Attorney Discipline — Part I

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Drug trafficking, income tax evasion, trust account overdrafts and mishandling of client funds are some of the offenses which resulted in disciplinary action against Wisconsin attorneys in 2007.

The state Supreme Court issued opinions on 49 actions brought by the Office of Lawyer Regulation (OLR) ranging from public reprimand to revocation.

The most common actions taken by the court were nine license revocations and an equal number of 60-day suspensions for attorneys. Determining what disciplinary action an attorney’s misconduct merits is the responsibility of the seven justices on the high court.

“A number of times people have said you are not tough enough on those attorneys and that is a perfectly fair criticism to make,” said Justice David T. Prosser, Jr. “On the other hand, we are trying to follow precedent so it’s a little like trying to turn a battleship around.”

“If you want disciplines to be more severe, you can’t take the same type of case you had two years ago and just double the penalty,” continued Prosser.

When it comes to judging the severity of misconduct or the probability of reinstatement, Prosser said the court looks to prior precedent when determining action against attorneys as well as the recommendation set forth by an appointed referee.

In the majority of cases, the recommendation made by OLR is the one the court adopts, according to OLR Director Keith Sellen. Of the 43 cases in which disciplinary action was taken last year, 33 were the sanctions originally recommended by OLR.

Sellen said it was logical to expect a correlation between the recommendations made by OLR and those adopted by the court.

“It shows that we do see things consistently, but there should also be some variation,” said Sellen, who indicated it is not OLR policy to praise or condemn the level of punishment the court levies against attorneys.

Independent Court

Sellen did acknowledge the ability of the court to stray from the recommendation of OLR or the assigned referee.

In 2007, the court imposed stiffer penalties than recommended by OLR on three occasions and in five cases issued lighter sentences.

“We don’t want things to be done automatically and this shows the court is thinking critically about these issues,” continued Sellen. “As you can see from the cases, they look at these and exercise their own independent discretion and I think that’s perfectly appropriate.”

That was evident in two separate suspensions involving tax evasion imposed by the court on May 30.

Attorney Mark A. Phillips was given a three-year suspension stemming from his conviction for federal income tax evasion, while a similar case against attorney Hazel J. Washington warranted only an 18-month suspension.

While both had pled guilty and served time in federal prison, the court and OLR cited Phillips’ previous one-year suspension for failing to file state income tax returns from 1998-2001 and reluctance to comply with proceedings as factors in the imposition of a longer sentence.

The court stated that “the presence of the prior disciplinary action calls for a stronger sanction here,” and “moreover, as the referee noted, Attorney Phillips has not exhibited remorse for his actions.”

At a 2006 hearing, Phillips argued that because the alleged misconduct was part of a “continuing enterprise of borrowing the money and not paying my taxes,” additional discipline was unwarranted.

In a letter to the court, Phillips stated that “in light of my twenty-five (25) years of practice, a six (6) month additional suspension, if any, is more appropriate.”

Referee Richard M. Esenberg disagreed with the contention and in the published opinion he was cited as saying that he was “tempted to recommend revocation.” Both OLR and Esenberg suggested a three-year suspension.

Justifying Punishment

The same day, the court issued an 18-month suspension for Washington who pled guilty to one count of attempting to evade and defeat payment of a large portion of her federal income tax liability for 1998.

Washington argued that because of mitigating factors in her case, including the lack of a prior disciplinary history, her self-reporting to and cooperation with the OLR, and the lack of direct harm to her clients, the discipline should be on the lower end of the spectrum.

Though both OLR and referee Kathleen Callan Brady recommended a one-year suspension, the court ruled that an 18-month sentence was more appropriate because of the similarities to the Phillips’ case.

The court stated that a “one-year suspension in this case would pose too great a disparity with the three-year suspension we impose today in Phillips II. With the 18-month suspension we impose on Attorney Washington, she still is receiving a suspension that is half as long as the 3-year suspension that Attorney Phillips is receiving.”

Sellen said that past disciplines can certainly impact future recommendations along with patterns of wrongdoing, or lack thereof.

In tax-related cases, he said the nature of the violation, failure to file versus failure or inability to pay and whether an attorney engaged in deceitful or fraudulent behavior are all considered when recommending discipline.

“You’ll see some differences between a person who didn’t file for a year or two, with someone who didn’t file for seven or eight years,” said Sellen.

Next week, look for a review of the types of actions that led to revocation and suspension.