Office of Lawyer Regulation v. Mark Alan Ruppelt

2014 WI 53

SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP2341-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Mark Alan Ruppelt, Attorney at Law:

Office of Lawyer Regulation,
Complainant,
v.
Mark Alan Ruppelt,
Respondent.

DISCIPLINARY PROCEEDINGS AGAINST RUPPELT

OPINION FILED: July 8, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:

JUSTICES:
CONCURRED:
DISSENTED: BRADLEY, J., ABRAHAMSON, C.J., dissent. (Opinion
filed.)
NOT PARTICIPATING:

ATTORNEYS:
 2014 WI 53
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP2341-D

STATE OF WISCONSIN : IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Mark Alan Ruppelt, Attorney at Law:

Office of Lawyer Regulation, FILED
Complainant,
JUL 8, 2014
v.
Diane M. Fremgen
Clerk of Supreme Court
Mark Alan Ruppelt,

Respondent.

ATTORNEY disciplinary proceeding. Attorney publicly

reprimanded.

¶1 PER CURIAM. We review a report and recommendation of

Referee Richard C. Ninneman approving the Stipulation and No

Contest Plea filed by the Office of Lawyer Regulation (OLR) and

Attorney Mark Alan Ruppelt.1 In the stipulation,

Attorney Ruppelt pled no contest to three counts of misconduct

1
In the documents filed in this matter, the spelling of
Attorney Ruppelt's middle name varies. We note that his name as
listed with the State Bar of Wisconsin is "Mark Alan Ruppelt,"
and we therefore use that spelling throughout this opinion.
 No. 2012AP2341-D

as alleged in the complaint filed by the OLR. The OLR

voluntarily dismissed Count Four of the complaint. The parties

jointly recommended that the sanction imposed be a public

reprimand. The referee approved the stipulation and recommended

that this court publicly reprimand Attorney Ruppelt.

Attorney Ruppelt filed a timely objection to the OLR's statement

of costs, which sought costs of $18,443.05. The referee's

amended recommendation as to the assessment of costs was that

the requested fees for retained counsel be reduced by 50

percent, which would reduce the costs assessed against Attorney

Ruppelt to $9,990.55.

¶2 After carefully reviewing the matter, we uphold the

referee's findings of fact and conclusions of law. We agree

with the referee that a public reprimand is an appropriate

sanction. We also agree with the referee that it is appropriate

to reduce the costs of this proceeding to $9,990.55.

¶3 Attorney Ruppelt was admitted to practice law in

Wisconsin in 1994 and practices in Milwaukee. He was previously
a partner in the law firm of Gatzke & Ruppelt SC (the Firm),

located in Waukesha County.

¶4 In 2007, T.W. retained the Firm to represent her in

two legal matters. The first was a civil claim against a former

teacher and his employer based on the teacher's alleged sexual

assaults of T.W. when she was a student at the school.2 The
2
According to the Wisconsin Court System Circuit Court
Access web site, T.W. was born in 1980, which means she was 27
years old when she retained the Firm to represent her in the two
legal matters.

2
 No. 2012AP2341-D

other matter was to assist T.W. as a victim/witness in the

criminal case pending against the teacher. Prior to undertaking

representation of T.W., Attorney Ruppelt had not had a sexual

relationship with her.

¶5 Attorney Ruppelt attempted without success to settle

T.W.'s civil claims against the former teacher and the school.

In March of 2008, Attorney Ruppelt filed a lawsuit against the

former teacher and the school. From March 2008 through February

2009, Attorney Ruppelt filed numerous pleadings on T.W.'s behalf

in the civil case and appeared at hearings and scheduling

conferences. In August of 2008, Attorney Ruppelt appeared as

counsel of record for T.W. at the former teacher's sentencing

hearing in the criminal case.

¶6 In April of 2009, while the civil and criminal cases

were still pending, Attorney Ruppelt and T.W. began a sexual

relationship. In mid-April 2009, the Firm became aware that

Attorney Ruppelt may have been engaging in a sexual relationship

with T.W. while representing her. Attorney Ruppelt continued to
represent T.W. until he and the Firm determined he could no

longer do so, given the concerns surrounding the nature of his

relationship with T.W.

