Wednesday, March 25, 2009

Almost Suspended

The Wisconsin Supreme Court publicly reprimanded an attorney for "failing to comply with an opposing party's discovery request and with court orders to provide discovery, and in making misrepresentations to the court that he had complied." The misconduct had taken place while he was serving as a part-time assistant district attorney. After a referee had determined that the disobedience of court orders was "extremely egregious misconduct," the lawyer and the Office of Disciplinary Counsel jointly recommended a public censure. The court was concerned that the sanction might be unduly light and "directed the parties to file memranda explaining the factual and legal bases for the [agreed discipline]."

Here, the court finds that the upper range of discipline for comparable conduct would be a 60 day suspension but accepts the joint recommendation:

Although we determine that a suspension is not necessary to protect the public and the judicial system in this instance, that result should not be interpreted as indicating that this court is not troubled by Attorney Kohler's misconduct.  His continuing refusal to obey the circuit court's discovery orders, even if he disagreed with them, constitutes a serious violation of an attorney's professional obligations.  No attorney, whether prosecutor, criminal defense counsel, or civil attorney, has the option to disregard an order of a court, no matter how much the attorney disagrees with the order and no matter whether the order addresses discovery obligations or other matters.  Our system of justice simply would not function if attorneys could overrule courts.

Similarly, no attorney, whether prosecutor, criminal defense counsel, or civil attorney, may distort the truth when presenting argument to a court.  As we noted in another case in which an attorney had made misrepresentations to this court, "an attorney's duty of candor toward the tribunal is central to the truth-seeking function of any court."  In re Disciplinary Proceedings Against Kalal, 2002 WI 45, ΒΆ1, 252 Wis. 2d 261, 643 N.W.2d 466.  All courts have a right to expect that the attorneys appearing before them, regardless of the zeal they have for their client's cause, will adhere to the fundamental duty imposed on them as officers of the court to speak honestly.  Attorney Kohler's misrepresentation about his compliance with the circuit court's prior discovery orders is a serious breach of his obligations as an officer of the court.

(Mike Frisch)

Bar Discipline & Process | Permalink

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