Gableman's arrangement meant he would not in any case have to foot his legal bill.
Michael Gableman, the Wisconsin Supreme Court justice, has been drawing flak over revelations that he received free legal help in an ethics case from a law firm representing clients with past and pending cases before the court.
The Wisconsin Democracy Campaign, a nonpartisan watchdog group, has filed ethics complaints against Gableman with the Wisconsin Judicial Commission and state Government Accountability Board.
Participants in ongoing redistricting cases involving the law firm, Michael Best & Friedrich, are asking that Gableman recuse himself or be disqualified. And Dane County District Attorney Ismael Ozanne has asked the court to revisit its decision to uphold Republican Gov. Scott Walker's collective bargaining law, a case in which Gableman sided with Michael Best.
Critics say Gableman's fee arrangement, under which Michael Best would get paid only if Gableman won his case (he didn't), violates a judicial rule against accepting gifts from lawyers or firms that "have come or are likely to come before the judge." A separate state ethics rule bars public officials from accepting "anything of value" for free because of their position.
The value of legal services provided to Gableman by Michael Best between 2008 and 2010, when the justice was charged with an ethics violation for running misleading campaign ads, has been estimated in the tens of thousands of dollars.
But, as the saying goes, it takes two to tango. If Gableman's receipt of legal services from Michael Best violated state ethics rules, what can be said about Eric McLeod, the Michael Best lawyer who entered into this agreement?
Plenty, as it turns out.
Monroe Freedman, a nationally recognized expert on legal ethics at Hofstra Law School in New York, says in an interview that he believes McLeod is in violation of an ethics rule against "knowingly assist(ing) a judge or judicial officer" in improper conduct. He also feels the attorney may have run afoul of the rule requiring competent representation.
In addition, Freedman suggests that McLeod violated the rule against attorneys engaging in "dishonesty, fraud, deceit or misrepresentation."
According to a Nov. 28 Milwaukee Journal Sentinel article by veteran reporter Patrick Marley, "McLeod said Gableman had a standard billing agreement with the law firm and has paid that bill." Michael Best general counsel Jonathan Margolies subsequently wrote the court to set the record straight -- that, aside from Gableman's paying for out-of-pocket legal costs, "no bill for attorneys' fees was sent and none were paid."
Freedman calls McLeod's initial statement, if accurately reported, "at best misrepresentation and therefore a serious violation."
The Office of Lawyer Regulation, an arm of the Supreme Court, can initiate an investigation into attorney misconduct on its own accord or in response to a filed grievance, director Keith Sellen says. The office won't say if an investigation is under way.
McLeod did not respond to requests for comment. Margolies sent a brief reply to an email outlining the alleged violations: "Michael Best believes that in filing the letter with the Supreme Court, the firm has met its ethical obligations to the bar and the court. We have no further comment."
According to Margolies' letter, Michael Best's arrangement with Gableman provided that payment for services "would be contingent upon the recovery of fees pursuant to Wis. Stat. 757.99." The wording of this statute seems to require the judge to incur expenses, which are then repaid; Gableman's arrangement meant he would not in any case have to foot his legal bill.
Contingency agreements are common in personal injury cases, where the percentage payoff may greatly exceed a firm's actual investment, but not in cases where it can, at most, get its usual rate.
Walker's office is reviewing whether it wants McLeod involved in ongoing cases. McLeod has already resigned from a committee that advises the governor -- on judicial selections.
Bill Lueders is the Money and Politics Project director at the Wisconsin Center for Investigative Journalism. The project, a partnership of the Center and MapLight, is supported by the Open Society Institute.
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