2017 WI 96
SUPREME COURT OF WISCONSIN CASE NO.: 2015AP1350-D COMPLETE TITLE: In the Matter of Disciplinary Proceedings Against Steven Cohen, Attorney at Law:
Office of Lawyer Regulation, Complainant-Respondent, v. Steven Cohen, Respondent-Petitioner.
DISCIPLINARY PROCEEDINGS AGAINST COHEN
OPINION FILED: November 17, 2017 SUBMITTED ON BRIEFS: June 20, 2017 ORAL ARGUMENT:
SOURCE OF APPEAL: COURT: COUNTY: JUDGE:
JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING:
ATTORNEYS:
For the respondent-petitioner, there was a brief filed by Steven M. Cohen and Cohen Law Office, Madison.
For the complainant-respondent there was a brief filed by Denis R. Vogel and Wheeler, Van Sickle & Anderson, S.C., Madison. 2017 WI 96 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2015AP1350-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings Against Steven Cohen, Attorney at Law:
Office of Lawyer Regulation, FILED Complainant-Respondent, NOV 17, 2017 v. Diane M. Fremgen Clerk of Supreme Court Steven Cohen,
Respondent-Petitioner.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. Attorney Steven Cohen has appealed a
report filed by Referee James C. Boll, Jr. concluding that
Attorney Cohen committed four counts of professional misconduct
and recommending that Attorney Cohen's license to practice law
in Wisconsin be suspended for four months. Attorney Cohen
entered into a stipulation whereby he agreed that the facts
alleged in the amended complaint filed by the Office of Lawyer Regulation (OLR) could be used to form a basis for his No. 2015AP1350-D
admissions to the first three counts of misconduct alleged in
the amended complaint. In his appeal, Attorney Cohen argues
that the evidence was insufficient to support the referee's
finding of misconduct with respect to count four of the amended
complaint. He also argues that mitigating circumstances support
a lesser sanction than the four-month suspension recommended by
the referee.
¶2 Upon careful review of this matter, we uphold all of
the referee's findings of fact and conclusions of law and
conclude that a four-month suspension of Attorney Cohen's
license to practice law is an appropriate sanction for his
misconduct. As is our usual custom, we also find that Attorney
Cohen should be required to pay the full costs of this
proceeding, which are $8,608.20 as of July 10, 2017.
¶3 Attorney Cohen was admitted to practice law in
Wisconsin in 1996. He practices in Madison, Wisconsin. In
2007, he received a private reprimand as the result of a
conviction for one count of misdemeanor disorderly conduct that stemmed from an altercation involving Attorney Cohen and his
wife. See Private Reprimand No. 2007-28 (electronic copy
available at
https://compendium.wicourts.gov/app/raw/002019.html).
¶4 On July 8, 2015, the OLR filed a complaint against
Attorney Cohen. Attorney Cohen filed an answer on August 10,
2015. The referee was appointed on October 15, 2015. The OLR
filed an amended complaint on March 3, 2016.
2 No. 2015AP1350-D
¶5 Count one of the amended complaint arose out of an
incident that occurred in the course of Attorney Cohen's
representation of R.S., who is serving a life sentence for a
homicide conviction. On October 18, 2013, Attorney Cohen
traveled to the Columbia Correctional Institution to meet with
R.S. Attorney Cohen carried with him a black bag containing
pens, transcripts, and papers. He also brought a white pastry
bag containing two crème-filled donuts and hard boiled eggs.
Attorney Cohen informed correctional officers that he had
brought his lunch with him.
¶6 Attorney Cohen met with R.S. for several hours. At
some point correctional officers moved them to a different room.
When leaving the room, R.S. threw Attorney Cohen's white pastry
bag into a trash container. An officer searched the discarded
bag and found a leftover donut and a toothbrush package with the
toothbrushes removed. A subsequent search of R.S. and his
belongings revealed two toothbrushes and a 1.5 ounce container
of McCormick brand red pepper. The toothbrushes and pepper had been secreted by Attorney Cohen into the prison in a legal
folder.
¶7 According to prison authorities, the toothbrushes were
heavier than the ones available to inmates at the prison canteen
and could be fashioned into shanks. The authorities also
concluded that the crushed red pepper could be made into a
pepper spray.
