2013 WI 100
SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP740-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Vladimir M. Gorokhovsky, Attorney at
Law:
Office of Lawyer Regulation,
Complainant,
v.
Vladimir M. Gorokhovsky,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST GOROKHOVSKY
OPINION FILED: December 17, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2013 WI 100
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP740-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Vladimir M. Gorokhovsky, Attorney at
Law:
Office of Lawyer Regulation, FILED
Complainant, DEC 17, 2013
v. Diane M. Fremgen
Clerk of Supreme Court
Vladimir M. Gorokhovsky,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. We review the recommendation of the
referee that Attorney Vladimir M. Gorokhovsky be publicly
reprimanded for professional misconduct. That misconduct
consists of: (1) committing criminal acts that reflect
adversely on his honesty, trustworthiness, and fitness as a
No. 2012AP740-D
lawyer, in violation of SCR 20:8.4(b),1 and (2) making false
statements of fact or law to a tribunal and engaging in conduct
involving dishonesty, fraud, deceit or misrepresentation, in
violation of SCR 20:3.3(a)(1)2 and SCR 20:8.4(c).3 In addition
to a public reprimand, the referee recommended that Attorney
Gorokhovsky pay the costs of this proceeding. As of April 29,
2013, the Office of Lawyer Regulation (OLR) reported costs of
$13,835.76.
¶2 No appeal has been filed. Thus, the matter is
submitted to the court for its review pursuant to SCR 22.17(2).4
In conducting our review, we will affirm the referee's findings
of fact unless they are found to be clearly erroneous, but we
will review the referee's conclusions of law on a de novo basis.
1
SCR 20:8.4(b) states it is professional misconduct for a
lawyer to "commit a criminal act that reflects adversely on the
lawyer's honesty, trustworthiness or fitness as a lawyer in
other respects; . . . ."
2
SCR 20:3.3(a)(1) states a lawyer shall not knowingly "make
a false statement of fact or law to a tribunal or fail to
correct a false statement of material fact or law previously
made to the tribunal by the lawyer; . . . ."
3
SCR 20:8.4(c) says it is professional misconduct for a
lawyer to "engage in conduct involving dishonesty, fraud, deceit
or misrepresentation; . . . ."
4
SCR 22.17(2) provides as follows:
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. 2012AP740-D
See In re Disciplinary Proceedings Against Inglimo, 2007 WI 126,
¶5, 305 Wis. 2d 71, 740 N.W.2d 125. The court may impose
whatever sanction it sees fit regardless of the referee's
recommendation. See In re Disciplinary Proceedings Against
Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686.
¶3 After our independent review of the record, we approve
the referee's findings of fact and conclusions of law and adopt
them. We agree that Attorney Gorokhovsky should pay the full
costs of this disciplinary hearing. We do not, however, accept
the referee's recommendation that Attorney Gorokhovsky's
misconduct be sanctioned by a public reprimand. The serious
nature of Attorney Gorokhovsky's misconduct combined with his
recent disciplinary history render a public reprimand an
insufficient response. We therefore impose a 60-day suspension
of Attorney Gorokhovsky's Wisconsin law license.
¶4 Attorney Gorokhovsky was admitted to practice law in
Wisconsin in 2002. His disciplinary history consists of the
following:
• Private reprimand in 2009 for charging an unreasonable
fee, failing to treat a client's funds as trust property
until there was an accounting and severance of the
relationship, failing to timely refund any advance
payment of fees, and failing to provide accurate
information to the OLR during its investigation. Private
Reprimand, No. 2009-23.
• Public reprimand in 2012 for failing to provide competent
representation to a client, failing to consult with a
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No. 2012AP740-D
client and abide by a client's decisions concerning the
objectives of the representation, failing to keep a
client reasonably informed and promptly comply with the
client's reasonable requests for information, accepting
compensation for legal services from someone other than a
client without obtaining the client's prior consent,
having a compensation arrangement that interfered with
his independent professional judgment and with the
client-lawyer relationship, discussing a client's case
with the party paying for his legal services without the
client's consent and allowing that party to make
decisions about the representation, misrepresenting to
the OLR the date of a letter he allegedly sent to a
client, and charging an unreasonable fee. In re
Disciplinary Proceeding Against Gorokhovsky, 2012 WI 120,
344 Wis. 2d 553, 824 N.W.2d 804.
¶5 On April 9, 2012, the OLR filed a complaint against
Attorney Gorokhovsky that alleged three counts of professional
misconduct, the third of which the OLR later dismissed. The
OLR's complaint sought a 60-day suspension of Attorney
Gorokhovsky's license to practice law. Attorney Gorokhovsky
filed an answer that admitted some of the factual allegations of
the complaint, denied others, and denied any violation of the
Wisconsin Rules of Professional Conduct for Attorneys.
