The Work

January 25, 2012 7:07 PM

Free Work for State Judge Puts Michael Best at Center of Wisconsin Political Storm

Posted by Tom Huddleston Jr.

A Democratic state lawmaker is demanding Wisconsin supreme court justice Michael Gableman's removal from the bench over Gableman's refusal—despite having received thousands of dollars in free legal services from Michael Best & Friedrich—to recuse himself from cases in which the firm represents clients.

Citing Gableman's decision to preside over 11 such cases—several of them still active—state representative Kelda Helen Roys is circulating a petition calling on the Legislature to oust him over what she says are violations of state law and the state Code of Judicial Conduct, according to the Wisconsin State Journal

The move by Roys—which requires a two-thirds vote in the Senate and Assembly, both of which are controlled by Republicans—does not appear to have fazed Gableman. The Milwaukee Journal Sentinel reports that he insists he won't recuse himself from three of the cases in question, including one involving a controversial new law that limits the power of public unions in the state.

Gableman's current lawyer, Viet Dinh, acknowledges that the judge did not pay Michael Best for the legal services in question, but says the work can't be considered "free" because there was a possibility that the state would pick up the tab. Dinh, a former assistant U.S. attorney and the founding partner of the Washington, D.C.–based Bancroft law firm, says the attacks by Roys and other Gableman foes are politically motivated and "not worth defending."

At the heart of the controversy is a 2008 ethics probe launched by Wisconsin's judicial commission in response to accusations that Gableman lied about his opponent in a campaign ad during that year's election.

Madison, Wisconsin-based Michael Best litigation partner Eric McLeod represented Gableman in the investigation, which ended in 2010 with the panel stuck in a 3-to-3 vote over how to resolve the matter. 

The details of Michael Best's financial arrangement with Gableman first emerged in a November 28 Journal Sentinel story about how the firm had brought a suit against Wisconsin's elections agency after advising the legislature "on how to write the very law it is suing over." The story noted that in addition to representing the plaintiffs in the election-related suit—which the group had asked the state supreme court to consider—McLeod had served as Gableman's attorney in the ethics probe.

McLeod—who declined the The Am Law Daily's request for comment—initially told the Journal Sentinel that Gableman "had a standard billing agreement with the law firm and has paid that bill."

Two weeks later, though, Michael Best general counsel Jonathan Margolies said in a letter to the court that the firm had required Gableman to pay his attorneys' fees only if he won the case and successfully lobbied the state to cover those fees. Because the case ended in a split, Gableman never got that far. And because he did not recover the fees, Margolies wrote in the letter, he did not have to pay Michael Best's bill. (While Margolies declined to put a price tag on the firm's work on the matter, the Journal Sentinel reported that "other attorneys have placed its value at tens of thousands of dollars.")

A week after that story appeared, McLeod resigned from his position on Wisconsin governor Scott Walker's judicial selection commission after Walker said publicly that he was considering removing him due to his representation of Gableman.

Around the same time, Wisconsin Democracy Campaign, a good government group that tracks money in politics, asked the judicial commission to investigate the matter and filed a formal complaint with the state's Government Accountability Board. Then came Roys's petition.

Roys—herself an attorney and graduate of the University of Wisconsin Law School—claims Gableman's agreement with Michael Best violated both a state law barring public officials from accepting anything of value because of their position and a judicial ethics code that bans judges from taking gifts from parties that appear before them in court. Regardless of how the ethics case ended, she says, Michael Best's fees would not have come out of Gableman's pocket. "Under any circumstance, he would have never been on the hook to pay for this," she says.

Labeling the contingency fee arrangement "highly unusual," Roys argues that public officials simply can't accept anything of value—from a cup of coffee to Green Bay Packers tickets—given their position: "Anything that can be considered a reward for acting in our official capacity—anything that could be considered to influence our judgment—we can't accept that."

For his part, Dinh argues that Michael Best's services should not be considered free, because there was a possibility that fees would be recovered. He also says the contingency arrangement Gableman struck with the firm is standard in the legal community. "Contingency arrangements are commonplace and there is nothing unethical or wrong about these arrangements," says Dinh. (Asked how Gableman is compensating him, Dinh would only say that "in no way is it improper, and it is certainly not free.")

As an example, Dinh cites Milwaukee County circuit court judge John Siefert, who had a contingency fee arrangement with his legal counsel when suing the state's judicial commission for the right to join a political party in 2008 and recovered $50,000 in legal fees. (James Bopp, of Indiana firm Bopp, Coleson & Bostrom, represented Siefert in that case and also worked with McLeod on Gableman's ethics case.)

The cases are not precisely parallel, though, since Seifert did not face possible misconduct charges. Under Wisconsin law, a state judge charged with misconduct and found not guilty can lobby for recovery of attorney fees. The state's claims board can only pay $5,000 toward such fees, and the state legislature must decide whether it will cover anything above that sum.

If Gableman had lobbied the state to recover the fees, he would have been in rare company, according to the Journal Sentinel: No Wisconsin judge has done so in an ethics case since 1988. The newspaper notes that Michael Best also represented Gableman's colleague, associate supreme court justice Annette Ziegler, in a 2007 ethics case involving her decision to preside over a case involving a bank on whose board of directors her husband served. Ziegler told the newspaper that she did not use a contingency fee arrangement in the matter.

The Gableman case is one of many high-profile politically charged matters Michael Best has taken on in recent years, according to the State Journal. In a story published Sunday, the newspaper reported that the firm has netted more than $750,000 in legal fees since Republicans took control of all three branches of the state government at the start of 2011.

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