Office of Lawyer Regulation v. Eric L. Crandall
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2008 WI 112 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2008AP570-D In the Matter of Disciplinary Proceedings Against Eric L. Crandall, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Eric L. Crandall, Respondent. DISCIPLINARY PROCEEDINGS AGAINST CRANDALL OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: July 31, 2008 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS: PROSSER, J., concurs. 2008 WI 112 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2008AP570-D STATE OF WISCONSIN : IN SUPREME COURT In the Matter of Disciplinary Proceedings Against Eric L. Crandall, Attorney at Law: FILED Office of Lawyer Regulation, Complainant, JUL 31, 2008 v. David R. Schanker Clerk of Supreme Court Eric L. Crandall, Respondent. ATTORNEY disciplinary proceeding. Attorney's license CURIAM. this we whether suspended. ¶1 PER In matter review discipline reciprocal to that imposed by the Supreme Court of Minnesota in December 2007 should be imposed against Attorney Eric L. Crandall. ¶2 Attorney Crandall was admitted to the practice of law in this state in September 1991. practice in New Richmond. He currently maintains a law No. ¶3 2008AP570-D Attorney Crandall has been the subject of professional discipline in this state on two prior occasions. As will be discussed more fully below, Attorney Crandall received a threemonth suspension in February 2006 as discipline reciprocal to that imposed by the Supreme Court of Minnesota in July 2005 for, among other things, neglecting three separate client matters, failing to communicate with clients, failing to comply with discovery rules, and failing to cooperate with a disciplinary investigation. 2006 WI 6, Petition In re Disciplinary Proceedings Against Crandall, 287 for N.W.2d 769 Wis. 2d 102, Disciplinary (Minn. 2005). 708 N.W.2d 690; Action court publicly against Following Wisconsin license was reinstated. reprimanded see also In re 699 suspension, that Crandall, his In March of this year, this Attorney Crandall for knowingly advancing a claim that was unwarranted under existing law, for failing to act with reasonable diligence and promptness, for failing to keep his clients reasonably informed about the status of their matter, for failing to return his clients' file in a timely manner, and for failing to cooperate with the grievance investigation (OLR). performed by the Office of Lawyer Regulation In re Disciplinary Proceedings Against Crandall, 2008 WI 14, ___ Wis. 2d ___, 745 N.W.2d 679. ¶4 Pursuant to the practice of the Supreme Court of Minnesota, the July 2005 disciplinary action suspended Attorney Crandall's license to practice law in Minnesota indefinitely, with the proviso that Attorney reinstatement after 90 days. Crandall could petition for Although Attorney Crandall sought 2 No. reinstatement following of the his license expiration to of practice his law 2008AP570-D in reciprocal Wisconsin three-month suspension in this state, he never sought the reinstatement of his Minnesota license. ¶5 Attorney Crandall's Minnesota license remained in suspended status at the time that the Minnesota disciplinary authorities filed their most recent disciplinary petition. It should be noted that the misconduct that formed the basis for the most recent disciplinary petition differed from the misconduct in the three representations that formed the basis for the July 2005 Minnesota disciplinary action. According to the Minnesota disciplinary materials that the OLR attached to its complaint in this proceeding, the misconduct alleged in the most recent disciplinary complaint in Minnesota involved Attorney Crandall's failure to act with diligence and promptness in representing a client, his failure to communicate with his clients, his engaging in dishonesty or misrepresentation, and his failure to investigation. cooperate Attorney with the Crandall Minnesota did disciplinary not contest the disciplinary petition, but instead entered into a stipulation in which he admitted the allegations in the disciplinary petition and joined with the Minnesota disciplinary authorities in recommending an extension of the suspension of his license to practice law in Minnesota for an additional 30 days. ¶6 the In line with its practice of indefinite suspensions, Supreme phrased its Court of December Minnesota 2007 accepted disciplinary 3 the stipulation action as a and 30-day No. extension of Minnesota stated petition for his ongoing that suspension. Attorney reinstatement of Crandall his The 2008AP570-D Supreme was not Minnesota