2020 WI 39
SUPREME COURT OF WISCONSIN CASE NO.: 2018AP1781-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings Against Robert B. Moodie, Attorney at Law:
Office of Lawyer Regulation, Complainant-Respondent, v. Robert B. Moodie, Respondent-Appellant.
DISCIPLINARY PROCEEDINGS AGAINST MOODIE
OPINION FILED: April 22, 2020 SUBMITTED ON BRIEFS: ORAL ARGUMENT: January 13, 2020
SOURCE OF APPEAL: COURT: COUNTY: JUDGE:
JUSTICES: ZIEGLER, J. dissents, joined by ROGGENSACK, C. J. NOT PARTICIPATING: ANN WALSH BRADLEY, J. did not participate.
ATTORNEYS:
For the respondent-petitioner, there were briefs filed by Terry E. Johnson and von Briesen & Roper, S.C., Milwaukee. Oral argument by Terry E. Johnson.
For the complainant-respondent, there was a brief filed by Thomas Laitsch and Office of Lawyer Regulation, Madison. Oral argument by Thomas Laitsch. 2020 WI 39 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2018AP1781-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings Against Robert B. Moodie, Attorney at Law:
Office of Lawyer Regulation, FILED Complainant-Respondent, APR 22, 2020 v. Sheila T. Reiff Clerk of Supreme Court Robert B. Moodie,
Respondent-Appellant.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. This disciplinary matter comes to the
court on Attorney Robert B. Moodie's appeal of a report and
recommendation of Referee James W. Mohr, Jr. The referee based
his report in part on Attorney Moodie's stipulation to the two
counts of misconduct alleged in the Office of Lawyer Regulation's
(OLR) complaint involving his conversion of fees belonging to his
law firm to his personal use. Attorney Moodie reserved his right
to be heard on the matter of sanctions. After holding a hearing on sanctions and receiving post-hearing briefs, the referee issued No. 2018AP1781-D
a report recommending that the court suspend Attorney Moodie's law
license for a period of six months, and order Attorney Moodie to
pay the full costs of this proceeding, which total $6,081.63 as of
January 15, 2020.
¶2 When we review a referee's report and recommendation in
an attorney disciplinary case, we affirm the referee's findings of
fact unless they are found to be clearly erroneous, but we review
the referee's conclusions of law on a de novo basis. In re
Disciplinary Proceedings Against Inglimo, 2007 WI 126, ¶5, 305
Wis. 2d 71, 740 N.W.2d 125. We determine the appropriate level of
discipline to impose given the particular facts of each case,
independent of the referee's recommendation, but benefiting from
it. In re Disciplinary Proceedings Against Widule, 2003 WI 34,
¶44, 261 Wis. 2d 45, 660 N.W.2d 686.
¶3 After reviewing this matter and considering Attorney
Moodie's appeal, we accept the referee's factual findings and legal
conclusions based on the parties' stipulation. We agree with the
referee's recommendation that a six-month suspension is appropriate, despite Attorney Moodie's arguments to the contrary.
We order Attorney Moodie to pay the full costs of this disciplinary
hearing.
¶4 The OLR initiated this disciplinary proceeding with the
filing of a two-count complaint. Attorney Moodie filed an answer
in which he generally admitted the factual allegations of the
complaint, as well as the two counts of alleged misconduct.
Attorney Moodie later entered into a stipulation in which he pled no contest to the misconduct alleged in the complaint, and agreed 2 No. 2018AP1781-D
that the referee could use the allegations of the complaint as an
adequate factual basis for a determination of misconduct.
¶5 The referee's report accepted the parties' stipulation
and determined that the stipulated facts supported legal
conclusions that Attorney Moodie had engaged in the two counts of
misconduct alleged by the OLR. The referee's factual findings and
conclusions of law are described in the following paragraphs.
¶6 Attorney Moodie was admitted to practice law in
Wisconsin in 1982. He practiced at a law firm in Waukesha,
Wisconsin for over 30 years. He has no disciplinary history.
¶7 In September 2016, Attorney Moodie suffered a serious
health event resulting in a lengthy hospitalization. During
Attorney Moodie's absence, other members of the firm assumed
responsibility for his client files, including the management of
his billing. While handling Attorney Moodie's files and billing,
the firm discovered that over an 18-month period, Attorney Moodie
had converted fees in five client matters for his personal use.
It is undisputed that in some matters, he received billed fees directly from the client and failed to tender them to the firm; in
others, he collected money directly from the client and then wrote-
off his billable time. The converted fees totaled $8,665. Had
Attorney Moodie not converted these fees, he would have ultimately
received 55-60 percent of them under the terms of the firm's
compensation system.
