2016 WI 18
SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP284-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against
Thor Templin, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Thor Templin,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST TEMPLIN
OPINION FILED: March 29, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED: ABRAHAMSON, J.
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2016 WI 18
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP284-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Thor Templin, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant,
MAR 29, 2016
v.
Diane M. Fremgen
Clerk of Supreme Court
Thor Templin,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. We review the report and recommendation
of Referee Hannah C. Dugan that the license of Attorney Thor
Templin be suspended for a period of six months for professional
misconduct and that he pay the full costs of this proceeding,
which are $7,564.50 as of October 19, 2015. The referee also
recommends that Attorney Templin be required to make restitution
totaling $500 to two clients and that he be required to complete
six hours of continuing legal education (CLE), concentrating on
No. 2015AP284-D
civil procedure and/or appellate practice and approved by the
Office of Lawyer Regulation (OLR), as a precondition to
reinstatement.
¶2 Upon careful review of the matter, we adopt the
referee's findings of fact and conclusions of law. We agree
that a six-month suspension of Attorney Templin's license is an
appropriate sanction for his misconduct. We also conclude that
the full costs of the proceeding should be assessed against him,
and we also agree that he should be required to make restitution
totaling $500 to two clients and that he should be required to
complete six hours of CLE.
¶3 Attorney Templin was admitted to practice law in
Wisconsin in 2008 and practices in Milwaukee. His disciplinary
history consists of a consensual private reprimand for failing
to act diligently and failing to communicate appropriately in a
client matter, and for failing to return files. Private
Reprimand 2011-04.
¶4 On February 12, 2015, the OLR filed a complaint
alleging that Attorney Templin committed 12 counts of misconduct
involving four clients.
¶5 Attorney Templin filed an answer to the complaint on
March 13, 2015. Referee Dugan was appointed on March 31, 2015.
On July 2, 2015, the parties sent the referee a stipulation that
included a withdrawal of Attorney Templin's answer and his plea
of no contest to all counts of misconduct. The parties sent the
referee an amended stipulation on July 6, 2015. The amended
stipulation provided that the referee could use the factual
2
No. 2015AP284-D
allegations of the complaint as an adequate basis in the record
for a determination of misconduct as to all 12 counts.
¶6 The parties jointly recommended that the referee
determine that a recommended sanction in the matter be a four-
month suspension of Attorney Templin's Wisconsin law license.
The parties further stipulated that Attorney Templin should be
required to make restitution to two clients in the total amount
of $500 and that he be required to complete six hours of CLE
concentrating on civil procedure and/or appellate practice, with
the coursework to be approved by the OLR, as a precondition to
his reinstatement. Attorney Templin represented that he fully
understands the misconduct allegations; that he fully
understands his right to contest the matter; that he fully
understands the ramifications of his entry into the stipulation;
that he fully understands that he has the right to counsel and
has chosen to represent himself; and that his entry into the
stipulation is made knowingly and voluntarily and is not the
product of plea-bargaining.
¶7 The referee issued her report and recommendation on
September 29, 2015. The referee found that the OLR had met its
burden of proof with respect to all counts of misconduct alleged
in the complaint.
¶8 Counts 1-5 of the OLR's complaint arose out of
Attorney Templin's representation of J.S. J.S. was divorced
from M.S. in July 2008. Attorney Templin commenced his
representation of J.S. in December 2008. In August 2011,
approximately three years after the divorce judgment, Attorney
3
No. 2015AP284-D
Templin filed a notice of motion and motion for relief from the
judgment of divorce or, in the alternative, to set aside the
judgment of divorce for fraud on the court. Attorney Templin's
motion challenged M.S.'s financial disclosures.
¶9 On October 10, 2011, M.S.'s attorney sent a letter to
Attorney Templin, which included a motion for sanctions
requesting that Attorney Templin withdraw his frivolous
pleadings. The motion was based on legal grounds that included
Wis. Stat. § 806.07, requiring a motion for relief from judgment
to be filed within one year of the judgment.
¶10 On October 25, 2011, Attorney Templin filed an amended
notice of motion and motion for relief from the judgment of
divorce or to set aside the judgment of divorce for fraud on the
court or, in the alternative, to create a trust under Wis. Stat.