¶8 When correctional officers interviewed Attorney Cohen about the items, he denied knowing anything about them. 3 No. 2015AP1350-D
Following additional investigation, Attorney Cohen was arrested
for delivering contraband into the Columbia Correctional
Institution. In February of 2014, the Columbia County district
attorney filed a complaint charging Attorney Cohen with one
felony count of delivering illegal articles to an inmate and one
misdemeanor count of resisting or obstructing an officer.
¶9 On November 14, 2014, Attorney Cohen pled no contest
and was found guilty of one felony count of delivery of illegal
articles to an inmate, one count of misdemeanor obstructing an
officer, and one count of misdemeanor disorderly conduct. The
circuit court withheld judgment on the felony count pursuant to
a deferred entry of judgment agreement. It entered judgment on
the two misdemeanor counts. The court deferred sentencing on
those two counts and placed Attorney Cohen on probation for two
years with conditions including counseling, costs, electronic
monitoring, and 60 days of incarceration in the county jail with
Huber privileges.
¶10 Count one of the OLR's amended complaint alleged:
Count One: By engaging in acts leading to a finding of guilt for delivery of illegal articles to an inmate, and, in addition, for acts leading to convictions for resisting or obstructing an officer and disorderly conduct, Attorney Cohen violated SCR 20:8.4(b).1
1 SCR 20:8.4(b) provides: "It is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects."
4 No. 2015AP1350-D
¶11 The remaining three counts of misconduct alleged in
the amended complaint arose out of Attorney Cohen's
representation of C.S. In October of 2012, C.S. was charged
with criminal operating while under the influence of an
intoxicant. C.S. hired Attorney Cohen to represent him and paid
advanced fees totaling $2,500. Attorney Cohen deposited all of
the funds received into his client trust account. Attorney
Cohen did not prepare a written fee communication to C.S.
identifying the scope of the representation, the basis or rate
of the fee, or the purpose and effect of the $2,500 advanced
fee.
¶12 After advancing the fees to Attorney Cohen, C.S.
attempted to reach Attorney Cohen by telephone but was unable to
adequately communicate and discuss the circumstances of the case
with him. On January 7, 2013, C.S. terminated Attorney Cohen's
representation by sending a handwritten letter asserting
Attorney Cohen had not returned his calls or discussed his case
with him. C.S. demanded a full refund of the advanced fee. ¶13 On January 20, 2013, Attorney Cohen responded in
writing to C.S.'s termination letter and forwarded his file to
C.S. Attorney Cohen said he would discuss with C.S. a partial
fee refund. According to Attorney Cohen, he communicated
adequately with C.S., including sending C.S. emails. However,
C.S. asserted that he did not have an email address and that
Attorney Cohen's statements that he had ever emailed C.S. were
false. During OLR's investigation, Attorney Cohen was unable to provide documentation demonstrating that he communicated 5 No. 2015AP1350-D
adequately with C.S. by telephone, email, or otherwise, or that
he responded to C.S.'s reasonable requests for information.
Attorney Cohen ultimately refunded $1,250 to C.S. The OLR's
amended complaint alleged the following counts of misconduct
with respect to Attorney Cohen's representation of C.S.:
Count Two: By charging fees over $1,000 from C.S. without providing a written communication of the fee agreement to C.S., including the scope of representation and the basis or rate of the fee, Attorney Cohen violated SCR 20:1.5(b)(1).2
Count Three: By receiving a $2,500 advanced fee from C.S. without explaining in a written fee agreement the purpose and effect of such advanced or retainer payment, Attorney Cohen violated SCR 20:1.5(b)(2).3
2 SCR 20:1.5(b)(1) provides:
The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate as in the past. If it is reasonably foreseeable that the total cost of representation to the client, including attorney's fees, will be $1000 or less, the communication may be oral or in writing. Any changes in the basis or rate of the fee or expenses shall also be communicated in writing to the client. 3 SCR 20:1.5(b)(2) provides: "If the total cost of representation to the client, including attorney's fees, is more than $1000, the purpose and effect of any retainer or advance fee that is paid to the lawyer shall be communicated in writing."
6 No. 2015AP1350-D
Count Four: By failing to promptly respond to his client by telephone, correspondence or otherwise, Attorney Cohen violated SCR 20:1.4(a)(4).4 ¶14 On August 31, 2016, the OLR and Attorney Cohen entered
into a stipulation whereby Attorney Cohen admitted counts one,
two, and three of the complaint and agreed that the facts
alleged in the amended complaint could be used to form a basis
to his admissions to those counts and for the referee's
conclusions of misconduct thereon. Attorney Cohen did not admit
that the facts in the amended complaint were sufficient to form the basis for a finding of a violation of count four. Attorney
Cohen also did not stipulate to the OLR's request for a 60-day
suspension of his license to practice law in Wisconsin and
reserved the right to be heard on that issue.
