State v. Warren Jamaal Wells
Annotate this Case
Download PDF
2016 WI 6 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2013AP149-D In the Matter of Disciplinary Proceedings Against Walter W. Stern, III, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Walter W. Stern, III, Respondent. DISCIPLINARY PROCEEDINGS AGAINST STERN OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS: February 4, 2016 2016 WI 6 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2013AP149-D STATE OF WISCONSIN : IN SUPREME COURT In the Matter of Disciplinary Proceedings Against Walter W. Stern, III, Attorney at Law: FILED Office of Lawyer Regulation, Complainant, FEB 4, 2016 v. Diane M. Fremgen Clerk of Supreme Court Walter W. Stern, III, Respondent. ATTORNEY reinstatement proceeding. Attorney's license reinstated. ¶1 PER CURIAM. We review, pursuant to Supreme Court Rule (SCR) 22.33(3),1 a report filed by Referee Dennis J. Flynn, recommending that the court reinstate the license of Walter W. Stern, III to practice law in Wisconsin. 1 Upon careful review of SCR 22.33(3) provides that "[i]f no appeal is timely filed, the supreme court shall review the referee's report, order reinstatement, with or without conditions, deny reinstatement, or order the parties to file briefs in the matter." No. 2013AP149-D the matter, we agree that Attorney Stern's license should be reinstated upon conditions to be discussed later. As to costs, we hold that, due to the unique nature of this case, Attorney Stern should be responsible for one-half of the Office of Lawyer Regulation's (OLR) $6,881.67 in costs, for a total of $3,440.84. ¶2 Attorney Wisconsin in Stern was licensed He was privately 1974. to practice law reprimanded in in 1988; publicly reprimanded in 1992; privately reprimanded in 1993; and privately reprimanded in 2008. In a May 2013 per curiam opinion, this court approved the findings and conclusions of a referee's report that adopted a stipulation between the OLR and Attorney Stern; in that stipulation, contest to misconduct that led to Attorney Stern pled no his federal conviction of conspiring to commit money laundering and a federal prison term of one year and one day. license to practice law for stipulation parties' In re This court suspended Attorney Stern's and the Disciplinary two years, referee's Proceedings consistent with the recommendation. Stern, Against See 46, 2013 WI 347 Wis. 2d 552, 830 N.W.2d 674. ¶3 In July 2013, the United States Court of Appeals for the Seventh Circuit reversed Attorney Stern's conviction on the ground that the trial court wrongly testifying about his own conduct. Allen, 739 denial of Attorney F.3d 948, rehearing Stern was 954-55 and (7th rehearing released from him from United States v. LeonardCir. en 2013), banc prison approximately six months of his sentence. 2 prevented as (Aug. after amended on 29, 2013). having served He later pled guilty No. to a federal misdemeanor offense of contempt of 2013AP149-D court that resulted in no further federal prison time. ¶4 In February 2015, Attorney Stern filed seeking the reinstatement of his law license. a petition In September 2015, the OLR filed a response not opposing the reinstatement petition, but reserving the right to further tailor its recommendation in accordance with the evidence received at a public hearing in late September 2015. hearing, the referee filed his After holding the public report and recommendation in October 2015. ¶5 SCR 22.31(1)2 provides the standards to be met for reinstatement. Specifically, the petitioner must show by clear, satisfactory, and convincing evidence that he or she has the 2 SCR 22.31(1) provides: The petitioner has the burden of demonstrating, by clear, satisfactory, and convincing evidence, all of the following: (a) That he or she has the moral character to practice law in Wisconsin. (b) That his or her resumption of the practice of law will not be detrimental to the administration of justice or subversive of the public interest. (c) That his or her representations in the petition, including the representations required by SCR 22.29(4)(a) to (m) and 22.29(5), are substantiated. (d) That he or she has complied fully with the terms of the order of suspension or revocation and with the requirements of SCR 22.26. 3 No. 2013AP149-D moral character to practice law, that his or her resumption of the practice of law will not be detrimental to the administration of justice or subversive to the public interest, and that he or she has complied with SCR 22.26 and the terms of the order of suspension. In addition, SCR 22.31(1)(c) incorporates the statements that a petition for reinstatement must contain pursuant to SCR 22.29(4)(a)-(4m).3 Thus, the 3 SCR 22.29(4)(a) through (4m) provides that a petition for reinstatement must show all of the following: (a) The petitioner desires petitioner's license reinstated. to have the (b) The petitioner has not practiced law during the period of suspension or revocation. (c) The petitioner has complied fully with the terms of the order of suspension or revocation and will continue to comply with them until the petitioner's license is reinstated. (d) The petitioner has maintained competence and learning in the law by attendance at identified educational activities. (e) The petitioner's conduct since the suspension or revocation has been exemplary and above reproach. (f) The petitioner has a proper understanding of and attitude toward the standards that are imposed upon members of the bar and will act