May 12, 2010
"Not Totally Heartless"
The Wisconsin Supreme Court has imposed a public reprimand of an attorney who had committed ethical violations in the course of representing a criminal defendant. The court found that the referee had not abused his discretion in handling a request for adjournment of the proceedings due to the respondent attorney's health issues:
There is no dispute that at the time of his adjournment request, Attorney...was undergoing chemotherapy for cancer. There is no dispute he could not anticipate how he would respond to his treatments. As Attorney...stated, the effects of chemotherapy cause discomfort, including diarrhea, nausea, and vertigo. Attorney...was certainly entitled to accommodations as well as understanding with respect to the challenges he faces while making his recovery. We sympathize with the challenges Attorney...faces with treatment and very well may have ruled differently. Our role on appeal, however, is not to substitute our discretion for that of the referee. See SCR 22.16(1). We must examine the record to determine whether a rational basis exists for the referee's decision to proceed.
The record reflects the referee's understanding that Attorney...was undergoing treatment of a very dangerous disease and experiencing the discomfort and difficulties associated with chemotherapy. The referee had postponed the disciplinary hearing from October 6, 2008, to March 23, 2009, when it was rescheduled with Attorney...'s cautious agreement. We conclude the referee was entitled to find that the medical verification did not address whether Attorney...was medically incapacitated and unable to participate in the March 23 hearing. Also, we conclude the referee was entitled to conclude the medical verification did not support Attorney...'s proposal to adjourn subject to postponement due to the unpredictable treatment schedule and its effects. The record indicates the referee understood the effects of chemotherapy would cause discomfort, be distracting, and were unpredictable. However, the record also demonstrates the referee's consideration of the obligation to balance the needs of Attorney...with those of the lawyer regulation system, the grievant, and the witnesses. The record shows the OLR and the referee were willing to accommodate Attorney...'s discomfort by permitting a choice of hearing location, a delayed starting time, frequent breaks as requested, and participation by telephone. We conclude the record fails to reveal the referee erroneously exercised his discretion.
Attorney...argues the proposed accommodation of a telephone hearing was prejudicial, however, because it would eliminate his opportunity to cross-examine witnesses in person. Attorney...does not, however, identify what fact-finding is disputed. He does not indicate what defense he would have raised. He submitted no post-hearing brief challenging the OLR's arguments. He made no offer of proof and does not suggest any evidence he would submit if granted a new hearing. In the absence of a demonstrated factual dispute, we conclude Attorney...does not show prejudice by the referee's order denying a second adjournment. (citation omitted)
As a result, we decline to set aside the referee's determination. We approve and adopt the referee's findings of fact and conclusions of law as to four counts of misconduct, which are unchallenged on appeal.
The Office of Lawyer Regulation argued that it had "not been totally heartless and had suggested many accommodations." (Mike Frisch)
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