2016 WI 12
SUPREME COURT OF WISCONSIN CASE NO.: 2014AP2801-D COMPLETE TITLE: In the Matter of Disciplinary Proceedings Against Stuart F. Roitburd, Attorney at Law:
Office of Lawyer Regulation, Complainant, v. Stuart R. Roitburd, Respondent.
DISCIPLINARY PROCEEDINGS AGAINST ROITBURD
OPINION FILED: February 26, 2016 SUBMITTED ON BRIEFS: ORAL ARGUMENT:
SOURCE OF APPEAL: COURT: COUNTY: JUDGE:
JUSTICES: CONCURRED: PROSSER, J. concurs (separate writing appended on May 20, 2016 to opinion filed February 26, 2016) DISSENTED: ABRAHAMSON, A.W. BRADLEY, J.J., dissent. (Opinion Filed) NOT PARTICIPATING:
ATTORNEYS: 2016 WI 12 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2014AP2801-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings Against Stuart F. Roitburd, Attorney at Law:
Office of Lawyer Regulation, FILED Complainant, FEB 26, 2016 v. Diane M. Fremgen Clerk of Supreme Court Stuart R. Roitburd,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. We review Referee Christine Harris
Taylor's recommendation that the court declare Attorney Stuart
F. Roitburd in default and suspend his Wisconsin law license for
a period of two years for professional misconduct in connection
with his work as personal representative of his mother's estate
and his non-cooperation with the Office of Lawyer Regulation's (OLR) investigation into that misconduct. The referee also No. 2014AP2801-D
recommended that Attorney Roitburd be required to make
restitution to his mother's estate in the amount of $43,369.74,
and to pay the full costs of this proceeding, which total
$1,120.29 as of August 11, 2015.
¶2 Because no appeal has been filed, we review the
referee's report pursuant to Supreme Court Rule (SCR) 22.17(2).1
After conducting our independent review of the matter, we agree
with the referee that, based on Attorney Roitburd's failure to
answer the complaint filed by the OLR, the OLR is entitled to a
default judgment. However, we disagree with the referee that
Attorney Roitburd's professional misconduct warrants a two-year
suspension of his Wisconsin law license. We conclude, instead,
that a 60-day suspension is warranted. We agree with the
referee that Attorney Roitburd should be ordered to pay the full
costs of the proceeding. We decline to order restitution for
the reasons explained below.
¶3 Attorney Roitburd was admitted to practice law in
Wisconsin in 1984. He had no disciplinary history prior to the filing of this complaint. According to the OLR's complaint, his
1 SCR 22.17(2) provides:
If no appeal is filed timely, the supreme court shall review the referee's report; adopt, reject or modify the referee's findings and conclusions or remand the matter to the referee for additional findings; and determine and impose appropriate discipline. The court, on its own motion, may order the parties to file briefs in the matter.
2 No. 2014AP2801-D
law license is currently suspended for failure to cooperate with
the OLR in the investigation that gave rise to this proceeding.
¶4 On December 5, 2014, the OLR filed the current
complaint against Attorney Roitburd. The complaint alleges
three counts of professional misconduct in connection with his
work as the personal representative of his mother's estate.
¶5 The following facts are taken from the OLR's
complaint. Attorney Roitburd served as the personal
representative of his father's estate and, beginning in 2006, of
his mother's estate. This matter primarily concerns Attorney
Roitburd's work as the personal representative of his mother's
estate (hereafter, the "Roitburd Estate").
¶6 In April 2011, in connection with the final accounting
of the Roitburd Estate, the circuit court administering the
estate ordered Attorney Roitburd to make payments to certain
creditors by early June 2011.
¶7 In late June 2011, an attorney appeared on Attorney
Roitburd's behalf and informed the circuit court that there were errors in the final accounting and that Attorney Roitburd needed
time to correct the errors.
¶8 The circuit court granted a lengthy adjournment.
Attorney Roitburd failed to appear at the adjourned hearing
date. The circuit court ordered Attorney Roitburd to appear at
a subsequent hearing, which he failed to do.