¶8 In November 2016, after the firm discovered Attorney
Moodie's misappropriations, Attorney Moodie consented to the redemption of his shares in the firm, ending his employment there. 3 No. 2018AP1781-D
As part of the redemption, any claims by the firm against Attorney
Moodie were settled.
¶9 The firm reported Attorney Moodie's conduct to the OLR,
and the OLR commenced this disciplinary matter. As noted earlier,
Attorney Moodie stipulated to the two counts of misconduct alleged
by the OLR:
Count 1: By converting at least $8,665 in fees belonging
to his law firm for his own personal use, Attorney Moodie
violated SCR 20:8.4(c). That rule provides: "It is
professional misconduct for a lawyer to engage in
conduct involving dishonesty, fraud, deceit or
misrepresentation."
Count 2: By failing to tender and report to his law
firm fees that he received, and by misrepresenting
write-offs of billable time to his firm, Attorney Moodie
breached his fiduciary duty to his firm, and his duty of
honesty in his professional dealings with the firm, in
violation of the standard of conduct set forth in In re Disciplinary Proceedings Against Shea, 190 Wis. 2d 560,
527 N.W.2d 314 (1995). See SCR 20:8.4(f) (providing
that "[i]t is professional misconduct for a lawyer to
violate a statute, supreme court rule, supreme court
order or supreme court decision regulating the conduct
of lawyers.")
¶10 Referee Mohr held a sanctions hearing. Attorney Moodie
testified, and was at a loss to explain his actions. His household was not short of money. He and his law partners had had 4 No. 2018AP1781-D
professional disagreements, but he declined to categorize his
misappropriations as a form of retribution. He had health issues
and gambling issues during the period of his misconduct, but he
did not cite them as a reason for his misconduct, and he has not
raised a medical defense in these proceedings. Attorney Moodie
also confirmed that, under his firm's compensation system, he would
have ultimately collected between 55-60 percent of the $8,665 in
fees that he misappropriated, making his actions, in his words,
"just wrong and dumb."
¶11 In post-hearing briefing, the OLR asserted that a one-
year suspension was appropriate, whereas Attorney Moodie argued
that no more than a 60-day suspension was appropriate.
¶12 In his report, the referee recommended that the court
suspend Attorney Moodie's law license for six months. In making
this recommendation, the referee discussed various mitigating and
aggravating circumstances. On the mitigating side, the referee
noted that Attorney Moodie had been a member of his law firm for
over 30 years, without any past disciplinary issues. The amount of the misappropriation was relatively small, and Attorney Moodie
has repaid it. He has admitted his misconduct, cooperated with
the OLR, and expressed sincere remorse. On the aggravating side,
the referee noted that Attorney Moodie converted fees over a period
of 18 months, without any obvious motive. Considering these
circumstances together with the range of discipline imposed in
previous cases involving the misappropriation of firm funds, the
referee concluded that a six-month suspension was in order.
5 No. 2018AP1781-D
¶13 On appeal, Attorney Moodie argues that the referee's
recommended six-month suspension is excessive. He claims that
this case is most analogous to In Re Disciplinary Proceedings
Against Casey, 174 Wis. 2d 341, 496 N.W.2d 94 (1993), where the
court imposed a stipulated 60-day suspension on a lawyer who
misappropriated three client retainers totaling $2,300. Attorney
Moodie argues that his case involves a similar amount of clients
and money, and that he, like the respondent-lawyer in Casey,
stipulated to the misconduct in question. Thus, he reasons that
a 60-day suspension is as appropriate here as it was in Casey.
Attorney Moodie also argues that his conduct is mitigated by a
variety of factors, including that it was an inexplicable departure
from his normal character and from common sense. This is an
"unusual and baffling" case, he says, because "there was no cause,
basis[,] or motivation for the conversions." Attorney Moodie also
notes that a six-month suspension will require him to go through
the reinstatement process, see SCR 22.28(3), which can add as much
as 18 months on to a suspension period. Attorney Moodie claims that an "effective suspension" of two years "may well be the
equivalent of revocation" given his age and health issues.
