In response to an ethics complaint filed against Wisconsin State Supreme Court Justice Michael Gableman after his 2008 election campaign, Gableman retained Michael Best & Friedrich to represent him in the campaign case. Pursuant to Gableman’s agreement with the firm, Gableman was only obligated to compensate the firm for its legal work if he recovered fees from the state. After a 3-3 split in the highest court of the state, Gableman was unable to recover any fees from the state. Thus, Gableman was under no obligation to pay legal fees to the firm, and he was simply responsible for out-of-pocket expenses.
Although contingency arrangements are fairly common in the legal profession, they are less common when a firm is hired to defend a client because of the slimmer chance of a favorable outcome. Adding further doubt to the arrangement, when it comes to state officials receiving anything of value, state ethics codes generally frown upon this practice because of the potential for impropriety, or the appearance of impropriety. Even though Gableman was not in a position of financial exposure, he did, in fact, receive a significant benefit from the firm’s representation.
This arrangement has called into question Gableman’s ability to ethically participate in the five cases Michael Best currently has before the Wisconsin State Supreme Court and future cases. Although the ethics administrator for the Government Accountability Board refused to comment specifically on Gableman’s situation, he did, however, state that the board would consider how common this contingency fee arrangement is in Judicial Commission cases.
