Office of Lawyer Regulation v. Benjamin C. Butler

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2012 WI 37 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2010AP3013-D In the Matter of Disciplinary Proceedings Against Benjamin C. Butler, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Benjamin C. Butler, Respondent. DISCIPLINARY PROCEEDINGS AGAINST BUTLER OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: April 4, 2012 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS: ROGGENSACK, J., dissents (Opinion filed). CROOKS, J., joins dissent. BRADLEY, J., withdrew from participation. 2012 WI 37 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2010AP3013-D STATE OF WISCONSIN : IN SUPREME COURT In the Matter of Disciplinary Proceedings Against Benjamin C. Butler, Attorney at Law: FILED Office of Lawyer Regulation, Complainant, APR 4, 2012 v. Diane M. Fremgen Clerk of Supreme Court Benjamin C. Butler, Respondent. ATTORNEY disciplinary proceeding. Attorney's license suspended. ¶1 PER Disciplinary CURIAM. This Proceedings is a companion Against Addison, case 2012 to In WI re 38 (No. 2010AP3014-D), which is being released at the same time as this opinion. Both cases involve the same underlying set of facts and one or more criminal convictions arising from those facts. As in that proceeding, we are called upon here to decide whether to impose discipline reciprocal to that imposed by the Supreme Court of Illinois, which in this case would be a 30-day No. suspension of the license practice law in Wisconsin. of Attorney Benjamin 2010AP3013-D C. Butler to Although Attorney Butler's admitted conduct, like the conduct of Attorney Stephan Addison, is both unprofessional and unseemly, and although we may have imposed a more severe Regulation first level (OLR) instance of had prosecuted rather complaint, given the reciprocal discipline discipline than if this filing standards the in situations, matter a our we Office of directly reciprocal rules determine Lawyer in the discipline that apply that we to must impose the same 30-day license suspension in this matter as the Supreme Court of Illinois imposed. We do not impose costs on Attorney Butler, given his agreement that reciprocal discipline should be imposed, which obviated the need for the appointment of a referee and the costs of a full disciplinary proceeding. ¶2 On disciplinary December 14, 2010, complaint against the Attorney OLR filed Butler a formal requesting the imposition of reciprocal discipline and a motion requesting the court to issue an order to show cause to Attorney Butler. On March 31, 2011, the court ordered Attorney Butler to inform the court of any claim, predicated on the grounds set forth in SCR 22.22(3),1 why the imposition of discipline identical to that 1 SCR 22.22(3) states as follows: 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. 2 No. 2010AP3013-D imposed by the Supreme Court of Illinois would be unwarranted, and of the factual basis for any such claim. On April 11, 2011, Attorney Butler filed a response stating that he was not making any claim under SCR 22.22(3) and that he was not raising any objection to the imposition of discipline identical to that imposed in Illinois. ¶3 Because this matter involves allegations of serious misconduct that occurred in Wisconsin and led to Attorney Butler being criminally convicted in a Wisconsin court following his no-contest plea in December 2006, on September 23, 2011, this court issued an order directing the OLR to advise the court as to why it had chosen in this matter to seek the imposition of reciprocal discipline under SCR 22.22 rather than to conduct its own investigation and pursue its own disciplinary complaint the order under SCRs 22.11 through 22.16. ¶4 The OLR October 12, 2011. filed a response to court's on Its response states that it first learned of the criminal charges against Attorneys Butler and Addison in December 2005. It opened grievance investigations against them at that time, but placed those investigations on hold pending the result of the criminal actions in Green Lake County, (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. 3 substantially No. Wisconsin. 