22.03(8) (8) The director, or a special investigator acting under SCR 22.25, may subpoena the respondent and others and compel any person to produce pertinent books, papers, and documents. The director, or a special investigator acting under SCR 22.25, may obtain expert assistance in the course of an investigation.

History: Sup. Ct. Order No. 99-03 , 2000 WI 106, 237 Wis. 2d xix; Sup. Ct. Order No. 01-12A , 2002 WI 8, 249 Wis. 2d xiii.

22.04 SCR 22.04 Referral to district committee.

22.04(1) (1) The director may refer a matter to a district committee for assistance in the investigation. A respondent has the duty to cooperate specified in SCR 21.15 (4) and 22.03 (2) in respect to the district committee. The committee may subpoena and compel the production of documents specified in SCR 22.03 (8) and 22.42.

22.04(2) (2) When the director refers a matter to a committee, the respondent may make a written request for the substitution of the investigator assigned to the matter by the committee chairperson, or may provide a written waiver of the right to request substitution. The request for substitution shall be made within 14 days after receipt of notice of the assignment of the investigator. One timely request for substitution shall be granted as a matter of right. Additional requests for substitution shall be granted by the committee chairperson for good cause. When a request for substitution is granted, the investigator initially assigned shall not participate further in the matter.

22.04(3) (3) The district committee shall conduct an investigation and file an investigative report with the director within 90 days after the date the respondent's right to request substitution of the investigator assigned to the matter under sub. (2) as a matter of right terminates or has been waived. The committee chairperson, with notice to the grievant and respondent, may request an extension of time to complete the investigative report from the director. The committee chairperson shall set forth the reasons for the request and the date by which a report will be filed in a written request for the extension. The director may approve or deny the request, in the director's discretion. The investigative report shall outline the relevant factual allegations and identify possible misconduct, if any, and may make a recommendation as to the disposition of the matter. The district committee shall include in reports to the director all relevant exculpatory and inculpatory information obtained.

22.04(4) (4) The director shall send a copy of the investigative report of the committee to the respondent and to the grievant. The respondent and the grievant each may submit a written response to the investigative report within 10 days after the date the report is sent to them.

22.04(5) (5) The director may withdraw the referral of a matter to a committee at any time, and the committee thereupon shall terminate its investigation.

History: Sup. Ct. Order No. 99-03 , 2000 WI 106, 237 Wis. 2d xix; Sup. Ct. Order No. 01-12 , 2001 WI 120, 247 Wis. 2d xiii; Sup. Ct. Order No. 01-12A , 2002 WI 8, 249 Wis. 2d xiii; Sup. Ct. Order No. 03-01 , 2003 WI 133, 264 Wis. 2d xiii; Sup. Ct. Order No. 04-10 , 2005 WI 56, 279 Wis. 2d xiii.

22.05 SCR 22.05 Disposition of investigation.

22.05(1) (1) Upon completion of an investigation, the director may do one or more of the following:

22.05(1)(a) (a) Dismiss the matter for lack of sufficient evidence of cause to proceed.

22.05(1)(b) (b) Divert the matter to an alternatives to discipline program as provided in SCR 22.10.

22.05(1)(c) (c) Obtain the respondent's consent to the imposition of a public or private reprimand and proceed under SCR 22.09.

22.05(1)(d) (d) Present the matter to the preliminary review committee for a determination that there is cause to proceed in the matter.

22.05(2) (2) The director shall notify the grievant in writing that the grievant may obtain review by a preliminary review panel of the director's dismissal of a matter under sub. (1) by submitting to the director a written request. The request for review must be received by the director within 30 days after the date of the letter notifying the grievant of the dismissal. The director shall send the request to the chairperson of the preliminary review committee, who shall assign it to a preliminary review panel. Upon a timely request by the grievant for additional time, the director shall report the request to the chairperson of the preliminary review committee, who may extend the time for submission of additional information relating to the request for review.

22.05(3) (3) The preliminary review panel may affirm the dismissal or, if it determines that the director has exercised the director's discretion erroneously, refer the matter to the director for further investigation. A majority vote of the panel is required to find that the director has exercised discretion erroneously. The panel's decision is final, and there shall be no review of the panel's decision. The chairperson of the preliminary review committee shall notify the grievant and the respondent in writing of the panel's decision.

History: Sup. Ct. Order No. 99-03 , 2000 WI 106, 237 Wis. 2d xix; Sup. Ct. Order No. 01-12A , 2002 WI 8, 249 Wis. 2d xiii.

