2014 WI 103
SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP1965-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Joseph L. Sommers, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Joseph L. Sommers,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST SOMERS
OPINION FILED: AUGUST 5, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED: ABRAHAMSON, C.J., dissents. (Opinion filed.)
CROOKS, J., dissents. (Opinion filed.)
NOT PARTICIPATING: ZIEGLER, GABLEMAN, JJ., did not participate.
ATTORNEYS:
2014 WI 103
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP1965-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Joseph L. Sommers, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant,
AUG 5, 2014
v.
Diane M. Fremgen
Clerk of Supreme Court
Joseph L. Sommers,
Respondent.
ATTORNEY disciplinary proceeding. Attorney publicly
reprimanded.
¶1 PER CURIAM. We review, pursuant to SCR 22.17(2),1 the
report of Referee John B. Murphy recommending the court suspend
1
SCR 22.17(2) states:
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.
No. 2012AP1965-D
Attorney Joseph L. Sommers' license to practice law for a period
of 60 days for professional misconduct. This was a default
proceeding. No appeal was filed.
¶2 We approve and adopt the referee's findings of fact
and conclusions of law. We agree that Attorney Sommers'
misconduct warrants public discipline, but deem a public
reprimand sufficient. We impose the full costs of the
proceeding on Attorney Sommers, which total $5,033.16 as of
August 8, 2013.2
¶3 Attorney Sommers was admitted to practice law in
Wisconsin in 1992. His Wisconsin law license is currently
suspended for nonpayment of State Bar dues and for noncompliance
with continuing legal education (CLE) requirements. Attorney
Sommers was previously suspended for 30 days as discipline in a
matter that is intertwined with the allegations in the pending
complaint. In re Disciplinary Proceedings Against Sommers, 2012
WI 33, 339 Wis. 2d 580, 811 N.W.2d 387.
¶4 In 2001 A.R. was charged, and later acquitted of,
homicide by negligent operation of a motor vehicle. The case
was initially prosecuted by Assistant District Attorney Paul
Humphrey. Attorney Sommers defended A.R. Interactions between
the two lawyers were contentious.
¶5 In November 2006 the Office of Lawyer Regulation (OLR)
charged both Attorney Sommers and Attorney Humphrey with
2
The OLR has also filed a statement indicating no
restitution is warranted in this matter.
2
No. 2012AP1965-D
professional misconduct based on incidents that occurred during
the prosecution of A.R.
¶6 On January 2, 2007, Attorney Sommers announced his
candidacy for the Wisconsin Supreme Court. On January 4, 2007,
Attorney Sommers wrote a letter to the Chief Justice of the
Wisconsin Supreme Court. He provided copies of this letter to
all of the Wisconsin Supreme Court justices and to the OLR.
Attorney Sommers did not provide a copy to counsel for Attorney
Humphrey.
¶7 In the January 4, 2007 letter Attorney Sommers advised
the court of his supreme court candidacy. He also claimed that
Attorney Humphrey engaged in prosecutorial misconduct in the
A.R. case and in several other cases. His allegations far
exceeded the scope of the official court record in the then-
pending Humphrey disciplinary matter. The letter was posted to
Attorney Sommers' web site, www.sommersforsupremecourt.com.
¶8 Counsel for Attorney Humphrey filed a grievance with
the OLR asserting, inter alia, that Attorney Sommers did not
contemporaneously provide a copy of this letter and accompanying
materials to him.
¶9 On February 5, 2007, Attorney Sommers issued a press
release entitled, "Corruption in Wisconsin Courts——Supreme Court
Candidate Speaks Out" (hereinafter "Press Release"). The Press
Release describes Attorney Sommers' reasons for seeking election
to the court and purports to explain, as relevant here, "How
innocent defendants plead out every day in Wisconsin courts,"
3
No. 2012AP1965-D
and "[h]ow judges are permitted to get away with falsifying the
record."
¶10 Counsel for Attorney Humphrey filed another grievance
alleging this Press Release constituted an unsubstantiated
attack on the courts and judges of Wisconsin and was designed to
undermine public confidence in the judiciary in violation of the
Attorney's Oath.
¶11 Following receipt of these grievances, the OLR
directed Attorney Sommers to respond, in writing, to the
assertion that his letter and the Press Release violated rules
of professional conduct. Attorney Sommers sent his written
response to the OLR's inquiry, a letter dated May 21, 2007,
directly to the supreme court, rather than to the OLR.
¶12 Counsel for Attorney Humphrey filed a third grievance
asserting that this letter was an improper attempt to influence
the supreme court and constituted an ex parte communication.
