Board of Attorneys Professional Responsibility v. Ralph A. Kalal
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2002 WI 45 SUPREME COURT CASE NO.: OF WISCONSIN 00-1070-D COMPLETE TITLE: In the Matter of Disciplinary Proceedings Against Ralph A. Kalal, Attorney at Law: Board of Attorneys Professional Responsibility, Complainant-Respondent, v. Ralph A. Kalal, Respondent-Appellant. DISCIPLINARY PROCEEDINGS AGAINST KALAL OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: May 2, 2002 November 9, 2001 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: ABRAHAMSON, C.J., concurs (opinion filed). BABLITCH, J., concurs (opinion filed). CROOKS, J., joins concurrence. PROSSER, J., concurs (opinion filed). DISSENTED: NOT PARTICIPATING: ATTORNEYS: For the respondent-appellant there were briefs by Steven M. Glynn and Glynn, Fitzgerald & Albee, S.C., Milwaukee, and Ralph A. Kalal and Kalal & Associates, Madison. For the complainant-respondent there was a brief by Robert G. Krohn and Roethe, Krohn, Pope, McCarthy & Haas, LLP, Edgerton. 2002 WI 45 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 00-1070-D STATE OF WISCONSIN IN SUPREME COURT : In the Matter of Disciplinary Proceedings Against Ralph A. Kalal, Attorney at Law: Board of Attorneys Professional Responsibility, FILED MAY 2, 2002 Complainant-Respondent, v. Cornelia G. Clark Clerk of Supreme Court Ralph A. Kalal, Respondent-Appellant. ATTORNEY disciplinary proceeding. Attorney publicly reprimanded. ¶1 PER CURIAM. involves an attorney's argument to this imposes upon tribunal. 1 SCR knowingly: tribunal." This disciplinary misrepresentation court, attorneys attorney in the of fact during 20:3.3,1 violation of SCR obligation of candor matter oral which toward the We emphasize at the outset that an attorney's duty of 20:3.3(a)(1) provides: "(a) A (1) make a false statement of lawyer shall not fact or law to a No. candor toward the tribunal is central to the 00-1070-D truth-seeking function of any court, including, obviously, this one. argument is not an opportunity for deception. its decisions, albeit tentatively, Oral This court makes immediately following oral argument, relying in part on information supplied by counsel in response to the court's questions. the court's knowingly decision-making made false This is a critical part of process. statements to Attorney this Ralph during court Kalal oral argument, in response to questions from members of the court. Under these public circumstances, sanction will truthfulness and gamesmanship that only reinforce candor in Attorney a strong, the unmistakable and attorney's Kalal's of and court obligation the of deter conduct sort represents. We conclude that the gravity of this misconduct requires at least a public reprimand. ¶2 Attorney referee, Cheryl Kalal Rosen appealed Weston, from finding the report of that Attorney the Kalal knowingly made a false statement of fact to this court during oral argument reprimand. and recommending the issuance of a private Attorney Kalal argues that the Board of Attorneys 2 No. Professional Responsibility (Board)2 has failed to 00-1070-D prove by evidence that is clear, satisfactory, and convincing that he knowingly made a false statement of fact to this court. conclude that the referee's findings in this regard We are supported by clear, satisfactory, and convincing evidence, and we adopt them. seriousness As noted above, however, we determine that the of Attorney Kalal's misconduct warrants the imposition of a public, rather than a private, reprimand. ¶3 Attorney Wisconsin in previously Kalal 1973 been and the was admitted practices subject of in a to practice Madison. He disciplinary law has in not proceeding. Between 1996 and 1998 he had between one and three associates working for him, including Attorneys Tracey Wood and Stephen Mays. ¶4 Attorney Kalal represented Ralph D. Smythe in Sauk County Circuit Court on a charge of operating a motor vehicle while intoxicated. in a consent Smythe's operating privileges were revoked refusal proceeding law. Attorney brought Kalal under appealed Wisconsin's the final revocation to District IV of the Court of Appeals. 2 implied order of The opening Effective October 1, 2000, Wisconsin's attorney disciplinary process underwent a substantial restructuring. The name of the body responsible for investigating and prosecuting cases involving attorney misconduct was changed to the Office of Lawyer Regulation (OLR) and the supreme court rules applicable to the lawyer regulation system were also revised. Since the conduct giving rise to the complaint occurred prior to October 1, 2000, the investigative body will be referred to as "the Board." Unless otherwise stated, references to supreme court rules will be to those in effect prior to October 1, 2000. 3 No. brief in the case was due on December 29, 1997. 00-1070-D On that day Attorney Kalal filed a motion requesting an extension of five working days from that date within which to file the brief. The motion for stated that the attorney assigned responsibility preparation of the brief, Michelle Tjader, was on a previously planned vacation and had been able to complete only a draft of the brief prior to the vacation.3 ¶5 By order dated January 2, 1998, the court of appeals denied the motion and dismissed the appeal as a sanction for failure to file the brief. On January 6, 1998, the date requested in Attorney Kalal's motion to extend the time to file the brief, the brief was filed. On the same day Attorney Kalal filed a renewed motion to extend the time to file the brief. order of January 9, 1998, the court of appeals denied By the motion, refused to accept the brief for filing, and confirmed its earlier order of dismissal. ¶6 this Attorney court. Oral Kalal appealed argument was the held dismissal on in November Smythe 11, to 1998. During oral argument, the following colloquy took place: JUSTICE CROOKS: I have a question, however. During the two years preceding the action that was taken in the Smythe case, had either you or your firm in any way been sanctioned by the court of appeals, by District IV, for the filing of briefs on a rather regular late basis? ATTORNEY KALAL: No. There was one case and I believe it is referred to in Judge Dykman's second order in 3 State v. Smythe, 225 Wis. 2d (1999). 