Court of allowed to license for a minimum of 30 days following the date of the December 10, 2007, order. Thus, the suspension of Attorney Crandall's Minnesota license lasted for at least an additional 30 days beyond what it would have without the December 2007 disciplinary action. ¶7 Attorney On March 6, 2008, the OLR filed a complaint against Crandall that initiated proceeding in this court. the current disciplinary Counts 1-7 of the complaint related to matters that were not the subject of discipline imposed in another jurisdiction. Count 8 related to the OLR's request under SCR 22.221 for the imposition of discipline in Wisconsin 1 SCR 22.22 provides: Reciprocal discipline. (1) An attorney on whom public discipline for misconduct or a license suspension for medical incapacity has been imposed by another jurisdiction shall promptly notify the director of the matter. Failure to furnish the notice within 20 days of the effective date of the order or judgment of the other jurisdiction constitutes misconduct. (2) Upon the receipt of a certified copy of a judgment or order of another jurisdiction imposing discipline for misconduct or a license suspension for medical incapacity of an attorney admitted to the practice of law or engaged in the practice of law in this state, the director may file a complaint in the supreme court containing all of the following: (a) A certified copy of the judgment or order from the other jurisdiction. (b) A motion requesting an order directing the attorney to inform the supreme court in writing within 20 days of any claim of the attorney predicated on the 4 No. 2008AP570-D reciprocal to the 30-day suspension imposed by the Supreme Court grounds set forth in sub. (3) that the imposition of the identical discipline or license suspension by the supreme court would be unwarranted and the factual basis for the claim. (3) The supreme court shall impose the identical discipline or license suspension unless one or more of the following is present: (a) The procedure in the other jurisdiction was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process. (b) There was such an infirmity of proof establishing the misconduct or medical incapacity that the supreme court could not accept as final the conclusion in respect to the misconduct or medical incapacity. (c) The misconduct justifies different discipline in this state. substantially (4) Except as provided in sub. (3), a final adjudication in another jurisdiction that an attorney has engaged in misconduct or has a medical incapacity shall be conclusive evidence of the attorney's misconduct or medical incapacity for purposes of a proceeding under this rule. (5) The supreme court may refer a complaint filed under sub. (2) to a referee for a hearing and a report and recommendation pursuant to SCR 22.16. At the hearing, the burden is on the party seeking the imposition of discipline or license suspension different from that imposed in the other jurisdiction to demonstrate that the imposition of identical discipline or license suspension by the supreme court is unwarranted. (6) If the discipline or license suspension imposed in the other jurisdiction has been stayed, any reciprocal discipline or license suspension imposed by the supreme court shall be held in abeyance until the stay expires. 5 No. of Minnesota in December 2007. 2008AP570-D Count 9 alleged that Attorney Crandall had failed to notify the OLR of the suspension of his license to practice law in Minnesota within 20 days of the effective date of that suspension, in violation of SCR 22.22(1). ¶8 court to The OLR's complaint included a motion requesting the issue an order directing Attorney Crandall to show cause based upon the grounds set forth in SCR 22.22(3) why the imposition of discipline identical to that imposed in Minnesota would be unwarranted. The court issued such an order to show cause on March 7, 2008. ¶9 The court's order to show cause apparently reached Attorney Crandall before he was personally served with the OLR's complaint and motion. On March 17, 2008, Attorney Crandall filed a letter stating that since he had not seen the OLR's complaint or motion, he requested that the order to show cause be dismissed on due process grounds for lack of service of the underlying complaint and motion or that he be given additional time to respond. His March 17, 2008, letter also objected to the imposition of reciprocal discipline by claiming that this court has no legal authority to punish conduct that occurred outside the borders of this state. ¶10 the On March 19, 2008, the court issued an order directing OLR to respond to Attorney Crandall's March letter, including the allegations of lack of service. 