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Fraud not required for misconduct

Judge Joan F. Kessler

Judge Joan F. Kessler

The Wisconsin Supreme Court has dismissed the disciplinary actions against Court of Appeals Judge Joan F. Kessler, and her husband, legislator Frederick P. Kessler.

The subject matter of the actions — conduct that occurred during Judge Kessler’s successful election campaign — may seem far removed from most attorneys’ practices.

But the Oct. 14 opinion involving Fred Kessler contains a legal holding that is relevant to all — an attorney can violate SCR 20:8.4 by making an untrue or deceptive statement, even if there is no intent to defraud anyone.

The cases against the Kesslers arose during Judge Kessler’s 2004 campaign to unseat the incumbent, Charles B. Schudson.

Fred Kessler became aware of a letter Judge Schudson wrote to U.S. District Court Judge Charles Clevert, Jr., asking for leniency for a defendant awaiting sentencing before him. Concluding that the letter violated SCR 60.03(2), but seeking anonymity, Kessler asked a third party to file a complaint against Schudson with the Wisconsin Judicial Commission.

When the third party asked how she should respond if questioned how she learned about the letter, Kessler said she should say she heard about it at a cocktail party.

When OLR began investigating the complaint, Kessler told the third party that she should tell the truth.

A complaint was later filed against Kessler, alleging that he violated SCR 20:8.4(a) and (c), by inducing and assisting the third party to file the complaint with the Judicial Commission for the purpose of concealing that he and/or the campaign was the true source of the information, and by advising her that, if asked, she should falsely state she learned about the matter at a cocktail party.

SCR 20:8.4(a) and (c) state it is professional misconduct for a lawyer to: “(a) violate or attempt to violate the Rules of Professional Conduct, knowingly

assist or induce another to do so, or do so through the acts of another;” and

“(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”

The referee concluded that, because Kessler’s directive was not used to defraud another, it did not violate the rule, and recommended dismissal.

In a per curiam opinion, the Supreme Court disagreed with the legal interpretation, but nevertheless dismissed the complaint.

Rejecting the requirement that there be an intent to defraud, the court concluded, “There is no language in SCR 20:8.4(c) or in prior attorney regulatory cases that would engraft onto the rule a requirement that a deceitful statement must be actually used to defraud someone before a rule violation may be found.”

Nevertheless, the court found that the “cocktail party” suggestion did not violate the rule, because it did not contain any misrepresentation. The court explained, “Kessler did not tell Mrs. Moser that he had learned of the Schudson letter at a cocktail party or that Judge Schudson had telephoned Judge

Clevert as well as wrote a letter.”

The court found that Kessler only suggested that she make a misrepresentation if confronted with a particular situation, but that she never actually made the misrepresentation.

It added that, had she actually made the statement pursuant to Kessler’s suggestion, we would be confronted by a different case.

But before concluding, the court cautioned, “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.”

The case is OLR v. Frederick P. Kessler, No. 2008AP834-D

David Ziemer can be reached at david.ziemer@wislawjournal.com.




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