22.06 SCR 22.06 Presentation to preliminary review committee.

22.06(1) (1) The director shall submit investigative reports, including all relevant exculpatory and inculpatory information obtained and appendices and exhibits, if any, pursuant to SCR 22.05 (1) (c) to the chairperson of the preliminary review committee. The chairperson shall assign each matter to a panel for consideration.

22.06(2) (2) The director shall provide each member of the panel a copy of the investigative report in the matter assigned to the panel and the responses of the respondent and the grievant, if any.

22.06(3) (3) The director and staff designated by the director shall appear before the panel and summarize the investigative reports and the director's position in the matter.

History: Sup. Ct. Order No. 99-03 , 2000 WI 106, 237 Wis. 2d xix.

22.07 SCR 22.07 Preliminary review panels — procedure.

22.07(1) (1) The preliminary review panels shall review the matters assigned to them and determine in each whether there is cause for the director to proceed.

22.07(2) (2) The meetings and deliberations of the panels are private and confidential. The panels shall take and retain full and complete minutes of their meetings.

22.07(3) (3) If the panel determines that there is cause for the director to proceed in the matter, it shall so inform the director in writing. A determination of cause to proceed shall be by the affirmative vote of four or more members of the panel and does not constitute a determination that there is clear, satisfactory and convincing evidence of misconduct.

22.07(4) (4) If the panel determines that the director has failed to establish cause to proceed, it shall report the determination to the chairperson of the preliminary review committee, who shall notify the director, the respondent, and the grievant of the determination.

History: Sup. Ct. Order No. 99-03 , 2000 WI 106, 237 Wis. 2d xix.

22.08 SCR 22.08 Response to cause to proceed determination.

22.08(1) (1)

22.08(1)(a) (a) If the preliminary review panel determines that the director has not established cause to proceed in the matter, the director may dismiss the matter, which is a final decision, or the director may continue the investigation and resubmit the matter to a different panel within a reasonable time after the first panel's determination. The director shall notify the respondent and the grievant of the decision to dismiss the matter or continue the investigation.

22.08(1)(b) (b) Following resubmission, if the panel determines that the director has failed to establish cause to proceed, it shall report the determination to the chairperson of the preliminary review committee, who shall dismiss the matter and notify in writing the director, the respondent, and the grievant of the dismissal. A decision of the panel on resubmission that the director has failed to establish cause to proceed is final, and there is no review of that decision.

22.08(2) (2) If the preliminary review panel or the panel on resubmission determines that the director has established cause to proceed in the matter, the director shall decide on the appropriate discipline or other disposition to seek in the matter and may do any of the following:

22.08(2)(a) (a) Obtain the respondent's consent to the imposition of a public or private reprimand.

22.08(2)(b) (b) Divert the matter to an alternatives to discipline program as provided in SCR 22.10.

22.08(2)(c) (c) File with the supreme court and prosecute a complaint alleging misconduct.

History: Sup. Ct. Order No. 99-03 , 2000 WI 106, 237 Wis. 2d xix; Sup. Ct. Order No. 01-12A , 2002 WI 8, 249 Wis. 2d xiii; Sup. Ct. Order No. 04-01 , 2004 WI 54, filed 5-14-04, eff. 1-1-05.

22.09 SCR 22.09 Consensual private and public reprimands.

22.09(1) (1) An agreement between the director and an attorney to the imposition of a private or public reprimand shall be in a writing dated and signed by the respondent and the director and shall contain a summary of the factual nature of the misconduct and an enumeration of the rules of professional conduct for attorneys that were violated.

22.09(2) (2) The director shall request the appointment of a referee by providing in confidence to the clerk of the supreme court the names of the grievant and respondent, the address of the respondent's principal office, and the date of the consent agreement. The clerk of the supreme court shall select a referee based on availability and geographic proximity to the respondent's principal office. The chief justice or, in his or her absence, the senior justice shall appoint the referee. The director shall submit the agreement, accompanied by the respondent's public and private disciplinary history, to the appointed referee for review and approval. The director shall send a copy of the agreement to the grievant. The grievant may submit a written response to the director within 30 days after being notified of the agreement, and the director shall submit the response to the referee. The respondent and the director may submit comments to the referee regarding the grievant's response. The agreement, the grievant's response, and the comments of the respondent and director shall be considered by the referee in confidence.

22.09(3) (3) If the referee approves the agreement, the referee shall issue the reprimand in writing to the respondent and send a copy to the director. A private reprimand shall be confidential.

22.09(4) (4) If the referee determines that the agreement is not supported by sufficient facts or that the sanction falls outside the range of sanctions appropriate in similar cases, the referee shall not approve the agreement. The referee shall, in those cases, inform the director, the grievant, and the respondent in writing, stating the basis and reasons for disapproval. The director shall then proceed in the matter as the director may consider appropriate.

