In re Disciplinary Proceedings against Eisenberg

363 N.W.2d 430, 122 Wis. 2d 627, 1985 Wisc. LEXIS 2201
CourtWisconsin Supreme Court
DecidedMarch 5, 1985
DocketNo. 82-1914-D
StatusPublished
Cited by10 cases

This text of 363 N.W.2d 430 (In re Disciplinary Proceedings against Eisenberg) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Disciplinary Proceedings against Eisenberg, 363 N.W.2d 430, 122 Wis. 2d 627, 1985 Wisc. LEXIS 2201 (Wis. 1985).

Opinion

PER CURIAM.

Petition for reinstatement; reinstatement denied.

The court suspended the license of Attorney Donald S. Eisenberg to practice law in Wisconsin for a period of six months, effective April 1, 1984, for unprofessional conduct. Disciplinary Proceedings Against Eisenberg, 117 Wis. 2d 332, 344 N.W.2d 169 (1984). Attorney [628]*628Eisenberg filed a petition for reinstatement of his license pursuant to SCR 21.11 and 22.28. Following its investigation of the moral character of the petitioner, the Board of Attorneys Professional Responsibility (Board) reported its findings to the court and recommended that the reinstatement of Attorney Eisenberg’s license be denied on the grounds that he engaged in the practice of law while his license was suspended, in violation of SCR 22.26(2),1 that by his continued use of law office letterhead stationery and by designating himself as attorney in correspondence he purported to be licensed to practice in Wisconsin even though his license was suspended, that he failed to timely disclose the fact of his license suspension in Wisconsin to a client or the court in which he appeared on his client’s behalf, and that he practiced in two federal jurisdictions in which he was not authorized to practice and contrary to the rules of those jurisdictions.

Attorney Eisenberg has not met his burden of demonstrating that he has fully complied with the terms of the order suspending his license and that he is entitled to the reinstatement of his license to practice law in Wisconsin, SCR 22.28(6) ;2 accordingly, we deny his petition for [629]*629reinstatement. SCR 22.28(8) prohibits an attorney from again petitioning for reinstatement within one year following the denial of a petition for reinstatement. Because we conclude that this rule would result in too severe discipline for Attorney Eisenberg’s failure to comply with our suspension order, we will permit him to apply for reinstatement of his license 90 days from the date of this order.

The Board’s findings of fact are not disputed. In October, 1984, after six months had passed from the effective date of the suspension of Attorney Eisenberg’s license but before his license had been reinstated by order of the court, Mr. Eisenberg undertook the representation of a man convicted of mail fraud in the United States District Court for the Central District of California. Mr. Eisenberg requested and was paid a $5,000 retainer and was substituted as the man’s counsel to have the sentence vacated. He signed the substitution of attorney form as “Donald S. Eisenberg/Eisenberg Law Offices,” but at the time he signed that form, he was not a member of Eisenberg Law Offices. Further, the form contained language stating that the person signing it was “duly admitted to practice” in the Central District of California, but Mr. Eisenberg had never been admitted as a member of the bar of that district, although he had appeared there on at least two occasions as an attorney pro hac vice.

Between October 17 and November 2, 1984, Mr. Eisen-berg submitted a notice of motion and motion to vacate sentence, a stipulation, a notice of withdrawal of appeal and a memorandum of points and authorities in support of the motion to vacate sentence, each document bearing the heading “EISENBERG LAW OFFICES” and a Madison address. He signed each document “EISEN-BERG LAW OFFICES/By /s/ Donald S. Eisenberg,” [630]*630listing the law office address. Between those same dates, Mr. Eisenberg wrote several letters, including one to the judge in the case, using letterhead stationery of a law firm of which Mr. Eisenberg had been a partner but which had been dissolved. In his correspondence, Mr. Eisenberg struck over the name of the former firm and substituted “Eisenberg Law Offices.” Mr. Eisenberg’s name was listed in that letterhead together with those attorneys who had been in the former firm. Mr. Eisen-berg signed his letter to the judge “EISENBERG LAW OFFICES/By /s/ Donald S. Eisenberg.”

Although the Central District’s local rules require an attorney to obtain permission to practice before the court prior to the submission of pleadings or other documents, and the application for permission requires disclosure of an attorney’s status in the jurisdictions to which he has been admitted, Mr. Eisenberg did not disclose that his license had been suspended in Wisconsin until November 21, 1984, and only after that fact had been discovered by the prosecutor in the federal action. When informed of Mr. Eisenberg’s suspension, the federal judge denied Mr. Eisenberg permission to appear and refused to consider the matter of his Wisconsin suspension, but he permitted Attorney Mark Eisenberg, a son of Mr. Eisen-berg and an attorney licensed to practice in Wisconsin, to appear on behalf of the defendant.

In connection with the same matter, Mr. Eisenberg had directed California counsel to take an appeal from the client’s judgment of conviction. Although he had previously been a member in good standing of the U.S. Court of Appeals for the Ninth Circuit, where the appeal was pending, Mr. Eisenberg was suspended by the Ninth Circuit for six months, effective June 5, 1984, on the basis of his license having been suspended in Wisconsin. Mr. Eisenberg filed a stipulation for dismissal of the appeal with the Ninth Circuit, notwithstanding that he [631]*631was suspended from practice before that court at the time, and the document bore the heading “EISENBERG LAW OFFICES” as attorney for the appellant, and the document was signed “EISENBERG LAW OFFICES/ By /s/ Donald S. Eisenberg.” The cover letter accompanying that document bore the letterhead of the former firm in which Mr. Eisenberg had practiced.

While this criminal matter was pending in California, Mr. Eisenberg’s client was the defendant in a civil action pending in federal court in Wisconsin. On October 18, 1984 Mr. Eisenberg telephoned the office of the attorneys representing the plaintiff in that action, but the attorney who was handling the matter was not available. He asked that she return his call, leaving the telephone number of Eisenberg Law Offices in Madison. When the attorney returned Mr. Eisenberg’s call, he discussed the civil case briefly and suggested she talk to her client about the possibility of settlement.

Mr. Eisenberg admitted having practiced law while his license was suspended, but he insisted that it was an isolated occurrence and that he had reason to believe that he could practice in the federal courts without violating this court’s rules. Mr. Eisenberg asked the Board to recommend his reinstatement effective April 1, 1985, that is, one full year after his original six-month suspension began, and he argued that such extension of his original suspension would be “fair and justified.” In support of his position he cited Disciplinary Proceedings Against Eisenberg, 96 Wis. 2d 342, 291 N.W.2d 565 (1980), in which the court refused to deny reinstatement of Attorney Sydney Eisenberg’s license to practice law on the ground that he had engaged in the practice of law while suspended, despite a referee’s recommendation for denial, for the reason that the rule preventing Attorney Eisenberg from again petitioning for reinstatement for one year would make that denial too severe.

[632]

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Bluebook (online)
363 N.W.2d 430, 122 Wis. 2d 627, 1985 Wisc. LEXIS 2201, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-disciplinary-proceedings-against-eisenberg-wis-1985.