¶9 In March 2012, the circuit court removed Attorney
Roitburd as personal representative of the Roitburd Estate, appointed a different attorney to serve as successor personal 3 No. 2014AP2801-D
representative, and issued a bench warrant for Attorney
Roitburd. Attorney Roitburd was taken into custody and later
released on a signature bond.
¶10 At a subsequent court hearing, the successor personal
representative testified that multiple assets had not been
transferred from Attorney Roitburd's father's estate to his
mother. Attorney Roitburd also canceled five meetings that the
successor personal representative had scheduled for the purpose
of discussing the estates of Attorney Roitburd's father and
mother.
¶11 Attorney Roitburd stated he would return any
unaccounted for assets to the Roitburd Estate by December 25,
2012, but failed to do so.
¶12 On motion from the successor personal representative,
the circuit court entered an order to show cause for the return
of estate assets. After a hearing at which both Attorney
Roitburd and the successor personal representative testified,
the circuit court ordered Attorney Roitburd to repay the Roitburd Estate $43,369.74 and to provide proof of payment of
$13,000 in taxes by mid-March 2013. Although Attorney Roitburd
ultimately provided proof that he had paid the $13,000 in taxes,
he never paid the $43,369.74 to the Roitburd Estate. In April
2013, the circuit court entered an order and judgment finding
Attorney Roitburd liable to the Roitburd Estate for $43,369.74.
The judgment remains unsatisfied.
¶13 During the OLR investigation that gave rise to this proceeding, Attorney Roitburd failed to provide responses to the 4 No. 2014AP2801-D
OLR's repeated requests for information. On May 22, 2014, this
court temporarily suspended Attorney Roitburd's license due to
his willful failure to cooperate with the OLR's investigation.
Attorney Roitburd's license has remained temporarily suspended
to the date of this opinion.
¶14 Based on the course of conduct described above, the
OLR alleged in its complaint that Attorney Roitburd knowingly
disobeyed obligations under the rules of a tribunal, in
violation of SCR 20:3.4(c)2 (Count One); engaged in conduct
involving dishonesty, fraud, deceit, or misrepresentation, in
violation of SCR 20:8.4(c)3 (Count Two); and failed to cooperate
with the OLR investigation and to provide relevant information,
answer questions fully, or furnish documents in the course of an
OLR investigation, in violation of SCR 22.03(2)4 and
SCR 22.03(6),5 enforced by SCR 20:8.4(h)6 (Count Three).
2 SCR 20:3.4(c) provides that a lawyer shall not "knowingly disobey an obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists." 3 SCR 20:8.4(c) provides that it is professional misconduct for a lawyer to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation." 4 SCR 22.03(2) provides:
Upon commencing an investigation, the director shall notify the respondent of the matter being investigated unless in the opinion of the director the investigation of the matter requires otherwise. The respondent shall fully and fairly disclose all facts and circumstances pertaining to the alleged misconduct within 20 days after being served by ordinary mail a request for a written response. The director may (continued) 5 No. 2014AP2801-D
¶15 The OLR personally served the complaint and an order
to answer on Attorney Roitburd. Attorney Roitburd failed to
file an answer, and the OLR moved for default judgment.
¶16 The referee mailed a notice of a hearing on the OLR's
motion for default judgment to Attorney Roitburd at his address
on file with the State Bar of Wisconsin. Attorney Roitburd
failed to appear for the hearing.
¶17 The referee issued a decision recommending that this
court grant the OLR's motion for default judgment. In so doing,
the referee deemed the allegations in the OLR's complaint to be
established. The referee recommended a two-year suspension of
Attorney Roitburd's Wisconsin law license, the imposition of the
full costs of this proceeding against him, and the imposition of
restitution to the Roitburd Estate in the amount of $43,369.74.
allow additional time to respond. Following receipt of the response, the director may conduct further investigation and may compel the respondent to answer questions, furnish documents, and present any information deemed relevant to the investigation. 5 SCR 22.03(6) provides that "[i]n the course of the investigation, the respondent's wilful failure to provide relevant information, to answer questions fully, or to furnish documents and the respondent's misrepresentation in a disclosure are misconduct, regardless of the merits of the matters asserted in the grievance." 6 SCR 20:8.4(h) provides that it is professional misconduct for a lawyer to "fail to cooperate in the investigation of a grievance filed with the office of lawyer regulation as required by SCR 21.15(4), SCR 22.001(9)(b), SCR 22.03(2), SCR 22.03(6), or SCR 22.04(1)."