2010AP3013-D The OLR's response indicates that, for a number of reasons, it will commonly place investigations in which there are pending criminal charges on hold until those criminal charges have been resolved. ¶5 In this situation, after the OLR received notice of the convictions and sentences imposed on Attorneys Butler and Addison in December 2006, it reopened its investigations. Approximately one month later, however, it was notified that the Illinois Attorney Registration and Disciplinary Commission (the Illinois Commission) had also opened a grievance investigation against Attorneys Butler and Addison. The Illinois Commission expressly informed the OLR that it had set aside resources to conduct an investigation that would go beyond the record compiled in the criminal case and that it intended to conduct supplemental interviews of the victim and other witnesses. ¶6 of the The OLR's response states that after it was informed Illinois Commission's investigation, the OLR director made the decision to allow the Illinois Commission to take the lead role in investigating the conduct of Attorneys Butler and Addison and in seeking discipline because both attorneys were practicing law primarily in Illinois for Illinois law firms. The OLR further explains that it wanted to avoid the duplicative use of investigatory resources in the two jurisdictions. It states that it is common for it and other lawyer regulatory agencies in other jurisdictions to allow the "primary jurisdiction," i.e., the jurisdiction in which the attorney is primarily practicing, to investigate and impose discipline in 4 No. 2010AP3013-D the first instance, with the other applicable jurisdictions then seeking the imposition of reciprocal discipline. ¶7 The OLR's response communicated periodically the more than three with years further the in asserts Illinois which the that Commission Illinois it during Commission conducted its investigation and its prosecution of the Illinois disciplinary action. The OLR notes that it was ultimately able to than review the more 1,700 pages of discovery from the criminal actions that Attorneys Butler and Addison provided to the Illinois Commission, plus copies of a video discovery deposition of a witness, the discovery depositions of the two respondent attorneys, expert video and audio evidence. witness information, and other In addition, the Illinois Commission provided to the OLR another 1,400 pages of documents from its own investigation. The OLR asserts that, following the conclusion of the Illinois disciplinary proceeding, it reviewed and evaluated these voluminous documents before it reached the determination not to conduct its own investigation and instead to seek the imposition of reciprocal discipline. ¶8 Because the record in this proceeding still did not contain information regarding the factual basis for the felony to which Attorney Butler pled no contest, we issued a second order directing the OLR to state the factual basis for the felony charge and to provide public documents from the criminal case that related to the factual basis. The OLR's response contained a stipulation filed in the Green Lake County action at the time Attorney Butler entered his plea to a reduced charge, 5 No. 2010AP3013-D as well as the transcripts of the plea and sentencing hearings. The content of the criminal stipulation will be discussed later in this opinion. ¶9 context Given that this matter has been presented to us in the of a request for the imposition of reciprocal discipline, we are constrained to follow the rules that we have adopted for such proceedings. shall impose jurisdiction the identical unless exceptions set forth we See SCR 22.22. discipline determine in SCR imposed that 22.22(3) one applies. We therefore in the the of In other three assessing whether one of those exceptions applies, we further are limited to the record in this matter, which primarily consists of the OLR's complaint, the documents from the Illinois disciplinary proceeding that have been filed by the OLR, and the documents relating to Attorney Butler's no contest plea in the Green Lake County criminal action that have also been submitted by the OLR. In particular, the stipulations entered in the Green Lake County criminal case and in the Illinois disciplinary proceeding are the only sources in the record of this proceeding of facts that have been proven or stipulated regarding the underlying events. The factual recitation that follows is primarily taken from those stipulations. ¶10 Attorney Butler was admitted to the practice of law in Wisconsin in August 2004. of law in Illinois in 2004. He was also admitted to the practice Attorney Butler initially practiced law in Illinois with a large Chicago firm, but was required to resign as a result of his criminal 6 conviction, which is No. described below. 