Office of Lawyer Regulation v. Mark E. Sostarich
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2005 WI 97 SUPREME COURT CASE NO.: OF WISCONSIN 2004AP1911-D COMPLETE TITLE: In the Matter of Disciplinary Proceedings Against Mark A. Sostarich, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Mark A. Sostarich, Respondent. DISCIPLINARY PROCEEDINGS AGAINST SOSTARICH OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: June 29, 2005 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS: PROSSER and BUTLER, JR., J.J., did not participate. 2005 WI 97 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2004AP1911-D STATE OF WISCONSIN : IN SUPREME COURT In the Matter of Disciplinary Proceedings Against Mark E. Sostarich, Attorney at Law: FILED Office of Lawyer Regulation, Complainant, JUN 29, 2005 v. Cornelia G. Clark Clerk of Supreme Court Mark E. Sostarich, Respondent. ATTORNEY disciplinary proceeding. Attorney's license suspended. ¶1 PER CURIAM. We review, pursuant to SCR 22.17(2),1 the report and recommendation filed by referee, John Decker, in this disciplinary proceeding involving Attorney Mark E. Sostarich. 1 SCR 22.17(2) provides: Review; appeal. (2) 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. No. ¶2 Attorney Sostarich was admitted to practice in 1978. He has no prior disciplinary history. court 2004AP1911-D summarily practice law On May 18, 2004, this suspended Sostarich's Wisconsin in Attorney pursuant to license 22.20(1),2 SCR to upon learning that he had pled guilty in federal court to one count of conspiracy to commit offenses involving federal program funds under Title 18, U.S.C. §§ 371, 666, 1341 and 1346. United States v. Sostarich, No. 03 CR 260 (E.D. Wis. 2005). ¶3 On July 19, 2004, the Office of Lawyer Regulation (OLR) filed a disciplinary complaint against Sostarich alleging that by virtue of his conviction in federal court he had violated SCR 20:8.4(b), which provides that it is professional misconduct to "commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects." The parties jointly agreed that the referee would defer his recommendation until Sostarich was sentenced in federal district court, which, after some procedural delays, occurred in March 2005. 2 SCR 22.20(1) provides: criminal convictions. Summary license suspension (1) Summary suspension. Upon receiving satisfactory proof that an attorney has been found guilty or convicted of a serious crime, the supreme court may summarily suspend the attorney's license to practice law pending final disposition of a disciplinary proceeding, whether the finding of guilt or the conviction resulted from a plea of guilty or no contest or from a verdict after trial and regardless of the pendency of an appeal. 2 on No. ¶4 On May 16, recommendation. 2005, The the parties referee have filed agreed 2004AP1911-D his report and not to appeal the to Sostarich's report. ¶5 The conviction factual will be background summarized giving briefly. rise The complaint filed against Sostarich in the federal court alleged that Sostarich improperly provided former State Senator Gary George (George) with a portion of funds Sostarich obtained in connection with legal work he performed for the Police Athletic League (PAL), a non-profit organization providing educational and recreational opportunities for youth in Milwaukee. The complaint alleged further that George, who was on the PAL board of directors, received more than $50,000 as a result of this arrangement.3 George's participation and receipt of fees relating to the PAL legal work was not disclosed to other PAL board members until October 2003, when the criminal investigation. matter was already the subject of a Sostarich accepted a plea agreement and entered a guilty plea to the charge on January 30, 2004. ¶6 On March 11, 2005, Sostarich was sentenced in federal court to three years probation, conditioned on 150 days of home 3 Former Senator George was indicted in 2003 on charges that he accepted kickbacks in exchange for exercising political influence, which extended over federal grants as well as programs financed by state revenues. He pled guilty to violating Title 18, U.S.C. § 371 (conspiracy to defraud the United States) as part of a bargain in which the prosecutor dismissed all other charges, and he was sentenced to 48 months of imprisonment, plus restitution. See United States v. George, 403 F.3d 470 (7th Cir. 2005). His license to practice law was summarily suspended by order of this court on March 9, 2004. 3 No. confinement under the usual conditions including electronic monitoring. of home 2004AP1911-D confinement, Sostarich was also ordered to make restitution to PAL in the amount of $42,649 and to perform 75 hours of community service. ¶7 A hearing was conducted in the disciplinary matter on April 12 and 13, 2005. The referee made his recommendations at the close of the hearing and filed his formal report on May 16, 2005. ¶8 After enumerating the circumstances, the referee concluded that the OLR had established by clear and convincing evidence that, by engaging in conduct resulting in his conviction of one count of conspiracy to commit mail fraud in violation of Title criminal act 18, that U.S.C. reflects § 371, Sostarich adversely on committed his a honesty, trustworthiness or fitness as a lawyer in other respects, in violation of SCR 20:8.4(b). We conclude that the referee's findings of fact are supported by satisfactory and convincing evidence. We also agree with the referee's conclusions of law that Attorney Sostarich engaged in professional misconduct and turn to the question of the appropriate discipline for this report the misconduct. ¶9 The referee incorporated into his recommendation statements he made on the record at the close of the disciplinary hearing, recommending that Sostarich be suspended for a period of one year, retroactive to the date of his summary suspension on May 18, 2004. We consider statements together with the report and recommendation. 4 these No. ¶10 The referee noted recommended an 18-month at the hearing suspension, and requested a suspension of 90 days. discuss the nature of that 2004AP1911-D the Attorney OLR had Sostarich The referee proceeded to Sostarich's violation, noting the seriousness of the charge to which Sostarich pled guilty. ¶11 his The referee also considered Sostarich's poor health, family extensive commitments, community and and remarked volunteer on service, Sostarich's particularly very his "long and distinguished record of pro bono service to individual clients." He noted that Sostarich accepted full responsibility for his actions and has cooperated fully with federal and OLR investigators and prosecutors. ¶12 While acknowledging seriousness" of Sostarich's the "substantial misconduct, the amount referee of explained that he was influenced by the many mitigating circumstances and by testimony of one of the injured clients, who volunteered "I think Mark [Sostarich] got snookered, just as we did." The referee was clearly moved by Sostarich's sincere remorse. ¶13 We have carefully considered recommendation as to discipline. the referee's However, Attorney Sostarich pleaded guilty to a serious felony charge; we are not persuaded that a retroactive suspension of 12 months is sufficient discipline for the serious misconduct committed in this matter. ¶14 18 We conclude that the OLR's recommended suspension of months underlying is more appropriate conviction, but to agree the with serious the nature referee of the that the suspension should be imposed retroactive to the date on which 5 No. Sostarich's based on license to the criminal practice law conviction. was We 2004AP1911-D summarily further suspended conclude that Attorney Sostarich should be required to pay the costs of the proceeding.4 ¶15 IT IS ORDERED that Attorney Mark E. Sostarich's license to practice law in Wisconsin is suspended for a period of 18 months, retroactive to May 18, 2004. ¶16 IT IS FURTHER ORDERED that, if he has not already done so, Attorney Mark E. Sostarich comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended. ¶17 IT IS FURTHER ORDERED that within 60 days of the date of this order Attorney Mark E. Sostarich pay to the Office of Lawyer Regulation the costs of this proceeding, provided that if the costs are not paid within the time specified and absent a showing to this court of his inability to pay those costs within that time, the license of Attorney Mark E. Sostarich to practice law in Wisconsin shall remain suspended until further order of the court. ¶18 DAVID T. PROSSER and LOUIS B. BUTLER, JR., J.J. did not participate. 4 Final costs have yet to be determined in this matter. 6 No. 1 2004AP1911-D
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