6 No. 2014AP2801-D
¶18 Attorney Roitburd did not appeal from the referee's
report and recommendation. Thus, we proceed with our review of
the matter pursuant to SCR 22.17(2). We review a referee's
findings of fact subject to the clearly erroneous standard. See
In re Disciplinary Proceedings Against Eisenberg, 2004 WI 14,
¶5, 269 Wis. 2d 43, 675 N.W.2d 747. We review the referee's
conclusions of law de novo. Id. We determine the appropriate
level of discipline independent of the referee's recommendation.
See In re Disciplinary Proceedings Against Widule, 2003 WI 34,
¶44, 261 Wis. 2d 45, 660 N.W.2d 686.
¶19 We agree with the referee that Attorney Roitburd
should be declared in default. Although the OLR effected
personal service of its complaint, and although Attorney
Roitburd was given notice of the hearing on the motion for
default judgment, he failed to appear or present a defense.
Accordingly, we deem it appropriate to declare him in default.
In addition, the referee properly relied on the allegations of
the complaint, which were deemed admitted. See In re Disciplinary Proceedings Against Coplien, 2010 WI 109, ¶¶10-11,
329 Wis. 2d 311, 788 N.W.2d 376. We therefore accept the
referee's findings of fact based on the allegations of the
complaint. We also agree with the referee that those findings
of fact adequately support the legal conclusions of professional
misconduct with respect to the three counts of misconduct
alleged in the complaint.
¶20 However, we disagree with the referee's recommendation that this court impose a two-year license suspension. As noted 7 No. 2014AP2801-D
above, it is ultimately this court's responsibility, rather than
the referee's, to determine the appropriate level of discipline.
See In re Disciplinary Proceedings Against Reitz, 2005 WI 39,
¶74, 279 Wis. 2d 550, 694 N.W.2d 894. We owe no deference to
the referee's recommended sanctions. See In re Disciplinary
Proceedings Against Carroll, 2001 WI 130, ¶37, 248 Wis. 2d 662,
636 N.W.2d 718. In considering the appropriate sanction, this
court seeks to impress upon the attorney the seriousness of the
misconduct, to deter other attorneys from engaging in similar
misconduct, and to protect the public, the courts, and the legal
system from a repetition of the misconduct. See, e.g., In re
Disciplinary Proceedings Against Grogan, 2011 WI 7, ¶17,
331 Wis. 2d 341, 795 N.W.2d 745.
¶21 Under the unique circumstances of this case, we
conclude that a 60-day suspension is sufficient to accomplish
these goals. This is the first time in the more than three
decades since Attorney Roitburd's admission to the Wisconsin bar
that he has been the subject of professional discipline in this state. Until now, Attorney Roitburd has not created a reason to
believe that the public, the courts, or the legal system must be
protected from the risk of his misconduct. We note, too, that
the three counts of misconduct at issue here do not evince an
extensive pattern of indifference to our ethical rules.
Finally, we note that our knowledge of Attorney Roitburd's
misconduct is limited to the facts alleged in the OLR's
complaint and established by Attorney Roitburd's default. As a result, there is much we do not know about his work as personal 8 No. 2014AP2801-D
representative of his mother's estate, and about the estate
itself. For example, while we know that certain assets went
unaccounted for, we do not know whether any mistakes Attorney
Roitburd made in the administration of the estate rose to the
level of dishonesty or bad faith. We do not know whether
Attorney Roitburd was an heir to the estate, such that he might
otherwise have been entitled to receive some amount of the
assets at issue. We do not know whether his actions affected
the rights and realization of payments to creditors of the
estate.
¶22 We have, in the past, imposed far less than a two-year
suspension for either comparable or more serious misconduct.
