2016 WI 69
SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP2150-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Othman M. Atta, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Othman M. Atta,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST ATTA
OPINION FILED: July 14, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED: BRADLEY, A. W., J. and ABRAHAMSON, J. dissent
(Opinion filed.
NOT PARTICIPATING:
ATTORNEYS:
2016 WI 69
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2014AP2150-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Othman M. Atta, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant,
JUL 14, 2016
v.
Diane M. Fremgen
Clerk of Supreme Court
Othman M. Atta,
Respondent.
ATTORNEY disciplinary proceeding. Attorney publicly
reprimanded.
¶1 PER CURIAM. We review the report and recommendation
of Referee James J. Winiarski approving the stipulation and no
contest plea filed by the Office of Lawyer Regulation (OLR) and
Attorney Othman M. Atta. In the stipulation, Attorney Atta pled
no contest to eight counts of misconduct as alleged in the
complaint filed by the OLR. The parties jointly recommended
that the sanction imposed be a public reprimand. The referee
No. 2014AP2150-D
agreed that a public reprimand was an appropriate sanction. The
referee also recommended that Attorney Atta be ordered to pay
the full costs of this disciplinary proceeding, which are
$9,187.41 as of April 4, 2016.
¶2 After careful review of the matter, we uphold the
referee's findings of fact and conclusions of law and agree that
a public reprimand is an appropriate sanction. We further agree
that Attorney Atta should bear the full costs of this
disciplinary proceeding.
¶3 Attorney Atta was admitted to practice law in
Wisconsin in 1994 and practices in Milwaukee. He has no prior
disciplinary record.
¶4 On September 15, 2014, the OLR filed a complaint
against Attorney Atta. Attorney Atta filed an answer on October
14, 2014. The referee was appointed on December 15, 2014. The
parties' stipulation was filed on February 19, 2016. As part of
the stipulation, Attorney Atta withdrew his answer to the
complaint and pled no contest to the eight counts of misconduct
alleged therein.
¶5 This matter arose out of Attorney Atta's
representation of BA-B. In April of 2010, Attorney Atta agreed
to represent her in a divorce action and also agreed to assist
her in immigration matters involving her husband, AAN. Both BA-
B and her husband were born in Jordan. In the spring of 2009,
the couple had discussed the possibility of divorce and AAN had
returned to Jordan, received a divorce decree there, and married
another woman. In seeking Attorney Atta's assistance, BA-B
2
No. 2014AP2150-D
sought to protect herself, as well as her young daughter, from
AAN's actions.
¶6 Beginning in September 2010, Attorney Atta's
professional relationship with BA-B became increasingly
personal, and the two had sexual relations. A consensual sexual
relationship had not existed between them prior to the time
their attorney-client relationship began. Between April 2012
and February 2013, Attorney Atta and BA-B had numerous telephone
conversations, with a majority of the calls being lengthy and
after midnight. In one telephone conversation, Attorney Atta
told BA-B he had strong feelings for her, discussed one day
being married to her, and discussed intimate topics. Attorney
Atta went to BA-B's house for dinners. Attorney Atta, BA-B, and
her young daughter would also go out for lunch or dinner
together at local restaurants.
¶7 Attorney Atta's personal communications, interactions,
and personal relationship with his client while he continued to
represent her in her divorce action created a conflict of
interest on Attorney Atta's part. In March 2013, near the end
of the divorce proceeding, AAN accused Attorney Atta of having a
romantic relationship with BA-B. On March 11, 2013, AAN's
attorney emailed Attorney Atta expressing concern that his
client was claiming Attorney Atta had some sort of relationship
with AB-B. Attorney Atta responded to the email by denying that
such a relationship existed and claimed that AAN and his new
wife were spreading false rumors.