§ 767.125(5). On November 1, 2011, a hearing was held before
Calumet County Family Court Commissioner James Fitzgerald. The
court commissioner determined that Attorney Templin's motion was
not timely filed; that at least one of Attorney Templin's
arguments involved "great leaps of reasoning that did not make
sense;" and that there was no basis in fact for most of the
allegations made by J.S. and that such allegations were
frivolous. Accordingly, Attorney Templin's amended motion was
dismissed with prejudice.
¶11 Attorney Templin filed a request for a de novo
hearing. A hearing was conducted before Judge Wilber Warren III
on March 27, 2012. Judge Warren issued a decision in August
2012 denying the motion to reopen the judgment and also denying
4
No. 2015AP284-D
the imposition of a constructive trust. Judge Warren found the
claims for relief to be frivolous. In a September 10, 2012
order, Judge Warren ordered J.S. and/or Attorney Templin to pay
$6,526.22 in attorneys fees to M.S.
¶12 J.S. filed a Chapter 7 bankruptcy petition in April
2014, attempting to discharge the "attorneys fees" sanction.
Attorney Templin's firm represented J.S. M.S.'s new attorney
advised that the attorneys fees obligation was not a
dischargeable debt under bankruptcy laws.
¶13 M.S. filed a grievance against Attorney Templin with
the OLR. Attorney Templin repeatedly failed to respond to the
OLR's requests for a response to the grievance. Attorney
Templin did finally respond on September 12, 2013.
¶14 The OLR's complaint alleged the following counts of
misconduct with respect to Attorney Templin's representation of
J.S.:
[Count 1] By filing a motion (and amended
motion) for relief from a divorce judgment years after
the applicable time limits had passed and advancing
arguments devoid of factual or legal support, Templin
violated SCR 20:1.1.1
[Count 2] By knowingly filing a motion (and
amended motion) for relief from a divorce judgment
years after the applicable time limits had passed and
advancing arguments unwarranted under existing law,
with no good faith argument existing for an extension,
1
SCR 20:1.1 provides that "[a] lawyer shall provide
competent representation to a client. Competent representation
requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation."
5
No. 2015AP284-D
modification, or reversal of existing law, Templin
violated SCR 20:3.1(a)(1).2
[Count 3] By filing a motion (and amended
motion) for relief from a divorce judgment years after
the applicable time limits had passed and advancing
arguments devoid of factual or legal support, by later
filing a bankruptcy action on behalf of the client
seeking to discharge his own sanction obligations
imposed by the trial court, and by filing the
bankruptcy action one day prior to a scheduling
hearing on a Contempt/Show Cause proceeding on the
underlying sanction order, Templin took multiple
actions on behalf of his client when he knew or when
it was obvious that such action would serve merely to
harass or maliciously injure another, in violation of
SCR 20:3.1(a)(3).3
[Count 4] By failing to comply with the
September 10, 2012 trial court sanction order
requiring Templin and his client (jointly and
severally) to pay $6,526.22 to the client's former
husband within 30 days of the order, Templin knowingly
disobeyed an obligation of a tribunal, in violation of
SCR 20:3.4(c).4
2
SCR 20:3.1(a)(1) provides that, in representing a client,
a lawyer shall not "knowingly advance a claim or defense that is
unwarranted under existing law, except that the lawyer may
advance such claim or defense if it can be supported by good
faith argument for an extension, modification or reversal of
existing law."
3
SCR 20:3.1(a)(3) provides that, in representing a client,
a lawyer shall not "file a suit, assert a position, conduct a
defense, delay a trial or take other action on behalf of the
client when the lawyer knows or when it is obvious that such an
action would serve merely to harass or maliciously injure
another."
4
SCR 20:3.4(c) provides that a lawyer shall not "knowingly
disobey an obligation under the rules of a tribunal, except for
an open refusal based on an assertion that no valid obligation
exists."
6
No. 2015AP284-D
[Count 5] By failing to provide relevant
information to OLR in a timely fashion, Templin
violated SCR 22.03(2),5 which is enforceable under the
Rules of Professional Conduct through SCR 20:8.4(h).6
¶15 Counts 6-8 of the OLR's complaint arose out of
Attorney Templin's representation of A.H. In 2009, the State of
Wisconsin filed a petition to terminate A.H.'s parental rights
to his son. Following a dispositional hearing in February 2011,
A.H. involuntarily lost his parental rights to his son.
