Thursday, January 20, 2011

Stress Does Not Cause Dishonesty

The Wisconsin Supreme Court has imposed a four-month suspension of an attorney for a number of ethical violations that included overbilling the state public defender in numerous matters and falsely telling a judge in a litigated matter that he had been reinstated from an administrative suspension. He had arranged to complete required CLE but had not done so.

The attorney sought a sixty-day suspension; the Bar asked for six months, which would have required the attorney to petition for reinstatement. The court followed the recommendation of the referee.

As to sanction:

Attorney['s] appellate brief provides context for the misconduct.  He explains that during 2007, when he committed the bulk of the rule violations, two things happened: (1) his assignment as a receiver for a company in northern Wisconsin ballooned from a two-day-per-week obligation to more than full-time; and (2) his partnership with another lawyer abruptly ended when she cleaned out their offices overnight, leaving him to find new office space and reorganize his cases.  Basically, he states that he "made a serious error: he tried to do too much; he tried to maintain his commitments to his Public Defender clients and to his private clients."  Attorney...provides positive testimonials from several clients and argues that a 60-day sanction will permit him to "still maintain his practice" while a "penalty of four months would make it virtually impossible for him to do so without essentially starting his practice over." 

The OLR, however, responds that stress is not a mitigating factor in imposing discipline.  Indeed, the OLR asserts that the only mitigating factor as to sanction is the absence of any prior disciplinary record.  OLR emphasizes the pattern of deceit reflected in Attorney['s] decisions and urges a six-month suspension. 

We consider appropriate discipline de novo but we are guided by the referee's thoughtful consideration and recommendations.  The referee stated:

I am deeply troubled by [attorney's] willingness to lie in furtherance of his own personal goals.  He willingly misled a sitting circuit court judge about whether or not he had a valid law license.  He repeatedly erred in his systematic billing practices to SPD to the point where he often billed for more than 15 hours in a day.  He lied on his petition for reinstatement when he asserted he had not practiced law without a license during his suspension.  An omission is as much of a lie as a false statement.  [His] failure to notify other judges of his suspension and his failure to notify his clients of his suspension are lies too.

The referee was thus of the opinion that Attorney...had shown a repeated willingness to lie to satisfy his own interests or what he perceived as the prevailing interest.  She states:

The Rules of Professional Conduct, without equivocation, prohibit lying.  Our system relies upon the honesty of its participants.  It really [cannot] function otherwise.  [The attorney] has wholly failed in these matters to follow that basic rule.  It is clear that [he] was under considerable stress after the demise of his law firm partnership and the increased stress associated with a particularly complicated and difficult case.  But, stress alone should not cause an attorney to be repeatedly untruthful.

In light of the record before us and the referee's observations, we agree with the referee and the OLR that the 60-day suspension sought by simply inadequate, particularly in light of the unacceptable pattern of lying and deceit committed by Attorney...

The OLR may have a fair point that four months with automatic reinstatement is "simply inadequate." (Mike Frisch)

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