4 456, 460, 592 N.W.2d 628 No. 00-1070-D which they declined to allow us to file a reply brief and decided the case without the benefit of that brief. CHIEF JUSTICE ABRAHAMSON: ATTORNEY KALAL: Mosel. CHIEF JUSTICE ABRAHAMSON: ATTORNEY KALAL: CHIEF JUSTICE Mosel. ATTORNEY KALAL: ABRAHAMSON: It's referenced here, Yes. In an order dated the 18th Correct. JUSTICE CROOKS: action was taken? ATTORNEY KALAL: Pardon me? That CHIEF JUSTICE ABRAHAMSON: of September. ATTORNEY KALAL: Is that the 1996 case? Was there some warning when that No. JUSTICE BABLITCH: Just to follow that up, if I may, Justice. On page, appendix 6, in Judge Dykman's first order, he states, "We have advised counsel," which I presume is you, "that extension motions based on counsel's heavy workload fail to make the showing of good cause when they become routine" and then on page 19 of this, which is Judge Dykman's second order, he states: "We have made it clear that we have concluded our normal procedures are inadequate to address appellate counsel's," which I assume is you, "excessive extension motions." I was led to believe by those somehow that they have gotten the word to you or your firm that, "hey, you've pushed the envelope too far." ATTORNEY KALAL: I think that it would be fair to say that in a couple of their orders they indicated that good cause is shown, but have indicated essentially that they were reluctant because they viewed that there had been more requests than they would like. I 5 No. 00-1070-D will not dispute that. I would not say that they have, with the clarity that is suggested by Judge Dykman's orders said "you do this again, you're going to be wasted." ¶7 This court concluded that the court of appeals improperly based its decision to dismiss the Smythe appeal, in part, on past, unrelated extension practices by Attorney Kalal in other cases not involving Smythe. It reversed the order of dismissal and remanded the case for reconsideration. ¶8 On April 19, 2000, the Board filed a complaint against Attorney Kalal alleging that he knowingly made a false statement of fact to this court during oral argument, thus violating SCR 20:3.3. failure The to complaint file the also Smythe alleged brief that when due Attorney in the Kalal's court of appeals, rather than filing a motion for an extension of time on the brief's due date, violated SCR 20:1.3.4 ¶9 the The Board notes that during the two years preceding Smythe case, the court of appeals penalized or strongly cautioned Attorney Kalal or his firm for excessive extension motions in orders issued in the following cases: 1. State v. Lesavage, No. 95-3364-CR. Counsel of record in the case was Kalal's associate, Tracey Wood. On February 14, 1996, the court of appeals granted Wood's motion for an extension of time to file a brief but said, [t]he motion does not show a workload . . . sufficient to justify an extension. Nor does it show good cause for an extension of the length 4 SCR 20:1.3 provides: "Diligence. A lawyer shall act with reasonable diligence and promptness in representing a client." 6 No. 00-1070-D requested. . . . Counsel should not assume extension motions will be granted, or that short extensions will be granted even when the motion does not show good cause. Failure to file the brief timely may result in a sanction against counsel. 2. County of Dane v. Chamberlain, No. 95-2706. The defendant was represented by Kalal. On February 21, 1996, the court of appeals granted Kalal's motion for a one-week extension of time to file a reply brief. The order explained, [a]n extension motion on the ground of counsel's heavy workload makes a less satisfactory showing of good cause when the workload appears so perpetually heavy that extension motions are routine. . . . Counsel should not assume extensions will be granted or, if granted, that they will be for the length requested. . . . As for the present motion, we reluctantly conclude good cause is shown. 3. State v. Gaulrapp, No. 96-1094-CR. Defendant was represented by Kalal. By order dated July 23, 1996, the court of appeals granted a motion for extension of time to file a brief but imposed a $100 monetary penalty on Kalal. The order said, [i]t is not clear why counsel waited until the date the brief was due to file the motion for a stay of proceedings. We caution appellant's counsel not to assume that motions filed on the due date will be granted, or that additional time to complete the brief will be provided if the motion is denied. We also caution counsel not to assume that a financial sanction is the only penalty the court is prepared to impose for failure to file a brief timely. Dismissal is also a sanction available under Rule 809.83(2), Stats. 