Friday, October 15, 2010
In two opinions linked here and here, the Wisconsin Supreme Court affirmed a referee's proposed dismissal on insufficient evidence of bar charges against a husband and wife charged in connection with an ethics complaint brought against a judge. The OLR had appealed a recommendation that charges in the husband's matter be dismissed.
The AP reports:
The wife was running for judicial office against the accused judge. The allegations related to an unsolicited letter written by the judge on behalf of a defendant who was awaiting sentencing. The husband brought the issue to the attention of the widow of a judge who had supported the wife's candidacy , who filed the judicial ethics based on a draft that the husband had provided.
From the opinion dismissing the case against the husband:
Although we disagree with the referee's interpretation of the rule, we nonetheless agree with the referee that Attorney...'s "cocktail party" comment did not constitute a violation of SCR 20:8.4(c).Attorney...'s statement to Mrs. Moser [the widow] did not itself contain a misrepresentation. For example, Attorney...did not tell Mrs. Moser that he had learned of the Schudson letter at a cocktail party or that Judge Schudson had telephoned Judge Clevert as well as wrote a letter.
What Attorney...did was to suggest that Mrs. Moser make a misrepresentation in the future if confronted with a particular situation. There is no evidence in the record, however, that (1) Mrs. Moser was ever confronted with the question of how she learned of the Schudson letter, and (2) that she ever told anyone that she had heard about the Schudson letter at a cocktail party. Had Mrs. Moser actually made the statement pursuant to Attorney...'s suggestion, we would be confronted by a different case.
This does not mean that we are, in effect, adopting the referee's interpretation that someone must be defrauded in order for there to be a violation of SCR 20:8.4(c). The concept of someone being defrauded includes the requirement that the hearer relied on a false statement and took action (or refrained from taking action) that led to the person incurring damage of some sort. The rule makes no reference to the impact of a misrepresentation on a hearer of the false statement.
The rule does, however, require that there be, at a minimum, a dishonest or deceitful statement or a misrepresentation. That did not occur in this case. Attorney...'s statement suggested that Mrs. Moser make a misrepresentation in the future, but it did not itself make a false statement of fact. Moreover, Mrs. Moser apparently did not follow through with Attorney...'s suggestion and she never made any false statement of fact about the source of her knowledge. Thus, we cannot find a violation of SCR 20:8.4(c) under the particular facts of this case. In addition, since we find that the OLR failed to establish a violation of any supreme court rule, we do not address Attorney...'s First Amendment argument.
Our application of the requirements of the rule, however, should not be interpreted to be an endorsement of Attorney...'s behavior. Suggesting that someone not tell the truth is never laudable. If Attorney...did not want Mrs. Moser to divulge his name, he could have simply asked her not to answer any question about the source of her knowledge of the Schudson letter. He should have advised her that if she chose to respond to a question about the source of her knowledge, she should reveal his identity.
The husband currently serves in the Wisconsin legislature. The wife currently serves on the Wisconsin Court of Appeals. (Mike Frisch)