“A Shrug Of The Shoulders Is Not A Defense”

A six-month suspension of an attorney admitted in 1982 who had no prior discipline was imposed by the Wisconsin Supreme Court

In September 2016, Attorney Moodie suffered a serious health event resulting in a lengthy hospitalization. During Attorney Moodie’s absence, other members of the firm assumed responsibility for his client files, including the management of his billing. While handling Attorney Moodie’s files and billing, the firm discovered that over an 18-month period, Attorney Moodie had converted fees in five client matters for his personal use. It is undisputed that in some matters, he received billed fees directly from the client and failed to tender them to the firm; in others, he collected money directly from the client and then wrote off his billable time. The converted fees totaled $8,665. Had Attorney Moodie not converted these fees, he would have ultimately received 55-60 percent of them under the terms of the firm’s compensation system.

In November 2016, after the firm discovered Attorney Moodie’s misappropriations, Attorney Moodie consented to the redemption of his shares in the firm, ending his employment there.  As part of the redemption, any claims by the firm against Attorney Moodie were settled.

The firm reported the conduct to the Office of Lawyer Regulation(“OLR”) ; the attorney admitted the violations

Referee Mohr held a sanctions hearing. Attorney Moodie testified, and was at a loss to explain his actions. His household was not short of money. He and his law partners had had  professional disagreements, but he declined to categorize his misappropriations as a form of retribution. He had health issues and gambling issues during the period of his misconduct, but he did not cite them as a reason for his misconduct, and he has not raised a medical defense in these proceedings. Attorney Moodie also confirmed that, under his firm’s compensation system, he would have ultimately collected between 55-60 percent of the $8,665 in fees that he misappropriated, making his actions, in his words, “just wrong and dumb.”

The attorney sought a 60-day suspension, the OLR recommended a suspension of six months

As we view the matter, the OLR has the better of the two arguments. We agree with the OLR that Attorney Moodie’s reliance on Casey——where we imposed a 60-day suspension for the misappropriation of three client retainers totaling $2,300——is misplaced. Our modest 60-day suspension imposed in Casey came with an explicit disclaimer: we issued it “on the basis of discipline previously imposed for similar misconduct.” Casey, 174  Wis. 2d at 341 (emphasis added). “[L]est attorneys rely on our disposition of this proceeding or prior proceedings involving similar attorney misconduct,” we explicitly directed the State Bar to “bring to the attention of its members” the fact that “in the future the court will treat an attorney’s misappropriation of funds belonging to another lawyer, associate or firm in practice with that lawyer no differently than it treats misappropriation of funds belonging to a lawyer’s client,” and this behavior “will be disciplined severely.” Id. at 341-43. In other words, we warned in Casey that when it comes to modest 60-day suspensions for misappropriation of firm funds, that was then, this is now, and things have changed. And so they have: since Casey, we have consistently imposed suspensions of at least six months for misappropriations of firm funds. The six-month suspension imposed here fits comfortably within this caselaw.

We also hold that the fact that we only know what Attorney Moodie did (misappropriate firm funds) and how he did it (billing improprieties), and have no idea why he did do so, cuts against an argument of mitigation. When it comes to evaluating the discipline owed for a lawyer’s misconduct, the “why” is often as important as the “what” and the “how.” We decline to establish a precedent whereby the lack of a rational explanation for a lawyer’s misconduct serves to mitigate the sanction owed for it. A shrug of the shoulders is not a defense.

 If anything, Attorney Moodie’s inability to explain his behavior weighs in favor of a six-month suspension, which will require him to successfully complete the formal reinstatement process in order to regain his Wisconsin law license.

A dissent

ANNETTE KINGSLAND ZIEGLER, J. (dissenting). I respectfully dissent because I believe that when it comes to lawyer discipline, courts should say what they mean and mean what they say, and here the discipline imposed will far exceed that which is stated. While we have consistently said there is no fixed formula for determining the “right” amount of lawyer discipline, that amounts to lip service because here we abdicate the responsibility we have to individualize our determinations when it comes to lawyer discipline and should not instead default to a mandatory minimum set in another case based upon other facts. See, e.g., In re Disciplinary Proceedings Against Siderits, 2013 WI 2, ¶33, 345 Wis. 2d 89, 824 N.W.2d 812, (acknowledging that the imposition of discipline in attorney disciplinary cases “is not an exact science”). Each case is different, we say, and discipline must be tailored to each case’s unique facts. See id., ¶¶31-32. Here, the court imposes what it views as a mandatory minimum six-month suspension of Attorney Moodie’s license even though, in reality, a six-month suspension may very well be three or four times that amount because of the required reinstatement process. See SCRs 22.29-22.33. In other words, for Attorney Moodie, a six-month suspension could be two years and perhaps the equivalent of revocation. Here, that is excessive. We should decide each case independently…

We should not shirk our duty to carefully consider each matter independently, taking into account the gravity of Attorney Moodie’s offense, its nature, implications on the legal profession, and the need to protect the public. Reasonable and appropriate discipline should be determined on a case-specific basis. What is necessary to protect the public from a part-time, limited solo practitioner who works primarily for friends and longtime clients? Does Attorney Moodie understand the gravity of his behavior and misconduct? Has he admitted to the wrongdoing, stipulated to the facts, cooperated fully, and has since seemingly done everything the right way? The answers to these questions and the evidence in this case should impact what is fair and appropriate. The six-month suspension imposed by this court could very well be the equivalent of two years and/or a revocation, given Attorney Moodie’s age and health issues. Six months is too much; I would impose the equivalent of what the court says it is imposing as discipline, or five months and 28 days

Chief Justice Roggensack  joined the dissent. (Mike Frisch)