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Recent Blog Posts
Attorney-Client Privilege in Wisconsin
Attorneys act as people's representatives in court, often making tactical decisions when there is no time to consult with their client. Additionally, attorneys work with clients to develop overarching legal strategies. In order to do this job well, attorneys need to have a clear picture of all the facts that their client knows, which means they need complete honesty from their clients. For instance, a criminal defense attorney will not be able to develop a strong trial strategy if their client lies about where they were when the crime was committed. In order to foster this complete honesty, Wisconsin law provides clients with attorney-client privilege. This privilege protects clients from being forced to testify about conversations with their attorney, and it affords the same protection for lawyers.
Slip and Fall Injuries: Liability for Icy Sidewalks
Wisconsinites are used to dealing with the cold and the ice that come along with winter, but these conditions can still pose a danger to people. One of the most common dangers is from slick sidewalks covered in ice. In fact, worldwide there are hundreds of thousands of deaths each year from falls, according to statistics compiled by the World Health Organization, and they can be especially serious for older members of the population. Fortunately, the law provides people with the ability to recover for these sorts of slip and fall injuries under a doctrine known as premises liability. That doctrine holds people responsible for maintaining their property in safe condition for other people. However, there are a variety of factors at play that can affect the strength of someone's claim.
The Writ of Habeas Corpus
The law attempts to provide a variety of protections to people who have been accused of a crime. Before and during a trial, the Constitution conveys numerous rights that are designed to prevent abuses on the part of the criminal justice system. After the trial, a losing defendant is allowed to appeal their case to a higher court if they think the trial court made a mistake. Yet sometimes even with all these protections, courts still make mistakes. When that happens, people may be eligible for a writ of habeas corpus, also known as a habeas petition or simply the Great Writ.
Understanding the Writ
Habeas corpus is an old writ that has been around since the drafting of the Constitution, but is now codified in 28 U.S.C § 2254. The idea behind the writ is that it provides a check on the government, preventing someone from being held without good cause. Essentially, it lets people being held by the government go to court to argue that they are being held illegally.
U.S. Settles Fake Facebook Profile Case
The U.S. Drug Enforcement Agency recently settled a lawsuit pending against it, Arquiett v. U.S., paying $134,000 to a woman whose photographs the DEA had used to create a fake Facebook profile to carry out drug stings. The DEA acquired the photographs off the woman's cell phone after she was arrested on drug charges. The settlement did not require the government to admit to any wrongdoing, and it prevents the case from going to trial. However, it may still provide an important guidepost for how much respect the federal government should have for people's privacy when it is enforcing the laws, since the Justice Department has now said that it is “mak[ing] clear the necessity of protecting the privacy and safety of third parties in every aspect of our criminal investigations.”
Wrongful Death Lawsuits in Wisconsin
The law attempts to provide people with a full set of tools for responding to harms inflicted by others. In some particularly tragic cases, this includes responding to deaths caused by other people's carelessness. In those cases, Wisconsin law allows either a personal representative of the deceased or a close surviving family member, such as a parent, spouse, or child, to bring a wrongful death action on behalf of the decedent. While this type of lawsuit can never fully compensate someone for the death of a close relative, it can provide closure and ensure that the people responsible for the death are held accountable.
What Is Wrongful Death?
Wrongful death is a civil legal claim that Wisconsin law allows people to bring when the death results from another person's “wrongful act, neglect, or default.” This means that the law allows a representative of the deceased to seek damages when the person's death was caused by negligence. Examples of times where this may apply would be fatalities from car accidents, injuries suffered on another person's property, or as a result of a defective product.
An Introduction to the Disciplinary Process of the Wisconsin Department of Safety and Professional Services
By Attorney Arthur Thexton, Of Counsel
Part 1: What is the Wisconsin Department of Safety and Professional Services?
Do you have an occupational or professional license in Wisconsin, or do you have a client who does? Have you received a letter stating that a complaint has been made about you, and requesting a response? In this series of blogs, I will explain how the Department handles complaints, and perhaps offer some insight (aside from promptly contacting an attorney to discuss your case). I spent 24 years as a prosecutor in the Department, handling cases for almost every profession and occupation.
By way of introduction, the Wisconsin Department of Safety and Professional Services (formerly Regulation and Licensing) serves (among others) two closely related functions: (1) it directly licenses and regulates certain professionals and professions, and (2) it provides administrative services and staff to boards which themselves license and regulate certain professionals and professions. For example, the Department directly licenses and disciplines private detectives and private detective agencies, acupuncturists, and security guards. The Department provides administrative services and staff to (for example) the Medical Examining Board, which itself licenses and disciplines physicians (both medical and osteopathic), physician assistants, and others. [The Department also handles the regulatory and inspection functions formerly handled by the Department of Commerce, which relate mostly to building and petroleum safety, including licensing individuals and approving plans: these functions are beyond the scope of this blog.] The Department has about 380 staff, is headed by a cabinet-level Secretary who serves at the pleasure of the governor, and is located in the Washington Square Building, 1400 East Washington Avenue, Madison. The Department has field offices for its duties relating to building and petroleum safety.
An Introduction to the Disciplinary Process of the Wisconsin Department of Safety and Professional Services - Part 2
By Attorney Arthur Thexton, Of Counsel
Part 2: How does the Wisconsin Department of Safety and Professional Services Review Complaints?
In my last blog, I talked about how the Department is organized. This time, we will see how the Department operates on a day-to-day basis, when complaints are received.
