Not For The First Time

An attorney with a prior disciplinary history has been suspended for 18 months by the Wisconsin Supreme Court

Prior reinstatement

Attorney Malloy’s license remained suspended from 1997 until February 2019, when this court granted his second petition for reinstatement. The court imposed certain conditions on Attorney Malloy’s resumption of the practice of law. First, we required Attorney Malloy to attend the OLR’s trust account seminar, which Attorney Malloy actually did twice. Second, we ordered Attorney Malloy to provide the OLR with his trust account and business account records for a period of two years in the expectation that Attorney Malloy’s problems with maintaining his client trust account and handling client trust funds would not reappear.

In the present matter there were misconduct findings in two client matters.

The referee was unimpressed

Referee DiMotto is particularly critical of the fact that, during the sanction hearing, Attorney Malloy repeatedly minimized his misconduct and attempted to shift the blame to others. For example, he essentially claimed that the reason for Judge Smith becoming upset with him were the facts that he had come back from his Easter vacation and was in a bad mood, and that he was a new judge with a background in criminal law who did not understand the realities of handling a divorce proceeding. Attorney Malloy also appeared to blame the employees at his bank for not knowing the difference between client trust accounts and business accounts.

Referee on sanction

At bottom, Referee DiMotto indicates that she finds Attorney Malloy to be so lacking in basic skills that he should not be practicing law. He cannot properly prepare, date, serve, and file legal documents. He twice failed to attach documents that he referenced in his submissions. He also continued to have problems with appropriate procedures for safekeeping client funds and admitted that he has continuing confusion on the subject, despite having attended the OLR’s trust account seminar on two separate occasions. Attorney Malloy was repeatedly dilatory in the underlying representations, in the OLR’s investigation of the grievances, and in this disciplinary proceeding, all of which Referee DiMotto characterizes as “breathtaking.” Given Attorney Malloy’s apparent lack of the basic skills necessary to practice law, Referee DiMotto indicates that, if writing on a blank slate, she would prefer that Attorney Malloy’s license would be revoked. She acknowledges, however, that revocation is a severe sanction reserved for the most egregious conduct. On the other hand, she believes that the OLR’s requested six-month suspension would be insufficient to  impress upon Attorney Malloy that his conduct is woefully short of the requirements of the Rules of Professional Conduct for Attorneys and that his misconduct causes serious harm to his clients, the public, opposing attorneys, and the courts. She ultimately recommends that the court suspend Attorney Malloy’s license for a period of two years.

The court

If this were Attorney Malloy’s first disciplinary proceeding, a suspension in the range of four to eight months would appear to be appropriate, given our prior decisions involving similar types of misconduct. This is not, however, Attorney Malloy’s first instance of  misconduct. Throughout most of the time that he has held an active license to practice law in this state he has been unable to conform his conduct to Rules of Professional Conduct for Attorneys. His first discipline came just two years after his admission to the practice of law. Just a few years later he received two consecutive suspensions that totaled 15 months. It took him approximately 22 years, however, to successfully petition for the reinstatement of his license. Then, he again engaged in misconduct within approximately two years of his reinstatement. This pattern of misconduct calls for a more severe level of discipline than we have imposed in cases involving similar instances of misconduct. In addition, we generally follow a policy of progressive discipline, imposing more severe levels of discipline upon subsequent instances of misconduct, especially where there is a pattern of misconduct. In re Disciplinary Proceedings Against Nussberger, 2006 WI 111, ¶27, 296 Wis. 2d 47, 719 N.W.2d 501. This also supports imposing a suspension greater than six months in duration.

Also troubling are the referee’s findings that Attorney Malloy has not accepted responsibility for his misconduct, much less demonstrated remorse for it, but has attempted to minimize his misconduct and to shift the blame onto others. This is especially worrisome because it indicates that Attorney Malloy is unlikely to reform his ways unless the seriousness of his failings is strongly impressed upon him.

Thus, given all of these factors, it is clear that a suspension substantially longer than a six-month suspension that we have imposed on other attorneys for similar misconduct is warranted in this case. We conclude that, under these circumstances, an 18-month suspension is necessary to protect the public and to impress upon Attorney Malloy that his failure to conform his conduct to the Rules of Professional Conduct for Attorneys will not be tolerated. That is an appropriate increase from the level of discipline we have imposed on similar misconduct without departing from the existing framework of precedent.

(Mike Frisch)