¶7 On April 19, 2009, Attorney Ruppelt met with

Attorney James Gatzke, and Paul Bucher, another senior attorney

at the law firm, to discuss the Firm's concerns about

Attorney Ruppelt's relationship with T.W. At the meeting,

Attorney Ruppelt falsely represented to Attorneys Gatzke and
Bucher that he had not received or exchanged any texts, e-mail,
3
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or voicemail messages of any kind with T.W. that were of a

personal nature and unrelated to the law firm's representation

of T.W. in her civil and criminal cases. In fact,

Attorney Ruppelt had received an e-mail from T.W. on April 17,

2009, that was of a personal nature. At the April 19 meeting,

Attorney Ruppelt falsely represented that he had not engaged in

a sexual relationship with T.W. while representing her.

Attorney Ruppelt agreed not to have contact with T.W. following

the April 19 meeting. On several occasions after April 19,

2009, Attorney Ruppelt denied to Attorney Gatzke that he was

involved in a romantic relationship with T.W.

¶8 In May or June of 2009, Attorney Ruppelt acknowledged

to Attorney Gatzke that he was engaging in a sexual relationship

with T.W. at that time.

¶9 On October 15, 2009, the OLR sent Attorney Ruppelt a

letter notifying him of its pending investigation regarding his

relationship with T.W. while representing her. In late October

2009, Attorney Ruppelt responded to the grievance and falsely
indicated that his representation of T.W. was limited to

assisting her in drafting a victim impact statement. His

response stated that Attorney Gatzke was lead counsel in the

civil case and that Attorney Ruppelt only filled in when needed.

The response also falsely represented that Attorney Ruppelt had

not engaged in sexual relations with T.W. at a time when his law

firm was representing her in the civil case. Attorney Ruppelt

further falsely represented that T.W.'s e-mail of April 17, 2009
was unsolicited and not responded to by him.
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¶10 The OLR directed Attorney Ruppelt to provide a more

complete response. Attorney Ruppelt and an OLR investigator had

a telephone conference on October 30, 2009. During the

telephone conference, Attorney Ruppelt falsely represented that

the April 17, 2009 e-mail was "all fabrication." He again

falsely represented that his representation of T.W. was limited

to assisting her in drafting a victim impact statement in the

criminal case. He also falsely represented to the OLR

investigator that Attorney Gatzke was lead counsel in the civil

case and that Attorney Ruppelt only filled in when needed.

¶11 On November 13, 2009, Attorney Ruppelt filed a

supplemental response to the OLR's inquiry. The supplemental

response falsely represented that Attorney Ruppelt had not begun

a sexual relationship with T.W. until June 27, 2009, and thus

had not had a sexual relationship with her at any time while

representing her on behalf of his law firm. The supplemental

response also falsely represented that Attorney Gatzke and

Attorney Ruppelt had decided Attorney Ruppelt's contact with
T.W. should cease because she had sent Attorney Ruppelt an

unsolicited e-mail alluding to inappropriate contact that he

denied. The supplemental response also falsely represented that

Attorney Ruppelt had told Attorney Gatzke about T.W.'s April 17,

2009 e-mail and asserted that the decision to remove himself

from T.W.'s legal matters was made between him and

Attorney Gatzke, without mentioning Attorney Bucher or the

Firm's investigation.

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 No. 2012AP2341-D

¶12 On April 20, 2009, as part of the Firm's investigation

of Attorney Ruppelt's relationship with T.W., Attorney Bucher

met with T.W. During the meeting, T.W. denied that she and

Attorney Ruppelt had engaged in a sexual relationship while he

was representing her on behalf of the Firm. T.W. subsequently

had a telephone conference with an OLR investigator. During the

telephone conference T.W. denied that Attorney Ruppelt had had a

sexual relationship with her during the period of time he was

representing her on behalf of the Firm. She also denied sending

the April 17, 2009 e-mail.

¶13 Attorney Ruppelt and T.W. were married in June 2010.