For example, in In re Disciplinary Proceedings Against
Fitzgerald, 2008 WI 101, 314 Wis. 2d 7, 752 N.W.2d 879, we
suspended Attorney Fitzgerald's license for 60 days based on a
six-count disciplinary complaint. The misconduct included
Attorney Fitzgerald's appearing on behalf of clients during her
law license suspension; billing the State Public Defender and accepting payment for appearances made on behalf of clients
during her law license suspension; misleading a county clerk
about her law license status; and failing to cooperate with the
OLR. Our 60-day suspension of Attorney Fitzgerald's license
followed a previous 90-day suspension for numerous instances of
misconduct. In In re Disciplinary Proceedings Against Osicka,
2014 WI 33, 353 Wis. 2d 656, 847 N.W.2d 343, this court imposed
a 60-day suspension based on Attorney Osicka's default to a four-count disciplinary complaint. The misconduct included 9 No. 2014AP2801-D
failing to place a client's advanced fee into a client trust
account or to provide the notices required by the alternative
advanced fee procedure; charging an unreasonable fee; failing to
refund unearned fees; and failing to cooperate with the OLR.
Our 60-day suspension of Attorney Osicka's license followed two
previous public reprimands. Finally, in In re Disciplinary
Proceedings Against Lamb, 2011 WI 101, 338 Wis. 2d 1, 806 N.W.2d
439, this court imposed a 60-day suspension for 21 counts of
misconduct related to Attorney Lamb's handling of four client
matters. Our 60-day suspension of Attorney Lamb's license
followed a previous private reprimand.
¶23 In light of our resolutions of prior disciplinary
actions, and in light of the unique circumstances of this case,
we deem the OLR's and the referee's recommended two-year
suspension to be excessive. To be clear, Attorney Roitburd
should not construe this opinion as a vindication of any aspect
of his misconduct or his failure to appear at any stage of these
disciplinary proceedings. We simply conclude that, while Attorney Roitburd violated his ethical duties as an attorney, a
60-day suspension will be sufficient to accomplish the
objectives of the lawyer disciplinary system.
¶24 As to the issue of restitution, the OLR requested and
the referee recommended that this court order Attorney Roitburd
to pay restitution to the Roitburd Estate in the amount of
$43,369.74. However, we note that the OLR states in its
complaint that the circuit court administering the estate has entered an order and judgment directing Attorney Roitburd to pay 10 No. 2014AP2801-D
the estate the amount of $43,369.74. Neither the OLR nor the
referee explains why this court should order restitution that
would duplicate that already ordered by the circuit court. We
therefore deny the referee's recommendation for restitution. We
deem it appropriate, however, to require, as a condition of the
reinstatement of his Wisconsin law license, that Attorney
Roitburd demonstrate to the court that he has satisfied the
judgment entered by the circuit court against him in the
Roitburd Estate.
¶25 Finally, we agree that Attorney Roitburd should pay
the full costs of the proceeding.
¶26 IT IS ORDERED that the license of Stuart F. Roitburd
to practice law in Wisconsin is suspended for a period of
60 days, effective April 26, 2016.
¶27 IT IS FURTHER ORDERED that the temporary license
suspension of May 22, 2014, which arose out of Stuart F.
Roitburd's willful failure to cooperate with the OLR's
investigation in this matter, is lifted. ¶28 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Stuart F. Roitburd shall pay to the Office of
Lawyer Regulation the costs of this proceeding.
¶29 IT IS FURTHER ORDERED that compliance with all
conditions of this order is required for reinstatement. See
SCR 22.28(2). This requirement includes Stuart F. Roitburd's
obligation to demonstrate to the court that he has satisfied the
judgment entered by the circuit court against him in Estate of
11 No. 2014AP2801-D
Shirley Roitburd, Milwaukee County Case No. 06-PR-1840, as
described above.
12 No. 2014AP2801-D.dtp
¶30 DAVID T. PROSSER, J. (concurring). This attorney
discipline case is more than "problematic" because the facts are
not clear.
¶31 Attorney Roitburd was named personal representative of
his mother's estate. He had previously served as personal
representative of his father's estate. Attorney Roitburd
transferred many thousands of dollars from his mother's estate
to his own accounts. Allegedly, he had earlier transferred
money from his father's estate to himself so that it could not
later be transferred to his mother. When these matters led to a
discipline charge by the Office of Lawyer Regulation (OLR),
Attorney Roitburd was not cooperative.
