Tuesday, July 6, 2010
The Wisconsin Supreme Court has publicly reprimanded an assistant district attorney for misconduct that was a product of his struggle with alcohol. The court substantially reduced the costs imposed because the attorney had prevailed on a count that, in the court majority's view, had caused a significant impact on the total costs. The court found that "extraordinary circumstances" warranted the costs reduction.
The court set out the facts:
The referee concluded that the professional misconduct in this case was a result of Attorney...'s struggles with alcoholism. According to the referee's report, there were concerns in Attorney...'s family about his alcohol consumption for a substantial number of years. He sought help for stress and alcohol consumption, but despite these efforts, his drinking increased in the early 2000s. Ultimately, his drinking progressed to the point that he was typically consuming significant amounts of alcohol after he arrived home from work.
The [district attorneys office's] policy was that official case files were to remain in the office unless they were needed for use in court, and they were to be returned immediately upon completion of the court proceeding. Like other members of the [office], however, Attorney...regularly took home case files on which he worked in the evenings. He generally did this to transfer notes he had taken on other pieces of paper into the MCDAO case file or to review a file in preparation for upcoming court proceedings. The referee concluded that this practice of working at home in the evenings had been essential to Attorney...'s ability to perform his job as a prosecuting attorney.
As Attorney...'s evening alcohol consumption increased, his ability to work at home decreased, causing him to fall farther and farther behind on his file management, especially in the latter half of 2004. Thus, Attorney...would take home every evening a sizable number of files with the intent to work on them after dinner but would not be able to get the work done. In the morning he would take those files from his house back to his car, including those files on which he had been unable to work. When he arrived at work, he usually took into the office only those files that he needed for that day's court proceedings, a few additional files that required work, and those files that he had completed the night before. In addition, Attorney...also kept some files in the trunk of his car that he considered to be low priority files. Some of these files remained in his car for an extended period of time.
A fellow employee found the attorney drinking in his car. There were 20 case files in the car at the time. Howver, the referee found insufficient evidence that the attorney engaged in dishonesty toward his employer:
On this count the referee concluded that the OLR had failed to meet its burden of presenting clear, satisfactory, and convincing evidence of dishonesty, fraud, deceit or misrepresentation. She noted that there was no proof that [another district attorney] Attorney...specifically asked about the location of the Brown Deer case file or directed Attorney...to locate that file. She further stated that Attorney...had testified, without contradiction, that the reason the files were in his car was because he had been trying to keep up with his work by taking files home to work on them, but had been prevented from completing the necessary work by his consumption of alcohol in the evenings. The evidence simply did not clearly and convincingly prove that Attorney...had attempted to hide his handling of cases by concealing case files in his car.
Chief Justice Abrahamson disagreed with the portion of the decision that reduced the costs:
The majority fails to explain what the "extraordinary circumstances" are in the present case. The rule does not define "extraordinary circumstances." In interpreting statutes, rules, and other documents, the court is very fond of examining the dictionary to define words. "Extraordinary" is defined in the dictionaries as meaning beyond what is ordinary and usual; the word means "not usually associated with" the subject being discussed.
The phrase "extraordinary circumstances" clearly requires the presence of factors that are not present in many disciplinary proceedings even though the phrase is incapable of being defined in a manner that encompasses all possible scenarios. The majority opinion fails to demonstrate facets of the present disciplinary proceeding that are not often found in disciplinary cases.
It is not extraordinary or unusual for the OLR to prosecute all misconduct counts for which the Preliminary Review Committee found "cause to proceed" and for the referee to conclude that one or more counts are not proved. It is not extraordinary or unusual for a prosecutor to be unable to prove all counts even after a finding of probable cause. There is no claim in the present case that the counts alleged by the OLR were wholly without prosecutorial merit or that OLR's pursuit of Count 3 was unreasonable, improper, or frivolous.
The majority is interpreting and applying the rule as if the court had adopted the substance of the rule originally proposed and defeated. If the majority wants to change the rule the court adopted, the majority has to do so using our rule-making function, our quasi-legislative function, not our case deciding function. The court is amending rules in an adjudication. That's a no-no.
At bottom, the instant proceeding arose out of Attorney...'s conduct. The rule adopted appropriately declares that the disciplined lawyer should bear to the extent he or she is able, except under extraordinary circumstances, the costs and attorney fees of the proceeding rather than the court transferring the costs to the other attorneys in the state who have not engaged in misconduct.