Office of Lawyer Regulation v. Reed Martin

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2012 WI 84 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2011AP989-D In the Matter of Disciplinary Proceedings Against Reed Martin, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Reed Martin, Respondent. DISCIPLINARY PROCEEDINGS AGAINST MARTIN OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: July 10, 2012 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS: ABRAHAMSON, C.J., concurs in part and dissents in part. 2012 WI 84 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2011AP989-D STATE OF WISCONSIN : IN SUPREME COURT In the Matter of Disciplinary Proceedings Against Reed Martin, Attorney at Law: Office of Lawyer Regulation, FILED Complainant, JUL 10, 2012 v. Diane M. Fremgen Clerk of Supreme Court Reed Martin, Respondent. ATTORNEY disciplinary proceeding. Attorney publicly reprimanded. ¶1 PER CURIAM. We review the report and recommendation of the referee, Attorney Hannah C. Dugan, that Attorney Reed Martin should be publicly reprimanded for his professional misconduct and that he should be required to pay the full costs of this proceeding, which were $2,617.78 as of April 13, 2012. Because no appeal has been filed in this matter, our review proceeds pursuant to SCR 22.17(2).1 1 SCR 22.17(2) states: After reviewing the matter, No. 2011AP989-D we adopt the referee's findings of fact, conclusions of law, and recommended sanction. ¶2 The Office of Lawyer Regulation (OLR) filed its complaint and order to answer in this matter on May 2, 2011. On May 25, 2011, Attorney Martin filed a document entitled "Plea of No Contest," in which he stated that he was pleading no contest to the allegations in the OLR's complaint, but reserving his right to present evidence and make arguments regarding the proper level of discipline. ¶3 At a subsequent scheduling conference, Attorney Martin reiterated his no contest plea to the allegations against him, confirmed that he did not request a hearing on those allegations, and requested that he be allowed to be heard on the issue of discipline. The OLR then filed a motion formally requesting the referee to accept Attorney Martin's no contest plea and to find that complaint had occurred. the appropriate level the violations alleged in the OLR's There was no hearing on the issue of of discipline. The parties agreed to submit memoranda on that issue and to have the referee make a sanction recommendation on the basis of those memoranda. If no appeal is filed timely, the supreme court shall review the referee's report; adopt, reject or modify the referee's findings and conclusions or remand the matter to the referee for additional findings; and determine and impose appropriate discipline. The court, on its own motion, may order the parties to file briefs in the matter. 2 No. ¶4 In the referee's report, she found 2011AP989-D that Attorney Martin's plea of no contest was voluntary, not the result of plea bargaining, and not the product of coercion or threat. referee therefore accepted the plea and based her The factual findings and legal conclusions on the allegations in the OLR's complaint, which are summarized below. ¶5 Attorney Martin was admitted to the practice of law in Wisconsin in 1995. ¶6 He maintains a law practice in Wauwatosa. Attorney Martin has been the subject of professional discipline on one other occasion. In 2003 he received a consensual private reprimand for having committed a criminal act that reflected fitness as adversely on lawyer, in a his honesty, violation trustworthiness of SCR or 20:8.4(b). Specifically, the basis for that private reprimand was Attorney Martin's conviction, based upon his guilty plea, of a class A misdemeanor involving the issuance of a worthless check in an amount less than $1,000, in violation of Wis. Stat. § 943.23(1). ¶7 The allegations Attorney Martin's juvenile delinquency court. of the representation action in current of the J.C., complaint a Milwaukee stem defendant County from in a circuit The Office of the State Public Defender (SPD) appointed Attorney Martin to represent J.C. in that proceeding. Circuit Court Judge Dennis Cimpl presided over a trial in the matter in August 2006 and found J.C. delinquent on two counts. ¶8 J.C., represented by an appellate attorney, filed a motion for post-disposition relief that was based, at least in part, on a claim of ineffective 3 assistance of counsel by No. Attorney Martin. The January 7, 2008. motion was scheduled to 2011AP989-D be heard on Although Attorney Martin may not have been specifically notified by the court that the motion would be heard on that date, the court had previously scheduled a status conference for that same date to review J.C.'s probation, and Attorney Martin was still J.C.'s trial counsel of record. Attorney Martin did not appear for the January 7, 2008 hearing. Moreover, both J.C.'s appellate attorney and the prosecuting attorney informed the court that Attorney Martin had not been cooperating with them with