On October 26, 2012, the OLR filed a complaint against

Attorney Ruppelt alleging four counts of misconduct:

[COUNT ONE] By engaging in sexual relations with
[T.W.] while he was representing her in [civil and
criminal cases], when they had not engaged in a
consensual sexual relationship prior to the
commencement of the attorney-client relationship,
[Attorney] Ruppelt violated SCR 20:1.8(j).3

[COUNT TWO] By providing false information to his
Firm regarding the nature and timing of his
relationship with [T.W.], by failing to disclose
information to his Firm regarding the nature and
timing of his relationship with [T.W.], and by
engaging in a course of conduct to conceal from his
Firm the nature and timing of his relationship with

3
SCR 20:1.8(j) states, "A lawyer shall not have sexual
relations with a current client unless a consensual sexual
relationship existed between them when the client-lawyer
relationship commenced."

6
 No. 2012AP2341-D

[T.W.], [Attorney] Ruppelt violated SCR 20:8.4(f)4 and
Disciplinary Proceedings Against Shea, 190
5
Wis. 2d 560, [527] N.W.2d [314] (1995).

[COUNT THREE] By providing false information to
OLR and failing to provide relevant information to OLR
regarding the scope and time of his representation of
[T.W.], and/or by providing false information to OLR
and failing to provide relevant information to OLR
regarding the nature and timing of his relationship
with [T.W.], and/or by providing false information to
OLR and failing to provide relevant information to OLR
regarding his Firm's investigation of his relationship
with [T.W.], [Attorney] Ruppelt violated

4
SCR 20:8.4(f) states it is professional misconduct for a
lawyer to "violate a statute, supreme court rule, supreme court
order or supreme court decision regulating the conduct of
lawyers; . . . ."
5
The Shea court found an attorney's pattern of conduct
"constituted a breach of his fiduciary duty to his law firm and
his duty of honesty in his professional dealings with it."

7
 No. 2012AP2341-D

SCR [22.03(2)]6 and SCR 22.03(6),7 enforced via
SCR 20:8.4(h).8

[COUNT FOUR] By assisting or inducing [T.W.] to
provide false information to OLR and to withhold
relevant information from OLR regarding the nature and
timing of [Attorney] Ruppelt's relationship with
[T.W.], and/or by assisting or inducing [T.W.] to
provide false information to OLR and to withhold
relevant information from OLR regarding [Attorney]
Ruppelt's Firm's investigation of the nature and
timing of [Attorney] Ruppelt's relationship with
[T.W.], and/or by assisting and inducing [T.W.] to
provide false information to OLR and to withhold
relevant information from OLR regarding [T.W.]'s
knowledge of events relevant to OLR's investigation,
and/or by failing to advise OLR that [T.W.] had
provided or intended to provide false information to

6
SCR 22.03(2) states as follows:

Upon commencing an investigation, the director
shall notify the respondent of the matter being
investigated unless in the opinion of the director the
investigation of the matter requires otherwise. The
respondent shall fully and fairly disclose all facts
and circumstances pertaining to the alleged misconduct
within 20 days after being served by ordinary mail a
request for a written response. The director may
allow additional time to respond. Following receipt
of the response, the director may conduct further
investigation and may compel the respondent to answer
questions, furnish documents, and present any
information deemed relevant to the investigation.
7
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."
8
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. 2012AP2341-D

OLR and had withheld or intended to withhold relevant
information from OLR, [Attorney] Ruppelt violated
SCR 22.03(6), enforced via SCR 20:8.4(h) and
SCR 20:8.4(a).9
¶14 The complaint sought a 60-day suspension of

Attorney Ruppelt's license to practice law in Wisconsin.

Attorney Ruppelt filed an answer to the complaint on

November 13, 2012. Following the recusal of one referee and a

motion for substitution of second referee, Referee Ninneman was

appointed on April 16, 2013.

¶15 The matter was set for a hearing that was scheduled to

commence on September 16, 2013. Prior to the hearing, the

parties entered into a stipulation, which was filed on

September 19, 2013. The parties stipulated that the OLR would

voluntarily dismiss Count Four of its complaint.

Attorney Ruppelt agreed to plead no contest to Counts One, Two,

and Three of the complaint and agreed that the referee could use

the allegations of the complaint as an adequate factual basis in

the record for a determination of misconduct as to those counts.