22.09(5) (5) If the respondent does not consent to a reprimand offered by the director or the respondent's consent is unacceptable to the director, the director may file a complaint with the supreme court alleging the same factual misconduct and seeking the same reprimand to which consent was sought.

History: Sup. Ct. Order No. 99-03 , 2000 WI 106, 237 Wis. 2d xix; Sup. Ct. Order No. 01-12A , 2002 WI 8, 249 Wis. 2d xiii.

22.10 SCR 22.10 Diversion to alternatives to discipline program.

22.10(1) (1) Offer of diversion. At intake, during an investigation, or at the conclusion of an investigation, if the director determines that the matter should be diverted to an alternatives to discipline program, the director may offer the attorney the opportunity to participate in the program. If the attorney rejects the offer, the matter shall proceed as otherwise provided in this chapter. Diversion to an alternatives to discipline program does not constitute discipline under this chapter.

22.10(2) (2) Alternatives to discipline program. The alternatives to discipline program may include mediation, fee arbitration, law office management assistance, evaluation and treatment for alcohol and other substance abuse, psychological evaluation and treatment, medical evaluation and treatment, monitoring of the attorney's practice or trust account procedures, continuing legal education, ethics school, and the multistate professional responsibility examination, including those programs offered by the state bar of Wisconsin.

22.10(3) (3) Eligibility for participation. An attorney may participate in an alternatives to discipline program when there is little likelihood that the attorney will harm the public during the period of participation, when the director can adequately supervise the conditions of the program, and when participation in the program is likely to benefit the attorney and accomplish the goals of the program. Unless good cause is shown, an attorney may not participate in an alternatives to discipline program if any of the following circumstances is present:

22.10(3)(a) (a) The discipline likely to be imposed in the matter is more severe than a private reprimand.

22.10(3)(b) (b) The misconduct involves misappropriation of funds or property of a client or a third party.

22.10(3)(c) (c) The misconduct involves a serious crime as set forth in SCR 22.20 (2).

22.10(3)(d) (d) The misconduct involves family violence.

22.10(3)(e) (e) The misconduct resulted in or is likely to result in actual injury, such as loss of money, legal rights, or valuable property rights, to a client or other person unless restitution is made a condition of diversion.

22.10(3)(f) (f) The attorney has been publicly disciplined within the preceding five years.

22.10(3)(g) (g) The matter is of the same nature as misconduct for which the attorney has been disciplined within the preceding five years.

22.10(3)(h) (h) The misconduct involves dishonesty, fraud, deceit, or misrepresentation.

22.10(3)(i) (i) The misconduct involves sexual relations prohibited under SCR 20:1.8.

22.10(3)(j) (j) The misconduct is the same as that for which the attorney previously has participated in an alternatives to discipline program.

22.10(3)(k) (k) The misconduct is part of a pattern of similar misconduct.

22.10(4) (4) Diversion agreement. If the attorney agrees to diversion to an alternatives to discipline program, the terms of the diversion shall be set forth in a written agreement between the attorney and the director. The agreement shall specify the program to which the attorney is diverted, the general purpose of the diversion, the manner in which the attorney's compliance with the program is to be monitored, and the requirement, if any, for payment of restitution or costs. If the diversion agreement is entered into after the director has reported the matter to the preliminary review committee, pursuant to SCR 22.06 (1), the agreement shall be submitted for approval to the preliminary review panel to which the matter has been assigned. If the preliminary review panel rejects the agreement, the matter shall proceed as otherwise provided in this chapter.

22.10(5) (5) Costs of diversion. The attorney shall pay all costs incurred in connection with participation in an alternatives to discipline program, unless the program provides otherwise, and the office of lawyer regulation shall not be responsible for payment of the costs.

22.10(6) (6) Effect of diversion.

22.10(6)(a) (a) When the attorney enters into the alternatives to discipline program, the underlying matter shall be held in abeyance and the file shall note the diversion.

22.10(6)(b) (b) If the director determines that the attorney has successfully completed all requirements of the alternatives to discipline program, the director shall do one of the following:

22.10(6)(b)(i) (i) Close the file in the matter if the director had not determined that the matter warranted investigation or reported the matter to the preliminary review committee, pursuant to SCR 22.06 (1).

22.10(6)(b)(ii) (ii) Dismiss the matter if the director had determined that the matter warranted investigation or reported the matter to the preliminary review committee, pursuant to SCR 22.06 (1).

22.10(7) (7) Breach of diversion agreement.

22.10(7)(a) (a) If the director has reason to believe that the attorney has breached a diversion agreement entered into prior to a report of the matter to the preliminary review committee, pursuant to SCR 22.06 (1), the attorney shall be given the opportunity to respond, and the director may modify the diversion agreement or terminate the diversion agreement and proceed with the matter as otherwise provided in this chapter.