2010AP3013-D As of the time of the stipulation in the Illinois disciplinary proceeding, Attorney Butler was operating a solo legal practice in Chicago and was associated with a law firm there practice as law an independent in Wisconsin contractor. is His currently license to administratively suspended for failure to comply with mandatory continuing legal education (CLE) reporting requirements and for failure to pay bar dues and assessments. He has not previously been the subject of professional discipline. ¶11 Prior to August 5, 2005, Attorney Butler made plans with Attorney Addison, a law school classmate, for a weekend reunion at a summer house in Green Lake, Wisconsin, that was owned by Attorney Addison's family. On Friday, August 5, 2005, Attorneys Butler and Addison picked up supplies for the weekend, including alcoholic beverages such as beer, vodka, and whiskey. From that Saturday, Friday afternoon Attorneys Butler through and socialized and drank alcohol. the Addison daytime and hours their of friends At approximately 11:00 p.m. on August 6th, they drove to a tavern in Green Lake, where they consumed additional alcoholic beverages. At approximately 1:00 a.m. on Sunday, August 7th, the group drove to another tavern in Ripon, where they continued to consume alcoholic beverages. ¶12 closing time, Attorney Addison met a woman, D.P., on the dance floor. After the bar Shortly closed, before D.P. the agreed 2:00 to a.m. drive bar Attorneys Addison Butler back to Green Lake to the Addison summer house. 7 and No. ¶13 2010AP3013-D The Illinois stipulation of facts continues that a few blocks from the Addison summer home, D.P. pulled her car into a boat landing and placed the vehicle in park. does not states provide that details Attorney of Butler, what occurred "while The stipulation next. intoxicated, It merely engaged in sexual activity with [D.P.] while both were on the hood of a motor vehicle that was parked on a public boat ramp in Green Lake, Wisconsin." D.P. subsequently complained to the police about the actions of Attorneys Butler and Addison, and Attorney Butler gave a statement to law enforcement in response to her complaint. ¶14 The State of Wisconsin initially charged Attorney Butler with three criminal offenses in Green Lake County circuit court: first-degree sexual assault, as party to a crime; false imprisonment; and misdemeanor battery. State v. Butler, Green Lake County Case No. 05CF91. ¶15 Ultimately, the State filed an amended information that charged Attorney Butler with one count of felony seconddegree reckless § 941.30(2). endangerment, contrary to Wis. Stat. Attorney Butler then pled no contest to the single count set forth in the amended information. The stipulation in the criminal case set forth the factual basis for the seconddegree reckless endangerment charge as follows: As a factual basis for the acceptance of the Defendant's plea, the parties stipulate and agree that on August 7, 2005 in Green Lake County, Wisconsin, Mr. Butler and Mr. Addison engaged in physical contact with [D.P.] in such a manner that [D.P.'s] safety was endangered and that she could have been injured while 8 No. 2010AP3013-D having contact with the defendants on the hood of an automobile from which she could have fallen. ¶16 months The circuit court imposed and stayed a sentence of 18 of initial supervision. confinement and 24 months of extended The court placed Attorney Butler on probation for a period of three years and ordered him to complete 300 hours of community service. of the Illinois completed services his to According to the Report and Recommendation Commission's community a number Hearing service of by Board,2 providing non-profit Attorney pro agencies. Butler bono legal Indeed, he provided more than 300 additional hours of pro bono work beyond the 300 hours that were required of him. Attorney Butler was released from probation in December 2009. ¶17 A disciplinary proceeding was initiated against Attorney Butler in Illinois as a result of his actions in August 2005 and his subsequent criminal conviction. Attorney Butler ultimately entered into a stipulation in that proceeding setting forth the facts described above and requesting the imposition of a 30-day suspension of his Illinois law license as discipline for his misconduct. The Illinois Hearing Board accepted the stipulation and recommended that Attorney Butler's Illinois law license be suspended for 30 days for professional misconduct that consisted of (1) violating Rule 8.4(a)(3) of the Illinois Rules of Professional Conduct (IRPC) by committing a criminal act that reflects adversely on his honesty, trustworthiness or 2 This opinion will refer to these items and entities, respectively, as "the Illinois Report" and the "Illinois Hearing Board." 