The parties jointly recommended that the sanction imposed be a

public reprimand.

¶16 On October 9, 2013, the referee issued his report and

recommendation. Based on the stipulation, the referee found by

clear, satisfactory, and convincing evidence that

Attorney Ruppelt violated the supreme court rules as alleged in

9
SCR 20:8.4(a) states that it is professional misconduct
for a lawyer to "violate or attempt to violate the Rules of
Professional Conduct, knowingly assist or induce another to do
so, or do so through the acts of another; . . . ."

9
 No. 2012AP2341-D

Counts One, Two, and Three of the complaint. The referee also

recommended that this court publicly reprimand Attorney Ruppelt

for his disciplinary violations.

¶17 The OLR filed its statement of costs on October 29,

2013. The OLR sought costs and disbursements of $18,443.05.

The OLR noted that its complaint alleged four counts of

misconduct and, as part of the stipulation, the OLR agreed to

dismiss Count Four. The OLR also noted that while it initially

sought a 60-day suspension of Attorney Ruppelt's license, after

Count Four was dismissed the OLR revisited its sanction

recommendation and the OLR director determined that a public

reprimand was an appropriate sanction. The OLR said that

Attorney Ruppelt was uncooperative in part with the OLR's

investigation. The OLR also said:

Although the litigation was ultimately resolved by
stipulation short of a hearing, this stipulation did
not occur until after the case had been pending almost
a year. Discovery, including depositions was
extensive. Attorney Ruppelt's discovery requests were
onerous and resulted in OLR's expenditure of a
tremendous amount of time (the majority of which was
internal staff time and not even charged herein to
Attorney Ruppelt). Counsel costs herein are
substantial but were paid out by OLR as reasonable and
necessarily incurred.
¶18 Attorney Ruppelt filed an objection to the OLR's

statement of costs on November 19, 2013. Attorney Ruppelt

asserts that he was in fact cooperative and proposed to enter

into a stipulation that was ultimately adopted after thousands

of dollars in costs were incurred by the OLR, primarily through
retained counsel's legal fees of nearly $17,000.

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 No. 2012AP2341-D

¶19 Attorney Ruppelt said that on January 14, 2013, his

counsel sent a letter to the OLR offering to discuss the case

before either side invested a significant amount of time and

money. Attorney Ruppelt said:

Respondent explained in the January 14 letter that his
lack of complete candor was an effort to protect
[T.W.] as opposed to any desire to mislead OLR. While
recognizing that being a gentleman and consideration
of [T.W.'s] personal interests didn't excuse a failure
to be candid with OLR, respondent requested that
failure be put in proper context. . . .

This was not an attempt to save respondent or to hide
improper conduct from others; it was motivated by a
desire to protect a woman for whom respondent had, at
that point, extremely strong feelings, evidenced by
the fact that they [have] since married and have had
children together. It was in that context that
respondent suggested that his actions should be viewed
as a less serious offense warranting less serious
discipline than a failure to cooperate or respond
candidly would under other circumstances.
¶20 Attorney Ruppelt notes that while the OLR seeks

counsel fees and disbursements of $16,926.09, the fees charged

by Attorney Ruppelt's counsel from the time the OLR filed its

complaint in October of 2012 through the time the stipulation

was entered into total only $6,150. Attorney Ruppelt suggests

that any award of costs made should be in an amount not greater

than the fees Attorney Ruppelt himself has been charged.

¶21 The OLR replied to Attorney Ruppelt's objection to

costs on November 21, 2013, and said it stands by its original

costs statement.

¶22 The referee issued his amended recommendation as to
the assessment of reasonable costs on December 9, 2013. The

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 No. 2012AP2341-D

referee stated that this was not a complicated case involving

multiple client matters, nor was this a case involving extensive

discovery. The referee said he was troubled by the fact that

retained counsel spent 33.7 hours reviewing the OLR's

investigative file and drafting the complaint, which was more

than the 27.33 hours that Attorney Ruppelt's counsel spent

defending the matter from the time of the filing to the time of

the stipulation.