20, 2008, the OLR responded that it had been 17, 2008, On March informed that Attorney Crandall had been personally served with the complaint and the motion for an order to show cause on March 18, 2008. 6 No. With respect allegedly to Attorney Crandall's unconstitutional objection 2008AP570-D on the application extraterritorial based of Wisconsin law, the OLR requested that the objection be rejected as patently meritless or that it be given additional time to brief the issue. ¶11 On March 21, 2008, the court issued an order directing Attorney Crandall to advise the court in writing by March 27, 2008, whether he acknowledged the service of the OLR's complaint and motion, and whether he was withdrawing his motion to dismiss based on lack of service. The order further stated that if Attorney withdrawing Crandall was not that motion, he was required to provide specific argument and authority in support of his motion to dismiss. The order also extended the time for Attorney Crandall to respond to the order to show cause until April 7, 2008, and directed Attorney Crandall to include any constitutional arguments against the imposition of reciprocal discipline in his response to the order to show cause. ¶12 Attorney Crandall did not file any document by March 27, 2008, contesting that he had been served on March 18, 2008, or providing specific argument in support of his motion to dismiss the order to show cause due to lack of proper service. ¶13 On April 7, 2008, Attorney Crandall filed his response to the order to show cause. His response initially objected to the inclusion of the counts relating to reciprocal discipline (Counts 8-9) in the OLR's complaint since the first 7 counts addressed claims of alleged professional misconduct that must be addressed through the normal process of referral to a referee 7 No. 2008AP570-D for fact-finding and a recommendation, and then review by this court. Attorney Crandall's response also challenged the imposition of reciprocal discipline because the copies of the Minnesota disciplinary materials attached to the OLR's complaint were not certified copies, as required by SCR 22.22(2)(a). In addition, the response contended that because Attorney Crandall had not sought December 2007 reinstatement disciplinary of his action Minnesota by the license, Supreme Court the of Minnesota could not be said to be new discipline that could form the basis Attorney for reciprocal Crandall discipline repeated his in argument Wisconsin. that this Finally, court was prohibited by the United States Constitution and the Wisconsin Constitution from jurisdiction. punishing conduct that occurred in another Among other things, he pointed to Article VII, § 8 of the Wisconsin Constitution, which states that Wisconsin's circuit courts have original jurisdiction in all civil and criminal matters "within this state," and to various decisions of this court and federal courts to the effect that a state's statutes do not have effect beyond the borders of the enacting state. See, e.g., State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 421 (2003) (state cannot punish defendant for conduct that was lawful where it occurred); State v. Sorenson, 218 Wis. 295, 260 N.W. 662 (1935) (effect of legislative acts limited to borders of state in which enacted). ¶14 On April 10, 2008, Attorney Crandall filed his answer and affirmative defenses to the OLR's complaint. 8 The answer did No. 2008AP570-D not include any affirmative defense relating to insufficiency of service of process. ¶15 the On May 14, 2008, this court issued an order regarding inclusion professional of reciprocal misconduct discipline counts in (i.e., other counts those and not jurisdictions) "standard" arising in the from discipline imposed same complaint. Given the contrast between the streamlined process for considering reciprocal discipline and the lengthier process for "standard" professional misconduct counts under SCRs 22.15.17, we agreed with Attorney Crandall's position that the reciprocal discipline counts should not have been combined in the OLR's complaint with unrelated counts arising out of other grievances subject to the standard grievance procedure. We therefore ordered that the reciprocal discipline counts (Counts 8-9) would be considered by this court separately from Counts 17, which were referred to a under SCRs 22.15 and 22.16. situations involving the referee for further proceedings We now direct that in all future potential imposition of reciprocal discipline, any reciprocal discipline counts should be brought in a separate proceeding. ¶16 The May 14, 2008, order also denied Attorney Crandall's motion to dismiss the order to show cause for lack of service of the underlying complaint and motion. We construed Attorney Crandall's failure to respond to the March 21, 2008, order as a withdrawal of that motion. objected to the denial of reconsideration of that decision. 