¶15 At a hearing before the referee, the OLR presented
testimony on count four of the amended complaint in the form of
an adverse examination of Attorney Cohen and testimony from C.S.
In the course of the hearing, the referee advised the parties
that they could submit additional information with post trial
briefing, particularly with respect to a disagreement that emerged at the hearing concerning whether the record included a
complete set of emails allegedly sent from Attorney Cohen to
C.S. At the close of the hearing, both parties declined the
referee's invitation to submit post trial briefs. The referee
then closed the hearing and advised the parties that no
4 SCR 20:1.4(a)(4) provides: "A lawyer shall promptly comply with reasonable requests by the client for information."
7 No. 2015AP1350-D
additional evidence would be admitted, except that Attorney
Cohen was given the opportunity to submit additional email
correspondence between himself and C.S. for the referee's
consideration.
¶16 The day after the hearing, Attorney Cohen sent an
email to the referee requesting that "some papers" that he
claimed to have submitted around March 2016 become part of the
hearing record. No papers were attached to Attorney Cohen's
email. A few days later, Attorney Cohen sent a second email to
the referee, again referring to the "papers." Attorney Cohen
advised the referee that, "they were already part of the record,
but do with them as you see fit . . .." No documents were
submitted to the referee in conjunction with Attorney Cohen's
post hearing request. The OLR advised the referee that the
"papers" referred to by Attorney Cohen were not subject to
examination at the evidentiary hearing. However, the OLR said
it did not object if the referee were to look at the "papers"
and give them the weight, if any, the referee deemed appropriate.
¶17 The referee filed his report on August 31, 2016.
Based on the parties' stipulation and the record, the referee
found that the OLR clearly and convincingly proved that Attorney
Cohen committed all four counts of professional misconduct
alleged in the amended complaint.
¶18 With respect to count four of the amended complaint,
which was the only count Attorney Cohen challenged, the referee noted that Attorney Cohen testified at the evidentiary hearing 8 No. 2015AP1350-D
that he did not respond to C.S.'s telephone calls because he was
not ready to speak with C.S. and that this was "a normal trial
tactic." The referee also noted that Attorney Cohen testified
another reason he did not respond to C.S. was that he urges
clients to call him on his cell phone rather than his landline
and C.S. called the landline. Further, Attorney Cohen indicated
his secretary did not take messages. The referee said he did
not find any of those explanations to be credible evidence to
mitigate Attorney Cohen's lack of response to C.S.
¶19 The referee also noted that Attorney Cohen and C.S.
testified to email communications. The referee said the emails
in question appeared to have been exchanged between Attorney
Cohen and C.S.'s new counsel, not between Attorney Cohen and
C.S. The emails discussed Attorney Cohen returning a portion of
the advanced fee. The referee found that those email
communications occurred after C.S. had terminated Attorney Cohen
as counsel and were not relevant to the allegation that Attorney
Cohen failed to respond to his client. Further, the referee pointed out that C.S. was facing a potential felony conviction
and incarceration and the need for communication with his
attorney was a serious matter. The referee said he "does not
find any credible evidence presented by Attorney Cohen to
mitigate why he did not respond to [C.S.]." Accordingly, the
referee found that all allegations in the amended complaint,
including the allegations in support of count four, were proven
by the OLR by the requisite burden of proof.
9 No. 2015AP1350-D
¶20 In discussing the appropriate sanction, the referee
noted that the OLR argued for a 60-day suspension of Attorney
Cohen's license. The referee noted that the case involves four
counts of professional misconduct against an attorney who was
previously privately reprimanded following a disorderly conduct
conviction. The referee noted that the misconduct occurred in
two separate matters, one resulting in Attorney Cohen's criminal
conviction for providing contraband to an inmate, and the other
involving a failure to comply with supreme court rules relating
to fee agreements and failing to adequately communicate with his
client.
¶21 The referee said there is not a great deal of
precedent involving Wisconsin attorneys prosecuted for bringing
contraband into a prison. However, the referee noted that in In
re Disciplinary Proceedings Against Mross, 2003 WI 4, 259
Wis. 2d 8, 657 N.W.2d 342, an attorney received a 90-day
suspension following a conviction for passing packages of
cigarettes to multiple inmates over an extended period of time. The referee concluded that Attorney Cohen's behavior was more
egregious than the conduct in Mross because the contraband
delivered by Attorney Cohen could have been used as a weapon.