¶13 On January 9, 2008, the OLR provided Attorney Sommers
with a preliminary investigative report relating to the above-
mentioned grievances. On January 24, 2008, Attorney Sommers
sent another letter to the chief justice, with copies to the
other justices and to various other individuals and entities in
addition to the OLR.
¶14 On September 6, 2012, the OLR filed the pending
disciplinary complaint alleging that the three letters sent
January 4, 2007, May 21, 2007, and January 24, 2008, each
constitute an impermissible ex parte communication with a judge
or other official in violation of former or current
4
No. 2012AP1965-D
SCR 20:3.5(b)3 (Count One); that by publishing or allowing to be
published on his web page the January 4, 2007 letter to the
supreme court, Attorney Sommers made extrajudicial statements
that he knew or reasonably should have known would have a
substantial likelihood of materially prejudicing an adjudicative
proceeding in the matter, in violation of (former) SCR 20:3.6(a)4
3
Former SCR 20:3.5(b) (effective through June 30, 2007)
applied to the first two letters and stated:
A lawyer shall not: . . . (b) communicate ex
parte with such a person except as permitted by law or
for scheduling purposes if permitted by the court. If
communication between a lawyer and judge has occurred
in order to schedule a matter, the lawyer involved
shall promptly notify the lawyer for the other party
or the other party, if unrepresented, of such
communication; . . . .
Current SCR 20:3.5(b) (effective as of July 1, 2007)
applies to the third letter and states:
A lawyer shall not: . . . (b) communicate ex
parte with such a person during the proceeding unless
authorized to do so by law or court order or for
scheduling purposes if permitted by the court. If
communication between a lawyer and judge has occurred
in order to schedule the matter, the lawyer involved
shall promptly notify the lawyer for the other party
or the other party, if unrepresented, of such
communication; . . . .
4
Former 20:3.6(a) (effective through June 30, 2007) stated:
A lawyer who is participating or has participated
in the investigation or litigation of a matter shall
not make an extrajudicial statement that a reasonable
person would expect to be disseminated by means of
public communication if the lawyer knows or reasonably
should know that it will have a substantial likelihood
of materially prejudicing an adjudicative proceeding
in the matter.
5
No. 2012AP1965-D
(Count Two); and that by publishing the Press Release on an
Internet web site, Attorney Sommers violated the Attorney's
Oath, SCR 40.15, by failing to maintain the respect due to
courts of justice and judicial officers, made actionable via SCR
20:8.4(g)5 (Count Three). The OLR asked the court to suspend
Attorney Sommers' license for 60 days.
¶15 The court appointed Referee John Murphy on
November 19, 2012. Attorney Sommers did not participate in the
proceeding and, on January 10, 2013, the OLR moved for a default
judgment. After ordering a continuance to ensure that Attorney
Sommers was properly served, the referee found that Attorney
Sommers had failed to appear and that default judgment was
appropriate. Accordingly, the referee's findings of fact are
based on the allegations of the complaint filed by the OLR.
¶16 The referee requested the parties brief the issue of
discipline. The OLR filed a brief reiterating its request for a
60-day suspension and imposition of full costs. Attorney
Sommers did not respond. On July 22, 2013, the referee filed a
report recommending a 60-day suspension.
¶17 Neither party appealed. The court is now tasked with
considering whether the referee's factual findings are clearly
erroneous and considering, de novo, whether the conclusions of
law are correct. In re Disciplinary Proceedings Against
Eisenberg, 2004 WI 14, ¶5, 269 Wis. 2d 43, 675 N.W.2d 747. We
5
SCR 20:8.4(g) states it is professional misconduct for a
lawyer to "violate the attorney's oath; . . . ."
6
No. 2012AP1965-D
are free to impose whatever discipline we deem appropriate,
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. In light of Attorney Sommers'
failure to appear or participate in this case, default judgment
is appropriate. Neither party challenged the referee's findings
of fact. We adopt those findings, which are based on the
allegations in the OLR's complaint.
¶18 The complaint alleges that the three above-mentioned
letters sent by Attorney Sommers to the supreme court were
impermissible ex parte communications in violation of current or
former SCR 20:3.6.