¶23 The referee said he was also troubled that retained

counsel billed approximately 125 hours for discovery, which

included responding to Attorney Ruppelt's request for production

of documents and conducting two depositions, one by telephone,

of Attorney Ruppelt's two former law partners/employers. The

referee said, "[M]ost importantly, this referee is very troubled

by the fact that the OLR's retained counsel billed 241.5 hours

in this matter, resulting in $16,905 in total fees, when

respondent's counsel was proposing some type of reprimand as

opposed to a sixty-day suspension as early as January 14, 2013
as reflected in retained counsel's own billing records."

¶24 The referee recommends that the requested fees for

outside counsel be reduced by 50 percent, making the recommended

costs in this matter $9,990.55 as opposed to the requested costs

of $18,443.05.

¶25 This court will adopt a referee's findings of fact

unless they are clearly erroneous. Conclusions of law are

reviewed de novo. See In re Disciplinary Proceedings Against
Eisenberg, 2004 WI 14, ¶5, 269 Wis. 2d 43, 675 N.W.2d 747. The
12
 No. 2012AP2341-D

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.

¶26 We adopt the referee's findings of fact and

conclusions of law that Attorney Ruppelt violated the supreme

court rules as alleged in Counts One, Two, and Three of the

OLR's complaint. We also agree with the referee that a public

reprimand is an appropriate sanction for Attorney Ruppelt's

misconduct.

¶27 We turn next to the issue of costs. Assessment of

costs in OLR matters is governed by SCR 22.24. Our general

policy is that upon a finding of misconduct it is appropriate to

impose all costs, including the expenses of counsel for the OLR,

upon the respondent. In some cases this court may, in the

exercise of its discretion, reduce the amount of costs imposed

upon a respondent. In exercising its discretion regarding the

assessment of costs, the court will consider the statement of

costs, any objection and reply, the recommendation of the
referee, and all of the following factors: the number of counts

charged, contested, and proven; the nature of the misconduct;

the level of discipline sought by the parties and recommended by

the referee; the respondent's cooperation with the disciplinary

process; prior discipline, if any; and other relevant

circumstances.

¶28 Upon consideration of the relevant factors and the

submissions of the parties, we agree with the referee that it is
appropriate in this case to reduce the amount of retained
13
 No. 2012AP2341-D

counsel's fees by 50 percent. In making our determination on

costs, we appreciate the referee's analysis. On balance, we

find it appropriate to follow the referee's recommendation and

reduce retained counsel's fees by 50 percent. Our determination

is not the result of the application of a precise mathematical

formula, but instead is based on our thorough consideration of

the record, the manner in which this case developed, and the

factors set forth in SCR 22.24(1m).

¶29 IT IS ORDERED that Mark Alan Ruppelt is publicly

reprimanded for professional misconduct.

¶30 IT IS FURTHER ORDERED that within 60 days of the date

of this order, Mark Alan Ruppelt shall pay to the Office of

Lawyer Regulation the imposed costs of this proceeding, which

are $9,990.55.

¶31 IT IS FURTHER ORDERED that the director of the Office

of Lawyer Regulation shall advise the court if there has not

been full compliance with all conditions of this decision.

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 No. 2012AP2341-D.awb

¶32 ANN WALSH BRADLEY, J. (dissenting). The discipline

should be more than a public reprimand. Attorney Ruppelt not

only violated SCR 20:1.8(j), but also violated SCR 20:8.4(h) and

(f) by repeatedly misrepresenting the facts to his law firm and

the OLR, as explicitly set forth in the opinion. Per curiam,

¶¶7, 9, 10, 11.

¶33 In addition, I would impose full costs. SCR 22.24(1m)

states the court's "general policy [] that upon a finding of

misconduct, it is appropriate to impose all costs." The rule

then sets forth the factors to consider when determining whether

to deviate from that general policy and reduce the costs.

¶34 Because the per curiam does not explain or evaluate

how those factors apply in this case, there has been no showing

that we should deviate from our general policy here.

¶35 I am authorized to state that CHIEF JUSTICE SHIRLEY S.

ABRAHAMSON joins this dissent.

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