Wisconsin Rejects The “Ah, No” Approach To Reciprocal Discipline; Abrahamson Concurrence Questions OLR Handling Of Reciprocal Matters

The Wisconsin Supreme Court has imposed reciprocal discipline based on an attorney’s Illinois disbarment, rejecting his alleged violation of due process based on the failure to personally serve the Illinois bar charges.

The attorney did not tell Wisconsin of the 2015 Illinois disbarment where a hearing committee found

Respondent engaged in serious misconduct in this matter by practicing law while suspended and dishonestly misappropriating client funds. Either one of these types of wrongdoing would alone warrant a substantial sanction. Respondent’s misconduct is significantly aggravated by his previous discipline for similar misconduct and his failure to fully cooperate in this matter. Furthermore, Respondent failed to demonstrate that he had made restitution and established little else in the way of mitigation. Respondent’s misconduct also occurred while he was already subject to a suspension until further order of the Court. In accordance with the purposes of the disciplinary process, we conclude that disbarment is appropriate to protect the public, the legal profession and the administration of justice.

A referee was appointed in Wisconsin who found

[I]t [is] impossible to believe that the respondent was in any way deprived of due process in the Illinois proceedings against him. Any problems in service were the direct result of the respondent’s own misbehavior and not the result of any failure on the part of the ARDC. Further, the due process issue was considered by the Illinois authorities at the June 2015 [sic] hearing and respondent’s arguments were properly rejected by that tribunal.

The referee went on to point out that Attorney Peiss “undertook the same sort of behavior” when attempts were made to serve the complaint in the instant action. The referee noted that according to an affidavit of the process server, numerous attempts at personal service were made without success and when the process server finally made telephone contact with Attorney Peiss to discuss meeting to accept service, Attorney Peiss’s response was, “ah no,” whereupon he hung up on the process server, after which the complaint had to be served by mail…

Upon careful review of the matter, we adopt the referee’s findings of fact and conclusions of law. We agree with the referee that Attorney Peiss failed to demonstrate that he was denied due process in the Illinois proceeding. Accordingly, we approve the referee’s recommendation and impose the identical discipline imposed by the Supreme Court of Illinois, namely the revocation of Attorney Peiss’s license to practice law in Wisconsin. We also assess the full costs of the proceeding against Attorney Peiss.

Justice Abrahamson has a concurring opinion that raises a number of pointed questions about how reciprocal matters are handled in Wisconsin.

This is a reciprocal discipline case.  It raises the question of what is “identical discipline” in a reciprocal discipline matter.

The Office of Lawyer Regulation seeks revocation of Attorney Peiss’s Wisconsin license in the instant case, while the Illinois discipline was “disbarment.” The documents filed by the OLR in the instant case, like the documents filed in other reciprocal discipline cases, do not explain the extent to which the other state’s discipline (here disbarment) is or is not identical to the Wisconsin discipline of revocation.

This failure on the part of the OLR hampers the work of this court. The per curiam opinion is defective in not equating disbarment and revocation.

I conclude that the OLR should improve its presentation in reciprocal discipline cases by comparing the Wisconsin discipline to be imposed with the discipline imposed in the other state…

The instant case, as well as other reciprocal discipline cases, raise the question of what is identical discipline. I suggest that the OLR Procedure Review Committee (Professor Marsha Mansfield, University of Wisconsin Law School, Reporter), appointed by the court in June 2016, should consider reviewing and revising the Supreme Court Rules governing reciprocal discipline when a lawyer licensed in Wisconsin is disciplined in another state.

Justice Abrahamson concurred and dissented in a second reciprocal discipline matter decided today, where the court imposed a 60-day suspension based on a like period of suspension imposed by the Minnesota Supreme Court.

She has been a frequent voice for improvement in Wisconsin attorney discipline

I am confident that the OLR Procedure Review Committee (Professor Marsha Mansfield, University of Wisconsin Law School, Reporter) will examine the time it takes each entity in the chain of discipline proceedings to perform its function, including the OLR, the Preliminary Review Committee, the referee, and this court. This court’s Internal Operating Procedures (printed in volume 6 of the Wisconsin Statutes) provide that per curiam opinions in attorney disciplinary proceedings are prepared by a court commissioner for the court’s consideration. Wis. S. Ct. IOP III-H (Feb. 13, 2017).

Several years ago when I did a “time” study I found what appeared to be unwarranted delay at every step.

When I was a disciplinary prosecutor in the District of Columbia, I spent a lot of time and energy addressing the issues raised more fully in the Abrahamson concurrence.

One of my cases involved the issue whether a seven-year suspension is “substantially different” from the maximum sanction in D.C.  where disbarment is a five-year suspension.

A seven-year suspension at this time with retroactive application of almost two years is in practice close to a five-year suspension imposed with prospective effect only, which we could plainly do under our own disciplinary scheme. See In re Willcher, 404 A.2d 185 (D.C.1979). Thus, on the facts of this case, the entry of an order suspending respondent nunc pro tunc for seven years will apply here a sanction functionally equivalent to that which would be both possible and warranted under the sanction scheme provided for by our Rules for disciplinary cases first initiated in the District. Adopting in this manner the “identical discipline” as that imposed by the foreign jurisdiction does not in practice result in a “substantially different” sanction here.

I fondly remember being questioned on this issue by one of my all-time favorite judges, Senior Judge John Steadman. (Mike Frisch)