4. Village of Oregon v. Mark Feiler, No. 96-1202. Defendant was represented by Kalal's associate, Tracey Wood. By order dated July 23, 1996, the court of 7 No. 00-1070-D appeals granted a repeated motion for an extension of time to file a brief but imposed a $100 monetary penalty on Attorney Wood. The order stated, [w]e caution appellant's counsel not to assume that motions filed on the due date will be granted, or that additional time to complete the brief will be provided if the motion is denied. We also caution counsel not to assume that a financial sanction is the only penalty the court is prepared to impose for failure to file a brief timely. Dismissal is also a sanction available under Rule 809.83(2), Stats. 5. State v. Timothy Kuklinski, No. 96-1266. Defendant was represented by Kalal's associate, Tracey Wood. By order dated August 14, 1996, the court of appeals granted a motion for extension of time filed the day a brief was due. The order stated, [e]xtension motions on the ground of counsel's heavy workload make a less convincing showing of good cause when the workload at counsel's firm is so perpetually heavy that such motions are routine. We so advised another member of counsel's firm as long ago as February 1996. Since then, we have imposed financial penalties several times against counsel at the firm for failure to file a brief timely. . . . In view of our previously expressed concern, counsel's firm had ample opportunity to arrange for the timely filing of brief. . . . 6. State v. Mosel, No. 96-1432-CR. Defendant was represented by Kalal. On September 18, 1996, the court of appeals denied a motion for a one-day extension of time to file a brief. The order stated, [i]n February 1996, in an unrelated appeal, we advised Mosel's attorney that an extension motion on the ground of counsel's heavy workload makes a less satisfactory showing of good cause when the workload appears so perpetually heavy that extension 8 No. 00-1070-D motions are routine. We stated that counsel should not assume extensions will be granted. In the months following that order, we imposed a monetary penalty against counsel several times for failure to file a brief timely. In July 1996, in another unrelated appeal, we again advised counsel not to assume that extension motions will be granted, or to assume that additional time to complete the brief will be provided if the motion is denied. We further cautioned counsel not to assume that a financial sanction is the only penalty the court is prepared to impose. We noted that dismissal is also a sanction available under Rule 809.83(2), Stats. We have reviewed the files of appeals by appellant's counsel. We have received briefs in 26 such appeals in 1996. In 19 of those 26 appeals appellant's counsel sought an extension of the time to file his brief. Counsel's proclivity for extension motions wastes the resources of this court and causes unnecessary delays. We have advised counsel of our dissatisfaction, and warned him that an appeal may be dismissed. Counsel has had ample time to adjust his practice so that such motions are not routine. We conclude the present motion does not show good cause, and therefore we deny it. 7. State v. Size, No. 96-2070-CR. Defendant was represented by Kalal associates Stephen Mays and Tracey Wood. On October 15, 1996, the court of appeals granted a motion to extend the time to file a brief. After citing the occasions in which attorneys in Kalal's firm were advised that they should not assume extension motions would routinely be granted, the court said, "[u]ntil now, first requests for short extensions have usually been handled by the clerk of this court without review by the court. As a result of counsel's abusive extension motions, all such 9 No. 00-1070-D motions by members of appellant's law firm will now be reviewed by the court." ¶10 The referee found that Attorney Kalal's responses at oral argument were false, in violation of SCR: 20:3.3 in three respects. ¶11 First, the referee pointed to the following exchange: JUSTICE CROOKS: During the two years preceding the action that was taken in the Smythe case, had either you or your firm in any way been sanctioned by the Court of appeals, by District IV, for the filing of briefs on a rather regular late basis? ATTORNEY KALAL: No. There was one case. The "one case" referred to was Mosel, in which the court of appeals refused to accept a late-filed brief as a sanction for a late-filed extension motion. The referee concluded that Attorney Kalal's answer was false because it ignored the $100 monetary penalties imposed in Gaulrapp and Feiler. ¶12 The second statement identified by the referee as false arose out of the following exchange: JUSTICE CROOKS: Was there some warning when that action [the court of appeals' refusal to allow an extension of time to file a reply brief in Mosel] was given? ATTORNEY KALAL: No. The referee concluded that the answer "no" was clearly false because the Mosel order attached the court of appeals' previous orders in Kalal that Gaulrapp he and should Chamberlain not assume which extension cautioned motions Attorney would be granted, particularly when they were filed on the date the brief 10 No. 00-1070-D was due, nor should he assume additional time to complete the brief would be provided if the motion was denied. ¶13 The third statement identified by the referee as false arose out of the following exchange: JUSTICE BABLITCH: Just to follow that up if I may, Justice. On page, appendix 6, in Judge Dykman's first order, he states: "We have advised counsel," which I presume is you, "that extension motions based on counsel's heavy workload fail to make the showing of good cause when they become routine" and then on page 19 of this, which is Judge Dykman's second order, he