respect to the January 7, 2008 hearing. ¶9 Due to Attorney Martin's absence and the need for his testimony to resolve J.C.'s ineffective assistance of counsel claim, Judge Cimpl rescheduled the hearing on J.C.'s motion for February 21, 2008. On February 15, 2008, a subpoena was served on Attorney Martin requiring him to appear for the rescheduled hearing at 2:00 p.m. on February 21, 2008. The process server prepared a memorandum regarding service, which was subsequently filed with the circuit court. The process server reported that when she had handed the subpoena to Attorney Martin and had informed him that he was being served, Attorney Martin stated to her that he was refusing the subpoena and would not come to the hearing. He subsequently told the process server that he would not be at the hearing because he was going on vacation. He read the subpoena, but returned it to the process server. ¶10 Shortly after 8:00 p.m. on February 20, 2008, Attorney Martin faxed a letter to Judge Cimpl listing a lengthy set of 4 No. 2011AP989-D dates on which he would be available to testify at a hearing in J.C.'s case. The letter did not mention the previously scheduled hearing for the next day or his purported refusal of service of the subpoena. It also gave no reason for refusing to appear on February 21, 2008. ¶11 Attorney Martin was seen at the Milwaukee Courthouse on the morning of February 21, 2008. County He did not appear at 2:00 p.m. in Judge Cimpl's courtroom, however, for the scheduled hearing. ¶12 Judge Cimpl again was forced to reschedule the hearing on J.C.'s post-disposition motion. March 24, 2008. J.C. He scheduled the hearing for A new trial attorney was appointed to represent Judge Cimpl informed the new trial attorney that he wanted Attorney Martin to be subpoenaed for the March 24 hearing both to answer for his previous failures to appear and to testify regarding J.C.'s motion. ¶13 The Attorney assistant Martin's district failure to appear Attorney Martin's lack of candor. a reversal against of J.C. the due finding in part attorney of and what concerned he viewed by as Because of the potential for delinquency to was Attorney on the Martin's two counts conduct, the assistant district attorney has indicated that he was forced to agree to reduce the two serious charges on which J.C. had already been found delinquent to a single, lesser charge. ¶14 On March 24, 2008, Attorney Martin did appear at the courthouse but did not enter Judge Cimpl's courtroom. When he learned that J.C.'s court's motion had 5 been resolved by the No. 2011AP989-D approval of the agreement to reduce the charges against J.C., Attorney Martin left the courthouse without appearing Judge Cimpl to explain his prior failures to appear. before Attorney Martin asserted that he was not served with a subpoena for the March 24, 2008 hearing, but the successor trial counsel informed Judge Cimpl that Attorney Martin had refused to cooperate and had evaded service of a subpoena. ¶15 Judge Cimpl subsequently filed a written with the OLR regarding Attorney Martin's conduct. grievance When the OLR asked Attorney Martin to respond, he initially claimed that he had not appeared at the February 21, 2008 hearing even though subpoenaed because he had been on a family vacation that had been scheduled months earlier. When the OLR subsequently asked Attorney Martin for some information about his vacation travel, he responded in a letter dated March 24, 2009. In that letter Attorney Martin asserted that he and his family had left at 5:00 p.m. on February 20, 2008, Wisconsin, arriving there and about had 10:00 driven p.m. In to Holcombe, a subsequent letter, Attorney Martin twice more repeated that he had been out of town on February 21, 2008, and that he had notified the court and the assistant district attorney of his unavailability on that date. seen him He also alleged that whoever had claimed to have in the Milwaukee County Courthouse on February 21, 2008, had been mistaken. ¶16 to verify requested When Attorney Martin failed to produce documentation his the travel as he had documentation. promised, Attorney 6 the Martin OLR formally responded by No. producing a redacted credit card statement. 2011AP989-D The statement did show a transaction in Holcombe on February 21, 2008, but the five preceding transactions had been redacted. request from the OLR, Attorney Martin After a further finally produced an unredacted copy of the credit card statement, which disclosed a gasoline purchase in Wauwatosa on February 21, 2008, indicating that Attorney Martin had indeed been in the Milwaukee area at least during the morning hours of that date. Although Attorney Martin produced an unredacted copy of the credit card statement, he did not provide the actual credit card receipts as requested by the OLR. ¶17 Based on these factual findings, the referee concluded that Attorney Martin had engaged in two counts of professional misconduct. First, the referee concluded that Attorney Martin had violated SCR 20:3.4(c)2 by failing to honor the lawfully served subpoena commanding his attendance at the February 21, 2008 hearing before Judge Cimpl. Second, the referee determined that Attorney Martin had violated SCRs 22.03(6)3 and 20:8.4(h)4 2 SCR 20:3.4(c) states a lawyer shall not "knowingly disobey an obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists; . . . ." 