers, realized with only days to go in the reporting cycle that he had no CLE credits. Maine requires that a portion of CLE be taken “live”—either in-person or online, but contemporaneous, rather than on-demand. Brown quickly signed up for a third-party provider’s “all access” pass and registered for the required number of credits (which were conveniently available right when he needed them). However, he discovered he had conflicts and could not actually attend these “live” credits, and instead directed his assistant (who later filed the grievance against him) to attend in his stead (and, unlike for CLE originating in Wisconsin, to acknowledge “his” presence when prompts appeared during the program).
The sanction here was harsh—Brown was suspended for a year. However, the harshness was tempered—the suspension would be fully suspended (that’s the term used in the order) conditioned on several factors, including completing CLE (both required and additional), but relevant here, Brown would be required to “remain rostered and prepared to accept court-appointed criminal defense, protective custody, or other court-appointed work in at least one county’s state court over the course of the suspension,” and would be obligated to maintain a reasonable case load even if it reduced his ability to accept other work.
Putting aside several concerns I have with this approach—is Brown even competent to handle public defender or protective custody work? Is it really in the clients’ best interest for them to have an attorney who was conscripted, even if he is competent? What’s a reasonable case load?—Maine’s public defense scheme makes compliance with this condition impossible. Maine does not have state-employed public defenders and instead a state agency contracts with private bar lawyers to handle the cases. Problem is? The agency has thus far indicated Brown is not eligible to accept these appointments, and maintains it wasn’t a party to the disciplinary proceeding and isn’t required to work with Brown.
So far, we don’t know whether this means Brown has to serve the suspension unless and until the agency signs him up, or if the disciplinary authority will need to reconsider, or what. I guess we’ll stay tuned.
And, for my Wisconsin readers who were admitted in even-numbered years, remember to complete your 30 credits, including 3 ethics, by January 31, 2023, and report them by February 1. The good news is? If you’re late, you get assessed a late fee, but you won’t be suspended until June or so. So, while I’m not going to advise anyone to blow the deadline, if you’re at risk of doing so, just suck it up and pay the late fee and don’t make your assistant take the classes or lie about it.