states: "We have made it clear that we have concluded our normal procedures are inadequate to address appellate counsel's" which I presume is you, "excessive extension motions." I was led to believe by those that somehow they have gotten the word to you or your firm that "hey, you've pushed the envelope too far." ATTORNEY KALAL: I think it would be fair to say that in a couple of their orders they have indicated that good cause is shown, but have indicated essentially that they were reluctant because they viewed that there had been more requests than they would like. I will not dispute that. I would not say that they have, with the clarity that is suggested by Judge Dykman's orders said "you do this again, you're going to be wasted." While the referee said Attorney Kalal's remark might be an accurate characterization of the order in Chamberlain, where the court of appeals reluctantly concluded good cause for an extension was shown, the remark was inconsistent with the fact that monetary sanctions had been imposed prior to Smythe, in Gaulrapp and Feiler, and it also ignored the fact that the court of appeals refused to allow the late filing of a brief in Mosel. 11 No. ¶14 00-1070-D Attorney Kalal justified the statements he made during the Smythe oral argument in two ways. ¶15 With respect to orders directed at other members of his firm, he claimed to be unaware of such orders. The referee found this position not to be credible given the small size of Attorney Kalal's law office and the fact that he and Attorney Wood were sanctioned by the same court, in the same way, for the same reason, on the same day. ¶16 With respect to cases in which Attorney Kalal admitted personal knowledge, he said that at the time of the Smythe oral argument hearing, he forgot what had happened in those other cases. The referee said this assertion was also difficult to believe since Attorney Kalal did remember being sanctioned by the court of appeals in Mosel, and the sanction in Mosel was based on the court's recitation of previous incidents. Thus, the referee concluded that Attorney Kalal violated SCR 20:3.3. ¶17 The referee found that the Board had failed to prove a violation of SCR 20:1.3. ¶18 The Board absence of any Kalal's misleading sought prior a private discipline statements and were needed to resolve the Smythe case. reprimand based the that not fact central to on the Attorney the facts The referee recommended the imposition of a private reprimand as discipline for Attorney Kalal's misconduct. prevailed in one The referee also recommended that, having of the two counts alleged in the Board's complaint, Attorney Kalal be required to pay one-half the costs of the proceeding. 12 No. ¶19 00-1070-D Attorney Kalal asserts that he gave an accurate and truthful answer to this court's question whether he or his firm had in any way been sanctioned by the court of appeals for filing briefs on a rather regularly late basis. He contends that the truthful answer to that question was, "no." that rather than filing briefs late, he sought He says extensions precisely for the purpose of assuring that the briefs would not be late. He also says that because the court of appeals granted most of his extension requests, the briefs filed were in fact not late. Attorney Kalal also argues that the $100 penalties imposed in the Feiler and Gaulrapp cases were not penalties for "rather regularly filing briefs late," and even if they were, the vintage of those penalties (two and one-half years before the Smythe oral argument) hardly suggests that those cases should have come instantly to Attorney Kalal's mind when faced with a question from the bench addressing matters outside the record in the Smythe case. ¶20 Attorney Kalal asserts that the referee's repeated emphasis on the small size of the Kalal law firm betrays the referee's ignorance of practice in a small firm, as well as an ignorance court. of the norms of oral argument before an appellate Attorney Kalal argues that this court took the Smythe case to decide the power of the court of appeals to dismiss cases as a sanction for the late filing of briefs. He asserts that given the issue and the record, there is no reason why he should have sought out the record of past orders issued by the 13 No. 00-1070-D court of appeals concerning extension motions filed in other cases. ¶21 The Board asserts that a review of the court of appeals' orders discussed above reveals that Attorney Kalal's responses during oral argument were both incomplete and untrue. The Board contends that the referee fairly inferred from the evidence presented Kalal's, he must that have in a been small aware office of the such as Attorney sanction to his associate issued in the same way, for the same reason, and on the same day Attorney Kalal himself received an identical sanction. ¶22 The Board argues that this court was entitled to receive full and fair responses to its inquiries relating to sanctions and warnings issued to Attorney Kalal and his firm by the court of appeals prior to the Smythe argument. The Board asserts Attorney Kalal's responses to this court were incomplete and designed to minimize the extent to which measures had been taken to deter Attorney Kalal and his firm from making tardy filings. The Board asserts the regularity with which Attorney Kalal and his firm had been sanctioned and warned by the court of appeals for untimely filings prior to Smythe indicates that Attorney Kalal was not merely mistaken in describing his history with the court of appeals; he was in fact intentionally trying to obscure that history both by what he offered to this court at oral argument and by what he did not offer. ¶23 A referee's findings of fact on a disciplinary matter will not be set aside unless clearly erroneous. 