An Introduction to the Disciplinary Process of the Wisconsin Department of Safety and Professional Services - Part 3
By Attorney Arthur Thexton, Of Counsel
Part 3: The Role of the Case Advisor for the Wisconsin Department of Safety and Professional Services
Last time, I talked about how complaints are screened before any decision is made to investigate them or not. This time, I will talk about the case advisor, a role which is unknown to most, but which is critical for the Department. Each and every case which is opened for investigation has a "case advisor" assigned to it. The case advisor is a member of the licensing board who will review the case, give advice to the investigator and prosecuting attorney, and discuss and approve the terms of any settlement that may be offered. The case advisor will then not participate or vote on the case, when it comes before the full board, unless the case is stipulated, in which case participation in voting is permitted. The purpose of the case advisor system is to allow the investigator and prosecuting attorney to have the benefit of the professional expertise of a practitioner, and the advice of a member of that board concerning both what is appropriate conduct for the profession and what sort of priorities the board has at the time. As a practical matter, the case advisor functions as the client, and determines whether the case will be closed, or discipline will be sought. Only in very rare cases will the prosecutor seek an outcome opposed by the case advisor. Our legislature has devised an inquisitorial system for regulating the professions, as have most states. The board is the body which (through Department staff) investigates the complaints, prosecutes them, sits in judgment, and issues the discipline. This is a different system from that used for criminal prosecution in this country, in which the judiciary is totally separate from the prosecution. To some, this may seem grossly unfair, but it is the choice that our legislature has made, and it has been repeatedly held constitutional. In order to prevent unfair prejudice, there is some administrative separation of functions, in that the Division of Legal Services and Compliance serves each board by providing investigative and prosecutorial staff, but ultimately each board’s designee (the case advisor) decides what cases will be prosecuted, and whether a respondent will be disciplined; the boards have separate legal counsel from another unit of the Legal Services and Compliance Division. The boards’ designees (the case advisors) offer their guidance in the investigative stage, and unfair prejudice is prevented by barring that advisor from the room when contested decisions are made on that case. The case advisor is assigned by the process selected by each board: some boards assign cases by expertise, others on a rotating basis. An effort is made to avoid assigning someone who could be considered a direct competitor, or who have some other conflict of interest. Occupations which are directly regulated by the department do not have boards, and therefore do not have case advisors. Also, the social work, professional counselor, and marriage and family therapist cases do not have case advisors, because the size of each of these boards (four or five members each) is such that removing a case advisor from the ultimate process in a contested case could result in an insufficient number of votes to impose discipline, if any other member is absent or is disqualified by conflict of interest, or there is a vacancy. An affirmative vote of two thirds of the membership of a board is required before a suspension or revocation can be imposed, and the department has taken the position that that means two thirds of the authorized membership, even if there are vacancies. Thus, in a board with four members, that would require three affirmative votes. Next time, I will talk about how the staff proceeds with their investigations. If you ever find yourself or your business as the subject of a Department investigation or complaint, feel contact me or another experienced attorney here at Gimbel, Reilly, Guerin & Brown, LLP.
An Introduction to the Disciplinary Process of the Wisconsin Department of Safety and Professional Services - Part 4
By Attorney Arthur Thexton, Of Counsel
Part 4: The Investigation Process of the Wisconsin Department of Safety and Professional Services
In my last blog, I talked about the role of the case advisor in the process of handling complaints. This time, I will talk about how the staff proceeds with their investigations.
Investigators are the Division’s detectives. They gather the appropriate documentary records and evidence, interview the persons involved and any witnesses. They also obtain copies of depositions or other materials generated in any lawsuits which have been initiated between the parties, and in general obtain any relevant information bearing on the case. During the process, they can and do seek the advice of the prosecuting attorney assigned, and the case advisor. On occasion, the investigators conduct surveillance and undercover operations, where they pose as clients or patients. The Department may issue investigative subpoenas under Wis. Stat. § 440.03(4). Administrative search warrants are also available in Pharmacy Examining Board cases, under Wis. Stat. § 961.52, but are very rarely used. Some boards have express rules requiring their licensees to cooperate with investigations, others do not. The Medical Examining Board has authority to order its licensees to submit to physical, mental, and professional competency examinations during the investigative stage, Wis. Stat. § 448.02(3)(a). The investigators do not have traditional law enforcement powers such as arrest, although those assigned to Pharmacy Examining Board cases could be granted such powers under Wis. Stat. § 961.51(1), if that board chose. The Division's investigators carry official photo identification cards, and police-style badges, with them whenever they go out into the field, and have business cards.
An Introduction to the Disciplinary Process of the Wisconsin Department of Safety and Professional Services - Part 5
By Attorney Arthur Thexton, Of Counsel
Part 5: What Happens When the Wisconsin Department of Safety and Professional Services Files a Formal Complaint
In my last blog, I outlined how investigations normally proceed, once a complaint is opened for investigation. Most complaints do not result in any discipline, and are closed at the conclusion of the investigation. Now, I discuss what happens when a case is moved to the prosecution stage.
If a case is not recommended for closure by the case advisor, the file is sent to the prosecuting attorney assigned. Usually there will be a discussion between the prosecuting attorney and case advisor of what outcome (that is, what discipline) would be appropriate. If an expert witness will be needed to establish a prima facie case, the case advisor will be asked for some names of appropriate professionals. This is most frequently done in quality of care cases in the health professions, and in professional standards cases in the business professions.