¶6 This court appointed Attorney James J. Winiarski as
referee. The referee held an evidentiary hearing on January 28
and 29, 2013. On April 8, 2013, the referee filed a report
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No. 2012AP740-D
containing his findings of fact and conclusions of law, as well
as his recommendation for discipline. The referee's report and
the exhibits received at the evidentiary hearing may be
summarized as follows.
¶7 Count One concerns Attorney Gorokhovsky's misdemeanor
convictions of two counts of battery and one count of disorderly
conduct in Ozaukee County circuit court, all as acts of domestic
abuse against his then wife. These convictions were the result
of a jury trial held on August 11, 2010.5 The circuit court
sentenced Attorney Gorokhovsky to concurrent 18-month terms of
probation for the two battery charges and a 60-day jail term for
the disorderly conduct conviction.
¶8 The referee concluded that these criminal acts
reflected adversely on Attorney Gorokhovsky's honesty,
trustworthiness, and fitness as a lawyer in other respects, in
violation of SCR 20:8.4(b).
¶9 Count Two concerns certain representations Attorney
Gorokhovsky made to the Cook County circuit court (hereinafter
"the Illinois court") in 2010. Attorney Gorokhovsky entered an
appearance on behalf of his client, Providence Home Health Care
(hereinafter "Providence"), in February of 2007, after being
admitted to appear pro hac vice. Providence was the plaintiff
in the Illinois case.
5
Additional charges were tried to the jury; the jury
returned a verdict of not guilty on one count of battery and two
counts of disorderly conduct.
5
No. 2012AP740-D
¶10 On August 9, 2010——two days before Attorney
Gorokhovsky's criminal trial in Wisconsin——the Illinois court
entered a scheduling order setting a trial date of November 8,
2010.
¶11 After Attorney Gorokhovsky was convicted and sentenced
in Wisconsin of battery and disorderly conduct on August 11,
2010, he decided to seek a stay of the November 2010 trial
scheduled in the Illinois court. On or about August 20, 2010,
Attorney Gorokhovsky filed a motion for stay, claiming to the
Illinois court that on August 11, 2010, he had "gone through a
dramatic event in his life, resulting in partial
incapacitation." He stated that he was "going on personal,
family and health care leave of absence with anticipated
duration of several months, commencing on August 26, 2010 and
ending on or about December 3, 2010." Attorney Gorokhovsky did
not explain the dramatic event or health-related problem that
served as the basis for his motion.
¶12 Despite the fact that Attorney Gorokhovsky told the
Illinois court that his personal and health-related leave would
commence on August 26, 2010, Attorney Gorokhovsky appeared that
day in Ozaukee County circuit court to present argument in a
postconviction motion hearing in his own criminal case. As a
result of this postconviction hearing, the Ozaukee County
circuit court granted a stay of Attorney Gorokhovsky's jail
sentence pending appeal.
¶13 On September 13, 2010, the Illinois court held a
hearing on Attorney Gorokhovsky's motion for a stay of the
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No. 2012AP740-D
impending trial. A different lawyer appeared in Attorney
Gorokhovsky's place on behalf of Providence. The Illinois court
continued the motion to September 22, 2010, and ordered Attorney
Gorokhovsky to provide a detailed affidavit stating the reason
for the requested stay.
¶14 On or about September 20, 2010, Attorney Gorokhovsky
provided the Illinois court with an affidavit in which he
averred that he suffered from severe psoriasis (a skin
condition) that had been manageable up until August 11, 2010,
but thereafter substantially interfered with his normal day-to-
day functioning and ability to render competent representation
to his client. Attorney Gorokhovsky further averred that on the
advice of his treating doctors, he needed to "abstain from his
professional pursuits for a brief period of time" and undergo
"treatment which in [the] opinion of his treating medical
professionals will take several months." Attorney Gorokhovsky
averred that his client would be "severely prejudiced if this
Honorable Court [does] not grant a short period of stay of this
matter until December 6, 2010 to allow your affiant to
undergo . . . required medical treatment to rectify his health
impediment and to protect his health and well-being." In his
affidavit, Attorney Gorokhovsky did not reveal the fact of his
criminal convictions in Wisconsin, nor did he refer to the
sentence imposed or the fact that the sentence was stayed
pending appeal.