14 Disciplinary No. 00-1070-D Proceedings Against Sosnay, 209 Wis. 2d 241, 243, 562 N.W.2d 137 (1997). Conclusions of law are reviewed de novo. Disciplinary Proceedings Against Carroll, 2000 WI 130, 248 Wis. 2d 662, 675, 636 N.W.2d 718. ¶24 to The referee's finding that Attorney Kalal's response Justice erroneous. Crooks' questions were false is not clearly The "one case" referred to by Attorney Kalal in the first exchange with Justice Crooks was Mosel, in which the court of appeals denied a motion for a one-day extension of time to file a brief and refused to accept the brief for filing. In addition to Mosel, the court of appeals also imposed a $100 monetary penalty on Attorney Kalal in Gaulrapp, and on the same day it imposed associate, a Tracey $100 Wood, monetary in penalty Attorney Kalal's Thus, Feiler. on Attorney Kalal's statement during the Smythe oral argument that there had only been one occasion in which he or his firm had been sanctioned by the court of appeals was patently false. ¶25 Attorney Kalal's response to Justice Crooks' second question regarding whether there was some warning prior to the court of appeals refusing to extend the time to file a reply brief in Mosel was also false since the court of appeals did provide warning, in all of the previous cases listed above, that Attorney Kalal should not assume extensions would be granted or that a financial sanction was the only penalty the court was prepared to impose for failure to file a brief in a timely manner. 15 No. ¶26 The statement of referee's fact in finding that response to Attorney Justice 00-1070-D Kalal's Crooks' false questions during the Smythe oral argument was knowingly made is also not clearly erroneous. The notion that Attorney Kalal would have remembered the court of appeals' refusal to grant him a briefing extension in Mosel yet would not have remembered the $100 monetary penalty imposed in Gaulrapp is incredible on its face. The referee's here in a finding small law that under the firm consisting circumstances of no more presented than three associates, it is not credible for Attorney Kalal to claim that he was unaware of the $100 monetary penalty imposed on Attorney Tracey Wood in the Feiler case the same day the $100 penalty was imposed against Attorney Kalal in Gaulrapp, is also not clearly erroneous. ¶27 In addition, Attorney Kalal's colloquy with Justice Bablitch during the Smythe oral argument was, if not patently false, at least knowingly misleading. ¶28 court of In Lesavage, appeals Chamberlain, cautioned Attorney Kuklinski, Kalal and and Size, the his firm that extension motions would not be routinely granted, that failure to file briefs on time might result in a sanction against counsel, and that all extension motions filed by the Kalal firm would be reviewed by the court. The only reasonable reading of the orders issued in Lesavage, Chamberlain, Kuklinski, and Size is that the court of appeals was warning Attorney Kalal that he and his law firm had in fact "pushed the envelope too far" with respect to its filing of extension motions, that close scrutiny 16 No. would be applied possible. the to future motions, and that sanctions Smythe oral statement, finding were Attorney Kalal's response to Justice Bablitch during argument thus appears to be deliberately misleading, if not actually false. this 00-1070-D that conclusion standing SCR that alone, 20:3.3 Attorney would was perhaps violated, Kalal's answers it to at least Even though not support reinforces Justice a the Crooks' questions were false and knowingly made. ¶29 Since the referee's findings that Attorney Kalal knowingly made false statements of fact to this court during the Smythe oral argument have not been shown to be clearly erroneous, we adopt them. ¶30 The Board sought, and the referee recommended, that a private reprimand be issued as discipline for Attorney Kalal's misconduct. We conclude that the seriousness of Attorney Kalal's misconduct warrants the imposition of a public, rather than a private, reprimand. ¶31 The referee also recommended that Attorney Kalal be required to pay one-half of the costs and fees associated with this proceeding. Attorney Kalal has filed an objection to the bill of costs filed by the Board and has also filed a motion seeking the imposition of costs and sanctions against the Board and its counsel personally. ¶32 Current SCR 21.19 states, in part, that "the director, staff, . . . [and] retained counsel, . . . shall be immune from suit for any conduct in the course of their official duties." In addition, this court has previously 17 declined to award No. 00-1070-D attorneys defense costs in disciplinary proceedings, whether the attorney prevails on some or all counts. See Disciplinary Proceedings Against Marcus & Tepper, 107 Wis. 2d 560, 320 N.W.2d 806 (1982). Consequently, we deny Attorney Kalal's motion for costs and sanctions. ¶33 Although the referee recommended that Attorney Kalal be required to pay one-half of the costs and fees associated with the proceeding because the referee concluded that the Board had proved only one of the two counts alleged in its complaint, this court has previously rejected objections to full assessments of costs based on an apportionment of the number of misconduct allegations established. See, e.g., Disciplinary Proceedings Against Pangman, 216 Wis. 2d 440, 460, 574 N.W.2d 232 (1998); Disciplinary Proceedings Wis. 2d 14, 20, 477 N.W.2d 54 (1991). practice here and conclude that Against Johnson, 165 We follow that past Attorney Kalal should be required to pay the full costs and fees associated with this proceeding. ¶34 IT IS ORDERED that Ralph Kalal is publicly reprimanded for his professional misconduct. ¶35 IT IS FURTHER ORDERED that Ralph Kalal's motion for costs and sanctions against the Board and its counsel is denied. ¶36 IT IS FURTHER ORDERED that Ralph Kalal be required to pay the costs and expenses of this disciplinary proceeding. If the costs are not paid within 90 days of the date of this order, and absent a showing to this court of his inability to pay the 18 No. 00-1070-D costs, the license of Ralph Kalal to practice law in Wisconsin shall be suspended until further order of this court. 