3
No. 2014AP2150-D
¶8 On March 12, 2013, the circuit court held a final,
stipulated hearing in the divorce case. Prior to the hearing,
AAN's attorney met with Attorney Atta and the judge in chambers
to discuss the concerns raised by AAN. The court asked the
parties to state their concerns on the record. AAN's attorney
expressed concern that there was a romantic relationship between
Attorney Atta and BA-B. Attorney Atta responded by saying that
the allegations were "entirely without merit" and he accused AAN
and his new wife of "going around the community trying to
badmouth me, badmouthing my client, alleging that we are
sleeping together, alleging that my client is sleeping with
other men, and so forth." At the hearing, the circuit court
accepted the terms of the stipulation on all issues, granted the
divorce, and ordered Attorney Atta to submit proposed findings
of fact, conclusions of law, and a judgment to the court within
30 days.
¶9 Attorney Atta and BA-B continued to speak after the
divorce hearing, but by May 2013, their relationship had
deteriorated. By the end of May 2013, Attorney Atta had not yet
filed the proposed findings of fact, conclusions of law, and
judgment with the court. On May 24, 2013, BA-B sent Attorney
Atta an email expressing concern that the final divorce papers
had not yet been prepared. On May 28, BA-B wrote to the court
asking for assistance in having the paperwork completed. On May
31, 2013, AAN's attorney emailed Attorney Atta asking him to
advise of the status of the matter. Attorney Atta did not
respond for over two weeks.
4
No. 2014AP2150-D
¶10 On June 16, 2013, Attorney Atta responded to AAN's
attorney's email, saying he would drop off the proposed
documents the next day. On June 18, 2013, Attorney Atta
forwarded his proposed findings of fact, conclusions of law, and
judgment, apologizing for the delay. Attorney Atta emailed BA-B
the proposed documents on July 1, explaining the changes made
and advising her on outstanding issues, including past due child
support and credit card debt. Without BA-B's consent, Attorney
Atta copied his email, including the findings of fact,
conclusions of law, and judgment, to his brother, Ihsan Atta.
BA-B had met with and been in contact with Attorney Atta's
brother. On July 1, 2013, after incorporating subsequent
language changes proposed by both attorneys, Attorney Atta sent
the final proposed documents to the court. The court signed the
documents and submitted them for filing on July 16, 2013.
¶11 On August 8, 2013, BA-B filed a telephonic grievance
against Attorney Atta, alleging that he intentionally delayed
filing the divorce documents after she terminated their
relationship. BA-B was also upset that Attorney Atta had copied
his brother with the divorce papers, and she asserted that
Attorney Atta had taken advantage of her by engaging in a sexual
relationship with her while she was in an emotional stage in her
life.
¶12 On October 5, 2013, the OLR sent Atta a formal notice
of investigation asking him to respond to BA-B's allegations.
Attorney Atta responded on December 16, 2013, claiming the
allegations were completely false. He denied he and BA-B had a
5
No. 2014AP2150-D
sexual relationship and stated that BA-B wanted to marry him and
told him if he did not agree to the marriage she would file
false accusations against him. As to the late night phone
calls, Attorney Atta said he regularly conducted business
outside of regular business hours and he knew BA-B stayed up
late. Attorney Atta admitted that he met BA-B for coffee,
lunch, and dinner, but said he would do that with any client.
On April 1, 2014, the OLR requested supplemental information
from Attorney Atta regarding the grievance. Attorney Atta
failed to timely respond.
¶13 The referee's March 15, 2016 report and recommendation
found that the OLR met its burden of proof with respect to the
following counts of misconduct:
[Count One:] By representing [BA-B] during her
divorce matter while simultaneously engaging in a
romantic relationship with her, [Attorney] Atta
violated SCR 20:1.7(a)(2).1
[Count Two:] By failing to withdraw from
representation of [BA-B] in a divorce proceeding
following engagement in a romantic relationship with
his client, giving rise to a conflict of interest,
[Attorney] Atta violated SCR 20:1.16(a).2
1
SCR 20:l.7(a)(2) provides: "Except as provided in par.
(b), a lawyer shall not represent a client if the representation
involves a concurrent conflict of interest. A concurrent
conflict of interest exists if: . . . (2) there is a significant
risk that the representation of one or more clients will be
materially limited by . . . a personal interest of the lawyer."