9 his Attorney Crandall has not motion or asked for No. ¶17 We now turn to the consideration 2008AP570-D of reciprocal discipline for the 30-day suspension imposed in December 2007 by the Supreme Court of Minnesota. "shall impose the identical Under SCR 22.22(3), this court discipline or license suspension unless . . . [t]he procedure in the other jurisdiction was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process"; "[t]here was such an infirmity of proof establishing the misconduct . . . that [this court] could not accept professional as final" the misconduct; other or jurisdiction's "[t]he finding misconduct of justifies substantially different discipline" in this state. ¶18 Attorney Crandall's response to the order to show cause does not tie any of his arguments to the three bases for objecting to reciprocal discipline in SCR 22.22(3). that fact could be a sufficient basis for Although rejecting his arguments, we will briefly address the merits of his claims. ¶19 Attorney Crandall first argues that the copies of the Minnesota disciplinary materials attached to the OLR's complaint were not certified, as provided in SCR 22.22(2)(a). Although the rule does provide for a certified copy of the disciplinary judgment or order issued by the other jurisdiction to be attached to the OLR's complaint, we conclude that the attachment of non-certified copies in this case does dismissal of the reciprocal discipline counts. not require the Any error here was technical and did not prejudice Attorney Crandall since he never alleged that the documents attached to the OLR's complaint 10 No. 2008AP570-D were not authentic copies of the disciplinary order and filings in the Supreme Court of Minnesota. ¶20 Next we consider Attorney Crandall's claim that reciprocal discipline should not be imposed because the 30-day suspension in Minnesota was not "new discipline." is without merit. This argument The order issued by the Supreme Court of Minnesota noted that Attorney Crandall's Minnesota license was already under suspension and therefore the court extended the suspension for an additional 30 days before Attorney Crandall could petition for reinstatement. Thus, the addition of a new 30-day period before a petition for reinstatement could be filed clearly constituted new discipline. ¶21 In addition, although Attorney Crandall argues that he should not be punished for not seeking reinstatement of his Minnesota license immediately upon expiration of the original 90-day suspension, he does not explain why the reinstatement of his Minnesota license would have caused the Supreme Court of Minnesota not to impose discipline for the professional misconduct at issue in that state's most recent disciplinary proceeding. Indeed, Attorney Crandall does not allege that he objected to the imposition of the recent 30-day suspension on the ground that his misconduct was covered by the original 90day suspension. Rather, he stipulated to the misconduct and agreed that an additional 30-day suspension would be appropriate discipline in the Minnesota proceeding. Moreover, the petition upon which the 30-day extension was based referenced misconduct 11 No. 2008AP570-D that was different than the conduct that led to the original 90day Minnesota license suspension imposed in July 2005. ¶22 As for Attorney Crandall's constitutional arguments that this court lacks authority or jurisdiction to "punish" him for misconduct that occurred in Minnesota,2 they are based on an improper understanding of this court's constitutional obligation to regulate the practice of law in Wisconsin and of the nature of professional discipline. The Wisconsin Constitution vests the judicial authority of the state in a unified court system, Wis. Const. art VII, § 2, and gives this court superintending and administrative authority over all courts in the state. Const. art. VII, § 3(1). Wis. As we have noted in prior cases, because attorneys are an important part of the administration of justice in the courts of this state and because the constitutional grants of authority obligate this court to ensure that courts function efficiently and effectively to provide for the due administration of justice, this court has the inherent and exclusive authority