¶19 To ensure the record is clear, we note that the
January 4, 2007 letter was not filed in the Humphrey
disciplinary case file. The letter was addressed to the chief
justice and did not include a case number. The court construed
the letter as a complaint against the OLR filed pursuant to
SCR 22.25(8)6 because, in addition to the myriad of accusations
regarding Attorney Humphrey, Attorney Sommers asked the court to
investigate the OLR's handling of his own disciplinary case. He
6
SCR 22.25(8) states:
Allegations of malfeasance against the director,
retained counsel, a member of a district committee, a
member of the preliminary review committee, a member
of the board of administrative oversight, a special
investigator, a member of the special preliminary
review panel, or a referee shall be referred by the
director to the supreme court for appropriate action.
7
No. 2012AP1965-D
asserted in the letter that the complaint filed against him was
"falsified," and that the OLR had failed to pursue allegations
he made concerning Attorney Humphrey's conduct.
¶20 Regardless of how the January 4, 2007 letter was
construed for filing purposes, it contained sweeping accusations
regarding Attorney Humphrey. Attorney Sommers sent the letter
to all members of this court while Humphrey's disciplinary
proceeding was pending before this court. Attorney Sommers did
not provide counsel for Attorney Humphrey with a copy of the
letter. The referee correctly concluded that this letter was an
impermissible ex parte communication, and we accept that
conclusion.
¶21 Attorney Sommers' letter dated May 21, 2007, also
contained statements concerning Attorney Humphrey and was sent
to the court during the pendency of Humphrey's disciplinary
proceeding. Although several public officials are copied on the
letter, counsel for Attorney Humphrey is not. Again, we agree
with the referee's conclusion that this letter was an
impermissible ex parte communication.
¶22 Finally, we note that Attorney Sommers' January 24,
2008 letter indicates several individuals were "copied" on the
letter, including counsel for Attorney Humphrey. The OLR's
complaint, however, avers that counsel did not contemporaneously
receive a copy of this letter. The referee deemed the
allegations in the complaint as true and thus concluded that
this letter was another impermissible ex parte communication.
We accept that conclusion.
8
No. 2012AP1965-D
¶23 We next consider whether Attorney Sommers made
extrajudicial statements that he knew or reasonably should have
known would have a substantial likelihood of materially
prejudicing an adjudicative proceeding in violation of
SCR 20:3.6(a) when he published or allowed to be published his
January 4, 2007 letter on his webpage. The rule then in effect,
SCR 20:3.6(a) provided:
A lawyer who is participating or has participated
in the investigation or litigation of a matter shall
not make an extrajudicial statement that a reasonable
person would expect to be disseminated by means of
public communication if the lawyer knows or reasonably
should know that it will have a substantial likelihood
of materially prejudicing an adjudicative proceeding
in the matter.
¶24 We accept the referee's uncontested findings and
conclusion that by posting the January 2007 letter on his
website, Attorney Sommers violated the aforementioned rule.
¶25 The OLR alleges and the referee agreed that Attorney
Sommers violated the Attorney's Oath, SCR 40.15, made actionable
via SCR 20:8.4(g) when he posted a press release on a web site
established to promote Attorney Sommers' candidacy for judicial
office in which he sweepingly asserts, inter alia, that "judges
are permitted to get away with falsifying the record."
¶26 In State v. Eisenberg, 48 Wis. 2d 364, 180 N.W.2d 529
(1970), this court stated:
License to practice law in this state is granted
on implied understanding that an attorney shall at all
times demean himself in proper manner and refrain from
such practices which bring disrepute upon himself, the
profession and the courts. This implied understanding
9
No. 2012AP1965-D
is also affirmed by the oath taken by the attorney on
admission to practice.
Id. at 380-81. The Attorney's Oath states, in pertinent part:
I will maintain the respect due to courts of
justice and judicial officers;
. . . .
I will abstain from all offensive personality and
advance no fact prejudicial to the honor or reputation
of a party or witness, unless required by the justice
of the cause with which I am charged; . . . .
See SCR 40.15.
¶27 Thus, a lawyer may violate the Attorney's Oath by
conduct that occurs out of court as well as by in-court conduct.
See In re Disciplinary Proceedings Against Johann, 216
Wis. 2d 118, 574 N.W.2d 218 (1998) (disciplining attorney for
distributing a handout strongly critical of the man who was her
child's father and the man's wife). Often, alleged violations
of SCR 40.15 involve the "offensive personality" component of
the oath. Here, the OLR alleges that Attorney Sommers failed to
abide by that component of the oath that requires lawyers
maintain the respect due to courts of justice and judicial
officers.