Following an appeal and a subsequent trial on remand, the trial
court entered an order terminating A.H.'s parental rights to his
son. A.H. appealed this order. His appointed appellate counsel
filed a no-merit brief on A.H.'s behalf.
5
SCR 22.03(2) provides:
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.
6
SCR 20:8.4(h) provides that 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)."
7
No. 2015AP284-D
¶16 On December 5, 2012, the court of appeals entered an
order summarily affirming the trial court's order terminating
A.H.'s parental rights.
¶17 Pursuant to Wis. Stat. § 809.24(1), a motion for
reconsideration of a court of appeals' decision must be filed
within 20 days of the court of appeals' order. Pursuant to
Wis. Stat. § 808.10(1), a petition for review must be filed with
this court within 30 days of the court of appeals' decision. A
failure to comply with the 30-day deadline for filing a petition
for review deprives this court of subject matter jurisdiction.
¶18 On January 4, 2013, A.H. met with Attorney Templin and
paid him $300 in cash to review his case file for purposes of
possibly filing a petition for review. A.H. believed he had
until January 7, 2013, to file a petition for review. In fact,
the filing deadline was January 4, 2013. Attorney Templin
failed to advise A.H. that, subsequent to January 4, 2013,
nothing further could be done on the case.
¶19 A.H. attempted to reach Attorney Templin in January
and February of 2013 without success. In March 2013, A.H.
submitted documents to Attorney Templin in an attempt to show
his continued efforts to see his son. In April 2013, Attorney
Templin met with A.H., returned his files, and stated there was
nothing further to be done in the matter.
¶20 A.H. filed a grievance with the OLR against Attorney
Templin. Attorney Templin failed to respond to the OLR's
requests for a response to the grievance.
8
No. 2015AP284-D
¶21 The OLR's complaint alleged the following counts of
misconduct with respect to Attorney Templin's representation of
A.H.:
[Count 6] By failing to respond promptly to
[A.H.'s] multiple requests for information regarding
his case, Templin failed to comply with reasonable
requests by [A.H.] for information, in violation of
SCR 20:1.4(a)(4).7
[Count 7] By failing to explain to [A.H.] that
the deadline for filing a Petition for Review with the
Supreme Court, or that all other applicable appellate
deadlines, had expired on or before January 4, 2013,
Templin failed to explain matters to [A.H.] in a way
that would permit him to make informed decisions about
his representation, in violation of SCR 20:1.4(b).8
[Count 8] By accepting a $300 fee to review
[A.H.'s] file for purposes of a potential appeal to
the Supreme Court, on the same day as the deadline for
filing any kind of appeal or petition for review
expired, thereby precluding any meaningful action in
the case, Templin charged an unreasonable fee, in
violation of SCR 20:1.5(a).9
7
SCR 20:1.4(a)(4) provides that a lawyer shall "promptly
comply with reasonable requests by the client for information."
8
SCR 20:1.4(b) provides that "[a] lawyer shall explain a
matter to the extent reasonably necessary to permit the client
to make informed decisions regarding the representation."
9
SCR 20:1.5(a) provides:
A lawyer shall not make an agreement for, charge,
or collect an unreasonable fee or an unreasonable
amount for expenses. The factors to be considered in
determining the reasonableness of a fee include the
following:
(1) the time and labor required, the novelty and
difficulty of the questions involved, and the skill
requisite to perform the legal service properly;
(continued)
9
No. 2015AP284-D
¶22 Count 9 of the OLR's complaint arose out of Attorney
Templin's representation of V.K., who retained Attorney Templin
in May 2013 to commence a divorce action. Attorney Templin
prepared legal papers purportedly for the purpose of commencing
the divorce action and mailed them to the Racine County Clerk of
Court for filing. The clerk of court returned the divorce
pleadings, unfiled, to Attorney Templin with a note indicating
that the family court commissioner would not accept the
documents for filing because Attorney Templin also needed to
file an order to show cause and affidavit for temporary relief.