9 No. 2010AP3013-D fitness as a lawyer in other respects; (2) engaging in conduct that is prejudicial to the administration of justice, in violation of IRPC Rule 8.4(a)(5); and (3) engaging in conduct which tends to defeat the administration of justice or bring the courts or legal profession into disrepute, in violation of Illinois Supreme Court Rule 770. ¶18 evidence Report The Illinois offered noted disciplined, in that had Report also mitigation. Attorney expressed included some Specifically, Butler great had not remorse and the been also stated contested hearing, character witness that if the Attorney matter Butler testimony from had would at least Illinois previously shame, cooperated with the Illinois disciplinary process. Report stipulated and had The Illinois proceeded to a have presented six witnesses, including a former University of Wisconsin Law School professor and other attorneys familiar with his work and his reputation as an honest and truthful lawyer. The Illinois Report indicated that no aggravating evidence had been offered. ¶19 should The receive Illinois a Hearing slightly Board shorter stated Attorney suspension than Butler Attorney Addison because he was convicted of a lesser number of criminal offenses. ¶20 The recommendation Supreme of the Court of Illinois Illinois Hearing Board accepted and the suspended Attorney Butler's license to practice law in that state for 30 days. 10 No. ¶21 2010AP3013-D The OLR's complaint in this matter asks that Attorney Butler's license to practice law in Wisconsin be suspended for an identical period of 30 days as reciprocal discipline under SCR 22.22(3). As noted above, Attorney Butler does not object to the OLR's request. ¶22 Addison The initial and Attorney complaints against allegations Butler them made in were against the extremely both respective Attorney criminal troubling. Those allegations, however, have not been proven, and we are bound by the facts as they have been proven or stipulated in the record before us. In the criminal action the state eliminated any charge of sexual assault, false imprisonment, or battery. Thus, there is no finding of fact in any proceeding, whether criminal or disciplinary, in this state or in Illinois, that Attorney Butler engaged in sexually assaultive conduct. Although Attorney Butler was convicted of a felony that involves placing another person in danger of death or great bodily harm, the stipulated factual basis for that crime was that Attorney Butler's contact with the victim created a risk that she might have fallen off the hood of an automobile and become injured. While the Illinois Hearing Board properly concluded that the criminal contest charge is a to which serious Attorney matter that Butler ultimately reflects adversely pled no on his trustworthiness or fitness as a lawyer in other respects, we must base our decision on these facts as they have been stipulated and not on what the factual findings might possibly have been. 11 No. ¶23 is 2010AP3013-D Moreover, it is important to remember that this matter being presented to us in the context of a reciprocal discipline matter, not as a review of a referee's report or a stipulation in the first instance. As commonly occurs in such situations, the OLR allowed the Illinois Commission to take the lead in investigating and prosecuting Attorney Butler's professional misconduct because Illinois was his primary place of practice and Illinois investigating the matter. committed significant resources to According to the OLR, it maintained communication with the Illinois Commission throughout the threeyear pendency proceeding. provided of the Illinois investigation and disciplinary In addition, it reviewed the voluminous documents by the Illinois Commission before it ultimately determined to seek the imposition of reciprocal discipline. ¶24 to In a reciprocal discipline matter our rules require us impose the identical discipline rendered by the other jurisdiction unless one of the three listed exceptions applies. Keeping in mind that the OLR has not asserted that Attorney Butler's conduct requires a substantially different level of discipline in this state, see SCR 22.22(3)(c), we do not find that any exception applies. Consistent with our rules, therefore, we impose a 30-day suspension of Attorney Butler's license to practice law in Wisconsin, as discipline reciprocal 12 No. to that imposed in Illinois.3 2010AP3013-D In order to have his license to practice law in this state reinstated, Attorney Butler will not only need to comply with the provisions for reinstating a license following a disciplinary suspension of less than six months, he will also need to take the required steps for reinstatement following a suspension for failure to comply with CLE reporting suspension for requirements