A Mother’s Love; A Court’s Tolerance

A mother’s advocacy on behalf of her son has resulted in a public reprimand by the Wisconsin Supreme Court.

This court is familiar with the underlying facts giving rise to this case. It stems from Attorney Bach’s efforts to advocate on behalf of her adult son, A.B., who is disabled. A.B. has a rare medical condition that renders him a danger to himself and others. Since approximately 2006, when A.B. turned 18, Attorney Bach has engaged in extensive litigation regarding his placement, level and quality of care, payment for that care, and guardianship. 

She was already deeply involved in litigation when admitted to practice in 2011. She initiated a series of cases in state and federal court.

In a June 2013 order, the Wisconsin Court of Appeals warned Attorney Bach that “[b]eing [A.B.’s] mother does not endow her with the right to sidestep, manipulate or disregard the rules by which all litigants must play.” Margaret B. v. County of Milwaukee, No. 2012AP1176, unpublished slip op., ¶7 (Wis. Ct. App. Jun. 12, 2013)…

On May 22, 2014, the Seventh Circuit Court of Appeals affirmed Judge Joseph’s decision, ruling that Attorney Bach had “abused the judicial process by filing multiple frivolous suits, many of which, like this one, could not succeed unless the court were prepared to ignore the outcome of her earlier suits.” The court also noted that Attorney Bach frequently named judges and courts as defendants, despite their absolute immunity. The court ordered Attorney Bach to show cause within 14 days why the court should not impose sanctions for a frivolous appeal.

 On June 12, 2014, the Seventh Circuit Court of Appeals deemed Attorney Bach’s appeal frivolous and fined her $2,000.

The Office of Lawyer Regulation brought charges of frivolous litigation that were rejected

The referee expressed frustration with the OLR’s amended complaint, noting that “OLR wants me to ‘infer’ Attorney Bach’s knowledge (of frivolousness, unwarranted claims, and intent to harass adverse parties).” However, while the OLR’s pre-hearing brief argues that “she knew the claims she was advancing were unwarranted” there is no such factual allegation in the amended complaint. Merely alleging that Attorney Bach filed the various actions is not sufficient. The OLR failed to allege further that she, subjectively, knew that these actions were filed in a frivolous manner, were without merit, that Attorney Bach was trying to advance an unwarranted claim, or that she sought to harass or maliciously injure another. The referee states: “The amended complaint refers to many cases and appeals and it is not my job to guess at what particular conduct OLR claims violates a particular Supreme Court rule.”

… the referee did not agree with the OLR’s assessment of Attorney Bach’s intent. The referee characterized Attorney Bach as a new and very inexperienced lawyer with overzealous goals, who plunged herself, unprepared, into filing federal court actions and subsequent appeals. Her filings were not competent; indeed they are often frustratingly inept, but the referee correctly notes that the OLR did not allege that she violated ethical rules requiring competence. However misguided her filings were, the referee concluded that the evidence did not support a finding that Attorney Bach filed the various actions with the intent of being frivolous or to harass the defendants. Accordingly, the referee concluded that the OLR failed to prove by clear, satisfactory, and convincing evidence that Attorney Bach committed the misconduct alleged in counts one through three.

However, the attorney had knowingly disobeyed an injunction

The referee remained mindful that Attorney Bach’s misconduct all relates to her efforts on behalf of her child. Indeed, the referee deemed Attorney Bach’s “actions as the biological and loving mother” a mitigating factor in assessing appropriate discipline.

The referee did not condone Attorney Bach’s conduct. Nor do we. Attorney Bach’s deliberate violation of court orders is serious professional misconduct that requires a public reprimand. Indeed, we take this opportunity to caution Attorney Bach. Although, we affirm the referee’s conclusion that the OLR failed to prove she violated SCR 20:3.1(a)(1), (2), and (3) as alleged in counts one, two, and three of the amended complaint, this conclusion reflects a failure in the pleadings, rather than an exoneration of her conduct. We are very familiar with Attorney Bach’s filings. We recognize that her fervent advocacy stems from concern for her child. However, we must caution Attorney Bach that this court’s tolerance for her persistent refusal to respect and follow rules of court procedure is wearing thin.

The attorney was ordered to pay costs of nearly $15,000. (Mike Frisch)