¶23 Attorney Templin prepared an order to show cause and
affidavit for temporary relief and mailed the documents to the
clerk of court. The documents were again returned with a
statement that Attorney Templin had failed to properly follow
(2) the likelihood, if apparent to the client,
that the acceptance of the particular employment will
preclude other employment by the lawyer;
(3) the fee customarily charged in the locality
for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or
by the circumstances;
(6) the nature and length of the professional
relationship with the client;
(7) the experience, reputation, and ability of
the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.
10
No. 2015AP284-D
local Racine County court rules. Thereafter, Attorney Templin
downloaded the court documents that are accessible online for
pro se litigants and filled out the information necessary to
initiate the divorce action on behalf of V.K. Those documents
were submitted to the clerk of court and were once again
rejected. V.K. fired Attorney Templin via email on or about
July 22, 2013.
¶24 The OLR's complaint alleged the following count of
misconduct with respect to Attorney Templin's representation of
V.K.:
[Count 9] By failing to properly prepare and file
[V.K.'s] Petition for Divorce in Racine County Circuit
Court, Templin failed to provide competent
representation to his client, in violation of SCR
20:1.1.
¶25 Counts 10-12 of the OLR's complaint arose out of
Attorney Templin's representation of C.B., a veteran who had a
history of receiving medical care from the Veterans
Administration (VA). In June 2008, C.B. was involved in a
serious auto accident which resulted in him being flown to
Froedtert Memorial Lutheran Hospital (Froedtert) where he
remained for approximately three months. After payment of
certain amounts by the VA, the amount owing from C.B. to
Froedtert was $79,442.07.
¶26 On August 28, 2012, Froedtert filed a summons and
complaint against C.B. in Milwaukee County circuit court. C.B.
met with Attorney Templin on September 21, 2012, and discussed
11
No. 2015AP284-D
the need to file an answer and a third party summons and
complaint against the VA.
¶27 Attorney Templin filed an answer and affirmative
defenses on September 24, 2012. A pretrial conference was held
on November 5, 2012. The scheduling order issued that day
imposed a December 5, 2012 deadline for filing amendments to the
pleadings, including the naming of any additional parties. The
scheduling order imposed a deadline of March 5, 2013, for the
parties to file all dispositive motions, imposed deadlines to
identify witnesses and damage claims, and imposed a deadline for
discovery, as well as a deadline to complete mediation.
¶28 On December 5, 2012, Attorney Templin filed a third
party summons and complaint against the VA. Despite apparent
efforts to obtain service on the VA, service was never obtained.
Attorney Templin never filed a witness list on behalf of C.B.
¶29 On March 5, 2013, Froedtert filed a motion for summary
judgment with supporting memorandum and affidavit. Attorney
Templin did not file any responsive pleadings. On April 22,
2013, Attorney Templin sent an email to Froedtert's counsel
indicating he never received the summary judgment motion.
Another copy of the motion was sent to Attorney Templin.
¶30 On April 22, 2013, Attorney Templin sent a letter
asking the judge for an adjournment of the April 24, 2013
summary judgment motion hearing. Attorney Templin's request was
denied.
12
No. 2015AP284-D
¶31 The scheduling order had also required the parties to
complete mediation before April 4, 2013. The attorneys never
communicated over the subject of mediation.
¶32 On April 24, 2013, the circuit court granted
Froedtert's motion for summary judgment. Attorney Templin never
adequately advised C.B. about the pending summary judgment
motion or various legal options available to him concerning the
motion. C.B. received no communication or contact from Attorney
Templin after April 24, 2013. Ultimately, C.B. filed bankruptcy
in 2014 and the judgment in favor of Froedtert was discharged.
¶33 The OLR's complaint alleged the following counts of
misconduct with respect to Attorney Templin's representation of
C.B.:
[Count 10] By failing to properly serve the VA;
by failing to submit a witness list or detailed damage
claims; and/or by failing to respond to the Motion for
Summary Judgment filed by the plaintiff in the case,
Templin failed to provide competent representation to
his client, in violation of SCR 20:1.1.
[Count 11] By failing to secure service on a
third-party defendant, file a witness list as required
in the Scheduling Order, pursue mediation, or file any
dispositive motions, Templin failed to provide
diligent representation to his client, in violation of
SCR 20:1.3.10
[Count 12] By failing to advise [C.B.] of the
pending Motion for Summary Judgment, or the subsequent
entry of a judgment against him, as well as failing to
discuss the options available to him regarding his
case, Templin failed to explain matters to [C.B.]