3 SCR 22.03(6) provides as follows: "In the course of the investigation, the respondent's wilful failure to provide relevant information, to answer questions fully, or to furnish documents and the respondent's misrepresentation in a disclosure are misconduct, regardless of the merits of the matters asserted in the grievance." 7 No. 2011AP989-D by misrepresenting to the OLR that he had left with his family for a vacation on February 20, 2008, and was therefore out of town on February 21, 2008, by deliberately redacting relevant information on the original credit card statement provided to the OLR, and to documents by deliberately the OLR, failing all of to which provide impeded relevant the OLR's investigation. ¶18 Although he pled no contest to the allegations in the OLR's complaint, Attorney Martin requested the opportunity to present argument regarding the proper level of discipline to be imposed. The referee therefore invited the parties to file briefs on the subject. ¶19 The reprimand. by a OLR requested the imposition of a public It contended that a public reprimand was supported number of prior disciplinary matters, although it acknowledged that it could not find a previous case involving the exact same violations committed by Attorney Martin. See, e.g., In re Disciplinary Proceedings Against Kohler, 2009 WI 24, 316 Wis. 2d 17, reprimanded discovery provided for and the Disciplinary 762 N.W.2d 377 for failing falsely required to (prosecuting obey stating discovery Proceedings court Against 4 to to the attorney orders to court that opposing Miller, publicly provide counsel); 2005 WI he In 146, had re 286 SCR 20:8.4(h) states it is professional misconduct for a lawyer to "fail to cooperate in the investigation of a grievance filed with the office of lawyer regulation as required by SCR 21.15(4), SCR 22.001(9)(b), SCR 22.03(2), SCR 22.03(6), or SCR 22.04(1); . . . ." 8 No. 2011AP989-D Wis. 2d 79, 704 N.W.2d 912 (public reprimand imposed for failing to comply with court order to disburse funds in trust account to the opposing disbursing Reprimand party the of in funds Lori A. a to divorce himself Schmitz, proceeding and No. his and instead Public (consensual 2006-8 client); public reprimand imposed where attorney, among other things, refused to answer a question at a John Doe proceeding despite being ordered by the court to Moldenhauer, No. do so); 2008-01 Public Reprimand (consensual public of James reprimand G. imposed where attorney failed to act with diligence, failed to respond to client requests for information, and failed to appear at three hearings despite being ordered to do so by the court). The OLR further asserted that this court's general policy of progressive discipline called for a public reprimand in light of Attorney Martin's earlier private reprimand. Finally, the OLR noted that there were no mitigating factors and a number of aggravating intentional factors, including noncompliance investigations, and multiple with the submission Martin argued of of rules the counts governing false or misconduct, OLR misleading evidence to the OLR. ¶20 reprimand. Attorney He acknowledged that in he favor did not of a appear private at the February 21, 2008 hearing, but asserted that he had a valid reason for not attending due to his previously scheduled family vacation. He contended that he was not being obstructive or recalcitrant because his fax to the court on February 20, 2008, offered a lengthy list of dates and times when he would be 9 No. available to attend a hearing on J.C.'s motion. 2011AP989-D He also asserts that his concern for the judicial process of resolving J.C.'s case was demonstrated by the fact that he showed up at the March 24, 2008 hearing without having been subpoenaed. respect to the statements about having been out of With town on February 21, 2008, that were made to the OLR, Attorney Martin claimed that he initially had simply been mistaken as to when he had left for his family vacation. He asserted that he was not intentionally attempting to mislead or deceive the OLR, that he ultimately provided the relevant documents to the OLR, and that he admitted his initial statements had been wrong. Attorney Martin attempted to distinguish a number of the public reprimand cases cited by the OLR, but he supported his argument for a private order, reprimand which had with just one consensual also been cited by the private OLR. reprimand See Private Reprimand No. 2002-17 (consensual private reprimand imposed on attorney representing a defendant in a civil action who failed to comply with a court order to provide discovery and failed to communicate his choice of mediator, thereby violating SCR 20:3.2 (requiring reasonable efforts to expedite litigation) and SCR 20:3.4(c) (forbidding attorneys from knowingly disobeying an obligation imposed under the rules or orders of a tribunal)). ¶21 The referee found Attorney Martin's sanction arguments to be unpersuasive. She stated that Attorney Martin had not provided any independent precedential support for his request for a private reprimand and that his analysis of the precedents cited by the OLR was sparse. 