2013 WI 81
SUPREME COURT OF WISCONSIN
CASE NO.: 2011AP1049-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Sharon A. Riek, Attorney at Law:
Office of Lawyer Regulation,
Complainant-Appellant,
v.
Sharon A. Riek,
Respondent-Respondent.
DISCIPLINARY PROCEEDINGS AGAINST RIEK
OPINION FILED: July 23, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 26, 2013
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the complainant-appellant, there were briefs by
Jonathan E. Hendrix and the Office of Lawyer Regulation, and
oral argument by Jonathan E. Hendrix.
For the respondent-respondent, there was a brief by Martin
E. Kohler and Geoffrey R. Misfeldt and Kohler and Hart, S.C.,
Milwaukee, and oral argument by Geoffrey R. Misfeldt.
2013 WI 81
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2011AP1049-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Sharon A. Riek, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant-Appellant,
JUL 23, 2013
v.
Diane M. Fremgen
Clerk of Supreme Court
Sharon A. Riek,
Respondent-Respondent.
ATTORNEY disciplinary proceeding. Complaint dismissed.
¶1 PER CURIAM. The Office of Lawyer Regulation (OLR)
appeals a referee's decision recommending the court dismiss a
disciplinary complaint alleging that Attorney Sharon A. Riek
violated SCR 20:3.8(f)(1) and Wis. Stat. § 971.23(1)(h) (2007-
08),1 made actionable via SCR 20:8.4(f). We agree with the
referee's conclusion that Attorney Riek did not violate the
aforementioned rules. Accordingly, the complaint is dismissed.
1
All subsequent references to the Wisconsin Statutes are to
the 2007-08 version unless otherwise indicated.
No. 2011AP1049-D
¶2 Attorney Riek is an assistant district attorney in
Racine County. She was licensed to practice law in Wisconsin in
1986. In 1999 Attorney Riek accepted a consensual private
reprimand for failing to correct a false statement made to a
court by her witness. Private Reprimand, No. 1999-25.
¶3 This disciplinary matter stems from Attorney Riek's
allegedly belated disclosure of certain information obtained
during the prosecution of Tyrone Smith (Smith).
¶4 On August 18, 2008, Smith was arrested for possession
of marijuana discovered in his vehicle during a traffic stop.
At the time, Smith was on extended supervision for possession
with intent to deliver cocaine. Isaiah Simpson (Simpson) was a
passenger in the vehicle during the stop.
¶5 On August 19, 2008, the Racine County district
attorney's office charged Smith with possession of marijuana as
a repeat offender. Attorney Riek was assigned to prosecute
Smith's case. Smith's supervising agent, Agent Leah Zeni, began
proceedings to revoke Smith's extended supervision. Attorney
Mark Lukoff was appointed to represent Smith in both the
revocation proceeding and the marijuana possession case.
¶6 On August 22, 2008, Simpson, the passenger in the
vehicle, informed Agent Zeni that the marijuana found in the
vehicle belonged to him, not to Smith. Agent Zeni told Simpson
to report this information to the Racine County district
attorney's office and advised Attorney Lukoff of Simpson's
confession.
2
No. 2011AP1049-D
¶7 Meanwhile, on September 4, 2008, the circuit court
held a preliminary hearing in Smith's marijuana possession case.
After that hearing, Smith's attorney filed a demand for
discovery and inspection with the court and served it upon
Attorney Riek. The discovery demand included a routine demand
that the State "[d]isclose to defendant any exculpatory
evidence." See Wis. Stat. § 971.23(1)(h).
¶8 Attorney Lukoff received a copy of Simpson's statement
to Agent Zeni before Smith's revocation proceeding. At Smith's
revocation hearing on October 15, 2008, Agent Zeni entered
Simpson's confession into evidence. Smith based his defense at
the revocation hearing on Simpson's confession.
¶9 On October 27, 2008, the administrative law judge
(ALJ) declined to revoke Smith's extended supervision, stating,
"Based on Mr. Simpson's statement, I find insufficient credible
evidence to attribute the marijuana to Mr. Smith."
¶10 Agent Zeni appealed the ALJ's decision, stating, inter
alia:
[A]fter providing his statement, [Isaiah] Simpson was
instructed by this agent to go to the Racine District
Attorney's office and provide a signed affidavit
admitting the marijuana in the vehicle was his. At
the time of the Final Revocation hearing, Mr. Simpson
failed to go to the Racine District Attorney's
office . . . .
