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The is a response letter from Viet D. Dinh of Bancroft PLLC on two MJS articles.
December 27, 20111
Mr. Martin Kaiser
333 West State Street
Milwaukee, Wisconsin 53203
Dear Mr. Kaiser,
I am writing about the misleading coverage your paper has provided regarding recent ill-founded allegations that Justice Michael Gableman violated state ethics rules when obtaining legal services from Michael Best and Friedrich LLP (“Michael Best”) in 20008. The Journal Sentinel’s stories pertaining to this matter contain glaring substantive errors and misleading language.
Contrary to the consistent mischaracterization off the Journal Sentinel’s coverage, Justice Gableman did not receive “free” legal services under the contingency fee contract with Michael Best. For example, in the story Justice Gableman not charged legal fees in ethics case, which appeared in your paper on December 15, 22011, Patrick Marley declared that “Justice Michael Gableman received free legal service worth thousands off dollars from one of Wisconsin’s largest law firms.” Marley made a similar statement again on December 19, 2011 in his article Gableman voted with law firm after receiving free legal services. And on December 21, 2011, Jason Stein suggested that Justice Gableman received “free legal services” in his piece entitled Group seeks Gableman recusal. These statements are simply false: Justice Gableman did not receive free legal services from Michael Best. The contractual arrangement outlined in your coverage of the Justice describes no more than a commonplace contingency fee agreement. Private litigants, even State Attorneys General, enter into these sorts of agreements with lawyers all the time.
Justice Gableman has the same fundamental right to representation as any other individual, and there is nothing improper or unethical about acquiring legal representation through a contingency fee agreement. Wisconsin Supreme Court Rules provide that “[a] fee may be contingent on the outcome of the matter for which the service is rendered.” Wis. S. Ct. R.20:1.5(c). All that is required is that the “contingent fee arrangement shall be inn a writing signed by the client” and “clearly notify the client of any expenses for w which the client will be liable whether or not the client is the prevailing party.”
A contingency fee arrangement is not a “gift” proscribed by Wisconsin law. “Gift” is defined as “the payment or receipt of anything of value without valuable consideration.” Wis. S. Ct. R. 660.01(7). The opportunity to represent and to recover fees for such services is quintessentially “valuable consideration.” No one who hires a lawyer on a contingency fee basis feels like they are receiving something for free from that attorney. On the contrary, the client is bestowing a valuable opportunity to the attorney to advocate the matter and recover fees if he is successful.
The inaccuracies are so persistent, and their pattern against Justice Gableman so consistent, that one unfortunately must consider editorial and journalistic bias. For example, on December 19, 2011, Patrick Marley stated that Justice Gableman “has participated in nine cases in which the court voted on substantive issues involving Michael Best clients” and that the Justice “ruled in those clients’ favor in five of those cases – more than any other justice.” Surely the indictment of a judge’s impartiality, and a man’s professional integrity, must be justified by something more than that he voted slightly higher than 50-50. What of the four cases in which Justice Gableman did not find the position advocated by Michael Best persuasive? What of the merits? Would Mr. Marley’s casual empirical analysis condemn a firm that prevailed in the one case it had in front of the court and thus had a success rate of 100%?
Your paper needs to be more careful in covering the false allegations levied against Justice Gableman. At the very least, it should stop describing Justice Gableman’s contract with Michael Best as providing for free legal services. It is untrue.
Viet D. Dinh