SHARE Michael Gableman

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Madison - State Supreme Court Justice Michael Gableman received free legal service worth thousands of dollars from one of Wisconsin's largest law firms as it defended him against an ethics charge, according to a letter released Thursday by the firm.

The state's ethics code says state officials cannot receive anything of value for free because of their position. And a separate ethics code specifically for judges says they cannot accept gifts from anyone who is likely to appear before them.

A former state ethics official on Thursday said authorities should thoroughly investigate how the deal between Gableman and attorney Eric McLeod of Michael Best & Friedrich worked because Gableman did not end up paying any attorneys fees.

"It seems to me that they have to investigate all the facts, and if the investigation discloses (McLeod) gave as a gift to Gableman counsel services, that is a problem," said Gordon Myse, a former member of the Government Accountability Board.

The accountability board oversees the state's general ethics code. Myse said the Wisconsin Judicial Commission, which enforces the judicial ethics code, should also look into the matter.

Michael Best has five cases currently before the Supreme Court. Gableman is participating in all of them. Gableman did not respond Thursday to a request for an interview.

In the 2008 campaign for the high court, Gableman ran an ad that said then-Justice Louis Butler "found a loophole" for an offender who "went on to molest another child." But it did not mention that Butler was unsuccessful in getting the offender out of prison early and that he committed the subsequent crime after serving his sentence.

After the election, the state Judicial Commission filed an ethics complaint against Gableman, alleging he violated a provision of the ethics code for judges that says judicial candidates cannot lie about their opponents.

The high court last year split 3-3 on whether Gableman in fact violated the judicial ethics code. The commission then stopped pursuing the case because of the impasse.

Gableman hired McLeod and Indiana attorney James Bopp to represent him.

McLeod recently told the Journal Sentinel that Gableman had a standard agreement with Michael Best and that Gableman had fulfilled his obligations with that agreement.

In a letter to the court this week responding to a story that mentioned that agreement, the firm more fully described the deal. Michael Best General Counsel Jonathan Margolies wrote that Gableman was required to pay his attorney fees under the arrangement only if he recovered those fees from the state. Since Gableman was not able to recover them, he did not have to pay legal fees to the firm.

Gableman was responsible for out-of-pocket expenses, and he did pay those, the letter from Margolies said.

The firm represented Gableman from July 2008 to July 2010. In an interview, Margolies declined to describe the value of that work, but other attorneys said it likely was worth tens of thousands of dollars.

Contingency arrangements are common in personal injury cases, where plaintiffs' attorneys receive a percentage of the award if they win a case but get nothing if they lose. But contingency deals are less common when lawyers are defending someone because winning fees is less likely.

State law says judges who prevail in an ethics case can ask the state Claims Board to reimburse their legal fees. In recent decades, there been only one case in which a judge had the ability to pursue legal fees, in 1988.

Because the Supreme Court split 3-3, Gableman could not argue before the Claims Board that he had prevailed and the state should cover his fees. "Thus, no bill for attorneys' fees was sent and none were paid," Margolies' letter said.

In the interview, Margolies said Michael Best handles billings in a number of different ways, including contingencies. He declined to say how frequently the firm had an arrangement similar to the one with Gableman.

Michael Best also represented Justice Annette Ziegler in a 2007 ethics case. Ziegler said Thursday she did not have a contingency deal with the firm for its service, which ended in 2008.

Margolies said the agreement with Gableman was put in writing when the firm was retained, but he declined to release a copy of it.

He said he sent the letter to the justices and parties in pending cases to ensure they fully understood how the agreement worked after it was briefly described in the Journal Sentinel. He said he was uncomfortable providing additional details because he wanted the court and the parties to all have the same information.

"We sent the letter to the court and the parties so there's no confusion or incomplete information," he said. "Because there was a statement in the newspaper, we wanted to make sure this information was clear."

He said he was confident the arrangement comported with state ethics laws.

Bopp, the Indiana attorney also involved in the case, declined to describe his arrangement with Gableman other than to say it complied with Wisconsin's ethics laws.

"My attorney-client relationship is privileged, so I don't discuss that," he said.

Jonathan Becker, the ethics administrator for the Government Accountability Board, did not speak specifically to Gableman's situation, but said in general the board would consider how common a type of fee arrangement was in examining a specific one given to a public official. He said he did not know if contingency arrangements were common in Judicial Commission cases.

State officials would "quite possibly" have to list free legal services they have received on economic interest statements they file annually with the state, Becker said. Gableman has not listed receiving any gifts on his last three reports, according to the board.

Jim Alexander, executive director of the Judicial Commission, said he did not know if contingency arrangements were common because judges with ethics cases before the commission don't share the details of their arrangements with him. But, he noted the judicial ethics code's ban on judges accepting gifts from those who are likely to appear before them.

"If it was a gift, that could create a problem if the attorney was someone who appeared before the court," he said.

The judicial ethics code also says judges cannot participate in cases if a neutral person knowing all the facts could reasonably question their impartiality.

Stephen Gillers, a New York University Law School professor who specializes in legal ethics, said last month that he believed Gableman could hear cases involving Michael Best because the firm no longer represents him. But on Thursday he said he based that view on the understanding that Gableman had paid for the legal work. After reviewing the letter from Margolies, he said he now believed Gableman may be barred permanently from hearing cases involving Michael Best.

"Thanks to the firm, Gableman was in a position of 'no financial exposure' (putting aside disbursements) because of the willingness of the firm to go unpaid for its time . . . if it could not secure any (or its full) compensation under the statute," he wrote in an email.

"The firm conferred a significant benefit on Gableman, namely representation free to him. I don't know how much work was required in the firm's representation, but I assume it was substantial since it involved a proceeding before the state Supreme Court.

"In my view the 'no financial exposure' benefit the firm gave Gableman requires him to recuse himself indefinitely from cases the firm brings to the court."

Margolies had no comment on Gillers' view, other than to point out that under Wisconsin's law judges alone decide whether they can hear cases.

Charles Geyh, a professor at the Maurer Law School at Indiana University Bloomington, said Gableman must consider the value of any free legal service he received in determining whether he can participate in cases involving Michael Best.

He said he needs to keep in mind whether a neutral, reasonable person would think the relationship could affect Gableman's ability to be impartial.

"A reasonable perception would be, 'This guy owes him one,' " Geyh said. "When you're talking about tens of thousands of dollars (in a case) that is that important to the judge, it certainly raises some concern."

He said he believed Gableman should make a note on the record that he would not hear cases involving Michael Best for two or three years after receiving the legal service. The period should be longer before hearing cases by McLeod because he personally worked on the case, Geyh said.

In addition to the five cases now before the Supreme Court, Michael Best represented a Republican group that wants to change what district maps are used for possible recall elections for the state Senate.

It has brought two cases over the matter. The group recently dropped Michael Best from one of them but not the other, according to online court records.

The Supreme Court has not said what to do with the cases. Changing the maps would give an advantage to Republicans in the recall elections.

Jeremy Levinson, an attorney for Democratic recall groups, said he was considering asking Gableman to step aside in the cases because of Michael Best's role in them.

Levinson, who has represented attorneys and others accused of ethics violations, called Michael Best's contingency arrangement with Gableman peculiar.

"This is inexplicable except as cover to give the guy free legal service," he said.