The Division of Hearing and Appeals sustained the ALJ's decision
on November 13, 2008, noting that "[i]t is also clear that
Smith's friend, [Isaiah] Simpson, brought the marijuana into
Smith's car."
3
No. 2011AP1049-D
¶11 In early November 2008, Simpson did go to the Racine
County district attorney's Office where he met with District
Attorney Michael E. Nieskes (D.A. Nieskes) and informed D.A.
Nieskes that the marijuana found in Smith's vehicle belonged to
him, not to Smith. As a result of that November meeting, D.A.
Nieskes wrote a note (the Simpson Note) that stated, "[Isaiah]
Simpson 1010 Park Ave 637-9029 states that the dope is his not
Tyrone [Smith's]."
¶12 The Simpson Note was not a sworn statement. It was
unsigned and undated. Later that morning, D.A. Nieskes told
Attorney Riek about his meeting with Simpson and gave her the
Simpson Note. Attorney Riek recalls being advised of Simpson's
statement to D.A. Nieskes but she does not recall receiving the
Simpson Note.
¶13 On November 7, 2008, Attorney Riek asked the Racine
County sheriff's department to investigate Simpson's statement
that the marijuana belonged to him. The Racine County sheriff's
department had difficulty contacting Simpson.
¶14 Meanwhile, Attorney Lukoff's own investigator was also
trying to contact Simpson. In January 2009 Attorney Lukoff's
investigator spoke with Simpson. Simpson told Attorney Lukoff's
investigator that the marijuana was his, not Smith's.
¶15 On February 5, 2009, Attorney Lukoff sent Attorney
Riek a witness list that included Simpson. Attorney Lukoff
enclosed Simpson's written statement to Agent Zeni and the
defense investigator's summary of the January meeting with
Simpson.
4
No. 2011AP1049-D
¶16 On March 26, 2009, Attorney Lukoff personally met with
Simpson in preparation for Smith's trial. During this meeting,
Attorney Lukoff learned, for the first time, that Simpson had
met with D.A. Nieskes. Attorney Lukoff promptly sent a letter
to Attorney Riek, by facsimile, asking for a copy of any
information Simpson provided to D.A. Nieskes.
¶17 The next day, March 27, 2009, now four days before
Smith's trial, Attorney Riek sent Attorney Lukoff a copy of the
Simpson Note. Her cover letter included the statement that,
"[a]s I indicated to you earlier today, based upon this note, I
sent a request to the Racine County Sheriff's Department to have
them follow up on this information and Isaiah Simpson declined
to cooperate and provide a statement." Attorney Riek later told
the OLR that she found the Simpson Note among unrelated papers
on her desk on or about March 26, 2009.
¶18 Smith's trial was scheduled to commence on March 31,
2009. When Simpson arrived for the trial that day, Attorney
Riek directed a law enforcement officer to interview him.
Simpson again admitted the marijuana was his, not Smith's.
¶19 Attorney Riek then moved to dismiss Smith's case. The
criminal charges against Smith were dismissed on March 31, 2009,
prior to the commencement of trial.
¶20 On May 9, 2011, the OLR filed a disciplinary complaint
against Attorney Riek alleging that by failing to promptly
provide the defense with exculpatory information concerning a
third party's admission of possessing marijuana that Smith was
charged with possessing, Attorney Riek violated SCR 20:3.8(f)(1)
5
No. 2011AP1049-D
and Wis. Stat. § 971.23(1)(h), enforceable via SCR 20:8.4(f).
The OLR sought a public reprimand and imposition of costs.
¶21 Referee Michael Dubis was appointed and discovery
ensued. Both parties moved for summary judgment.
¶22 On August 6, 2012, Referee Dubis issued a report
recommending summary judgment in favor of Attorney Riek. The
referee found that the exculpatory information at issue was
already in possession of the defense at least as early as
October 15, 2008, the date of Smith's revocation hearing, some
five months prior to trial. Notably, the referee determined
that a prosecutor's ethical duty under SCR 20:3.8(f) is
consistent with the constitutional requirements imposed pursuant
to Brady v. Maryland, 373 U.S. 83 (1963). The referee stated
that SCR 20:3.8 "must include Brady's materiality standard. To
hold otherwise would be to require disclosure of favorable
evidence without regard to that evidence's significance and no
matter how many times the defense has already heard/received the
same." The referee concluded that Attorney Riek did not violate
either SCR 20:3.8(f)(1) or Wis. Stat. § 971.23(1)(h) and
recommended this court dismiss the disciplinary complaint.