¶14 The OLR responds that the facts and the law support the
recommended six-month suspension. The OLR argues that Attorney
Moodie engaged in an 18-month period of deceit and dishonesty, and
he presents no excuse for his behavior. His reliance on Casey is
misplaced, the OLR says, because the respondent-lawyer in Casey
was an inexperienced first-year associate, not a shareholder and trusted 30-year member of the firm. Moreover, the Casey court 6 No. 2018AP1781-D
announced that, going forward, the court would sanction a
misappropriation of firm funds as severely as a misappropriation
of client funds. Casey, 174 Wis. 2d at 341-43. The court has
held true to its word, the OLR says, as evidenced by such cases as
In re Disciplinary Proceedings Against Olson, 216 Wis. 2d 483, 574
N.W.2d 245 (1998) (one-year suspension for lawyer who wrote
himself unauthorized law firm checks totaling $11,250 from the
firm's bank account, and then deleted some of them from the firm's
check register), and In re Disciplinary Proceedings Against
Schaller, 2006 WI 40, 290 Wis. 2d 65, 713 N.W.2d 105 (two-year
suspension for lawyer who retained about $4,300 in client funds
for his own use, failed to report that money on his tax returns,
and practiced law for three-and-a-half months while his license
was administratively suspended). Finally, the OLR acknowledges
that a six-month suspension would require Attorney Moodie to go
through the formal reinstatement process——a positive consequence,
the OLR says, given that Attorney Moodie has no rational
justification for his behavior. His inability to explain his own actions makes it prudent to require him to prove his moral
character and fitness for re-licensure.
¶15 As we view the matter, the OLR has the better of the two
arguments. We agree with the OLR that Attorney Moodie's reliance
on Casey——where we imposed a 60-day suspension for the
misappropriation of three client retainers totaling $2,300——is
misplaced. Our modest 60-day suspension imposed in Casey came
with an explicit disclaimer: we issued it "on the basis of discipline previously imposed for similar misconduct." Casey, 174 7 No. 2018AP1781-D
Wis. 2d at 341 (emphasis added). "[L]est attorneys rely on our
disposition of this proceeding or prior proceedings involving
similar attorney misconduct," we explicitly directed the State Bar
to "bring to the attention of its members" the fact that "in the
future the court will treat an attorney's misappropriation of funds
belonging to another lawyer, associate or firm in practice with
that lawyer no differently than it treats misappropriation of funds
belonging to a lawyer's client," and this behavior "will be
disciplined severely." Id. at 341-43. In other words, we warned
in Casey that when it comes to modest 60-day suspensions for
misappropriation of firm funds, that was then, this is now, and
things have changed. And so they have: since Casey, we have
consistently imposed suspensions of at least six months for
misappropriations of firm funds.1 The six-month suspension imposed
here fits comfortably within this caselaw.
1 See In Re Disciplinary Proceedings Against Curran, 180 Wis. 2d 540, 509 N.W.2d 429 (1994) (imposing two-year suspension); In Re Disciplinary Proceedings Against Shea, 190 Wis. 2d 560, 527 N.W.2d 314 (1995) (imposing six-month suspension); In Re Disciplinary Proceedings Against Olson, 216 Wis. 2d 483, 574 N.W.2d 245 (1998) (imposing one-year suspension); In Re Disciplinary Proceedings Against Brown, 2005 WI 49, 280 Wis. 2d 44, 695 N.W.2d 295 (imposing 18-month suspension); In Re Disciplinary Proceedings Against Peterson, 2006 WI 41, 290 Wis. 2d 74, 713 N.W.2d 101 (imposing two-year suspension); In Re Disciplinary Proceedings Against Schaller, 2006 WI 40, 290 Wis. 2d 65, 713 N.W.2d 105 (imposing two-year suspension); In Re Disciplinary Proceedings Against Siderits, 2013 WI 2, 345 Wis. 2d 89, 824 N.W.2d 812 (imposing one-year suspension); In Re Disciplinary Proceedings Against Koenig, 2015 WI 16, 361 Wis. 2d 16, 859 N.W.2d 105 (imposing two-year suspension); In Re Disciplinary Proceedings Against Hotvedt, 2016 WI 93, 372 Wis. 2d 68, 888 N.W.2d 393 (imposing 18-month suspension); In Re Disciplinary Proceedings Against Trupke, 2018 WI 43, 381 Wis. 2d 136, 911 N.W.2d 361 (imposing one-year suspension). 8 No. 2018AP1781-D
¶16 We also hold that the fact that we only know what
Attorney Moodie did (misappropriate firm funds) and how he did it
(billing improprieties), and have no idea why he did do so, cuts
against an argument of mitigation. When it comes to evaluating
the discipline owed for a lawyer's misconduct, the "why" is often
as important as the "what" and the "how." We decline to establish
a precedent whereby the lack of a rational explanation for a
lawyer's misconduct serves to mitigate the sanction owed for it.
A shrug of the shoulders is not a defense.