10
SCR 20:1.3 provides that "[a] lawyer shall act with
reasonable diligence and promptness in representing a client."
13
No. 2015AP284-D
sufficiently to enable him to make informed decisions
regarding his representation, in violation of SCR
20:1.4(b), and failed to keep his client reasonably
informed about the status of the matter, in violation
of SCR 20:1.4(a)(3).11
¶34 By entering into the amended stipulation, Attorney
Templin admitted the facts underlying all 12 counts of the OLR's
complaint. The referee concluded that the OLR met its burden of
proof as to all 12 counts. The referee further agreed with the
parties' amended stipulation that Attorney Templin be required
to make restitution in the amount of $300 to A.H. and $200 to
V.K. The referee further agreed with the parties' amended
stipulation that Attorney Templin be required to complete six
hours of CLE, concentrating on civil procedure and/or appellate
practice and approved by the OLR, as a precondition to
reinstatement.
¶35 Turning to the appropriate sanction, while the
parties' amended stipulation jointly recommended a four-month
suspension, the referee concluded that a six-month suspension
was appropriate. The referee commented that the one mitigating
factor in the case was Attorney Templin's lack of an extensive
disciplinary history. The referee identified a number of
aggravating factors, including multiple offenses, a pattern of
misconduct, an intentional failure to comply with rules or
orders of the disciplinary agency, and vulnerability of the
victims.
11
SCR 20:1.4(a)(3) provides that a lawyer shall "keep the
client reasonably informed about the status of the matter."
14
No. 2015AP284-D
¶36 The referee noted that Attorney Templin is a staff
attorney employed at a nonprofit law firm directing services for
economically disadvantaged clients who have few or no lawyer
retention options. The referee also found a lack of remorse or
acceptance of responsibility for Attorney Templin's actions, as
well as a significant number of violations occurring in a
relatively short period of time since he was licensed to
practice law. The referee also expressed concern about Attorney
Templin's understanding of his violation of supreme court rules,
the seriousness of the violations, the inappropriateness of his
conduct, and the effect of his violations of the rules. The
referee noted that, while the disciplinary proceeding was
pending, Attorney Templin attempted to voluntarily resign from
the State Bar. His resignation request was held in abeyance
pending the outcome of this disciplinary proceeding. The
referee also commented that she was concerned about Attorney
Templin's understanding and attitude towards meeting the
professional standards imposed on a member of the bar, and said
his "conduct during these proceedings raises substantial
concerns about [his] understanding of and attitude toward court
proceedings and toward future clients' needs and expectations."
¶37 The referee concluded that a six-month suspension was
necessary for Attorney Templin to understand and accept the
responsibilities of the legal profession and the ethical
constraints placed upon its practice. She said the resultant
full reinstatement proceeding, pursuant to SCRs 22.29-22.33, is
necessary for the court to be certain that Attorney Templin has
15
No. 2015AP284-D
complied with the supreme court rules during the term of his
suspension and that he is prepared to comply with the standards
of professional practice and the expectations of clients served
under a Wisconsin law license.
¶38 A referee's findings of fact are affirmed unless
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 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.
¶39 There is no showing that any of the referee's findings
of fact are clearly erroneous. Accordingly, we adopt them. We
also agree with the referee's conclusions of law that Attorney
Templin violated the supreme court rules set forth above.
¶40 With respect to the appropriate level of discipline,
upon careful review of the matter, we agree with the referee's
recommendation for a six-month suspension of Attorney Templin's
license to practice law in Wisconsin. Although no two
disciplinary proceedings are identical, a six-month suspension
is generally consistent with the sanction imposed in In re
Disciplinary Proceedings Against Hartigan, 2005 WI 3,
277 Wis. 2d 341, 690 N.W.2d 831 (attorney's license suspended
for six months for six counts of misconduct involving two client
matters) and In re Disciplinary Proceedings Against Boyd,
2009 WI 59, 318 Wis. 2d 281, 767 N.W.2d 226 (attorney's license
16
No. 2015AP284-D
suspended for six months for 13 counts of misconduct arising out
of five client matters).