in conformity with the standards. (g) The petitioner can safely be recommended to the legal profession, the courts and the public as a person fit to be consulted by others and to represent them and otherwise act in matters of trust and confidence and in general to aid in the administration of justice as a member of the bar and as an officer of the courts. (continued) 4 No. petitioning attorney must demonstrate that 2013AP149-D the required representations in the reinstatement petition are substantiated. ¶6 When reviewing referee reports in reinstatement proceedings, we utilize standards of review similar to those we use for reviewing referee reports in disciplinary proceedings. We do not overturn a referee's findings of fact unless they are clearly erroneous. On the other hand, we review a referee's legal conclusions, including whether the attorney has satisfied the criteria for reinstatement, on a de novo basis. Disciplinary Proceedings Against Jennings, 2011 WI In re 45, ¶39, 334 Wis. 2d 335, 801 N.W.2d 304; In re Disciplinary Proceedings Against Gral, 2010 WI 14, ¶22, 323 Wis. 2d 280, 779 N.W.2d 168. ¶7 clear, The referee found that Attorney Stern demonstrated by satisfactory, and convincing evidence all of requirements for reinstatement of his Wisconsin law license. (h) The petitioner has fully complied with the requirements set forth in SCR 22.26. (j) The petitioner's proposed use of the license if reinstated. (k) A full description of all of the petitioner's business activities during the period of suspension or revocation. (4m) The petitioner has made restitution to or settled all claims of persons injured or harmed by petitioner's misconduct, including reimbursement to the Wisconsin lawyers’ fund for client protection for all payments made from that fund, or, if not, the petitioner's explanation of the failure or inability to do so. 5 the In No. particular, the referee found that Attorney 2013AP149-D Stern has not practiced law during the period of his suspension; that he has complied fully with the terms of the order of suspension and will continue to do so until his license is reinstated; that he has maintained competence and learning in the law; that his conduct since the suspension has been exemplary and above reproach; that he has a proper understanding of and attitude toward the standards that are imposed upon members of the bar and will act in conformity with those standards; and that he can be safely recommended to the legal profession, the courts, and the public as a person fit4 to be consulted by others and to represent them confidence and and in otherwise general act in matters aid in the to of trust administration and of justice as a member of the bar and an officer of the courts. ¶8 Concerning requirements of SCR Attorney 22.26, Stern's the compliance referee noted, with as did the the parties, that Attorney Stern was unable during his suspension to properly and promptly close his trust account. Cf. SCR 22.26(1)(d) (requiring that, within the first 15 days after the effective date of suspension, the attorney must make all arrangements for the temporary or permanent closing or winding 4 Two exhibits (Exhibits 1 and 2) related to Attorney Stern's fitness as a lawyer were received during the public hearing in this matter. These exhibits consist of medical correspondence regarding Attorney Stern's treatment for certain mental health issues. Consistent with the joint recommendation of the parties, we instruct the clerk of this court to maintain these two exhibits under seal. 6 No. up of the attorney's practice). 2013AP149-D This was so because, since 2009, Attorney Stern has had a $585.25 surplus in his trust account which he has been unable to reconcile due to the loss of certain records. The referee wrote that he was "impressed by [Attorney] Stern's voluntarily holding the overage of $585.25 from his Trust Account for a period of 6-plus years when he did not have records regarding who was entitled to those funds," rather than "default[ing] those funds to himself." also noted that Attorney Stern has agreed, The referee at the OLR's recommendation, to transmit the $585.25 surplus to the unclaimed property unit of the Wisconsin Department of Revenue. ¶9 Stern has Upon review established of by the record, clear, we agree satisfactory, that and Attorney convincing evidence that he has satisfied all the criteria necessary for reinstatement. fact and Accordingly, we adopt the referee's findings of conclusions of law and we accept the referee's recommendation to reinstate Attorney Stern's license to practice law in Wisconsin. the $585.25 We further direct Attorney Stern to transmit surplus in his trust account to the unclaimed property unit of the Wisconsin Department of Revenue within 30 days of the date of this order. ¶10 The only dispute is as to costs. The referee recommended that Attorney Stern should not be responsible for any costs associated with this reinstatement proceeding. In his report, and in a subsequent letter to the court, the referee maintained that assessing costs against Attorney Stern would be inequitable, as Attorney Stern has already been penalized by 7 No. what the referee terms a "wrongful[]" 2013AP149-D conviction for money laundering; by the prison time he served before that conviction was reversed; by his reputational loss; and by his two-year law license suspension. ¶11 In its statement of costs, the OLR disagrees with the referee's recommendation that this court should impose no costs