and power to regulate and discipline 2 Although we need not and do not decide the issue, as a factual matter it is not clear that Attorney Crandall's misconduct occurred solely in Minnesota. Although the lawsuit at issue in the Minnesota disciplinary proceeding was filed in a federal district court located in Minnesota, Attorney Crandall apparently practiced out of his office in Wisconsin. Thus, by way of example, to the extent that he failed to prepare relevant court filings or to communicate with his clients, his misconduct could be said to have occurred at his law office in Wisconsin. We need not decide the issue because we conclude that we are not prohibited from imposing reciprocal discipline on an attorney licensed in Wisconsin for conduct that occurred in another jurisdiction. 12 No. members of Department (1998); the of bar in Admin., State ex this 216 rel. state. See, Wis. 2d 521, Fiedler v. 2008AP570-D e.g., 550, 576 Wisconsin Flynn v. N.W.2d 245 Senate, 155 Wis. 2d 94, 454 N.W.2d 770 (1990); In re Integration of Bar, 5 Wis. 2d 618, 622, 93 N.W.2d 601 (1958) ("The practice of the law in the broad sense, both in and out of the courts, is such a necessary part of and is so inexorably connected with the exercise of the judicial power that this court should continue to exercise law."); its Rubin supervisory v. State, control 194 of the Wis. 207, practice 214-15, 216 of the N.W. 513 (1927) ("This power on the part of the courts [to supervise and discipline attorneys] is not based upon legislative action. It inheres in the nature and constitution of judicial tribunals."). Thus, our imposition of discipline for professional misconduct that allegedly extraterritorial Conduct for occurred in effect to Attorneys. another Wisconsin's See SCR ch. state does Rules 20. of not accord Professional Rather, imposing reciprocal discipline is a means (1) to ensure that attorneys who have been granted the privilege to practice law in this state comport themselves in this state in a manner that promotes the efficient administration of the law, and (2) to protect the citizens of this state who require the assistance of a competent and trustworthy attorney. ¶23 Moreover, the imposition of professional discipline related to the practice of law in this state is of a different nature than punishing an individual in Wisconsin for a criminal act wholly committed in another 13 state. The imposition of No. 2008AP570-D discipline does not have as its purpose to punish the respondent attorney, but rather to protect the public, the courts and the legal profession attorneys. in Wisconsin from incompetent and unfit See In re Disciplinary Proceedings Against Hankel, 126 Wis. 2d 390, 394, 376 N.W.2d 848 (1985). professional discipline protects the The imposition of public by deterring additional misconduct either by the disciplined attorney or by other members of the Wisconsin bar. ¶24 Consequently, we conclude that the OLR has established that Attorney Crandall was the subject of a 30-day suspension imposed by the Supreme Court of Minnesota due to his professional misconduct. Moreover, we determine that none of the SCR three exceptions reciprocal discipline Crandall's in situation. Crandall's suspended license under to SCR in 22.22(3) this state Thus, we practice law 22.22(3) for to the applies determine in a imposition this period of to Attorney that Attorney state of should be days as 30 reciprocal discipline to that imposed by the Supreme Court of Minnesota.3 ¶25 Because Counts 1-7 of the OLR's complaint remain pending before a referee and will be addressed by this court at 3 Although generally the minimum length of a suspension of an attorney's license in this state is 60 days, in reciprocal discipline cases we will impose a 30-day suspension when doing so makes the discipline identical to that imposed in the other jurisdiction. See In re Disciplinary Proceedings Against Grady, 188 Wis. 2d 98, 523 N.W.2d 564 (1994); In re Disciplinary Proceedings Against Nora, 173 Wis. 2d 660, 495 N.W.2d 99 (1993). 14 No. 2008AP570-D a later date, we will not impose costs against Attorney Crandall at this time. ¶26 IT IS ORDERED that the license of Eric L. Crandall to practice law in Wisconsin is suspended for a period of 30 days, effective September 2, 2008. ¶27 IT IS FURTHER ORDERED comply with the requirements of that SCR Attorney 22.26 Crandall pertaining shall to the duties of a person whose license to practice law in Wisconsin has been suspended. ¶28 DAVID T. PROSSER, J. (concurring). I concur in the result. 15 No. 1 2008AP570-D
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