19 No. ¶37 SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE 00-1070-D.ssa (concurring). It seems to me that there's more to this case and less to this case than meets the eye. As I studied the case, three texts kept coming to mind. ¶38 First, I recalled a decision by my wise former law partner, Federal District Court Judge James E. Doyle, sentencing Ben Masel for spitting in the face of U.S. Senator Henry M. Jackson at Wisconsin, the on disapproval Dane March of the armament industry.5 County 30, 1976. Senator's Regional Masel alleged Airport was in Madison, demonstrating relationship with his the Judge Doyle wrote that he pondered whether to treat the crime as a minor, petty offense or as an important case. Judge Doyle decided to sentence Masel to 15 days in jail, concluding that Masel deserved "a pinch of deserved condemnation for an ignoble, small performance."6 ¶39 honesty. The other two texts were cartoons The cartoon about lying is cynical: about lying and A father, while driving the family car, says to his young son, "Everyone lies, son, but there are different pay scales."7 ¶40 The cartoon about honesty is more philosophical: A father, sitting in his easy chair in the living room, says to 5 United States v. Masel, 563 F.2d 322 (7th Cir. 1977). 6 A Pinch of Deserved Condemnation, Capital Times, Jan. 5, 1977 (a complete text of Judge Doyle's sentencing statement). 7 Donald Reilly, The New Yorker, Feb. 18 & 25, 2002, at 160. 1 No. 00-1070-D.ssa his young son, "Honesty is a fine quality, Max, but it isn't the whole story."8 ¶41 This case, which raises issues addressed in the three texts, bothers me. * * * * ¶42 Old hands on appellate courts look into each other's eyes, knowingly nod, and wisely say, "garbage in, garbage out." This short-hand phrase means that judges rely on lawyers to keep us informed about a case. Sure, judges (and law clerks) do research and read the record, but the better the briefs and the better the oral argument, then the better the chances are for a good, sound decision. That is why lawyer competence and candor are so important to the proper working of the legal system. ¶43 The per curiam opinion in the present case puts it more grandly: "[C]andor toward the tribunal is central to the truth-seeking function of any court. its decisions, albeit tentatively, . . . This court makes immediately following oral argument, relying in part on information supplied by counsel in response to the court's questions."9 ¶44 Whether cast in colloquial or grand terms, this case touches on the importance of providing accurate information to the courts. 8 Robert Weber, The New Yorker, March 18, 2002, at 124. 9 Per curiam op. at ¶1. 2 No. ¶45 Kalal's comments, which are the 00-1070-D.ssa subject of this disciplinary proceeding, were uttered when he was arguing the Smythe case before this court on November 11, 1998.10 The questions asked at oral argument in Smythe were about sanctions and warnings in prior cases. These questions and Kalal's subsequent responses, quoted in the per curiam opinion, were not material to the decision in Smythe. ¶46 whether The Judge issue before Dykman the could supreme penalize Kalal's conduct in other cases. court Smythe on in Smythe the basis was of When Kalal requested a five-day extension from the court of appeals to file his appellate brief in Smythe (the first request for an extension in that case), Judge Dykman (sitting as a single judge) dismissed the Smythe appeal on the ground that Kalal had repeatedly requested time extensions in other prior cases not involving the Smythe case. This court held that Kalal's conduct in other cases was not relevant to whether Smythe should be dismissed and that the court of appeals had erred in dismissing Smythe.11 ¶47 As Kalal's brief in this disciplinary matter puts it, "This Court took the Smythe case to decide that issue [about using Kalal's 10 11 motions in other cases as grounds to dismiss State v. Smythe, 225 Wis. 2d 456, 592 N.W.2d 628 (1999). "[A] court of appeals decision to dismiss an appeal may be reversed when there is compelling evidence that that court based its decision, in part, on the past practices of counsel in unrelated matters." Smythe, 225 Wis. 2d at 459. 3 No. Smythe]. 