¶23 The OLR appeals. The OLR maintains that Attorney Riek
violated two separate legal standards, SCR 20:3.8(f)(1) and Wis.
Stat. § 971.23(1)(h). The OLR challenges, on appeal, the
6
No. 2011AP1049-D
referee's interpretation of SCR 20:3.8(f)(1). Oral argument was
conducted on February 26, 2013.2
¶24 We will affirm a referee's findings of fact unless
they are clearly erroneous. In re Disciplinary Proceedings
Against Eisenberg, 2004 WI 14, ¶5, 269 Wis. 2d 43, 675 N.W.2d
747. We review a referee's conclusions of law de novo. Id.
¶25 We first consider whether Attorney Riek violated
SCR 20:3.8(f)(1). This inquiry requires us to consider the
nature and scope of prosecutors' disclosure obligations under
both constitutional and ethical standards.
¶26 Federal court decisions and decisions of this court
establish constitutional minimums related to a prosecutor's pre-
trial disclosure obligations. In Brady the U.S. Supreme Court
held "that the suppression by the prosecution of evidence
favorable to an accused . . . violates due process where the
evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution."
373 U.S. at 87. Subsequent decisions clarify that evidence is
"material . . . if there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the
proceeding would have been different." United States v. Bagley,
473 U.S. 667, 682 (1985). Thus, simply "showing that the
prosecution knew of an item of favorable evidence unknown to the
2
After oral argument the Wisconsin District Attorneys
Association filed a motion seeking permission to file an amicus
brief supporting Attorney Riek. The OLR opposed the motion
because it was untimely. By order dated March 12, 2013, this
court denied the motion.
7
No. 2011AP1049-D
defense does not amount to a Brady violation, without more."
Kyles v. Whitley, 514 U.S. 419, 437 (1995); see also Bagley, 473
U.S. at 675 n.7 ("[A] rule that the prosecutor commits error by
any failure to disclose evidence favorable to the accused, no
matter how insignificant, would impose an impossible burden on
the prosecutor and would undermine the interest in the finality
of judgments.").
¶27 Attorney Riek is accused of violating
SCR 20:3.8(f)(1), an ethics rule, which provides:
A prosecutor, other than a municipal prosecutor,
in a criminal case or a proceeding that could result
in the deprivation of liberty shall:
(1) make timely disclosure to the defense of all
evidence or information known to the prosecutor that
tends to negate the guilt of the accused or mitigates
the offense, and, in connection with sentencing,
disclose to the defense and to the tribunal all
unprivileged mitigating information known to the
prosecutor, except when the prosecutor is relieved of
this responsibility by a protective order of the
tribunal; . . . .
The parties agree that because SCR 20:3.8(f)(1) includes
evidence and information, disclosure under SCR 20:3.8(f)(1) does
not depend on the admissibility of the exculpatory information.
¶28 The OLR contends that a prosecutor's ethical duty of
disclosure under SCR 20:3.8(f)(1) is broader than the
constitutional requirements identified in Brady. The OLR
contends SCR 20:3.8(f)(1) requires disclosure of favorable
evidence or information without regard to its "materiality" or
to whether the State had exclusive possession or control of the
evidence or information.
8
No. 2011AP1049-D
¶29 We reject the OLR's proffered interpretation of
SCR 20:3.8(f)(1). This court adopted the current version of
SCR 20:3.8(f) in 2006 as part of a comprehensive review of the
Wisconsin Rules of Professional Conduct for Attorneys. See Sup.
Ct. Order No. 04-07, 2007 WI 4 (issued Jan. 5, 2007, eff.
July 1, 2007).3 We discussed proposed changes to SCR 20:3.8 at
several public hearings and open conferences prior to our 2006
rules revision. The ABA adopted numerous changes to the Model
Rules as a result of Ethics 2000; however, it made no
substantive changes to the text of the Model Rule implicated
here, Model Rule 3.8(d), that correlates with our SCR 20:3.8(f).
