January 11, 2012

The lawyer in question was Rich Esenberg

[Dr. Ernie Pelegrino] cited as authority for this professor Scott Idleman of Marquette University Law School, as quoted during an interview on a local right-wing talk show. I have had a telephone conference with Idleman, who indicated he did not appear on that radio show, does not agree with these assertions, and would not comment on legal ethics, which he does not teach.* Idleman was concerned enough about this matter that he did some research to discover that the lawyer in question was in all probability Rich Esenberg, a former part-time instructor at Marquette. — from the (Madison) Capital Times mailbag
Scott Idleman happens to be a fine fellow and a personal hero of mine.

* Neither does Esenberg, but try telling that to Journal Communications, Inc. That respondent "Peppercorn" Gableman's arrangement with Michael Best & Friedrich is commonplace is an utterly fatuous claim. It ain't.

The very action Gableman faced is rare, let alone his fee arrangement, which is commonplace only in completely different circumstances, where its contractual benefits inhere to plaintiffs, and not to defendants.

Incidentally I notice this column by Bill Lueders is making the rounds in republication today. When Eric McLeod told the Journal-Sentinel that Gableman paid his bill, he could have meant the bill for photocopying.


Rick Esenberg said...

I have no idea as to whether I could have been a source for Dr. Pelegrino who I don't recall having heard of.

Beyond that, get your facts straight. I actually have taught Law Governing Lawyers in addition to serving as a referee in discipline cases.

Second, I have acknowledged - several times - that the type of case involved here is rare. I have only argued that the type of fee arrangement entered into is similar to a fairly common place arrangement.

I have also noted that these arrangements rarely involve a defendant but that is because we don't often have fee shifting statutes that a defendant can benefit from.

I have asked you to explain why the ethical permissability of such an arrangement (or its status as "consideration") should turn on which side of the caption a party occupies and you have failed to do so.

illusory tenant said...

Hey I'm a busy man.

John said...

Cheese is very common, but that does not mean I put it on my ice cream.

Anonymous said...

Part 1

759.99 Attorney Fees.....A judge or circuit or supplemental court commissioner against whom a formal complaint alleging misconduct is filed by the commission and who is found not to have engaged in misconduct may be reimbursed for reasonable attorney fees. Any judge or circuit or supplemental court commissioner seeking recovery of attorney fees authorized or required under this section shall file a claim with the claims board under s.

Let me get this straight. Gableman’s lawyer intially stated that a standard billing agreement was reached and that Gableman paid his bill in full. Then, the firm the lawyer is employed clarified that Gableman paid out of pocket legal costs, but did not pay for legal fees.

Does not the statute read that a judge (Gableman), AFTER and UPON winning (the ethics case), may seek payment by the State for his lawyer fees? BUT, the firm explained that fees would NOT be collected. And this situation is “common”? And this situation is “ethically permissable”?

I thought the arrangement entailed the firm being reimbursed IF Gableman emerged victorious, yet it is not receiving a dime. WHY? The firm certainly does not need to boost its reputation or clients to attract because it is teetering on insolvency or irrelevancy.

So, while the TANGIBLE benefit of Gableman receiving legal services at no cost may not be clear and could fall between contingency operating procedures, the INTANGIBLE benefit of a law firm receiving special consideration repeatedly is one of GRAVE CONCERN to the citizens of Wisconsin.

“Valuable consideration” in lieu of monetary payment for expensive barrister assistance, given Gableman’s history for engaging in questionable activities, does NOT pass the smell test. The overall impact of this arrangement has enormous implications, one that the Professor seemingly dismisses outright--Gableman and the firm are NOT involved in “pay for play”.

Anonymous said...

Part 2

Yes, the type of fee arrangement may be common, but in this particular case, the oranges to oranges comparison the Professor makes--to me--is not apt.

The defendent, a sitting judge, was involved an ethics investigation who seemingly went out of his way to hire a group of lawyers joined at the hip with the governorship and whose policies are the subject of intense legal wrangling.

Regarding “ethical permissability”, the arrangement warrants careful scrutiny because of Gableman’s UNIQUE position and the UNUSUALNESS of the arrangement. An ethics charge is not a personal injury case. Defending against an ethics charge did not result in Justice Gableman receiving damages. The only thing he could possibly receive was dismissal of the charges. Gableman was NOT a defendant but a respondent. He was apparently exonerated...and received no bill for services rendered. The question is WHY?

Given the cast of characters and their machinations, in league with the Diamond Jim Doyle playbook that the Walker Administration is employing in part, this “deal” wreaks to high heaven. And while there may be no definitive evidence that the law firm and Gableman is in cahoots, if one connects the dots, there is enough circumstantial evidence to suggest that the firm, as a conduit for Walker, and Gableman are on the same political page.

(And I will make this point yet again)...
So, in this PARTICULAR instance, Gableman was obligated to carefully weigh the inherent problems associated with making contingency fee arrangements with lawyers with whom they have close ties philosophically and politically. Yes, he certainly desires a law firm with a strong reputation to defend them on ethics charges, but that is why he, in the position, takes extra precautions to prevent any hints of impropriety. Having another law firm--one that is not explicitly tied to the ongoing narrative--handle his business would have done wonders.

Now, don’t think for a second that if the tables were turned that the Democrats would refrain from employing the same unscrupolous and underhanded tactics that we have witnessed the past year. Today’s politics is war.

Anonymous said...

Defend this deal to the last keystroke if you must Rick Esenberg, but flat out--the free MBF work for Gableman cannot be defended even in a vacuum, and in particular not when a light is shown on all of it. It stinks, dude. And that's why the MBF partner let the cat ouf the bag to the JournalSentinel--so the whole firm didn't get dragged down by McLeod. His comments which were all about hiding the ball. He will end up over with Troupis if the rest of the firm gets tired of the bad ink in the paper--sure, McLeod bills a lot, but is it worth the bad press? Well, I guess it can be if you think your client will get their 4 justices.

Blake said...

Wow, Rick, talk about missing the forest for the trees.