¶28 We must take care to limit the scope and application
of the Attorney's Oath so that it does not reach a substantial
amount of constitutionally protected conduct or significantly
inhibit an attorney's exercise of the right of free speech. We
are reluctant to deem that statements made during a judicial
election violate the Attorney's Oath. The Attorney's Oath
10
No. 2012AP1965-D
should not be invoked to stifle legitimate critique of judicial
administration or process.
¶29 However, Attorney Sommers' sweeping assertion that
"judges are permitted to get away with falsifying the record"
reflects outspoken contempt for the entire court system. He has
declined to participate in this proceeding. The facts
underlying the referee's conclusion that Attorney Sommers
violated that portion of the Attorney's Oath requiring an
attorney licensed by this court to maintain the respect due to
courts and judicial officers are a matter of record and are not
disputed. We emphasize that this determination is made in the
context of a default proceeding and our holding is limited to
the facts of this case. In sum, the referee's findings of fact
on this point have not been shown to be clearly erroneous, and
we adopt them as well as his conclusion of law.
¶30 The referee recommends a 60-day suspension. As the
referee observes, improper ex parte communications typically
result in a range of sanctions from a private reprimand to a
one-year suspension. See, e.g., In re Disciplinary Proceedings
Against Ragatz, 146 Wis. 2d 80, 86, 429 N.W.2d 488 (1988)
(concluding that an attorney's written ex parte communications
with a judge was deemed "an advocacy piece" designed to
influence the outcome of litigation justifying a 60-day
suspension). Similarly, discipline for improper publicity has
resulted in discipline ranging from private reprimands to
lengthy suspensions. See, e.g., Private Reprimand No. 1994-17
(district attorney violated SCR 20:3.6 with statements to press
11
No. 2012AP1965-D
about defendant); In re Disciplinary Proceedings Against
Eisenberg, 144 Wis. 2d 284, 423 N.W.2d 867 (1988). Violation of
the Attorney's Oath also yields sanctions ranging from a private
reprimand to a six-month suspension. See, e.g., Johann, 216
Wis. 2d at 120-21, 128 (six-month suspension for attorney who
made inflammatory statements about her estranged husband during
a custody battle); In re Disciplinary Proceedings Against Blask,
216 Wis. 2d 129, 573 N.W.2d 835 (1998) (publicly reprimanding
lawyer who engaged in separate physical altercations with
people).
¶31 Attorney Sommers has previously been disciplined in a
matter that included a violation of the Attorney's Oath. As an
experienced lawyer, Attorney Sommers should know that
contemporaneously copying opposing counsel on correspondence
relating to the matters at issue is not a mere courtesy but an
ethical requirement. Without excusing the misconduct, which is
serious, we are mindful that this proceeding stems from and is
intertwined with the underlying disciplinary proceedings and
prosecution of A.R., which elicited extraordinary and, we hope,
unusual animosity between opposing counsel. On careful
consideration, we deem a public reprimand sufficient to address
Attorney Sommers' misconduct in this matter.
¶32 No objection to costs was filed. We accept the
referee's recommendation that Attorney Sommers should be
required to pay the full costs of this proceeding which total
$5,033.16.
12
No. 2012AP1965-D
¶33 IT IS ORDERED that Joseph L. Sommers is publicly
reprimanded for professional misconduct.
¶34 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Joseph L. Sommers shall pay to the Office of
Lawyer Regulation the costs of this proceeding.
¶35 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 order.
¶36 ANNETTE KINGSLAND ZIEGLER, J., and MICHAEL J.
GABLEMAN, J., did not participate.
13
No. 2012AP1965-D.ssa
¶37 SHIRLEY S. ABRAHAMSON, C.J. (dissenting). The
allegations in the pending complaint are intertwined with
matters for which Attorney Sommers and Attorney Humphrey have
each been suspended for 30 days.
¶38 I do not condone Attorney Sommers' conduct, but I do
grasp his distress about what he views as injustices to his
client and slip-ups in the disciplinary proceeding against him.
¶39 Attorney Sommers is presently not eligible to practice
law. He has not paid State Bar dues; he has not complied with
continuing legal education requirements. Attorney Sommers
advised the court in the previous disciplinary proceeding that a
suspension might mean that he could never practice law.
¶40 The court has discretion whether to impose discipline.
SCR 21.16. I would not impose any discipline in the present
matter.
1
No. 2012AP1965-D.npc
¶41 N. PATRICK CROOKS, J. (dissenting). I respectfully
dissent in regard to the discipline imposed. Rather, I would
follow the recommendation of the Referee, John B. Murphy, and
impose a 60-day suspension and require the respondent to pay the
full costs of the proceedings.
1
No. 2012AP1965-D.npc
1