failure and to for pay reinstatement bar dues and following a assessments. Finally, because Attorney Butler agreed to the imposition of reciprocal discipline and it was not necessary to appoint a referee or incur the costs of a full disciplinary proceeding, we do not require him to pay the costs of this proceeding. ¶25 IT IS ORDERED that the license of Benjamin C. Butler to practice law in Wisconsin is suspended for a period of 30 days, effective as of the date of this order. ¶26 IT IS FURTHER ORDERED that Benjamin C. Butler shall comply with the requirements of SCR 22.26 pertaining to the duties of a person whose license to practice law in Wisconsin has been suspended. ¶27 ANN WALSH BRADLEY, J., withdrew from participation. 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." In re Disciplinary Proceedings Against Crandall, 2008 WI 112, ¶24 n.3, 314 Wis. 2d 33, 754 N.W.2d 501; see also 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). 13 No. ¶28 PATIENCE DRAKE ROGGENSACK, J. 2010AP3013-D.pdr (dissenting). I dissent because I would reject the parties' stipulation asking this court to suspend Benjamin C. Butler's license to practice law in Wisconsin for 30 days as reciprocal discipline to that imposed by Illinois for his admitted acts of criminal conduct that occurred in Wisconsin, and I would require the Office of Lawyer Regulation Professional (OLR) Conduct to for apply Wisconsin's Attorneys to Rules Attorney of Butler's misconduct. ¶29 Attorney Butler's conviction was the result of a plea bargain. The criminal act constitutes one count second-degree of which he admitted reckless committing endangerment, contrary to Wis. Stat. § 941.30(2), which is a Class G felony. ¶30 In order to accept a plea and convict a defendant of second-degree determine reckless endangerment, that there are facts the circuit sufficient to court prove that must (1) Attorney Butler endangered the safety of another human being; and (2) he did so by criminally reckless conduct. Criminal 1347. § 939.24(1) See Wis JI "Criminal recklessness" is defined in Wis. Stat. as conduct that "creates an unreasonable and substantial risk of death or great bodily harm to another human being and the actor is aware of that risk." ¶31 Supreme Court Rule (SCR) 22.22(3) directs this court in reciprocal discipline matters to impose identical discipline to that imposed by another state unless the misconduct justifies substantially 22.22(3)(c). different discipline in this state. SCR It seems probable that creating an "unreasonable 1 No. 2010AP3013-D.pdr and substantial" risk of great bodily harm when the defendant "is aware of that risk" would have resulted in more than a 30day license suspension if OLR had begun its own investigation in light of SCR 20:8.4(b),1 rather than relying on the judgment of the State of Illinois. ¶32 past My conclusion is supported by discipline meted out for criminal 20:8.4(b). convictions, which we have held violate SCR See In re Disciplinary Proceedings Against Compton, 2010 WI 112, ¶¶1, 7, 329 Wis. 2d 318, 787 N.W.2d 831 (two years suspension based on conviction of possession of narcotic drugs, a Class I felony, and bail jumping, a Class H felony, based on the use of those drugs); In re Disciplinary Proceedings Against Soldon, 2010 WI 27, ¶¶1, 6, 324 Wis. 2d 4, 782 N.W.2d 81 (six months suspension based on retail theft read-in and conviction of fleeing a law enforcement officer, a Class I felony); In re Disciplinary Proceedings Against George, 2008 WI 21 ¶¶3, 30, 308 Wis. 2d 50, 746 N.W.2d 236 (four years and three months suspension based on federal conviction of conspiracy to commit offenses against federal programs in violation of 18 U.S.C. § 371); In re Disciplinary Proceedings Against Gral, 2007 WI 22, ¶¶1, 4, 299 Wis. 2d 160, 727 N.W.2d 495 (suspension of three years based on federal conviction of mail fraud). 1 SCR 20:8.4 provides in relevant part: misconduct for a lawyer to: "It is professional . . . (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects[.]" 2 No. ¶33 2010AP3013-D.pdr In my view, a conviction based conduct that creates an unreasonable and substantial risk of great bodily harm when the defendant is aware of that risk is at least as serious as the crimes that form the bases for the suspensions above. conclude that substantially resulted court to in the convictions different Illinois reject the and at discipline that SCR parties' issue in here Because I would Wisconsin 22.22(3)(c) stipulation on justify than has requires this that basis, I respectfully dissent. ¶34 I am authorized to state CROOKS joins in this dissent. 3 that Justice N. PATRICK No. 1 2010AP3013-D.pdr