The Office of Lawyer Regulation won’t appeal a referee’s report finding that a Saukville attorney in fact hadn’t violated an attorney-ethics rule that the agency had alleged he had broken.
The OLR last year charged Perry Lieuallen with one count of misconduct stemming from his defense of a client in Waukesha County Circuit Court against charges of stalking, criminal damage to property and criminal trespassing involving the client’s girlfriend.
After being found guilty by a jury, the defendant was sentenced to three and a half years in prison. His conviction, though, was overturned on the grounds that Lieuallen had failed to interview 20 witnesses who, had they been spoken to or subpoenaed, would have testified that his relationship with his girlfriend had been different than what the prosecution had told the jury.
The OLR alleged that Lieuallen’s failure to interview those witnesses, among other things, amounted to a violation of an attorney-ethics rule requiring lawyers to act diligently and promptly when representing clients.
The OLR had asked the Wisconsin Supreme Court to publicly reprimand Lieuallen.
Lieuallen filed an answer admitting to some of the facts in the OLR’s complaint but denying that he had broken any attorney-ethics rule and asking that the complaint be dismissed. He is being represented in the dispute by Terry Johnson of von Briesen & Roper in Milwaukee.
The court-appointed referee overseeing the case, Kim Peterson, held an evidentiary hearing in August. Peterson filed a report on Nov. 14 finding that the OLR had not produced clear and convincing evidence showing that Lieuallen had failed to act diligently and promptly while representing his client.
Peterson reasoned that Lieuallen had conducted a reasonable investigation even though he had not interviewed in person the 20 or so witnesses his client had suggested he talk to. Peterson noted that one of the investigators used in the case was related to Lieuallen’s client and knew many of the witnesses, from whom he had collected detailed information.
The OLR had also contended that Lieuallen broke the attorney-ethics rule in question because Lieuallen had failed to call anyone in to testify except for his client. Peterson disagreed, writing that Lieuallen had been pursuing a valid trial strategy when he decided not to call those witnesses. If the witnesses had taken the stand, Peterson reasoned, they might have testified in a way that harmed the client’s defense.
Peterson likewise rejected the OLR’s argument that Lieuallen had violated ethics rules by grounding his arguments on a timeline of events that differed from the one presented by the prosecution.
Peterson wrote that it was clear that Lieuallen had made a mistake but that mistake by itself had not amounted to a lack of reasonable diligence. Peterson noted that it was “logical” because the time frame Lieuallen had used was the one stated in the criminal complaint. She also noted that the most important evidence in the four months that Lieuallen had failed to properly take into account consisted of phone calls between the client and his ex-girlfriend. She said getting more data about those calls would not have added anything to the defense’s case.
“Moreover, this error was not made because of a lack of effort or procrastination, it was made because Mr. Lieuallen was focusing on the probable cause statement rather than the information,” Peterson wrote. “This one mistake does not, in and of itself, demonstrate a lack of diligence.”
Keith Sellen, director of the OLR, said on Wednesday that his office informed the court on Tuesday that it will not be appealing Peterson’s decision, which will now go before the Supreme Court for a final review.Follow @erikastrebel