Indeed, during Ethics 2000 the ABA expressly "decided against
attempting to explicate the relationship between [Model Rule
3.8(d)] . . . and the prosecutor's constitutional obligations
under Brady and its progeny." See Kirsten M. Schimpff, Rule
3.8, The Jencks Act, and How the ABA Created a Conflict Between
Ethics and The Law on Prosecutorial Disclosure, 61 Am. U. L.
Rev. 1729, 1756 (August, 2012) (citing Margaret Colgate Love,
The Revised ABA Model Rules of Professional Conduct: Summary of
the Work of Ethics 2000, 15 Geo. J. Legal Ethics 441, 469
(2002)).
3
The proposal to revise Wisconsin's Rules of Professional
Conduct for Attorneys had its origins in the American Bar
Association's (ABA) Commission on Evaluation of the Rules of
Professional Conduct, which undertook a comprehensive study and
evaluation of the ABA Model Rules of Professional Conduct,
commonly referred to as "Ethics 2000." Subsequently, most
states, including Wisconsin, undertook a review of their own
rules of professional conduct to determine whether similar
revisions should be made.
9
No. 2011AP1049-D
¶30 In 2009 the ABA's Standing Committee on Legal Ethics
and Professional Responsibility rendered Formal Opinion 09-454
(hereinafter "ABA Opinion"). This ABA Opinion, issued after we
adopted SCR 20:3.8, asserts that a prosecutor's ethical duty
under Model Rule 3.8(d) is broader in scope than the
constitutional requirements under Brady. ABA Comm. on Legal
Ethics & Prof'l Responsibility, Formal Op. 09-454 (2009) at 1.
The ABA Opinion contends that the ethical obligation imposed by
Rule 3.8 is more demanding than constitutional obligations
because it requires disclosure of evidence or information
favorable to the defense without regard to the anticipated
impact of the evidence or information on a trial's outcome.
¶31 As to materiality, the ABA Opinion notes:
A prosecutor's constitutional obligation extends only
to favorable information that is "material," i.e.,
evidence and information likely to lead to an
acquittal. . . . Rule 3.8(d) does not implicitly
include the materiality limitation recognized in the
constitutional case law. The rule requires
prosecutors to disclose favorable evidence so that the
defense can decide on its utility.
Id. at 2 (footnote omitted). The ABA Opinion also declares that
disclosure must be made "as soon as reasonably practical" once
the information is known to the prosecutor. Id. at 6.
¶32 The OLR urges us to follow this reasoning and to
explicitly construe SCR 20:3.8(f)(1) to impose ethical
obligations on prosecutors that transcend the requirements of
Brady. The OLR notes that the North Dakota Supreme Court has
10
No. 2011AP1049-D
adopted this reasoning. See Disciplinary Board v. Feland, 820
N.W.2d 672 (N.D. 2012).
¶33 The ABA Opinion, however, has not been universally
adopted; indeed, it has received some pointed criticism. See,
e.g., Schimpff, supra at 1767. Some jurisdictions explicitly
align their ethics rules on prosecutorial disclosure with
federal constitutional standards. See, e.g., D.C. Rules Prof'l
Conduct R. 3.8 cmt. 1 (2012) (clarifying that their comparable
ethics rule "is not intended either to restrict or to expand the
obligations of prosecutors derived from the United States
Constitution, federal or District of Columbia statutes, and
court rules of procedure."); see also N.C. Rules Prof'l Conduct
3.8(d) (2012) (requiring timely disclosure of "all evidence or
information required to be disclosed by applicable law, rules of
procedure, or court opinions.").
¶34 After the issuance of the ABA Opinion, several
jurisdictions rendered decisions construing their equivalent of
SCR 20:3.8(f) consistent with the requirements of Brady and its
progeny. See, e.g., Disciplinary Counsel v. Kellogg-Martin, 923
N.E.2d 125 (Ohio 2010); see also In re Jordan, 913 So. 2d 775
(La. 2005); In re Attorney C., 47 P.3d 1167 (Colo. 2002).
¶35 We do the same here. Adopting the OLR's
interpretation would impose inconsistent disclosure obligations
on prosecutors. Indeed, the ABA Opinion describes several
hypothetical scenarios where a prosecutor could fully comply
with the constitutional obligations the Court has outlined under
11
No. 2011AP1049-D
Brady, but still be in violation of the Model Rule.4 Disparate
standards are likely to generate confusion and could too easily
devolve into a trap for the unwary.
