Landmark Wisconsin Disciplinary Decision Comes Almost Four Years After Oral Argument

The Wisconsin Supreme Court has publicly reprimanded an attorney for misconduct in representing an attorney in a reinstatement hearing.

After our careful review of this matter and the legal issues it presents, a majority of the court has agreed that Attorney Riley committed professional misconduct, that he should be publicly reprimanded, and that he should be required to pay the full costs of this disciplinary proceeding, which were $16,961.70 as of November 6, 2012. This is, therefore, the mandate of the court. A majority of the court, however, does not agree as to a single rationale for reaching that result. Three justices, Chief Justice Roggensack, Justice Ziegler, and Justice Gableman, agree with the reasoning set forth in this lead opinion. Justice Abrahamson and Justice Ann Walsh Bradley concur in the mandate, but do not join this opinion. Each of them sets forth her views in a concurring opinion. Justice Prosser dissents.

The case is notable for a number of reasons and was characterized as a “landmark” decision in Justice Prosser’s dissent.

One notable factor – the oral argument was held on October 23, 2012.

This case involves the intersection of the careers of two attorneys, Attorney Riley and Attorney Brian K. Polk. An understanding of Attorney Polk’s employment history is necessary to an understanding of the charges of professional misconduct against Attorney Riley.

The intersection was a dangerous one indeed.

Polk had practiced personal injury law for a firm headed by attorney Alan Eisenberg while administratively suspended

Attorney Polk was made part of the personal injury “team” that was led by Attorney Eisenberg. He solicited individuals to become personal injury clients of the firm, he met with and gave legal advice to clients about their claims, he did property damage settlements, and he corresponded with third parties using firm letterhead and identifying himself in the signature block as an “attorney at law.” During the time that Attorney Polk worked for the new Eisenberg firm, he spent approximately 50 hours per week or more in the firm’s offices. Attorney Polk was given his own office and telephone extension, and his extension was listed on the firm’s telephone extension list. Because the firm was reluctant to use Attorney Polk’s real name over its intercom system, for a while the firm used the pseudonym “James Pearson” for Attorney Polk when paging him over the firm’s intercom system.

 Riley came to know Polk at the Eisenberg firm and represented Polk in an unsuccessful effort at reinstatement from suspension.

Attorney Riley did not have any role in the preparation or filing of Attorney Polk’s reinstatement petition. Attorney Polk represented himself during most of the reinstatement proceeding. Prior to the evidentiary hearing scheduled by Judge Flynn, however, Attorney Polk spoke with Attorney Eisenberg about concerns he had with the upcoming hearing. Attorney Eisenberg then spoke with Attorney Riley and directed him to assist Attorney Polk with the reinstatement hearing. The initial understanding among the three lawyers was that Attorney Riley would act as “second chair” for the hearing, meaning that Attorney Polk would still be primarily responsible for presenting evidence, examining witnesses, and making argument.

OLR had opposed reinstatement

due to a number of concerns about Attorney Polk’s character and fitness to practice law, including his receipt of a citation for loitering-illegal drug activity, his multiple citations and convictions for operating after revocation of his driver’s license and for other traffic offenses, and his failure to pay multiple civil judgments. The OLR’s response did not mention any concerns regarding Attorney Polk’s employment history or his unauthorized practice of law during his administrative suspension, presumably because it was not aware of Attorney Polk’s employment at the new Eisenberg firm.

Worse for Riley

In the course of an investigation in 2008, the OLR learned that Attorney Polk had been employed by the new Eisenberg firm in 2005-06 while Attorney Riley had also worked there. When the OLR asked Attorney Riley about that fact, he indicated that he had not known that. Attorney Riley claims that he then investigated whether Attorney Polk had been employed by the new Eisenberg firm. Although he asserts that this was the first time he learned of Attorney Polk’s work at the law firm, he never advised the OLR, Judge Flynn, or this court at that time that Attorney Polk’s testimony at the September 6, 2006 hearing had been false or misleading because of the omission of his employment at the new Eisenberg firm.

The attorney continued to deny knowledge at his own disciplinary hearing and persisted in a number of arguments on appeal

We conclude that the omitted information regarding Attorney Polk’s employment with the new Eisenberg firm was material to the task this court gave to Judge Flynn and to this court’s consideration of Attorney Polk’s reinstatement petition.

We do not, however, base this determination on a belief that every subject was material under the catch-all provision in our June 23, 2006 order. We agree with Attorney Riley that the rules of professional conduct do not make an attorney a guarantor of the accuracy of each statement in a client’s testimony, nor do we believe that the rules require an attorney to interrupt depositions or court hearings repeatedly if the attorney thinks there might be some trivial discrepancy between what a witness said under oath and what the attorney understood to be the truth. We also do not find this omitted information to be material only because Attorney Polk subsequently admitted years later that he had practiced law at the new Eisenberg firm. In other words, it is not necessary that Attorney Riley knew that Attorney Polk was practicing law (as opposed to simply working) at the new Eisenberg firm, in order for Attorney Riley to have violated former SCR 20:3.3(a)(4).