In addition, the referee said the fact that Attorney Cohen lied
to the authorities who questioned him after the incident was an
aggravating factor.
¶22 The referee said he was troubled by the fact that
Attorney Cohen did not present any mitigating evidence about the prison incident either at the evidentiary hearing or as part of 10 No. 2015AP1350-D
the stipulation. The referee further said that he was troubled
by Attorney Cohen's behavior during the hearing. The referee
said, "Attorney Cohen took no responsibility for his actions.
He demonstrated no remorse for his actions and demonstrated
contempt for the proceedings. Attorney Cohen did not even bring
a file to the hearing to assist him in his representation."
¶23 The referee agreed with the OLR's position that
Attorney Cohen's conduct in representing C.S., standing alone,
would not support a license suspension. However, the referee
said he was very troubled by the fact that Attorney Cohen, an
experienced criminal defense attorney, furnished contraband to
an inmate, and the referee was also troubled that Attorney Cohen
took no responsibility for his actions and presented no
mitigating evidence during the evidentiary hearing. Based on
all of those factors, the referee concluded that an appropriate
sanction for Attorney Cohen's misconduct would be a four-month
suspension of Attorney Cohen's license to practice law in
Wisconsin. ¶24 Attorney Cohen has appealed the referee's report. His
brief raises two issues: (1) was the evidence of insufficient
attorney client communication alleged in count four of the
amended complaint clear, and were mitigating circumstances
considered?; and (2) were there mitigating circumstances related
to Attorney Cohen's convictions?
¶25 After the notice of appeal was filed, Attorney Cohen
filed a motion to correct or supplement the record with documents that he said were previously submitted to the OLR and 11 No. 2015AP1350-D
the referee for the purpose of supplying mitigating evidence.
Attorney Cohen's motion said he mistakenly believed the
documents were made part of the record but after the hearing
discovered they were not in fact in the record. The OLR filed a
response saying it did not object to the documents being added
to the record but that this court should "give such records only
the limited (or no) weight to which they would be
entitled, . . .." Many of the documents relate to Attorney
Cohen's stormy relationship with his former wife. This court
granted Attorney Cohen's motion to supplement the record on
November 14, 2016.
¶26 Attorney Cohen argues that there was insufficient
evidence to support the referee's findings of fact and
conclusions of law with respect to count four of the amended
complaint. He further accuses the referee of failing to
consider mitigating circumstances. Attorney Cohen argues that
C.S. was able to contact him approximately half of the times he
attempted to do so. Attorney Cohen says, "there was not a pattern of the client making a large number of calls that were
cavalierly ignored over time. The representation was short, and
some contacts were made."
¶27 Attorney Cohen also argues that the referee failed to
consider mitigating circumstances relating to Attorney Cohen's
convictions for bringing contraband into the prison. He says
his client wrote him a letter asking that Attorney Cohen bring a
toothbrush and some food seasoning to the prison, and the only motive behind delivering those items was "from concern for the 12 No. 2015AP1350-D
care of the inmate, and desire to serve." Attorney Cohen says
he had been trying to do as much charitable work as possible at
that time to help him "cope with his awful divorce, . . .."
Attorney Cohen says he has expressed a sincere and deep regret
for his actions, and that he has already suffered long lasting
and damaging consequences which include loss of trust, public
embarrassment, loss of clients, damage to personal reputation,
and monetary loss. Attorney Cohen says he will never make these
same mistakes again.
¶28 The OLR argues that the referee's findings of fact
regarding count four of the amended complaint are not clearly
erroneous, and the referee's conclusion of law with respect to
that count is supported by the record. The OLR says the referee
was correct that Attorney Cohen offered no good reason for
failing to return calls from C.S. The OLR notes that while
there was considerable discussion about purported email
communications between Attorney Cohen and C.S., C.S. confirmed
at the evidentiary hearing that he did not have an email address and did not know how to use email and that the evidence
presented at the hearing demonstrated that the only emails that
Attorney Cohen sent with respect to C.S.'s case were between
Attorney Cohen and C.S.'s new counsel after C.S. had fired
Attorney Cohen.