¶32 The majority opinion imposes a suspension of 60 days
for his conduct; the concurring opinion of Justice Abrahamson
would impose a suspension of two years. The latter suspension
is the period of suspension that was sought by OLR and approved
by the referee after a default judgment.
¶33 It is not uncommon for members of the court to disagree about the length of suspension for a disciplined
attorney, but the difference between two months and two years is
quite extraordinary. That difference must be grounded in two
substantially different perceptions of the facts. When the
facts are not clear, the court is forced to speculate about what
the facts are or make assumptions about what the facts are, and
those guesses or assumptions can be wrong.
¶34 Ironically, the court recently reviewed a separate but similar case that has been dismissed with no discipline. The
1 No. 2014AP2801-D.dtp
case involved an attorney who served as trustee for his father's
estate, which was created to protect the attorney's mother.
Without authorization, the attorney took approximately $360,000
from the trust to pay for his gambling. When third parties
informed the attorney's mother and other members of the family,
the family rallied around the attorney who promised to pay all
the money back with interest. The attorney also cooperated with
the OLR. See OLR v. Karabon, No. 2015AP183-D, which we also
decide today.
¶35 The facts in the present case do not disclose what
Attorney Roitburd's family thinks about his conduct. What we do
know is that Attorney Roitburd did not cooperate with the OLR.
¶36 I believe that some discipline should be imposed in
this case and that some discipline could have been imposed in
the other case as well. How much discipline should be imposed
in this case depends on facts we don't have. For that reason, I
concur without a decision as to the amount of discipline.
2 No. 2014AP2801-D.ssa
¶37 SHIRLEY S. ABRAHAMSON, J. (concurring in part and
dissenting in part). The OLR charged Attorney Roitburd with
three violations of the Rules of Professional Conduct for
Attorneys. I agree with the per curiam that the three
violations were established by virtue of Attorney Roitburd's
default in these proceedings. I also agree that Attorney
Roitburd should pay the full costs of this disciplinary
proceeding. I agree, finally, that Attorney Roitburd's
compliance with all conditions imposed in the per curiam,
including satisfaction of the judgment entered by the circuit
court against him in Estate of Shirley Roitburd, Milwaukee
County Case No. 06-PR-1840, should be required for
reinstatement.
¶38 I disagree, however, with two aspects of the per
curiam:
¶39 (I) I disagree with the four justices joining the OLR
per curiam1 blocking release of Justice David T. Prosser's
separate writing and insisting that his writing be released at a later time. No basis exists for this action. Indeed, the four
justices have violated the Supreme Court's Internal Operating
Procedures (IOP).
¶40 (II) I disagree with the length of suspension imposed
by the per curiam opinion. The per curiam grants Attorney
Roitburd a 22-month reduction in the sanction requested in the
1 I use the phrase "OLR per curiam" to refer to a per curiam in an attorney discipline proceedings prepared by a court commissioner. See Internal Operating Procedure (IOP) II H.
1 No. 2014AP2801-D.ssa
OLR complaint to which he defaulted. There is no justification
for this significant downward departure.
I
¶41 The per curiam insists that Justice Prosser's separate
writing be held and not be released at the same time as the OLR
per curiam. They want the per curiam to bear the notation
"separate writing to follow."2
¶42 The instant OLR per curiam does not explain why
Justice Prosser's separate writing will follow later rather than
be released with the per curiam.
¶43 There is, however, only one possible explanation. The
four justices must be relying on the procedure for opinion
preparation and mandate adopted by a majority of the court in
September 2014.3
¶44 The September 9, 2014 procedure for opinion
preparation and mandate is set forth in the Supreme Court's
Internal Operating Procedures (IOP) at II G. A reading of the
plain language of IOP II G. demonstrates, however, that IOP II G. does not govern the instant OLR per curiam.