2
SCR 20:1.16(a) provides: "Except as stated in par. (c), a
lawyer shall not represent a client or, where representation has
commenced, shall withdraw from the representation of a client
if: (1) the representation will result in violation of the Rules
of Professional Conduct or other law . . . ."
6
No. 2014AP2150-D
[Count Three:] By having sexual relations with a
client while representing her in a divorce action,
when no sexual relationship existed prior to the
representation, [Attorney] Atta violated SCR
3
20:1.8(j).
[Count Four:] By failing to inform the tribunal in a
divorce proceeding of the fact of his relationship
with [BA-B] and falsely denying such a relationship
existed, [Attorney] Atta violated SCR 20:3.3(a)(1).4
[Count Five:] By informing [AAN's attorney] that he
did not have a romantic relationship with [BA-B],
after [AAN's attorney] specifically asked [Attorney]
Atta whether he had a romantic relationship (both in
email correspondence and in a meeting with the
presiding judge, Atta violated SCR 20:4.l(a)(1).5
[Count Six:] By emailing the proposed Findings of
Fact, Conclusions of Law, and Judgment to [Attorney
Atta's brother], along with other information
pertaining to the representation of [BA-B], without
[BA-B's] consent, [Attorney] Atta violated SCR
20:1.6(a).6
3
SCR 20:1.8(j) provides: "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."
4
SCR 20:3.3(a)(l) provides: "A lawyer shall not knowingly
(1) 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."
5
SCR 20:4.l(a)(l) provides: "In the course of representing
a client a lawyer shall not knowingly: (1) make a false
statement of material fact or law to a 3rd person . . . ."
6
SCR 20:l.6(a) provides: "A lawyer shall not reveal
information relating to the representation of a client unless
the client gives informed consent, except for disclosures that
are impliedly authorized in order to carry out the
representation, and except as stated in pars. (b) and (c)."
7
No. 2014AP2150-D
[Count Seven:] By failing to provide truthful
information to OLR in connection with an
investigation, and specifically denying the existence
of a romantic relationship with his client, [Attorney]
Atta violated SCR 22.03(2) and SCR 22.03(6), enforced
via SCR 20:8.4(h).7
[Count Eight:] By failing to timely respond to OLR's
April l, 2014 request for supplemental information,
Atta violated SCR 22.03(6), enforced via 20:8.4(h).
¶14 The referee noted that before the parties reached a
stipulation, BA-B filed a civil suit against Attorney Atta in
Milwaukee County Circuit Court alleging a sexually inappropriate
relationship between her and Attorney Atta while he was
representing her in her divorce action. The referee also noted
that he did not have the opportunity to meet or hear from
Attorney Atta during the course of this case, and the referee's
report and recommendation were based entirely on the written
file and the parties' stipulation and Attorney Atta's no contest
plea.
¶15 The referee found it significant that Attorney Atta
denied having any sexual or inappropriate contact with BA-B
until the no contest plea and stipulation were entered. The
referee noted that Attorney Atta denied the allegations during
the course of the OLR's investigation of the grievance; in open
7
SCR 20:8.4(h) provides: "It is professional misconduct for
a lawyer to . . . (h) 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),
22.03(6) or SCR 22.04(1) . . . ."
8
No. 2014AP2150-D
court during his representation of the grievant in the divorce
case; in his answer to the OLR's complaint; and to opposing
counsel during the course of the divorce action.
¶16 The referee went on to say that Attorney Atta's
admitted misconduct was not limited to an inappropriate sexual
relationship with a client. The referee said Attorney Atta also
admitted that the relationship with his client gave rise to a
conflict of interest, and he admitted failing to inform the
tribunal in the divorce proceeding about his relationship with
BA-B. Further, Attorney Atta admitted he was not truthful when
asked by opposing counsel in the divorce case as to whether he
was involved in an inappropriate relationship with BA-B.