against Attorney "recognizes that Stern. the The Referee OLR found states relevant that while Attorney it Stern's full adherence to the two year suspension and the prison time he served," these circumstances were nevertheless not "the type of extraordinary circumstances that justify deviation from the Court's policy" of imposing all costs against a lawyer seeking to be reinstated. ¶12 In a subsequent letter to the court, Attorney Stern insists that he should pay no costs because "he has been the victim of a great injustice, and imposing costs against him would simply add to the magnitude of that great injustice." ¶13 the Our general practice is to assess full costs against respondent petitioner a a in SCR 22.24(1), Against in reinstatement (1m); Webster, 647 N.W.2d 831. disciplinary see 2002 also WI In 100, proceeding, proceeding. re or See Disciplinary ¶¶51-52, 255 against the generally Proceedings Wis. 2d This is so for a common-sense reason: 323, It is only fair that a disciplined lawyer should shoulder, to the extent the lawyer is able, the costs of an OLR proceeding that the lawyer's misconduct necessitated, rather than transferring those costs to the other members of the bar who have not engaged 8 No. in misconduct. See In re Disciplinary 2013AP149-D Proceedings Against Inglimo, 2007 WI 126, ¶94, 305 Wis. 2d 71, 740 N.W.2d 125. There is no doubt that Attorney Stern's misconduct, which he did not dispute in his 2013 disciplinary proceedings, necessitated these reinstatement proceedings. We see no reason to transfer all of the associated costs of these reinstatement proceedings to other attorneys who have not engaged in misconduct. See In re Disciplinary Proceedings Against Balistrieri, 2014 WI 104, ¶62, 358 Wis. proceeding is 2d a 262, result 852 of N.W.2d the 1 ("The attorney's reinstatement misconduct that required the imposition of a suspension or revocation in the first place. It is therefore generally proper to impose the costs of a formal reinstatement proceeding upon the attorney seeking reinstatement."). ¶14 This result is bolstered by the recent case of In re Disciplinary Proceedings Against 364 Wis. 2d 576, 869 N.W.2d 490. Hurtgen, 2015 WI 92, In Hurtgen, this court revoked Attorney Hurtgen's license on a petition for consensual license revocation following a federal conviction in 2009, entered on Attorney Hurtgen's guilty plea, for one abetting wire fraud. count of aiding and See In re Disciplinary Proceedings Against Hurtgen, 2009 WI 92, 321 Wis. 2d 280, 772 N.W.2d 923. In 2010, the federal district court granted Attorney Hurtgen's motion to withdraw his guilty plea on the ground that the United States Supreme Attorney Court had Hurtgen ruled had 364 Wis. 2d 576, ¶3. that been the charged legal was theory flawed. under which Hurtgen, In 2012, all remaining charges against 9 No. Attorney Hurtgen were dismissed with prejudice. 2013AP149-D Id. In 2014, Attorney Hurtgen filed a petition for the reinstatement of his license to practice law, which this court granted in September 2015. Of significance here, this court ordered Attorney Hurtgen to pay the full costs of the reinstatement proceeding. ¶11. Id., Given that it was appropriate for this court to assess the full costs of a reinstatement proceeding against a lawyer who was fully exonerated of all charges that led to the revocation of his law license, it would seem incongruous to assess no costs against Attorney Stern, who was not fully exonerated; as stated above, he stands guilty, by his own plea, of criminal contempt of court. ¶15 On the particularly other hand, compelling the case OLR does against not the make a referee's recommendation to waive the costs of this proceeding. While this court's general policy is to award full costs to the OLR, see SCR 22.24(1m), we have certainly made exceptions to this policy. The OLR, in arguing that no such exception should be made here, seems to refer to an outdated standard: "extraordinary circumstances" justify a deviation court's general policy to award the OLR full costs. the "extraordinary circumstances" language from whether from the We removed our rule governing the assessment of costs (SCR 22.24) some time ago. See S. Ct. Order 05-01B, 2011 WI 59 (iss. Jul. 6, 2011; eff. Jan. 1, 2012). ¶16 On balance, we deem it appropriate to impose one-half of the costs on Attorney Stern, or $3,440.84. 10 Our determination No. 2013AP149-D is not the result of the application of a precise mathematical formula, record but and is the unquestionable Stern's partial based unusual on thorough posture professional service our of and a of consideration this economic federal the including case, of the effects prison of Attorney sentence for a conviction that was later reversed on appeal. ¶17 IT IS ORDERED that the license of Walter W. Stern, III to practice law in Wisconsin is reinstated, effective the date of this order. ¶18 IT IS FURTHER ORDERED that within 60 days of the date of this order, Walter W. Stern, III shall pay to the Office of Lawyer Regulation costs in the amount of $3,440.84. ¶19 IT IS FURTHER ORDERED that compliance with all of the terms of this order remain a condition of Walter W. Stern, III's license to practice law in Wisconsin, including the requirement that Walter W. Stern, III shall transmit the $585.25 surplus in his trust account to the unclaimed property unit of the Wisconsin Department of Revenue within 30 days of the date of this order. 11 No. 1 2013AP149-D
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