¶45 I have attached a copy of Internal Operating Procedure
II G. as Attachment A.4 Attachment A also includes paragraphs
2 Per curiam, ¶30. 3 See State v. Gonzalez, 2014 WI 124, ¶¶30-31, 359 Wis. 2d 1, 856 N.W.2d 580 (Abrahamson, C.J., concurring) (setting forth in full the procedure adopted by the court and disagreeing with its adoption). 4 The Supreme Court Internal Operating Procedures are printed in volume 6 of the Wisconsin Statutes.
adjacent to IOP II G. to put II G. in context. Attachment A
sets forth paragraphs E, F, G, and H of "II. Decisional
Procedure—Appellate and Original Jurisdiction."
¶46 Apparently Justice Prosser's separate writing is
viewed by the four justices as falling within IOP II G. 55 and
IOP II G. 66 because Justice Prosser's separate writing compares
in general terms the instant case with a pending OLR case that
raises similar issues.
5 Section 5 of IOP II G. provides as follows relating to the "separate writing to follow" notation:
5. Separate Writings to Follow. If, during the course of a separate writing, the author cites to a case then pending before the court for which the opinion of the court has not been released, the majority opinion shall be released with the designation "separate opinion(s) to follow," unless the citation can be replaced with ellipses in which case the separate opinion shall be released with the majority opinion and the ellipses shall be replaced with the omitted citation when the cited opinion is released. There shall be no further changes to the separate writings after mandate. Separate writings for which the citation cannot be replaced with ellipses shall be released when the then unreleased decision that was cited in the separate opinion is released. 6 Section 6 of IOP II G. provides as follows relating to the "separate writing to follow" notation:
6. Holds; Tying Together Release of Two Pending Cases. No one justice may block the release of a majority opinion by a "Hold." It shall take the affirmative vote of the majority of the participating justices to block the release of a majority opinion. No one justice may tie together the release of two pending cases. It shall take the affirmative vote of a majority of the participating justices in each case to tie together the release of two pending cases.
3 No. 2014AP2801-D.ssa
¶47 I conclude that IOP II G. does not apply to OLR per
curiam opinions. OLR per curiam opinions are governed by IOP II
H. (entitled Per Curiam Opinion) and IOP II I. (entitled
Mandate).
¶48 I would follow the Internal Operating Procedures.
Therefore the opinion in the instant OLR per curiam should not
be released at this time. The per curiam in the instant OLR
case and Justice Prosser's separate writing should be released
at the same time as (or after) the other OLR per curiam to which
Justice Prosser's separate writing refers.
¶49 Applying IOP II G. to the instant OLR per curiam
violates the text of IOP II G. IOP II G. is written entirely in
terms of opinions authored by a justice. See the text of IOP II
G. set forth in Attachment A. OLR per curiams are not authored
by a justice.
¶50 Furthermore, IOP II H. and IOP II I. explicitly govern
the procedure to be followed for per curiam opinions in attorney
disciplinary proceedings. IOP II H. provides (emphasis added): H. Per Curiam Opinion
Per curiam opinions may be prepared by a justice or a court commissioner for consideration by the court. Per curiam opinions in judicial and attorney disciplinary proceedings are prepared by a court commissioner for the court's consideration. The decisions in all cases are made by the court, and the per curiam opinions are reviewed by the entire court and are approved as to form and substance by the court prior to issuance. ¶51 IOP II I. provides (emphasis added): I. Mandate
4 No. 2014AP2801-D.ssa
The court's decision in a case is mandated promptly upon approval of the opinion by the court, as set forth above, and upon notification by the chief justice to the clerk, or upon notification by the author of the majority opinion if the chief justice is unable or unwilling to notify the clerk. The court's opinion is issued simultaneously with any concurring or dissenting opinions, unless concurring or dissenting opinion or opinions come within paragraph 5 above as "Separate Writing to Follow." ¶52 In contrast to IOP II G. 5., relating to "separate
writing to follow," IOP II I. sets forth the general rule that a
court's opinion is mandated simultaneously with any concurring
or dissenting opinions (except when a concurring or dissenting
opinion or opinions falls within section 5 of IOP II G.).
¶53 Here is how justice-authored opinions governed by IOP
II G. differ from OLR per curiam opinions:
• The September 2014 procedure speaks to a majority
opinion authored by a justice. But an OLR per curiam
is not authored by a justice.
