2009AP1529-D OLR v. Kessler

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Professional Responsibility
Dismissal

Where the referee’s finding that Judge Joan F. Kessler did not lie to investigators was not clearly erroneous, the disciplinary proceedings against her must be dismissed.

“The only possible grounds to overturn the referee’s factual findings, then, are inferences. As the referee acknowledged, one could certainly draw inferences adverse to the ones drawn by the referee based on the relationship of Fred Kessler as Attorney Kessler’s husband and campaign manager, and also based on Attorney Kessler’s ‘stoic’ response when confronted with the PACER document. In addition to the possible adverse inferences mentioned by the referee, one could also infer that because Attorney Kessler recognized the transaction receipt as coming from the PACER document when that transaction receipt was shown to her during the June 8, 2004, interview, she had to know that someone from her campaign had been involved in the filing of the complaint since she testified that she had provided that document only to her husband/campaign manager and to friends who worked on her campaign. Despite the fact that one could draw these inferences that Attorney Kessler had to know of her husband’s (or some other campaign worker’s) involvement in the preparation and filing of the complaint against Judge Schudson (and therefore made a false statement when she denied having such knowledge), those inferences are not so strong that they render the referee’s inferences unreasonable and his resulting findings of fact clearly erroneous. Under our standard of review, we are therefore obligated to accept the referee’s findings of fact, without regard to whether or not members of this court would have reached the same findings if they had been required to make the call in the first instance.”

2009AP1529-D OLR v. Kessler

Per Curiam.

Attorneys: For Complainant: Schwarzenbart, Paul W., Madison; For Respondent: Shriner, Thomas L., Jr.

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