¶36 Under conflicting standards, prosecutors would face
uncertainty as to how to proceed and could face professional
discipline for failing to disclose evidence even when applicable
constitutional law does not require disclosure of the same
evidence. The practical effect——disclosing evidence to avoid
disciplinary sanctions——could effectively expand the scope of
discovery currently required of prosecutors in criminal cases.
See, e.g., Kellogg-Martin, 923 N.E.2d at 130. A broader
interpretation also invites the use of the ethics rule as a
tactical weapon in litigation, contrary to our stated intent in
SCR Chapter 20 (Preamble, cmt. 20). What better way to
interfere with law enforcement efforts than to threaten a
prosecutor with a bar complaint? See, e.g., Brief for National
District Attorneys Association as Amicus Curiae at 14, Smith v.
Cain, ___ U.S. ___, 132 S. Ct. 627 (2012) (No. 10-8145).
Prosecutors should not be subjected to disciplinary proceedings
for complying with legal disclosure obligations. We thus
construe the ethical mandate of SCR 20:3.8(f)(1) in a manner
4
For example, the ABA Opinion declares that disclosure must
be made "as soon as reasonably practical" once the information
is known to the prosecutor. Supreme court rule 20:3.8(f)(1)
requires counsel to "make timely disclosure," which has been
interpreted to mean the disclosure must be made within a
reasonable time before trial. State v. Harris, 2004 WI 64, 272
Wis. 2d 80, 680 N.W.2d 737.
12
No. 2011AP1049-D
consistent with the scope of disclosure required by the United
States Constitution, federal or Wisconsin statutes, and court
rules of procedure.
¶37 We turn to the OLR's alternative claim that Attorney
Riek's conduct nonetheless violates SCR 20:3.8(f)(1) because the
information at issue here was material. The referee stated:
By the time the [Simpson] Note was created in early
November of 2008, the information found in this note
was cumulative and immaterial as the note contained
information that was already in possession of the
defense at least as early as October 15th, 2008, about
5 months prior to trial.
The OLR objects to this determination, stating:
First, the plain language of the ethical rule does not
contain an exception for cumulative evidence. Second,
it overlooks an additional piece of information at
issue: that Simpson had made a confession to the
District Attorney himself. It was this piece of
information which made District Attorney Nieskes a
potential witness in the criminal case against Smith,
and needed to be disclosed. (Emphasis in original.)
¶38 The OLR is correct that SCR 20:3.8(f)(1) does not
contain an explicit exception for cumulative evidence. However,
the referee's determination that Simpson's statement to D.A.
Nieskes was cumulative is relevant to assessing its materiality.
Simpson repeated his confession to at least five different
people during the course of the Smith criminal proceeding. The
referee thus determined that the statement to D.A. Nieskes was
not material to the outcome of Smith's proceeding. We agree.
¶39 Evidence is material only if there is a reasonable
probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.
13
No. 2011AP1049-D
Bagley, 473 U.S. at 682. A "reasonable probability" is a
probability sufficient to undermine confidence in the outcome.
Id. We have stated:
[With this test,] the reviewing court may consider
directly any adverse effect that the prosecutor's
failure to respond might have had on the preparation
or presentation of the defendant's case. The
reviewing court should assess the possibility that
such effect might have occurred in light of the
totality of the circumstances and with an awareness of
the difficulty of reconstructing in a post-trial
proceeding the course that the defense and the trial
would have taken had the defense not been misled by
the prosecutor's incomplete response.
State v. Harris, 2004 WI 64, ¶14, 272 Wis. 2d 80, 680 N.W.2d 737
(quoting Bagley, 473 U.S. at 683).
¶40 The OLR emphasizes the fact that the confession at
issue was made to a district attorney. Under the facts
presented, we deem this a distinction without a difference. The
defense was already well aware that Simpson claimed the
marijuana as his own. Some five months previously, in October
2008, an ALJ had declined to revoke Smith's extended supervision
based in large part on Simpson's confession. We perceive no
material significance in the fact that he included a district
attorney among the various persons to whom he freely admitted
ownership of the marijuana.