• A justice-authored opinion is assigned to a justice by
the court. In contrast, an OLR attorney discipline
matter is assigned to a supreme court staff commissioner by the Clerk of the Supreme Court.
• The justice who authors a majority opinion has been
instructed with regard to the writing by the court.
With regard to an OLR per curiam, the court
commissioner recommends a resolution to the court.
The court may accept or change the recommended
resolution of the OLR matter. The commissioner drafts the per curiam and circulates it to the justices for
approval or separate writings. 5 No. 2014AP2801-D.ssa
• Four justices must agree to hold a conference to
discuss a draft of a justice-authored opinion. In
contrast, four votes are not needed for a court
conference on a circulated OLR per curiam opinion.
• The Internal Operating Procedures state procedures and
time periods for circulating and mandating a justice-
authored opinion. In contrast, an OLR per curiam and
separate writings relating to the per curiam are not
governed by the procedures or time periods set forth
by IOP II G.
¶54 In sum, IOP II G. entitled "Opinions" relates to
justice-authored majority and lead opinions. IOP II G. does not
relate to OLR per curiams. OLR per curiams are governed by IOP
II H. and IOP II I.
¶55 Several justices have become so enamored with the
"separate writing to follow" notation that they have threatened
its use in situations that have no relationship to IOP II G. 5.
In other words, they want to extend the "separate writing to follow" practice to separate writings that do not have anything
to do with a pending case that has not yet been released.
¶56 For example, as I noted in my dissent to an order
issued on December 4, 2015 in what is collectively known as "the
John Doe trilogy,"7 I was directed that any separate writing I
7 The John Doe case comprises the following matters: Three Unnamed Petitioners v. Peterson, Nos. 2013AP2504-2508-W; Two Unnamed Petitioners v. Peterson, No. 2014AP296-OA; Schmitz v. Peterson, Nos. 2014AP427-421-W.
6 No. 2014AP2801-D.ssa
prepared would not be issued along with the order unless I
circulated my separate writing within a short time after the
majority writing was circulated.8 The same thing happened about
a month later, with regard to another order in the John Doe
trilogy that was issued on January 12, 2016.9 Again I objected.
¶57 In both orders, I noted that the court's practice of
using "separate writing to follow" serves to stifle minority
views and full consideration of the case and in fact may
encourage a later circulation of a separate writing.
¶58 In any event, this "separate writing to follow"
intimidation in the John Doe trilogy violates IOP II H. which
clearly states as follows: "The court's opinion is issued
simultaneously with any concurring or dissenting opinion or
opinions, unless concurring or dissenting opinion or opinions
come within paragraph 5 above as "separate writing to follow."
In the John Doe trilogy my separate writings made no reference
to any pending but unreleased opinion.10 8 Three Unnamed Petitioners v. Peterson, Nos. 2013AP2504- 2508-W; Two Unnamed Petitioners v. Peterson, No. 2014AP296-OA; Schmitz v. Peterson, Nos. 2014AP427-421-W, unpublished order, ¶¶23-32 (Abrahamson, J., dissenting) (Dec. 4, 2015). 9 Three Unnamed Petitioners v. Peterson, Nos. 2013AP2504- 2508-W; Two Unnamed Petitioners v. Peterson, No. 2014AP296-OA; Schmitz v. Peterson, Nos. 2014AP427-421-W, unpublished order, ¶¶31-35 (Abrahamson, J., concurring in part and dissenting in part) (Jan. 12, 2016). 10 I have also noted my objections to the court's recent failure to follow our IOPs in State v. Finley, No. 2014AP2488- CR, unpublished order (Jan. 11, 2016); Regency West Apts. LLC v. City of Racine, No. 2014AP2947, unpublished order (Jan. 11, 2016); and Wis. Carry, Inc. v. City of Madison, No. 2015AP146, unpublished order (Jan. 11, 2016).
7 No. 2014AP2801-D.ssa
¶59 In sum, IOP II G. does not apply to OLR per curiams.
Per curiam opinions relating to attorney discipline are governed
by IOP II H. and IOP II I.
