Archive for January 23rd, 2012


Justice Gableman: A Question of Ethics

The failure of Supreme Court Justice Michael Gableman to disqualify himself in cases argued by a law firm that allegedly provided free legal services to him, ostensibly under a contingent fee contract, is troubling, since it raises several ethics questions.

Although the public may not know it, all Wis. lawyers and judges are regulated under a state Code of Professional Responsibility.

When Justice Gableman first ran for the Supreme Court in 2008, as a lawyer and aspiring judge, he had an ethical duty to conduct his campaign a dignified manner, and to avoid making willful misrepresentations, or false charges against his opponent.

Now, new ethics questions have arisen, not only as to the receipt of legal services by the Justice, without payment, but also as to his failure to disclose the arrangement to all counsel, when his lawyer appeared, and to disqualify himself from ruling on those matters.

Although the public once again may not know it, all lawyers are under an ethical duty to defend judges against unwarranted charges, in order to protect the integrity of the legal system. But there is also a corresponding duty to improve the legal system, by helping the public select judges. To help the public decide the fate of Justice Gableman, it is necessary to discuss his ethical issues.

When lawyers accept cases, they have an ethical duty to explain the fee arrangement, which must be reduced to writing, when it is contingent upon the outcome. Contingent fees are payable as a percentage from any final settlement, or judgment. They cannot be used in criminal cases, custody matters, or in other disputes, where the client can pay a reasonable fixed fee. They are not to be used where the client seeks action from the government.

The canons of ethics instruct lawyers not to use public positions to obtain special advantages. Although lawyers may contribute to judicial election campaigns, they may not otherwise give or lend any item of value to a judge, except as permitted by the Canon of Judicial Ethics. Judges are not to accept gifts from anyone, certainly not someone likely to appear in front of them in court.

Lawyers are to promote public confidence in the legal system Judges in particular are to maintain high personal standards, by promoting confidence in the judiciary.

When a Supreme Court Justice looks out into his courtroom and sees an attorney who gave him legal services, free of charge, at the very least, he should turn to opposing counsel, and advise him of that fact, and if there is even the slightest “appearance of impropriety,” the justice should disqualify himself from the case.

Justice Gableman, when you kicked off your 2008 campaign, and disclosed you graduated from Hamline University School of Law in 1993, where I had studied in the 1970s, a part of me was happy, because you were the first Hamline Law grad to run for the Wisconsin Supreme Court. But you lost ground when you started running questionable ads against Justice Butler in 2008, and now you disappointed fellow alumni even further, due to your ethics.

What you may not realize, Justice Gableman, is ethics is the very reason Hamline Law School came into being. While the undergraduate college at Hamline is the oldest in Minnesota, dating back to 1854, the law school first opened in 1972, when a group of young professors, from some of the most prominent law schools in America, joined forces with a few retired judges, and formed a faculty willing to help a rag-tag group of students, who had survived the Civil Rights and Vietnam era, earn law degrees, so they could change the world, starting with Watergate ethics.

I still have my Hamline Law School bulletin from the 1970s, which indentifies ethics as a required course. I am sure, Justice Gableman, the topic was still taught two decades later, when you attended. I know Hamline also used the same ethics textbook as the UW-Madison Law School, and it mentions the “avoidance of even the appearance of impropriety.” I further know, in the 1970s already, Hamline had intelligent professors, who had studied at Harvard, NYU, Michigan, Duke, Rutgers, UCLA, Minnesota, Boston College, and Wisconsin, and so it’s no excuse for you, Justice Gableman, to argue your professors were not up to speed.

Perhaps most disappointing, Justice Gableman, is you let down those Hamline alumni who considered ethics their primary concern, as they represented unpopular clients, and provided legal services to the poor and working classes, over the past 40 years.