¶15 In further support of his motion for a stay of the
impending Illinois trial, Attorney Gorokhovsky provided the
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No. 2012AP740-D
Illinois court with a letter dated September 21, 2010, from an
individual named Oleh Cherednyk, whom Attorney Gorokhovsky
identifies as a doctor of oriental medicine. Cherednyk wrote in
his letter to the Illinois court that Attorney Gorokhovsky's
condition of psoriasis was interfering with his daily activities
and "poses [a] severe health risk." Cherednyk wrote that he has
advised Attorney Gorokhovsky "to avoid any and all instances of
possible stress by limiting his professional activities to only
uncontested legal matters" and "not to participate as [a]
litigation attorney in any litigation-related activities."
¶16 On September 22, 2010, the Illinois court entered an
order granting Attorney Gorokhovsky's motion to stay the trial
scheduled for November 8, 2010.
¶17 Thereafter, notwithstanding his representations to the
Illinois court, Attorney Gorokhovsky appeared and filed
documents in numerous court cases through December of 2010.
These appearances included representing defendants in
preliminary hearings in criminal cases, representing parties in
contested motion hearings, and appearing in court on his own
behalf in his criminal case and in his own divorce case.
¶18 One of the defendants in the stayed Illinois court
case, T.V., learned of and attended an October 2010 hearing in
Attorney Gorokhovsky's own divorce case in Wisconsin. T.V.
observed Attorney Gorokhovsky's active participation in the
hearing.
¶19 On or about November 18, 2010, T.V.'s attorney filed
with the Illinois court a motion for sanctions on behalf of all
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No. 2012AP740-D
of the defendants in Providence's lawsuit. The motion alleged
that Attorney Gorokhovsky misrepresented to the Illinois court
that he needed a stay of the Illinois proceeding because of his
own serious medical condition. The motion included an affidavit
from T.V. recounting her observations of Attorney Gorokhovsky's
participation in his October 2010 hearing in his own divorce
case. T.V.'s attorney also filed court records showing various
court appearances Attorney Gorokhovsky made after the stay was
granted.
¶20 On February 15, 2011, the Illinois court revoked
Attorney Gorokhovsky's pro hac vice admission to appear in the
Providence case. The court ordered Attorney Gorokhovsky and his
client to pay $500, jointly and severally, to the defendants for
their costs in bringing the motion for sanctions. Providence
paid the sanction.
¶21 In the instant disciplinary case, the referee
concluded that Attorney Gorokhovsky's actions in the Providence
matter violated SCR 20:3.3(a)(1) and SCR 20:8.4(c). The referee
determined that Attorney Gorokhovsky made a misrepresentation to
the Illinois court when he stated that he was incapacitated and
would be taking a leave of absence from his law practice for
medical reasons, when in fact he went on to make court
appearances and perform legal work in numerous Wisconsin cases.
The referee further found that Attorney Gorokhovsky failed to
disclose to the Illinois court his criminal trial, convictions,
and sentence as a reason for his request for a stay.
9
No. 2012AP740-D
¶22 The referee recommended that Attorney Gorokhovsky be
publicly reprimanded, and that the costs of the disciplinary
proceeding be assessed against him. In recommending a public
reprimand, the referee noted the following mitigating factors:
(1) Attorney Gorokhovsky's underlying convictions are
misdemeanors; (2) Attorney Gorokhovsky served 60 days of
incarceration for his misdemeanor convictions; (3) there is no
evidence of prior criminal conduct on the part of Attorney
Gorokhovsky; (4) Attorney Gorokhovsky suffered a serious
outbreak of his pre-existing psoriasis as a result of the stress
of his divorce and criminal trial; and (5) Attorney Gorokhovsky
works intensely and zealously as a lawyer for his clients. The
referee noted the following aggravating factors: (1) domestic
abuse convictions are serious and reflect negatively on Attorney
Gorokhovsky's fitness as a lawyer; (2) Attorney Gorokhovsky
deliberately hid his criminal convictions and jail sentence from
the Illinois court in his efforts to secure a stay of an
upcoming trial; (3) Attorney Gorokhovsky refuses to acknowledge
the wrongful nature of his conduct in the Illinois court; and
(4) this matter and Attorney Gorokhovsky's previous disciplinary
matters reveal a pattern of disregard for his professional
obligations as an attorney.