From the lead opinion

In our view, a public reprimand is an appropriate sanction for Attorney Riley’s professional misconduct. We believe that a public sanction is necessary to impress upon Attorney Riley the wrongfulness of his conduct, as well as to deter both him and other attorneys from engaging in similar conduct in the future. Allowing false evidence to be presented to a tribunal when the attorney knows it is false is a serious ethical violation that undermines the truth-seeking function of the entire judicial system and contradicts the ideal of an attorney being an officer of the court as well as an advocate for a particular client.

The lead opinion concludes that the attorney failed to take reasonable remedial measures when confronted with the client’s false omission of his law-related employment. He argued that Polk had not made enough money to pay  judgments against him.

No bad deed goes unpunished – Polk was the key witness against the attorney in proving that he had failed to correct Polk’s own false testimony!

Justice Abrahamson has been on record in past cases with her concerns about self-regulation of the legal profession in Wisconsin

The lead opinion is overly lengthy, and gratuitously addresses too many issues that have not been fully briefed or carefully studied. The issues are difficult and of the utmost importance to attorneys and disciplinary proceedings. The issues need more consideration.

 This is a landmark case in attorney discipline, as Justice Prosser has pronounced. But its landmark status, from my perspective, is the length of time the instant case has lingered in this court. I think it wins the prize for taking longer to decide than any other OLR proceeding I can remember or find. It is a prime example of significant, unnecessary delays in completing a disciplinary matter. Delay appears to exist at every level of the disciplinary proceedings, but the final delay at this court in releasing the lead opinion is outrageous.

The attorney’s conduct that is the subject of this proceeding dates back to 2006. The OLR complaint was filed on December 1, 2010. The referee held hearings in February 2012 and issued her report on April 18, 2012.

On October 23, 2012, this court held oral argument in the instant case. More than 10 months elapsed before staff circulated a draft per curiam opinion. Justice David T. Prosser circulated the first draft of his dissent to the court on July 31, 2015, almost three years after oral argument and almost two years after the per curiam was circulated. The first draft of my concurrence was circulated on September 14, 2015, almost two months after the dissent was circulated. The writings have been subject to discussion and revision, and this opinion is being released almost four years after oral argument, almost six years after the complaint was filed, and almost 10 years after the conduct at issue.

I favor the court’s spending the time needed for each matter and giving utmost care to each matter. Opinions and orders in cases, rule matters, and disciplinary proceedings are important to the people directly involved in each case and to the public.

 I strongly support the court’s longstanding practice of honoring a justice’s hold and giving a justice time to study and write separately, but I disfavor the court’s inconsistent treatment of requests to hold. Consistency in the court’s practice of allowing, disallowing, and limiting holds is important for collegiality and fairness to the litigants and public…

To foster transparency and fairness, as well as to encourage promptness and uniformity in the court’s decisions in discipline cases, I renew my request that the court require the Clerk of the Supreme Court to make available on the court’s website information about the dates of the relevant steps in each disciplinary matter, from the filing of the complaint, to its passage through the component parts of the lawyer regulatory proceeding, assignment to a court commissioner, assignment for oral argument or on-brief consideration, and the court’s ultimate decision. 

Justice Prosser

This is a landmark case in attorney discipline. It addresses the issue of an attorney’s ethical responsibilities when the attorney’s client – or a witness called by the attorney – provides false testimony that the attorney knows is false at the time of the testimony or learns is false sometime after the testimony…

…this notable case will be associated with an attorney who was caught in the middle of a mess he did not create, whereas the two attorneys who are responsible for the mess have been able to walk away with inadequate discipline or no discipline.

…the lead opinion is a little light in discussion about the serious tension between privileged information, confidentiality, and loyalty to a client, on the one hand, and an attorney’s obligation to the court, on the other.

Finally, the lead opinion is almost 50 pages in length because the court finds it necessary to resolve several close questions about the respondent attorney, but it reads as though the respondent attorney should have resolved all these subtle questions the same way the lead opinion has resolved them…without much difficulty. We ought to ask: Has the court provided sufficient guidance for the Wisconsin Bar to avoid in the future the same pitfalls that the attorney faced in this case?

…To me the lead opinion raises sufficient questions about its impact on the law and its fairness to the respondent that I feel bound to respectfully dissent. It should be noted that the court has not been able to muster a majority of justices for the lead opinion. It should also be noted that the rule of lenity seems to be missing from the Rules of Professional Conduct for Attorneys.

The story of attorney Eisenberg, one of the two mentioned in the dissent, is recounted here by the Milwaukee Wisconsin Journal Sentinel

Wisconsin’s Supreme Court finally had enough of Alan D. Eisenberg, the veteran Milwaukee lawyer who maintained a high profile both because of and despite his rude, abrasive and over-the-top style.

The court on Thursday revoked the flamboyant barrister’s license to practice law, citing Eisenberg’s long history of professional discipline, and his apparent inability “to conform his conduct to the standards expected of all members of the Wisconsin bar.”

Eisenberg, 68, who invoked his age to avoid disbarment in a 2004 discipline case, could petition for reinstatement after five years, but that seemed unlikely Thursday.

“It’s a death sentence,” Eisenberg said of the ruling, “a disaster that reaches in to every aspect of my life.”

He said he suffers from serious health problems and has been under extreme emotional, physical and financial distress.

I am in strong agreement with Justice Abrahamson’s call for transparency in how long it takes to discipline attorneys. (Mike Frisch)