¶17 If anything, Attorney Moodie's inability to explain his
behavior weighs in favor of a six-month suspension, which will
require him to successfully complete the formal reinstatement
process in order to regain his Wisconsin law license. See SCRs
22.29–22.33. This process will require Attorney Moodie to fully
account for his moral lapses and explain how they have been
addressed to ensure they will not happen again. See SCR 22.31;
see also In re Disciplinary Proceedings Against Arthur, 2005 WI
40, ¶78, 279 Wis. 2d 583, 694 N.W.2d 910 (lawyer disciplinary system aims to prevent unethical lawyers from repeating their
misconduct). As for Attorney Moodie's claim that the length of
the reinstatement process may preclude him from practicing again
given his age and health, we have made clear that we will not
"countenance a rule that would soft-pedal the discipline owed to
attorneys" who commit misconduct "so long as they do so in the
twilight of their careers." In re Disciplinary Proceedings Against
Carter, 2014 WI 126, ¶26, 359 Wis. 2d 70, 856 N.W.2d 595.
9 No. 2018AP1781-D
¶18 We do not, however, impose the condition of
reinstatement recommended by the referee:
that in the event Attorney Moodie's law license is restored and he resumes practice, it be on the condition that for a period of three years following such restoration, he practice only as a sole proprietor or as an employee, and not as a partner or shareholder in a law firm. Neither party has voiced support for this condition. It is
unclear how requiring Attorney Moodie to practice as a sole proprietor, with no collegial oversight, or as an employee would
deter future misconduct of the type that occurred here.
Consequently, we decline to impose this recommended condition of
reinstatement.
¶19 Because Attorney Moodie has already made full
restitution to his former firm, no restitution award is sought,
and none is ordered.
¶20 Finally, as is our general practice, we impose full costs
on Attorney Moodie, which total $6,081.63 as of January 15, 2020.
Neither the OLR nor Attorney Moodie challenges the imposition of
full costs.
¶21 IT IS ORDERED that the license of Robert B. Moodie to
practice law in Wisconsin is suspended for a period of six months,
effective June 3, 2020.
¶22 IT IS FURTHER ORDERED that within 60 days of the date of
this order, Robert B. Moodie shall pay to the Office of Lawyer
Regulation the costs of this proceeding, which are $6,081.63 as of
10 No. 2018AP1781-D
¶23 IT IS FURTHER ORDERED that, to the extent that he has
not already done so, Robert B. Moodie shall comply with the
provisions of SCR 22.26 concerning the duties of a person whose
license to practice law in Wisconsin has been suspended.
¶24 IT IS FURTHER ORDERED that compliance with all
conditions with this order is required for reinstatement. See
SCR 22.29(4)(c).
¶25 ANN WALSH BRADLEY, J., did not participate.
11 No. 2018AP1781-D.akz
¶26 ANNETTE KINGSLAND ZIEGLER, J. (dissenting). I
respectfully dissent because I believe that when it comes to lawyer
discipline, courts should say what they mean and mean what they
say, and here the discipline imposed will far exceed that which is
stated. While we have consistently said there is no fixed formula
for determining the "right" amount of lawyer discipline, that
amounts to lip service because here we abdicate the responsibility
we have to individualize our determinations when it comes to lawyer
discipline and should not instead default to a mandatory minimum
set in another case based upon other facts. See, e.g., In re
Disciplinary Proceedings Against Siderits, 2013 WI 2, ¶33, 345
Wis. 2d 89, 824 N.W.2d 812, (acknowledging that the imposition of
discipline in attorney disciplinary cases "is not an exact
science"). Each case is different, we say, and discipline must be
tailored to each case's unique facts. See id., ¶¶31-32. Here,
the court imposes what it views as a mandatory minimum six-month
suspension of Attorney Moodie's license even though, in reality,
a six-month suspension may very well be three or four times that amount because of the required reinstatement process. See SCRs
22.29-22.33. In other words, for Attorney Moodie, a six-month
suspension could be two years and perhaps the equivalent of
revocation. Here, that is excessive. We should decide each case
independently.
¶27 The referee concluded that here any suspension must be
for a minimum period of six months because a previous case stated
as much and the cases in its wake have gone no lower. See In re Disciplinary Proceedings Against Casey, 174 Wis. 2d 341, 341-42,
1 No. 2018AP1781-D.akz
496 N.W.2d 94 (1993); see, e.g., In re Disciplinary Proceedings
Against Shea, 190 Wis. 2d 560, 572, 527 N.W.2d 314 (1995). I
disagree that this court, when essentially acting as the
"sentencing" decision maker in a lawyer discipline case, is forever
hamstrung from exercising any discretion. I disagree that we are
bound to a mandatory minimum six-month penalty because of other
fact-dependent cases. I disagree that we should have judicially
imposed automatic mandatory minimum penalties for all such cases
going forward no matter the evidence. If we so constrain
ourselves, there is little room for judicial decision making or
case-specific determinations, and we abdicate our responsibility
to weigh and consider what is appropriate discipline in each
individual case. We should not be so robotically confined.