¶41 Nor do we perceive any adverse impact on the defense.
The OLR also offers a rather tortured scenario in which it
posits that if Attorney Riek had failed to disclose to the
defense the fact of Simpson's confession to D.A. Nieskes there
might have been an adverse result for Smith if Simpson or other
14
No. 2011AP1049-D
defense witnesses to whom Simpson confessed failed to appear for
trial. The reality, however, is that before trial, Attorney
Riek did disclose to the defense the Simpson Note and confession
to D.A. Nieskes. Simpson did appear at trial, whereupon
Attorney Riek directed her investigator to question him. Upon
receiving confirmation that Simpson still accepted
responsibility for the marijuana, Attorney Riek moved for
dismissal of the charges against Smith. On these facts, there
is no evidence of record that Smith was adversely affected by
any arguable delay in disclosing one of several substantively
identical confessions to the defense four days in advance of
trial. We therefore accept the referee's conclusion that
Attorney Riek did not violate SCR 20:3.8(f)(1).
¶42 The OLR also accuses Attorney Riek of violating a rule
of criminal procedure that imposes disclosure obligations on
prosecutors. Wisconsin Stat. § 971.23(1)(h) is entitled, "What
A District Attorney Must Disclose To A Defendant" and provides:
Upon demand, the district attorney shall, within
a reasonable time before trial, disclose to the
defendant or his or her attorney and permit the
defendant or his or her attorney to inspect and copy
or photograph all of the following materials and
information, if it is within the possession, custody
or control of the state:
. . .
(h) Any exculpatory evidence.
It is professional misconduct for a lawyer to violate a statute
regulating the conduct of lawyers. SCR 20:8.4(f).
15
No. 2011AP1049-D
¶43 Wisconsin Stat. § 971.23(1)(h) requires prosecutors to
disclose information within the State's possession "within a
reasonable time before trial." This is defined to mean that a
prosecutor must disclose exculpatory evidence "within a
sufficient time for its effective use." See Harris, 272
Wis. 2d 80, ¶37. The question is not whether it would have been
prudent or preferable for Attorney Riek to have disclosed the
statement to D.A. Nieskes sooner. The question is whether she
violated the statute by disclosing the information to the
defense four days before a trial that never occurred.
¶44 The record is devoid of evidence that Attorney Riek's
alleged delay in producing the Simpson Note and disclosing the
fact of Simpson's discussion with D.A. Nieskes was intentional
or done for any strategic purpose. Mindful of the voluminous
caseloads managed by most prosecutors, we are unwilling to rule
that Attorney Riek's disclosure of essentially duplicative
information four days in advance of an apparently routine
marijuana possession case ran afoul of her ethical and
procedural obligations as a prosecutor.
¶45 We note, moreover, that even where a prosecutor does
fail to disclose exculpatory evidence in violation of Brady, a
single inadvertent failure does not necessarily constitute an
ethical violation. Negligence and ethical misconduct are not
necessarily synonymous. Most courts and official ABA policy
agree that a single instance of "ordinary negligence" may
trigger other adverse consequences and possible sanctions but
does not usually constitute a disciplinary violation warranting
16
No. 2011AP1049-D
public discipline. See, e.g., In re Conduct of Gygi, 541 P.2d
1392, 1396 (Or. 1975) (stating "we are not prepared to hold that
isolated instances of ordinary negligence are alone sufficient
to warrant disciplinary action."); Attorney Grievance Comm'n of
Maryland v. Kemp, 641 A.2d 510, 518 (1994) ("While we do not
condone, and certainly do not encourage, attorney negligence or
carelessness in the handling of client affairs, neither do we
routinely treat negligence or carelessness as a violation of the
Rules of Professional Conduct."). Prosecutors should certainly
be mindful of their disclosure obligations, but the possibility
of a grievance proceeding should not permeate every discovery
dispute in criminal cases. See Attorney C., 47 P.3d at 1173-74.
¶46 We accept the referee's conclusion that Attorney
Riek's conduct did not violate SCR 20:3.8(f)(1) or Wis. Stat.
§ 971.23(1)(h), made actionable via SCR 20:8.4(f), and we
dismiss the complaint.
¶47 IT IS ORDERED that the disciplinary complaint filed
against Attorney Sharon A. Riek is dismissed. No costs.
17
No. 2011AP1049-D
1