¶29 The OLR says that it is reasonable for any client to
assume that a reasonable request for information will generate a
response from the attorney and Attorney Cohen failed to properly respond to C.S. The OLR says while Attorney Cohen gave multiple 13 No. 2015AP1350-D
excuses why he did not timely respond to C.S.'s calls to him,
the credibility of those various explanations was up to the
trier of fact to weigh and the referee specifically said he did
not find Attorney Cohen's explanations to be credible evidence
to mitigate the lack of response to his client. The OLR says
that none of the referee's findings of fact concerning Attorney
Cohen's representation of C.S. are clearly erroneous.
¶30 As to the appropriate level of discipline, the OLR
notes that it sought a 60-day license suspension and the referee
recommended a four-month suspension. The OLR notes that this
court is not bound by either recommendation and is the final
arbiter of attorney discipline in Wisconsin.
¶31 The OLR argues that the supplemental documents
submitted by Attorney Cohen after the notice of appeal was filed
do not support mitigation to the extent Attorney Cohen might
wish. The OLR notes that Attorney Cohen's supplemental
submission references at length his marital difficulties. The
OLR says while it is sympathetic to anyone experiencing stress or troubles, this does not explain or excuse Attorney Cohen's
criminal actions nor does it justify his laxness toward C.S.,
who had serious criminal difficulties himself and was facing
prison time.
¶32 A referee's findings of fact are affirmed unless
clearly erroneous. Conclusions of law are reviewed de novo.
See In re Disciplinary Proceedings Against Eisenberg, 2004 WI
14, ¶5, 269 Wis. 2d 43, 675 N.W.2d 747. The court may impose whatever sanction it sees fit, regardless of the referee's 14 No. 2015AP1350-D
recommendation. See In re Disciplinary Proceedings Against
Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686.
¶33 After careful review of the matter, we conclude that
there has been no showing that any of the referee's findings of
fact are clearly erroneous. Accordingly, we adopt them. We
further agree with the referee's conclusions of law that
Attorney Cohen violated all of the supreme court rules set forth
above.
¶34 With respect to the appropriate level of discipline,
we also agree with the referee that a four-month suspension of
Attorney Cohen's license to practice law in Wisconsin is an
appropriate sanction. We share the referee's concern that
Attorney Cohen's bringing contraband into a prison, which led to
one felony and two misdemeanor convictions, is a very serious
offense that reflects adversely on an attorney's honesty,
trustworthiness, or fitness as a lawyer in other respects.
¶35 We also agree with the referee that Attorney Cohen's
behavior is more egregious than Attorney Mross' furnishing inmates with cigarettes because the contraband delivered to the
inmate by Attorney Cohen could have been used as a weapon. In
addition, we note that Attorney Mross had no disciplinary
history and there were no other counts of misconduct involved.
By contrast, Attorney Cohen was previously reprimanded for a
misdemeanor disorderly conduct conviction, and in addition to
the criminal conviction this case also involves three additional
counts of misconduct with respect to Attorney Cohen's representation of C.S. 15 No. 2015AP1350-D
¶36 Further, we concur with the referee's conclusion that
Attorney Cohen failed to present any mitigating evidence at the
evidentiary hearing, and we agree with the OLR that the
documents with which we allowed Attorney Cohen to supplement the
record to a large extent simply detail Attorney Cohen's marital
difficulties. As the OLR noted, while one may be sympathetic to
anyone experiencing domestic problems, there is nothing in
Attorney Cohen's supplemental document submission that would
mitigate the seriousness of the offenses at issue here.
Accordingly, we agree with the referee that a four-month
suspension of Attorney Cohen's license is appropriate. We also
find it appropriate for Attorney Cohen to pay the full costs of
the proceeding. Attorney Cohen made a partial refund to C.S.
At the hearing, C.S. did not seek additional restitution, and we
do not order it.
¶37 IT IS ORDERED that the license of Steven Cohen to
practice law in Wisconsin is suspended for a period of four
months effective December 29, 2017. ¶38 IT IS FURTHER ORDERED that Steven Cohen comply with
the provisions of SCR 22.26 concerning the duties of a person
whose license to practice law in Wisconsin has been suspended.
¶39 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Steven Cohen pay to the Office of Lawyer
Regulation the costs of this proceeding, which are $8,608.20.
If the costs are not paid within the time specified, and absent
a showing to this court of his inability to pay the costs within that time, the license of Steven Cohen to practice law in 16 No. 2015AP1350-D
Wisconsin shall remain suspended until further order of the
court.
¶40 IT IS FURTHER ORDERED that compliance with all
conditions of this order is required for reinstatement. See
SCR 22.28(2).
17 No. 2015AP1350-D