22.10(7)(b) (b) If the director has reason to believe that the attorney has breached a diversion agreement entered into after the matter was reported to the preliminary review committee, pursuant to SCR 22.06 (1), the director shall give written notice of the facts establishing the breach to the attorney and to the preliminary review panel that approved the diversion agreement. The attorney may submit a written response to the preliminary review panel within 20 days after notice is given. The director has the burden to establish by a preponderance of the evidence the materiality of the breach; the attorney has the burden to establish by a preponderance of the evidence justification for the breach. If, after consideration of the information presented by the director and the attorney's response, if any, the panel determines that the breach was material and without justification, the agreement shall be terminated and the matter shall proceed as otherwise provided in this chapter. If the panel determines that the breach was not material or that there was justification, the director may modify the diversion agreement in response to the breach. If the panel determines there was no breach, the matter shall proceed pursuant to the terms of the original diversion agreement.

22.10(7)(c) (c) If the alleged breach is referred for determination to a preliminary review panel under par. (b), upon motion of either party, a referee selected and appointed pursuant to SCR 22.13 (3) shall hold a hearing on the matter. Upon conclusion of the hearing, the referee shall submit written findings of fact and conclusions of law to the panel.

22.10(8) (8) Confidentiality of files and records. All files and records of the diversion of a matter shall be confidential, except as the supreme court may order otherwise. Information regarding misconduct disclosed to a treatment provider by an attorney while in an alternatives to discipline program need not be disclosed to the office of lawyer regulation, provided the misconduct occurred prior to the attorney's entry into the program.

History: Sup. Ct. Order No. 99-03 , 2000 WI 106, 237 Wis. 2d xix.

22.11 SCR 22.11 Initiation of proceeding.

22.11(1) (1) The director shall commence a proceeding alleging misconduct by filing a complaint and an order to answer with the supreme court and serving a copy of each on the respondent.

22.11(2) (2) The complaint shall set forth only those facts and misconduct allegations for which the preliminary review panel determined there was cause to proceed and may set forth the discipline or other disposition sought. Facts and misconduct allegations arising under SCR 22.20 and SCR 22.22 may be set forth in a complaint without a preliminary review panel finding of cause to proceed.

22.11(3) (3) The director may retain counsel to file, serve and prosecute the complaint.

22.11(4) (4) The complaint shall be entitled: In the Matter of Disciplinary Proceedings Against [name of respondent], Attorney at Law; Office of Lawyer Regulation, Complainant; [name of respondent], Respondent. The complaint shall be captioned in the supreme court and contain the name and residence address of the respondent or the most recent address furnished by the respondent to the state bar.

22.11(5) (5) The complaint may be amended as provided in the rules of civil procedure.

History: Sup. Ct. Order No. 99-03 , 2000 WI 106, 237 Wis. 2d xix; Sup. Ct. Order No. 03-01 , 2003 WI 133, 264 Wis. 2d xiii; Sup. Ct. Order No. 04-06 , 2004 WI 142, 275 Wis. 2d xiii.

Case Note: SCR 22.11, 22.24, and 22.29 (5) support the conclusion that costs may be imposed against a petitioner for reinstatement. Disciplinary Proceedings Against Penn, 2002 WI 5, 249 Wis. 2d 667, 638 N.W.2d 287.

22.12 SCR 22.12 Stipulation.

22.12(1) (1) The director may file with the complaint a stipulation of the director and the respondent to the facts, conclusions of law regarding misconduct, and discipline to be imposed. The supreme court may consider the complaint and stipulation without the appointment of a referee.

22.12(2) (2) If the supreme court approves a stipulation, it shall adopt the stipulated facts and conclusions of law and impose the stipulated discipline.

22.12(3) (3) If the supreme court rejects the stipulation, a referee shall be appointed and the matter shall proceed as a complaint filed without a stipulation.

22.12(4) (4) A stipulation rejected by the supreme court has no evidentiary value and is without prejudice to the respondent's defense of the proceeding or the prosecution of the complaint.

History: Sup. Ct. Order No. 99-03 , 2000 WI 106, 237 Wis. 2d xix.

22.13 SCR 22.13 Service of the complaint.

22.13(1) (1) The complaint and the order to answer shall be served upon the respondent in the same manner as a summons under section 801.11 (1) of the statutes. If, with reasonable diligence, the respondent cannot be served under section 801.11 (1) (a) or (b) of the statutes, service may be made by sending by certified mail an authenticated copy of the complaint and order to answer to the most recent address furnished by the respondent to the state bar.