¶41 We agree with the referee's recommendation, based upon
the parties' stipulation, that Attorney Templin be required to
make restitution to A.H. in the amount of $300 and to V.K. in
the amount of $200. We further agree that, as a precondition of
license reinstatement, Attorney Templin be required to complete
six hours of CLE, concentrating on civil procedure and/or
appellate practice, as approved by the OLR. We also find it
appropriate to impose the full costs of this disciplinary
proceeding on Attorney Templin.
¶42 IT IS ORDERED that the license of Thor Templin to
practice law in Wisconsin is suspended for a period of six
months, effective May 3, 2016.
¶43 IT IS FURTHER ORDERED that, as a condition of the
reinstatement of his license to practice law in Wisconsin, Thor
Templin shall successfully complete six hours of continuing
legal education, concentrating on civil procedure and/or
appellate practice, as approved by the Office of Lawyer
Regulation.
¶44 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Thor Templin shall pay to the Office of Lawyer
Regulation the costs of this proceeding, which are $7,564.50.
¶45 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Thor Templin shall make restitution in the amount
of $300 to A.H. and in the amount of $200 to V.K.
17
No. 2015AP284-D
¶46 IT IS FURTHER ORDERED that the restitution specified
above is to be completed prior to paying costs to the Office of
Lawyer Regulation.
¶47 IT IS FURTHER ORDERED that Thor Templin shall comply
with the provisions of SCR 22.26 concerning the duties of an
attorney whose license to practice law has been suspended.
¶48 IT IS FURTHER ORDERED that compliance with all
conditions of this order is required for reinstatement. See
SCR 22.29(4)(c).
18
No. 2015AP284-D.ssa
¶49 SHIRLEY S. ABRAHAMSON, J. (concurring). I join the
per curiam. I write separately, however, to discuss a
procedural issue posed in the instant case relating to current
OLR practice: How should the OLR address multiple
investigations of a lawyer during substantially the same time
period? Should the OLR propose disciplining an attorney in one
disciplinary proceeding only to support a different discipline
or suspension of the license in the near future in another
proceeding?
¶50 To understand the procedural issue, I state key dates
relating to OLR's case against Attorney Thor Templin.
¶51 OLR's complaint in the instant matter was filed on
February 15, 2015. OLR and Attorney Templin entered into a
stipulation on July 6, 2015. The referee issued her report on
September 29, 2015.
¶52 While the court was considering the instant OLR matter
against Attorney Templin, on December 16, 2015, the OLR advised
the court that it was investigating Attorney Templin on another
matter. Notice of this other investigation is an open, public
record.
¶53 This kind of issue arose in In re Disciplinary
Proceedings Against Osicka, 2014 WI 33, ¶36, 353 Wis. 2d 656,
847 N.W.2d 343. There the referee commented critically about
the OLR's filing two complaints within about a year of each
other complaining about conduct in which the attorney engaged
during approximately the same period. The referee explained:
1
No. 2015AP284-D.ssa
It is unclear why the matters involving [Attorney
Osicka] resulted in the filing of two separate
cases. . . . [E]verything else charged in the present
Complaint . . . pre-dated the filing, on January 11,
2012, of the earlier complaint in 2012AP60–D, and the
OLR had knowledge of all the violations at least
several months before January 11, 2012 when the
earlier Complaint was filed. . . . The point is, there
should have been only one Complaint.
¶54 The instant case raises an anomaly similar to one the
referee raised in the Osicka case. This anomaly and other
issues in the OLR's procedures have been brought to the
attention of the court. Several issues to be addressed have
been described.1
¶55 In this regard, I suggested that the court should
institute a review of the OLR system, which is about 15 years
old.2 Others have joined me in this suggestion. Since October
1
In In re Disciplinary Proceedings Against Winkel, 2015 WI
68, ¶55, 363 Wis. 2d 786, 866 N.W.2d 642 (Abrahamson, J.,
concurring), I wrote that Attorney Winkel's suggestion that
bifurcating the hearing to address the merits of the charged
violation and then determine the discipline should be part of
the proposed OLR study.
See, e.g., In re Disciplinary Proceedings Against Johns,
2014 WI 32, ¶69, 353 Wis. 2d 746, 866 N.W.2d 642 (Abrahamson,
C.J., dissenting). See also In re Disciplinary Proceedings
Against Hicks, 2016 WI 9, ¶13, 366 Wis. 2d 512, ___ N.W.2d ___
(issue that has arisen with temporary suspensions).
