High court to decide Madison attorney’s appeal of 120-day suspension

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The Wisconsin Supreme Court is scheduled in October to decide whether to adopt a referee’s recommendation that a Madison attorney’s license be suspended for 120 days.

The referee’s report stems from an OLR complaint filed in 2015 charging Steven Cohen with four counts of misconduct.

One of the counts stems from a criminal conviction from 2014 for smuggling a toothbrush and pepper to a client in the Columbia Correctional Institution in Portage and lying to prison officials about it. He pleaded no contest to one felony count of delivering illegal articles to an inmate, one misdemeanor count of resisting or obstructing an officer and one count of misdemeanor disorderly conduct.  Cohen was sentenced to 60 days in jail, as well as two years of probation.

According to the other allegations, he failed to return a client’s calls, failed to explain a fee agreement in writing to that client and lied to the OLR during an investigation.

The OLR, represented by the litigation counsel William Weigel and retained counsel Denis Vogel of Wheeler Van Sickle & Anderson in Madison, had sought a 60-day suspension for the alleged misconduct.

After a hearing last July, the court-appointed referee in the case, James Boll, filed a report last August recommending that Cohen’s license be suspend for 120 days, twice the length of the discipline the OLR had asked for.

Boll noted that Cohen, who is representing himself, had produced no mitigating evidence, showed “no remorse and demonstrated contempt for the proceedings” and brought nothing to the hearing.

Richard Cayo, a professional responsibility lawyer at Halling & Cayo, said referees from time to time will suggest more discipline than is recommended by the OLR. It’s one of the risks whenever a disciplinary case is tried, he said. From a defense attorney’s perspective, he thinks such requests rest on shaky ground.

“I think it’s rarely appropriate for the referee to increase the sanction because it’s the OLR’s role to prosecute these matters and generally protect the public,” Cayo said.

Cohen appealed Boll’s recommendations in September.

Cohen is arguing that there was not enough evidence showing that he had insufficiently communicated with a client. He also argued that Boll had failed to consider mitigating circumstances involving that charge, including that Cohen gave clients his cellphone number.

Cohen is also contending that it was not clear from evidence presented at the trial that he had not promptly returned clients’ phone calls. He noted there was no evidence showing how much time had passed between the calls and no evidence of what the calls were about.

Cohen is also arguing that Boll had failed to consider mitigating circumstances surrounding the convictions involving smuggling contraband to an inmate.

He contends that he pointed out the toothbrush and pepper to prison officials when he entered the building. He said his intent was to help the inmate as part of charitable work Cohen was doing to deal with his divorce.

Cayo said Cohen’s objection to Boll’s recommendations are symptomatic of the difficulties lawyers tend to encounter when representing themselves in disciplinary cases, something they often do.

Cayo says self-representation is unwise for two reasons: one, it’s tough to sound credible when you’re trying to defend yourself in front of a referee; and, two, there’s a lack of objectivity given what’s at stake.

Nevertheless, lawyers like Cohen often take the do-it-yourself route out of necessity.

“It happens because, frequently, lawyers in those positions can’t afford counsel,” Cayo said.

The OLR, on the other hand, is contending that Boll’s recommendations are not clearly erroneous and that his legal conclusions were supported by the record.

The OLR is also arguing that the 120-day suspension is appropriate in light of the disciplinary case of the Racine bankruptcy attorney William Moss, whose license the court suspended in 2003 for 90 days in response to his delivering cigarettes to inmates at the Racine County jail over the course of several years.

The OLR countered by arguing that the toothbrushes and pepper Cohen had tried to bring in to the Columbia Correctional Institute were more dangerous than cigarettes because they could be used as weapons such as makeshift knives and pepper spray.

The OLR also noted that Boll based his recommendation on precedent as well as Cohen’s failure to defend his actions and Cohen’s lack of credibility as a witness.

The agency also noted that neither length of discipline would require Cohen to have a full hearing before his license could be reinstated. Lawyers whose licenses are suspended for six months or longer cannot be reinstated without first petitioning the court, meaning they must provide evidence at a hearing that they are fit to return to practice.

The OLR is typically given an opportunity to oppose these petitions. For lawyers whose licenses the court suspended for less than six months, reinstatement only requires an affidavit and does not afford the OLR an opportunity to object.

This is not Cohen’s first run-in with the OLR. Cohen, who graduated from the University of Wisconsin Law School in 1996, was privately reprimanded in 2007. His license is in good standing. Follow @erikastrebel