10 She further commented that No. Attorney Martin's sanction memorandum had 2011AP989-D attempted to recharacterize the facts in the OLR's complaint to which he had already entered a no contest plea. cited in the OLR's sanction She agreed that the cases memoranda, the concept of progressive discipline, and the presence of aggravating factors supported a public reprimand in this instance. ¶22 When reviewing a referee's report and recommendation in an attorney disciplinary proceeding, we affirm a referee's findings of fact unless they are found to be clearly erroneous, but we review the referee's conclusions of law on a de novo basis. 126, In re Disciplinary Proceedings Against Inglimo, 2007 WI ¶5, 305 Wis. 2d 71, 740 N.W.2d 125. We determine the appropriate level of discipline given the particular facts of each case, benefiting independent from it. of In the re referee's Disciplinary recommendation, Proceedings but Against Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686. ¶23 In light of Attorney Martin's no contest plea, we adopt the referee's findings of fact, which are based on the OLR's complaint. We also agree with the referee that those findings of fact support a legal conclusion that Attorney Martin committed both counts of professional misconduct alleged by the OLR. ¶24 We now turn to the only real dispute proceeding, which is the proper level of discipline. with the referee and the appropriate in this case. OLR that a public in this We agree reprimand is Not only did Attorney Martin disobey the command of a lawful subpoena, he made false statements to 11 No. the OLR and redacted relevant portions of the 2011AP989-D credit card statement that he later provided to the OLR in order to create the appearance that he was out of town during the entirety of February 21, 2008. There can be no other reason for redacting a gasoline purchase entry for that same date from the credit card statement, especially when Attorney Martin had already claimed to the OLR that anyone who said he/she had seen Attorney Martin in the Milwaukee County Courthouse during the February 21, 2008, must have been mistaken. morning of The purchase of gasoline is not a confidential or embarrassing matter that would lead a person to redact the transaction information, unless the purchase entry shows that the person's prior statement was not accurate. ¶25 Imposing a public reprimand for Attorney Martin's misconduct is supported by this court's decision in Kohler. Wis. 2d 17, ¶¶28, 40. While Attorney Martin made 316 a misrepresentation to the OLR rather than a court, as Attorney Kohler did, both attorneys refused to comply with a lawful order of a court and made a misrepresentation. The differences between the two cases are not substantial enough to justify a different result. ¶26 Finally, we turn to the issue of the costs of this proceeding. Our general policy is to impose the costs of a disciplinary proceeding against the respondent misconduct necessitated the proceeding. deviate from that policy in this case. attorney whose We see no reason to There is nothing on the face of the OLR's statement of costs that would suggest the 12 No. requested costs are unreasonable. not objected to the imposition 2011AP989-D Moreover, Attorney Martin has of the requested costs. We therefore require Attorney Martin to pay the full costs of this proceeding. ¶27 IT IS ORDERED that Reed Martin is publicly reprimanded for his professional misconduct. ¶28 IT IS FURTHER ORDERED that within 60 days of the date of this order, Reed Martin shall pay to the Office of Lawyer Regulation the costs of this proceeding. If the costs are not paid within the time specified and Reed Martin has not entered into a payment plan approved by the Office of Lawyer Regulation, then the Office of Lawyer Regulation is authorized to move this court for a suspension of the license of Reed Martin to practice law in Wisconsin. 13 No. ¶29 SHIRLEY S. ABRAHAMSON, C.J. 2011AP989-D.ssa (concurring in part, dissenting in part). I concur with the majority's conclusion that engaged Attorney Martin in two counts of professional misconduct and its determination that Attorney Martin should be required to pay the full costs of this disciplinary proceeding. I dissent, however, from the majority's decision that a public reprimand is the appropriate level of discipline in this case. Given the serious nature of Attorney Martin's misconduct and the fact that reprimand, he has previously I would impose a received more misconduct in this matter. 1 a stringent consensual sanction private for his No. 1 2011AP989-D.ssa