¶28 The record below demonstrates that absent this perceived
constraint, the referee's recommendation would likely have been
less than six months and definitely not for up to two years. The
record makes clear that Attorney Moodie's case was notably
different than the cases relied upon by the OLR. For example, Attorney Moodie's conduct is less severe than that in Shea. In
fact, as the referee noted, there are numerous mitigating
circumstances present in this case:
[Attorney Moodie] was the senior partner in a well- established and well-respected firm, having been a member of the firm for over 30 years, he has no prior disciplinary record, the amount taken by [Attorney Moodie] which should have gone to his partners (approximately $3,000 to $3,500) was relatively small and has been fully repaid, he and his firm have resolved all issues between them[.]
2 No. 2018AP1781-D.akz
¶29 The referee's findings further reflect that Attorney
Moodie was forthright and sincere. The referee noted:
[Attorney Moodie] has admitted his misconduct, is extremely and sincerely remorseful for it, and has fully cooperated in the OLR investigation, stipulating to all of the relevant facts. ¶30 In addition, Attorney Moodie apparently had a heart
attack and resultant health issues that will affect his practice
of law, may have played a role in the violation at issue, and ought
to be considered to some degree. From the record, it appears that
his conduct is completely out of character and will not occur
again. There is virtually no chance Attorney Moodie will work
with other lawyers in a law firm setting again. He is not then a
threat to taking other lawyers' money. The record also reflects
that the amounts he converted may have ultimately been due to him.
The evidence here reveals that unlike some, Attorney Moodie is not
a threat to the legal profession, clients, or others as his
practice will be significantly limited because of his health. A
suspension less than six months is appropriate in this case, and
therefore I would suspend Attorney Moodie's license for five months and 28 days, which really is six months.
¶31 This court ties its hands when it claims that Wisconsin
precedent establishes a six-month suspension floor. In fact, in
Casey, this court imposed a 60-day suspension for an attorney who
misappropriated three client retainers rather than those funds
going to his partners. 174 Wis. 2d at 342. Like this case,
Attorney Casey stipulated to his wrongful conduct and the court agreed and suspended him for 60 days. Id. The referee in this
case, however, felt constrained by the fact that this court has 3 No. 2018AP1781-D.akz
not imposed discipline shorter than six months since Casey. The
referee explained how Shea was distinguishable because the amount
converted in Shea far exceeded that in the case at issue; unlike
Attorney Moodie, Attorney Shea engaged in misconduct for years;
and unlike Attorney Moodie, Attorney Shea justified and concealed
the conversions by misrepresenting facts to the partners of his
firm. See, e.g., Shea, 190 Wis. 2d at 561-62, 572.
¶32 We should not shirk our duty to carefully consider each
matter independently, taking into account the gravity of Attorney
Moodie's offense, its nature, implications on the legal
profession, and the need to protect the public. Reasonable and
appropriate discipline should be determined on a case-specific
basis. What is necessary to protect the public from a part-time,
limited solo practitioner who works primarily for friends and long-
time clients? Does Attorney Moodie understand the gravity of his
behavior and misconduct? Has he admitted to the wrongdoing,
stipulated to the facts, cooperated fully, and has since seemingly
done everything the right way? The answers to these questions and the evidence in this case should impact what is fair and
appropriate. The six-month suspension imposed by this court could
very well be the equivalent of two years and/or a revocation, given
Attorney Moodie's age and health issues. Six months is too much;
I would impose the equivalent of what the court says it is imposing
as discipline, or five months and 28 days.
¶33 Just as I recently stated in my dissent to this court's
order denying Rule Petition 19-10, In the Matter of Amending Supreme Court Rules Pertaining to Permanent Revocation of a License
4 No. 2018AP1781-D.akz
to Practice Law in Attorney Disciplinary Proceedings, we should
say what we mean and mean what we say. See S. Ct. Order 19-10
(issued Dec. 18, 2019) (Ziegler, J., dissenting). We should not
be creating false perceptions to both the public and to the lawyer
seeking to practice law again. When this court ties its own hands
by instead of providing individualized consideration for a
disciplinary matter, setting a mandatory minimum six-month
suspension (which amounts to far more, perhaps four times that
length), the court abdicates its responsibility.
¶34 For the foregoing reasons, I dissent.
¶35 I am authorized to state that Chief Justice PATIENCE
DRAKE ROGGENSACK joins this dissent.
5 No. 2018AP1781-D.akz