Stacie’s Explainer for What the Heck Happened with Gableman Last Week

Last week, a referee appointed by the Supreme Court of Wisconsin recommended that former Justice Michael Gableman’s license to practice law be suspended for three years, in accordance with a stipulation between the parties.  This recommendation stems from Gableman’s actions in connection with an “audit” of the 2020 election.

(I’ve previously blogged about this only minimally, but talked to TV about this back in April.* You can read about the complaint and its history here, and read the report itself here.)

As the news spread, so did the comments on social media. These comments (some of which were not family-friendly and I will not repeat here) generally focused on whether three years is enough and why disbarment is more appropriate. I love a good social media fight as much as any (particularly when people try to condescendingly explain my own expertise to me), but I had other things to do this weekend, including starting my sixth decade on the planet. So I will respond here.

The referee did not have to adopt this stipulation; in my experience, referees almost always do, but there have been a few occasions when they recommend a different sanction or seek additional evidence.  

Once a referee makes a recommendation, either side has 20 days to appeal if they don’t like the recommendation. In this case, given that both sides have agreed that Gableman committed the misconduct complained of and the referee recommended the three years they stipulated to, an appeal is unlikely.

The Court, then, will typically make a decision based on the report. SCR 22.17 permits the Court to remand the matter to the referee for additional findings, or to order the parties to file briefs (as they would had they appealed); recently, the Court has been doing a bit of each. But, at some point within the next several months, the Court will decide whether to impose discipline, and what to impose.

And, the Court is not constrained by the stipulation or the referee’s recommendation. It is free to depart—in either direction—from the recommendation. And the Court does this sometimes—very recently, the Court increased the recommended period of suspension from 18 months to two years, and decreased the recommended period of suspension from two years to 18 months.  The Court giveth; the Court taketh.

“So why aren’t they just disbarring the guy forever?” This is a question I’ve seen with some frequency. The biggest reason the Court won’t “disbar the guy forever” is because Wisconsin does not have lifetime disbarment. The closest we have is revocation, which allows attorneys to petition for reinstatement after five years. There is a critical mass on the Court to change the rules and allow for lifetime disbarment, but thus far, they haven’t acted sua sponte and nobody has filed a petition recently. The most recent petition was in 2019; it was denied, but the composition of the Court has changed.

As to whether Gableman should be revoked, that’s a difficult question, not one where a knee-jerk answer would be appropriate. There is, of course, no case exactly on point; disciplinary cases are fact-intensive and this is a particularly unusual case. I am not aware of any prior Supreme Court justice later facing discipline as a lawyer, and the subject matter is particularly sensitive. This is not a case of a lawyer messing up an investigation for a closely held business; Gableman’s actions reduced confidence in our elections (and that is a particularly sore spot for a lot of people, including me). If I wanted to find a three-year suspension case that I thought was instructive, I could. If I wanted to find a revocation case that I thought was instructive, I could.

Regardless, the Court is within its rights to revoke Gableman’s license for the conduct at issue. I could certainly envision a scenario, given the above, where the Court determines that three years is not enough. (I am not going to try to read the tea leaves and predict whether it will; it’s enough for our purposes to say they can.)

I should also note that sometimes, three years ends up being much longer—an attorney suspended for six months or more, or revoked, must petition for reinstatement (if they choose to do so—plenty go on to do other things instead). The OLR will investigate whether the attorney can safely resume law practice, and it’s akin to the character and fitness investigation the Board of Bar Examiners conducts when someone applies initially. Finances, court involvement, references are all checked. The burden is on the petitioner to show that they have the requisite character and fitness to come back. If the OLR’s investigation doesn’t reveal anything concerning, the OLR may stipulate to reinstatement (and the Court may accept that stipulation); if the Court rejects the stipulation or the OLR has concerns, a referee is appointed to conduct a hearing. This can take several months to years, and then ultimately the Court can deny the petition.

(*As longtime readers know, I try to avoid commenting on Wisconsin matters absent a published decision. I can’t comment on my clients’ matters, and commenting on non-client matters while declining for my clients would allow identification of my clients. The big exception, however, is when it’s clear through publicly available information that I do not represent the attorney in question, or when it would defy credulity for me to do so. Here, it’s both.)

(**Cover photo is a screenshot from the Office of Special Counsel’s YouTube channel, available here.)