Where attorney Frederick P. Kessler only suggested that another person make a misrepresentation, but did not make one himself, the disciplinary proceedings against him must be dismissed.
“The rule does, however, require that there be, at a minimum, a dishonest or deceitful statement or a misrepresentation. That did not occur in this case. Attorney Kessler’s statement suggested that Mrs. Moser make a misrepresentation in the future, but it did not itself make a false statement of fact. Moreover, Mrs. Moser apparently did not follow through with Attorney Kessler’s suggestion and she never made any false statement of fact about the source of her knowledge. Thus, we cannot find a violation of SCR 20:8.4(c) under the particular facts of this case. In addition, since we find that the OLR failed to establish a violation of any supreme court rule, we do not address Attorney Kessler’s First Amendment argument.” “Our application of the requirements of the rule, however, should not be interpreted to be an endorsement of Attorney Kessler’s behavior. Suggesting that someone not tell the truth is never laudable. If Attorney Kessler did not want Mrs. Moser to divulge his name, he could have simply asked her not to answer any question about the source of her knowledge of the Schudson letter. He should have advised her that if she chose to respond to a question about the source of her knowledge, she should reveal his identity.”
2008AP834-D OLR v. Kessler
Attorneys: For Appellant: Schwarzenbart, Paul W., Madison; Weigel, William J., Madison; For Respondent: Kessler, Frederick P., Milwaukee; O’Neill, Matthew W., Milwaukee; Levinson, Jeremy P., Milwaukee