¶60 Moreover, the "separate writing to follow" tool in IOP
II G. 5. and IOP II G. 6. is peculiar to Wisconsin appellate
practice. "Separate writing to follow" will be confusing to the
litigants, readers of opinions, and publishers of opinions. It
raises numerous problems. Under these circumstances, it is best
to cabin "separate writing to follow," not expand it beyond its
present borders.
II
¶61 I turn now to the length of suspension imposed by the
per curiam. Attorney Roitburd has known since he received the
OLR complaint that the OLR sought a two-year suspension. He has
also known since he received the referee's report that the
referee recommended a two-year suspension. Yet he has never
questioned or challenged that recommended suspension. He has
not been heard from whatsoever. ¶62 Problematically, the per curiam appears to give
Attorney Roitburd the benefit of the doubts created by his own
non-participation. The per curiam notes, for example, that we
do not know all the facts concerning Attorney Roitburd's work as
personal representative of his mother's estate, nor do we know
the details of the estate itself. The per curiam holds open the
possibility that Attorney Roitburd did not engage in dishonest
or bad faith behavior at all. According to the per curiam, this uncertainty justifies an over 90% reduction in the OLR's and the
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referee's recommended suspension, even though Attorney Roitburd
never made an appearance to oppose that suspension. Based on
this result, a lawyer facing misconduct charges could hardly be
blamed for believing that the best defense is no defense—indeed,
no cooperation with the disciplinary process at all.
¶63 In my view, Attorney Roitburd cannot supply by default
the grounds for a reduction of a sanction that he never opposed.
It must be remembered that Attorney Roitburd has neither alleged
nor offered any evidence from which any fact in his favor could
possibly be found. There is also no claim that the facts
alleged in the OLR's complaint, which the referee deemed
admitted by virtue of Attorney Roitburd's default, are
erroneous, much less clearly so. See In re Disciplinary
Proceedings Against Eisenberg, 2004 WI 14, ¶5, 269 Wis. 2d 43,
675 N.W.2d 747 (referee's findings of fact must be affirmed
unless clearly erroneous).
¶64 We must therefore resolve this case with the
understanding that the facts are exactly as the OLR alleges. Those facts include Attorney Roitburd's failure to return to his
mother's estate over $43,000 in unaccounted-for assets; his
repeated failure to appear at court hearings scheduled to
discuss estate assets; the circuit court's issuance of a bench
warrant for him; the circuit court's removal of him as personal
representative; his repeated failure to meet with the successor
personal representative to discuss estate assets; and his total
refusal to cooperate with the OLR.
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¶65 Our precedent shows that these facts merit a two-year
license suspension. See, e.g., In re Disciplinary Proceedings
Against Goldstein, 2010 WI 26, 323 Wis. 2d 706, 782 N.W.2d 388
(imposing a two-year suspension for misconduct that included
converting nearly $70,000 from three probate estates for which
the attorney served as special administrator or personal
representative); In re Disciplinary Proceedings Against
Krezminski, 2007 WI 21, 299 Wis. 2d 152, 727 N.W.2d 492
(imposing a two-year suspension for converting client funds that
the lawyer held in his capacity as personal representative for
an estate, knowingly offering false evidence, and failing to
communicate with a client).
¶66 I would therefore order a two-year suspension. I
would not do as the majority has done: construe the slimness of
the default record——caused by Attorney Roitburd's total failure
to join issue——as a mitigating circumstance. We recently
explained that it is unnecessary for a referee to take evidence
regarding the allegations of an OLR complaint after a declaration of default. See In re Disciplinary Proceedings
Against Boyle, 2015 WI 90, ¶¶53-55, 364 Wis. 2d 544, 869
N.W.2d 475 (deeming unnecessary the referee's post-default
"prove-up" hearing and reducing requested costs by 40% as a
result). Today's decision teaches just the opposite.
¶67 For the reasons set forth, I dissent regarding the
discipline.
¶68 I am authorized to state that Justice ANN WALSH BRADLEY joins this opinion.
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ATTACHMENT A SUPREME COURT INTERNAL OPERATING PROCEDURES
II. DECISIONAL PROCESS – APPELLATE AND ORIGINAL JURISDICTION
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