00-1070-D.ssa It didn't take the case to express an opinion about the conduct of either [the] lawyer or appeals court judge."12 ¶48 Supreme tolerance Court Rule 20:3.3 for false statements their materiality. of appears fact or law to allow zero regardless of But shouldn't materiality play a role in determining the discipline to be imposed? ¶49 case? So what is the false statement of fact in the present According to the per curiam opinion, Kalal misstated two facts: (1) His statement that his firm had been sanctioned in only one case was false. See per curiam op. at ¶11. (2) His statement that his firm had not been warned in the Mosel case was false. See per curiam op. at ¶12. ¶50 This is the entire case against Kalal. ¶51 Kalal claims that he gave an accurate response Justice Crooks' question, which was about late filings. to Justice Crooks' question did not, according to Kalal, relate to motions to extend the time for filing a brief. ¶19. Lame excuse? ¶52 See per curiam op. at Or plausible explanation? The per curiam opinion shies away from the referee's finding that Kalal's response to Justice Bablitch was false, but uses Kalal's referee's Crooks. 12 response findings to Justice regarding The per curiam the opinion Kalal's Brief at 23. 4 Bablitch two to reinforce falsehoods declares that the to Justice while Kalal's No. 00-1070-D.ssa response to Justice Bablitch "standing alone, would perhaps not support a finding reinforces the that former conclusion SCR that 20:3.3 Attorney was violated, it answers to Kalal's Justice Crooks' questions were false and knowingly made."13 ¶53 So the disciplinary decision in the present case rests on Kalal's misstating two facts that were not central to the oral argument Forgetfulness in is Smythe. okay. There Spin is are okay. fine False lines here: statements of facts, material or not, are not okay. ¶54 Crooks' Another referee might have been persuaded that Justice question was not clear enough or could have been interpreted in a different way or that Kalal had forgotten at the Smythe oral argument that two and one-half years earlier $100 sanctions were imposed in two cases. view of the facts is not finding is determinative. important However, a different because this referee's Applying a standard of review that gives deference to the referee's findings, I must conclude that the statements were knowingly false. But don't the nature and frequency of the false statements play a role in determining the discipline to be imposed? ¶55 Courts accurately. 13 also have an obligation to state the facts In an August 14, 1996, order and in a September 18, Per curiam op. at ¶28. The per curiam opinion further states: "Kalal's colloquy with Justice Bablitch during the Smythe oral argument was, if not patently false, at least knowingly misleading." See per curiam op. at ¶27. 5 No. 00-1070-D.ssa 1996, order, the court of appeals concluded that after February 1996, it "imposed a monetary penalty against [Kalal] several times for failure to file a brief timely." ¶56 (Emphasis added.) However, the record before this court shows that only two not several monetary penalties were imposed from February 1996 to September 18, 1996. It is possible that the full record of Kalal's 1996 motions and sanctions were not introduced into evidence and that the court of appeals' assertion of several monetary sanctions Irrelevant? may Perhaps. be correct. Trivial But my point is simple: observation? Courts as well as lawyers must use care to state the facts accurately. And we all err. ¶57 What is to be done in the future? Apparently the court of appeals concluded that Kalal had asked for too many extensions appeals of time therefore to file appellate announced that it briefs. would The examine court of Kalal's requests differently from the way it examined other attorneys' requests. It will be interesting to see whether the practice of singling out an attorney for special, personal treatment for his or her motions continues. Perhaps Smythe puts an end to the court of appeals using special rules to deal with the motions presented by a particular attorney, rather than deciding each motion in each case on its merits. 6 No. ¶58 But let's look at the bigger picture. 00-1070-D.ssa Smythe is but one case and Kalal is but one lawyer in a vast sea of motions seeking an extension of the time allowed for filing These motions are a growing cottage industry. briefs. Approximately 3500 new appeals are filed in the court of appeals each year. In 1996, 1,960 motions for extension of time were filed in the court of appeals, and in 1997, 2,056 such motions were filed.14 Although these motions were not exclusively motions to extend the time for filing briefs, a random sampling of 11% of the 1996 motions by the office of the clerk of the court of appeals indicates that 95% filing briefs. indicates were requests for extensions of time for A similar sampling of 9% of the 1997 motions that 85% were requests for extensions of time for filing briefs. ¶59 A conservative estimate that 80% of the motions for extension filed in the court of appeals are requests to extend the time receives month, for filing briefs approximately to extend the 1600 means that such motions time for the a filing court year, of appeals over briefs. 130 Only a an insignificant number and percentage of these are attributable to Kalal or his firm! ¶60 That's a lot of paper in and out of the office of the clerk of the court of appeals. 14 And that's a substantial amount Wis. Stat. § 809.82 (1999-2000). Wis. 2d at 466. 7 See also Smythe, 225 No. 00-1070-D.ssa of staff time devoted to motions to extend the time for filing briefs. Does extending the time for filing briefs delay or interfere with decision-making in the court of appeals? ¶61 Perhaps the court of appeals should consider a change in its procedures to reduce staff time used for this purpose and to reduce conflicts with attorneys about these motions. The court of appeals might publish its procedures for granting and denying these motions so that its procedures are clear to all attorneys. And this court, with a much smaller motion practice, should consider doing the same. ¶62 Back to the present and this case. about this case? pay scales? Honesty Private reprimand? ¶63 I Is it petty or important? not the full Public reprimand? am going along with the So what to do Lying at different story? No discipline? Suspension? court's imposition of a public reprimand rather than a private reprimand in this matter, but not without some misgivings. uncomfortable. 