Wisconsin Dismisses Multiple Counts Where OLR Cited Wrong Rules

A pleading error – the Office of Legal Regulations failure to plead seven immigration-related counts under the rules of the Executive Office of Immigration Review – drew dismissal of those counts by the Wisconsin Supreme Court.

A 60-day suspension was imposed for the proven charges.

As to the sustained counts

Of the twelve counts of misconduct alleged in OLR’s complaint, only three were proven. One count was dismissed by OLR, and this court dismissed the seven immigration-based counts due to OLR’s failure to plead them under the rules promulgated by EOIR. If OLR’s complaint had contained only the five counts unrelated to Attorney Luening’s practice before an immigration tribunal, this proceeding would have been greatly simplified and the costs would likely have been a fraction of their actual amount. While the referee is correct that costs should not be assessed based on “mathematical equality,” we conclude that requiring Attorney Luening to pay 25% of the pre-October 24, 2022 costs would be equitable based on the unique circumstances presented here.

We note that while it may appear that by dismissing the seven counts of misconduct arising out of the representation of clients before an immigration tribunal and reducing the costs of the proceeding by 75%, Attorney Luening is getting off lightly, that is not the case. As we noted in Luening I, OLR’s failure to plead the seven immigration-based counts of misconduct under EOIR rules, while simultaneously pleading immigration-based counts against another attorney under EOIR rules, threatened to undermine confidence in Wisconsin’s attorney regulatory system given OLR’s disparate treatment of two similarly situated attorneys. Luening I, 2023 WI 12, ¶20. We concluded that the appropriate remedy for OLR’s decision not to prosecute Attorney Luening’s immigration-based misconduct counts under EOIR rules was dismissal of those counts.

Sanction

The suspension of an attorney’s license to practice law, even for a brief period of time, is a significant sanction. The attorney is deprived of his livelihood during the period of suspension. He is required to notify all clients and courts before which he practices of the suspension. The court’s order of suspension is published and may have an adverse impact on the attorney’s ability to attract future clients. In short, a 60-day suspension is not a de minimus sanction, and we find it is the appropriate sanction under the unique facts of this case.

(Mike Frisch)