Attorney Atta also mailed copies of the proposed divorce
documents to his brother without the permission of the grievant,
and he failed to cooperate and be truthful with the OLR during
the course of its investigation. The referee said although the
relationship with BA-B was apparently mutual for an extended
period of time, Attorney Atta should have recognized that he
could not provide objective legal services and advice to BA-B
when their relationship had become so personal in nature.
¶17 The referee went on to note that Attorney Atta did
ultimately agree to the no contest plea and the factual basis
for it. The referee further noted that Attorney Atta has no
prior disciplinary history in his over 20 years of practicing
law. The referee said public reprimands have been imposed for
inappropriate sexual relationships with clients, and some
attorneys have even received private reprimands for having
9
No. 2014AP2150-D
sexual relationships with their clients. After review of prior
cases and factoring in both aggravating and mitigating factors,
the referee recommended that Attorney Atta be publicly
reprimanded and that he pay the full costs of the proceeding.
¶18 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
court may impose whatever sanction it sees fit, regardless of
the referee's recommendation. See In re Disciplinary
Proceedings Against Widule, 2003 WI 34, 261 Wis. 2d 45, 660
N.W.2d 686.
¶19 We adopt the referee's findings of fact and
conclusions of law that Attorney Atta violated the supreme court
rules as alleged in the eight counts set forth above. We also
agree with the referee that a public reprimand is an appropriate
sanction for Attorney Atta's misconduct. We note that the
misconduct at issue in this case is similar to that in In re
Disciplinary Proceedings Against Ruppelt, 2014 WI 53, 354
Wis. 2d 738, 850 N.W.2d 1. Like Attorney Atta, Attorney Ruppelt
began a sexual relationship with a client during the course of
representing her. Like Attorney Atta, Attorney Ruppelt falsely
denied that he was involved in a romantic relationship with his
client, both when confronted by his partners and in his initial
responses to the OLR's investigation. As in this case, Attorney
Ruppelt ultimately entered into a stipulation and no contest
plea whereby he admitted the misconduct. As in Ruppelt, we
10
No. 2014AP2150-D
conclude that a public reprimand is an appropriate sanction. We
further agree with the referee that Attorney Atta should bear
the full costs of this proceeding.
¶20 IT IS ORDERED that Othman M. Atta is publicly
reprimanded for professional misconduct.
¶21 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Othman M. Atta shall pay the Office of Lawyer
Regulation the costs of this proceeding, which are $9,187.41.
¶22 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.
11
No. 2014AP2150-D.awb
¶23 ANN WALSH BRADLEY, J. (dissenting). Attorney Othman
M. Atta entered into a stipulation which provides he is not
contesting the eight counts of misconduct. The misconduct
centers on Attorney Atta's consensual sexual involvement with a
client that arose during the course of the representation in
divorce and immigration matters. The underpinnings of this
prohibition are rooted in concerns about conflicts of interest
and breach of fiduciary rules. Such concerns address the
essence of the professional relationship.
¶24 Truth telling also lies at the heart of the
profession——especially truth telling to a tribunal. Attorney
Atta's misconduct included making false statements to a tribunal
by advising the circuit court that the allegations of a romantic
relationship with his client were "entirely without merit" in
violation of SCR 20:3.3(a)(1). Additionally his misconduct
includes making false statements to the Office of Lawyer
Regulation in violation of SCR 22.03(6), and to opposing counsel
in violation of SCR 20:4.1(a)(1).
¶25 I have written in the past, and I do again today,
because the court appears to be too lenient for violations of
this nature that undermine the trust relationship and
truthfulness required of an attorney. See In re Disciplinary
Proceedings Against Ruppelt, 2014 WI 53, ¶32, 354 Wis. 2d 738,
850 N.W.2d 1 (Ann Walsh Bradley, J., dissenting).
¶26 Because I conclude that the violations warrant more
than a public reprimand, I respectfully dissent.
1
No. 2014AP2150-D.awb
¶27 I am authorized to state that Justice SHIRLEY S.
ABRAHAMSON joins this dissent.
2
No. 2014AP2150-D.awb
1