8 This case makes me very No. ¶64 years on WILLIAM A. BABLITCH, J. this bench, I have In nearly 19 (concurring). been privileged 00-1070-D.wab to hear many outstanding attorneys argue forcibly and well for their clients. Perhaps I am naïve, but I have never felt, until this case, that an attorney has deliberately misled or lied to our court. ¶65 I would have opted colleagues did not agree. ¶66 for a harsher penalty, but my I bend to their wisdom. I am concerned that Mr. Kalal still doesn't get it. At various times throughout his briefs, Kalal repeatedly points accusing fingers at the appeals court judge and at the referee. Mr. Kalal would be well advised to reconsider and take a long look at himself. His defense, technical to the extreme, amounts to no defense at all. He is obviously a bright, intelligent, articulate attorney, capable of representing his clients ably. He does himself, this court, and the bar a disservice by this conduct. ¶67 I am authorized to state CROOKS joins this opinion. 1 that Justice N. PATRICK No. ¶68 curiam DAVID T. PROSSER, J. opinion address a gap without in this I join the per (concurring). reservation. court's I write analysis 00-1070.dtp that separately ought to to be explained. ¶69 On January 2, 1998, the court of appeals denied Attorney Kalal's motion to extend the time for filing a brief and dismissed the appeal of Kalal's client, because his brief was not timely filed. Ralph Smythe, See State v. Smythe, 225 Wis. 2d 456, 460, 592 N.W.2d 628 (1999). In a second order dated January 9, 1998, the court of appeals denied a renewed motion to extend time. Id. at 461. This court later granted a petition for review, and we heard oral argument in the Smythe case on November representations to 11, 1998. the Id. court in at that source of this disciplinary proceeding. ¶70 456. oral Attorney argument Kalal's are the PER CURIAM op. at ¶6. The per curiam opinion states that "[D]uring the two years preceding the Smythe case, the court of appeals penalized or strongly cautioned Attorney Kalal or his firm for excessive extension motions in orders issued in the following cases[.]" The opinion then describes seven cases dating from February 14, 1996, to October 15, 1996. Id. at ¶9. However, the opinion lists no cases between October 15, 1996, and Kalal's December 29, 1997, motion in the Smythe case, a gap of 14 months. ¶71 because court. The opinion cites no cases from this 14-month period none were disclosed However, no in the inference record should 1 be presented drawn that to this Attorney No. 00-1070.dtp Kalal made no extension requests during this period or that he was not admonished by the court of appeals during this period. ¶72 In its January 2, 1998, order in the Smythe case, the court of appeals said: Appellant's counsel's firm has a long history of extension motions in this court, and we have in the past issued stern warnings and taken other actions to attempt to reduce their number. We have noted the toll these motions take on this court's time and resources. We have advised counsel that extension motions based on counsel's heavy workload fail to make the showing of good cause required by Rule 809.82(2), Stats., when they become routine. In the past, such motions were routine. For much of this past year, counsel's firm has been reasonable in its requests for extensions. However, we have again noted an increase in such motions. That increase, combined with this motion's complete absence of any showing of why the brief could not be completed during the five weeks before counsel's vacation, leads us to conclude that good cause has not been shown. Therefore, we deny the motion. See Smythe, 225 Wis. 2d at 460 (emphasis added). ¶73 In his renewed motion for extension in early 1998, Kalal acknowledged that he had filed 15 motions for extension in 1997. See id. at 461. ¶74 At my request, this court independently examined public records of Kalal's 1997 extension motions to determine the basis for the court of appeals' stated concern. We discovered that Kalal filed an extension motion in December 1997 in State of Wisconsin ex rel. Ronald E. Patten v. David H. Schwartz, No. 97-2927. 1997, order allowing This motion resulted in a December 26, an extension but imposing a financial penalty of $100 on Kalal because good cause for delay had not been shown. On or about December 29, 1997, Kalal filed a motion 2 No. 00-1070.dtp to extend time in In re Refusal of James P. Sullivan: Dane County v. James P. Sullivan, No. 97-2143. This motion was denied in an order dated January 2, 1998. ¶75 These two cases were fresh in the mind of the court of appeals when it issued its Smythe orders in January 1998. The Patten case was clearly covered by Justice Crooks's question later in the year. ¶76 bearing included The two cases found outside the record have had no whatever in this on the discipline concurring imposed opinion apparent gap in this court's analysis. solely here. to They are explain the It would not be fair for this court to place the court of appeals in a false light by failing to explain what actually transpired during the 14-month period. 3 No. 1 00-1070.dtp
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