¶23 After weighing these factors, the referee rejected the
OLR's request for a 60-day suspension of Attorney Gorokhovsky's
Wisconsin law license and instead recommended a public
reprimand. The referee concluded that a public reprimand "would
provide the public with notice of [Attorney] Gorokhovsky's
10
No. 2012AP740-D
misconduct and members of the public would then be in a position
to determine [Attorney] Gorokhovsky's fitness as a lawyer, given
his domestic abuse convictions."
¶24 The matter is now before this court to review the
referee's report and recommendation. We affirm the referee's
findings of fact, and we agree with the referee that those
factual findings demonstrate that Attorney Gorokhovsky committed
the two counts of professional misconduct at issue.
¶25 We further decide, contrary to the referee's
recommendation, that a 60-day license suspension is appropriate.
A 60-day suspension is required by the serious nature of the
misconduct and Attorney Gorokhovsky's previous disciplinary
history. Attorney Gorokhovsky stands convicted of two counts of
battery and one count of disorderly conduct, all as acts of
domestic abuse. Domestic violence is an undisputedly serious
crime that reflects adversely on Attorney Gorokhovsky's honesty,
trustworthiness, or fitness as a lawyer in other respects. See
SCR 20:8.4(b) cmt. [2]. In addition, Attorney Gorokhovsky made
intentionally false, deceitful statements to the Illinois court.
While it may have been true that Attorney Gorokhovsky was
suffering from an outbreak of psoriasis during the relevant time
period, this outbreak was not so debilitating as to require him
to refrain from participating "in any litigation-related
activities," as he told the Illinois court. Attorney
Gorokhovsky's litigation efforts in other cases, including his
own, contradicted his representation to the Illinois court.
11
No. 2012AP740-D
¶26 We generally impose progressive discipline, especially
in cases involving a pattern of similar misconduct. See, e.g.,
In re Disciplinary Proceedings Against Nussberger, 2006 WI 111,
¶27, 296 Wis. 2d 47, 719 N.W.2d 501. This is the third time
that Attorney Gorokhovsky has been the subject of a disciplinary
action. Attorney Gorokhovsky engaged in the misconduct at issue
here in 2010, after we privately reprimanded him in 2009. In
2012, we publicly reprimanded Attorney Gorokhovsky for eight
counts of misconduct, including the same behavior——dishonest or
fraudulent conduct——in play here. See id. (noting that we have
imposed progressive discipline when the conduct at issue in the
current disciplinary proceeding occurred prior to the imposition
of discipline in a prior proceeding). In his 2012 public
reprimand, we "remind[ed] Attorney Gorokhovsky that the court
may impose progressively severe sanctions when an attorney
engages in a pattern of misconduct." Gorokhovsky, 344
Wis. 2d 553, ¶34. Now that we already have privately and
publicly reprimanded Attorney Gorokhovsky, imposing yet another
reprimand would unduly depreciate the seriousness of his
misconduct and the need to deter him from continued
unprofessional behavior. Therefore, we impose a 60-day
suspension. We also remind Attorney Gorokhovsky, once again,
that this court may impose progressively severe sanctions when
an attorney engages in a pattern of misconduct.
¶27 Finally, we find it appropriate that Attorney
Gorokhovsky pay the full costs of the proceeding, which are
$13,835.76. Our general policy is to impose the costs of a
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No. 2012AP740-D
disciplinary proceeding against the respondent attorney whose
misconduct necessitated the proceeding. See SCR 22.24(1m). We
see no reason to deviate from that policy in this case. There
is nothing on the face of the OLR's statement of costs that
would suggest the requested costs are unreasonable. Attorney
Gorokhovsky has not objected to the imposition of the requested
costs. We therefore require Attorney Gorokhovsky to pay the
full costs of this proceeding.
¶28 IT IS ORDERED that the license of Vladimir M.
Gorokhovsky to practice law in Wisconsin is suspended for a
period of 60 days, effective January 21, 2014.
¶29 IT IS FURTHER ORDERED that Vladimir M. Gorokhovsky
shall comply with the provisions of SCR 22.26 concerning the
duties of a person whose license to practice law in Wisconsin
has been suspended.
¶30 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Vladimir M. Gorokhovsky shall pay to the Office
of Lawyer Regulation the costs of this proceeding.
¶31 IT IS FURTHER ORDERED that compliance with all
conditions of this decision is required for reinstatement. See
SCR 22.28(2).
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No. 2012AP740-D
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