2
See, e.g., In re Disciplinary Proceedings Against Osicka,
2014 WI 33, ¶37, 353 Wis. 2d 656, 847 N.W.2d 343 (Abrahamson,
C.J., concurring); In re Disciplinary Proceedings Against
Osicka, 2014 WI 34, ¶38, 353 Wis. 2d 675, 847 N.W.2d 333
(Abrahamson, C.J., concurring); In re Disciplinary Proceedings
Against Johns, 2014 WI 32, ¶71-76, 353 Wis. 2d 746, 847
N.W.2d 179 (Abrahamson, C.J., dissenting); In re Disciplinary
Proceedings Against Kratz, 2014 WI 31, ¶¶73-75, 353 Wis. 2d 696,
851 N.W.2d 219 (Abrahamson, C.J., concurring).
(continued)
2
No. 2015AP284-D.ssa
2013, Keith Sellen, Director of the OLR, and Justices Ann Walsh
Bradley, N. Patrick Crooks, and David Prosser expressed interest
in such a proposal.3 Justice Prosser commented at an open rules
conference on January 20, 2015, that he favored a "top down"
review of the OLR.
¶56 To put this suggestion before the court, I filed Rule
Petition 15-01 on February 6, 2015, asking the court to create
supreme court rules establishing a Lawyer Regulation Review
Committee to undertake a comprehensive review of the Rules of
Professional Conduct for Attorneys and the organization,
operation, and procedures of the lawyer discipline system.4
See also In re the Petition for Reinstatement of Attorney
Jeffrey P. Neterval, unpublished order, ¶¶3-7 (Abrahamson, J.,
concurring) (Mar. 22, 2016); In re the Petition for Reactivation
of David W. Klaudt's License to Practice Law in Wisconsin,
unpublished order, ¶¶6-10 (Abrahamson, J., concurring) (Mar. 22,
2016).
3
Johns, 353 Wis. 2d 746, ¶¶71-76 (Abrahamson, C.J.,
dissenting). See also Kratz, 353 Wis. 2d 696, ¶73-75
(Abrahamson, C.J., concurring).
Justice Prosser wrote in Kratz as follows in supporting an
impartial, objective review of OLR's practices and procedures:
From time to time every government agency would
benefit from an impartial, objective review of the
agency's practices and procedures. There is increasing
evidence of the need for such an evaluation of the
Office of Lawyer Regulation (OLR). This case
highlights some of the problems facing the agency and
why an objective review would be desirable.
Kratz, 353 Wis. 2d 696, ¶76 (Prosser, J., concurring in part and
dissenting in part).
4
S. Ct. Order 15-01 (issued Dec. 21, 2015), ¶37
(Abrahamson, J., dissenting).
3
No. 2015AP284-D.ssa
¶57 All commentators were supportive of the petition.
Nevertheless, after treating the petition as a valid rule
petition for almost a year, on November 16, 2015, five justices
voted to dismiss the petition on the ploy that it was an
improper subject matter for a rule petition: David T. Prosser,
Patience Roggensack, Annette K. Ziegler, Michael J. Gableman,
and Rebecca G. Bradley.5
¶58 Justice Ann Walsh Bradley and I dissented from the
dismissal.
¶59 The order dismissing the petition states that the
dismissal does not necessarily end prospects for the appointment
of a committee. Unfortunately, however, decisions about whether
a committee will be established, the composition of the
committee, the mission of the committee, and how the committee
will function will be made behind closed doors. Yet lawyer
discipline is of great importance to the court, to the lawyers
of the state, and to the public.
¶60 I write separately to address an anomaly that was
revealed in Osicka and to repeat my commitment to try to keep
the bench, the bar, and the public generally informed as best I
can about what progress (or lack thereof) is made in the
appointment of the committee. As of this date, no progress has
been made to create the committee.
5
For a fuller explanation, please read the order of
dismissal of Rule Petition 15-01 and my dissent, available at
http://www.wicourts.gov/sc/rulhear/DisplayDocument.pdf?content=p
df&seqNo=158416.
4
No. 2015AP284-D.ssa
¶61 For the reasons set forth, I concur but write
separately.
5
No. 2015AP284-D.ssa
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