What A Difference A Few Days Make
The Wisconsin Supreme Court has reinstated a suspended attorney
Effective June 3, 2020, this court suspended Attorney Moodie’s law license for a period of six months as discipline for his conversion of fees belonging to his law firm to his personal use.
At the hearing before the referee
The referee observed that Attorney Moodie testified in a contrite and forthright manner during the reinstatement hearing and expressed “abject remorse and shame” for his misconduct. The referee noted that Attorney Moodie “has been reckoning with his misconduct for four years now”; that he understands that it was driven by his personal dissatisfaction with the direction of his former law firm’s management; and that he “now recognizes what he could
have done differently to avoid the misconduct: discuss with his partners their and his different viewpoints about running a firm, client development and retention, and compensation.”
As noted in a concurring opinion, the length of the suspension required a hearing
ANNETTE KINGSLAND ZIEGLER, C.J. (concurring). I agree with the court’s decision to reinstate Attorney Moodie’s license to practice law. I respectfully concur because, as I predicted in April 2020 when we ordered Attorney Moodie’s license suspension, the disciplinary term imposed far exceeded six months. In re Disciplinary Proceedings Against Moodie, 2020 WI 39, ¶¶26-34, 391 Wis. 2d 196, 942 N.W.2d 302 (Ziegler, J., dissenting). When it comes to lawyer discipline, courts should say what they mean and mean what they say. Id., ¶26. The court failed to do so in this case.
In this case, we did not individualize our determination and defaulted to a six-month mandatory suspension, built upon prior disciplinary orders. Id., ¶¶14-15. However, we have consistently said there is no fixed formula for determining the “right” amount of lawyer discipline…
If a perceived six-month constraint were not in place, based on the underlying disciplinary record, it is likely that the referee would not have recommended a six-month suspension. Certainly, the referee did not assert that a suspension lasting over a year was justified. In place of the recommended discipline, we could have suspended Attorney Moodie’s license for five months and 28 days, mere days shorter than the eventual six-month suspension. This small change would have ensured just punishment for Attorney Moodie’s misconduct while also maintaining honesty and proportionality in our disciplinary process.
I disagree that when acting essentially as the “sentencing” decision maker in a lawyer discipline case, this court is hamstrung from exercising discretion. I disagree that we are bound to a mandatory minimum six-month penalty because of other fact-dependent cases. I disagree that we should have judicially imposed automatic minimum suspensions for all such cases no matter the evidence or mitigating circumstances. If we so constrain ourselves, we abdicate our responsibility to make individualized determinations, and with it, our ability to fairly and accurately “protect the public, the courts, and the legal system from repetition of misconduct.”
(Mike Frisch)