Unclear Findings Draw Remand
The Wisconsin Supreme Court remanded a discipline matter due to a lack of clarity in the findings
As explained below, it appears that both the parties and the referee have been unclear at times on the effect of the read-in charges on the issues at hand. This lack of clarity has made it difficult for the court to understand the scope of the OLR’s sole misconduct claim, and to identify what facts the referee actually found and on what basis he made those findings. We therefore vacate the referee’s April 11, 2024 report and remand this matter to the referee for further proceedings
The criminal case against Attorney Mirza began in Waukesha County Circuit Court in July 2020. The criminal complaint concerns Attorney Mirza’s course of conduct between June 2018 and July 2020 toward his now ex-wife, S.E.S. (The marriage, which resulted in two minor children, ended in divorce in February 2021.) In an amended complaint, the State charged Attorney Mirza with eleven criminal counts: felony stalking, misdemeanor criminal trespass, two counts of misdemeanor battery, two counts of felony false imprisonment, one count of felony intimidation of a victim, and four counts of misdemeanor disorderly conduct. Each count carried the WIS. STAT. § 968.075(1)(a) domestic abuse modifier.
In April 2023, the State and Attorney Mirza reached a plea agreement. Attorney Mirza pled guilty to and was convicted of one count of felony stalking and one count of misdemeanor criminal trespass to dwelling, both as acts of domestic abuse, with the remaining nine other criminal counts dismissed but read in at sentencing. In July 2023, the circuit court sentenced Attorney Mirza to 12 months of jail, stayed for three years of probation, for the felony stalking conviction, and nine months of jail, stayed for two years of probation, for the criminal trespass conviction. The circuit court ordered the sentences to run concurrently to each other.
Lack of clarity in referee findings
Attorney Mirza’s admissions both in the criminal case and at the evidentiary hearing in the instant case, while arguably not a word-for-word admission of the read-in charges, effectively admit at least in substantial part the factual allegations underlying them.
The referee recounted from the criminal complaint the following allegations concerning Respondent’s conduct
• Summer 2018: downloaded an app on S.E.S.’s phone that allowed him to track her location and incoming and outgoing text messages. (Complaint, 16 at 2 and Ex. A at 4.)
• October 20, 2019: twice forcibly entered or attempted to enter a locked room where S.E.S. and their children were sleeping. (Id., Ex. A at 15-16.)
• January-February 2020: showed up at public places and attempted to intimidate men who were socializing with S.E.S. not to date her, stating that he was a lawyer in Milwaukee, and at least on one occasion forcibly grabbed S.E.S.; texted vulgar statements to S.E.S. (Id., Ex. A at 5-6.)
• February 11, 2020: forcibly tried to remove S.E.S. from her vehicle while calling her vile names, and threw his shoes at the vehicle. (Id., Ex. A at 13-14.)
• March 8, 2020: telephoned S.E.S. with threats of violence and vulgar statements. (Id., Ex. A at 6.)
• Between March 20 and 25, 2020: struck S.E.S. in the mouth, grabbed her wrists, threatened to break her arms, physically restrained her from leaving, told her not to call police or they would both get in trouble, pinned her down, and forced her to repeat vulgar statements. (Id., Ex. A at 6-7.)
• March 30, 2020: entered S.E.S.’s home twice without her consent; exposed his genitals and threatened to “tag team” S.E.S. with another male who was present; sent S.E.S. vulgar texts; called her vulgar names in the presence of others; and flipped her over the back of a couch, causing her to land on her head and neck and resulting in severe headaches and neck pain. (Id., Ex. A at 7-8.)
• April 13, 2020: withheld children from S.E.S. unless she had sex with him; pinned her down by her arms, again threatened to break her arms, prevented her from leaving his home, and forced her to stay the night. (Id., Ex. A at 8.)
• April 30, 2020: texted degrading messages and inappropriate photographs of S.E.S. to their son’s phone. (Id., Ex. A at 9.)
• June 15, 2020: phoned S.E.S.’s brother and screamed at him, calling S.E.S. vulgar names and threatening violence against her. (Id., Ex. A at 10.)
• July 17, 2020: texted S.E.S.’s aunt, calling S.E.S. derogatory names, attempting to shame her family for allowing her to seek divorce, and making derogatory statements about S.E.S.’s private life. (Id.)
• July 18, 2020: walked around S.E.S.’s home looking into windows late at night without her knowledge or consent. (Id., Ex. A at 11.)
The court
After reviewing the record and the parties’ briefing, it is clear that counsel and the referee are not on the same page with respect to the effect of the read-in charges on the issues at hand. The OLR has taken inconsistent positions on whether the acts underlying the read-in charges are included in the basis for its SCR 20:8.4(b) violation. Attorney Mirza goes so far as to claim that he is categorically immune from discipline for such acts. And both parties take conflicting positions as to what facts the referee actually found and on what basis he made those findings.
Under these circumstances, we elect to vacate the referee’s report and remand the matter to the referee. On remand, the referee has discretion to reopen the record to allow both parties to present any additional evidence necessary to permit the referee to make adequate findings.
(Mike Frisch)