The case of Ken Kratz, the “sexting” former Calumet County district attorney, suggests the state of Wisconsin needs to revamp its rules regarding the regulation of lawyers, especially those on the public payroll.
Stephanie Van Groll, a victim of domestic violence, blew the whistle on Kratz, deserves credit for standing up to his disgusting behavior. The events that ensued also shone a light on the Office of Lawyer Regulation, the Supreme Court’s agency that’s supposed to safeguard the public from bad lawyers.
Created in 2000 (after its predecessor agency was deemed ineffective), the OLR is charged with policing the state’s legal profession and investigating complaints against attorneys. If it finds a complaint to have merit, the office can either reach an agreement with the lawyer on an appropriate reprimand or ask the state Supreme Court to bring disciplinary action.
Problem is, unless and until a complaint is sent to the high court, the OLR acts in complete secrecy. As a result, the public has to settle for taking the office’s word that it’s doing its job responsibly.
Van Groll went to the local police after she received some 30 text messages from Kratz suggesting that the two have an affair. He sent the messages while prosecuting her former boyfriend for attempting to strangle her. After Attorney General J.B. Van Hollen was made aware of the case, he advised Kratz to report his behavior to the OLR.
Despite Kratz being the district attorney, with all the inherent powers that come with the office, the OLR took no action. An investigator said that while Kratz’s behavior may have been inappropriate, it didn’t rise to an ethical violation.
All the while, everything was legally done in secret. It was only after the Associated Press reported Van Groll’s allegations several months later that the public learned of the DA’s bizarre and, many would agree, reprehensible behavior. But for many people, OLR’s failure to act was equally repugnant.
Lawyers are one of the few professionals in Wisconsin who are shielded from public disclosure when complaints are made against them. The public can check state records for complaints against everyone from plumbers to doctors, car dealers to real estate agents.
The theory behind the secrecy is that an embittered client might file a phony complaint out of spite, tarnishing the lawyer’s reputation and permanently damaging his business. Apparently, in the case of attorneys, the public can’t be trusted to grasp the nuances of a frivolous case, even after it’s dismissed. Therefore, when it created the OLR, the Supreme Court decided that a complaint would be made public only when an investigation showed it has enough merit to reach the court.
That means there may be lawyers practicing today with a string of “minor” complaints against them, complaints that didn’t reach the OLR’s threshold and are, therefore, cloaked in secrecy.
It also means that the OLR is shielded from any public oversight on how well it is doing its job. It’s fair to say the office’s conduct in the Kratz case brings this into question.
At the very least, complaints against publicly employed lawyers — district attorneys, city attorneys, county corporation counsels, assistant attorneys general, to name a few — ought to be open and available to the public. It’s highly unlikely their income would suffer from a spiteful complaint, and the public ought to be able to keep tabs on the performance of the lawyers on the public payroll.
Right now, it can’t do that. The Ken Kratz case is exhibit number one why secrecy in government harms the public’s interest.
Your Right to Know is a monthly column distributed by the Freedom of Information Council, a nonprofit group dedicated to open government. Dave Zweifel, the council’s former president, is editor emeritus of The Capital Times.