Office of Lawyer Regulation v. John Kenyatta Riley

2016 WI 70

SUPREME COURT OF WISCONSIN
CASE NO.: 2010AP2942-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against
John Kenyatta Riley, Attorney at Law:

Office of Lawyer Regulation,
Complainant-Respondent,
v.
John Kenyatta Riley,
Respondent-Appellant.

DISCIPLINARY PROCEEDINGS AGAINST RILEY

OPINION FILED: July 15, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 23, 2012

SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:

JUSTICES:
CONCURRED: Abrahamson, J. and Bradley, A.W., J. (Part I of
concurrence only)
DISSENTED: Prosser, J.
NOT PARTICIPATING: Bradley, R.G., J.

ATTORNEYS:
For the respondent-appellant, there were briefs filed by
Stacie H. Rosenzweig, Halling & Cayo, Milwaukee and Paul R.
Erickson, Gutglass, Erickson, Bonville & Larson, SC, Milwaukee.
Oral argument by Paul R. Erickson.

For the Office of Lawyer Regulation, there was a brief
filed by Matthew J. Price, Foley & Lardner, LLP, Milwaukee and
oral argument by Matthew J. Price.
 2016 WI 70
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2010AP2942-D

STATE OF WISCONSIN : IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against John Kenyatta Riley, Attorney at Law:

Office of Lawyer Regulation, FILED
Complainant-Respondent,
JUL 15, 2016
v.
Diane M. Fremgen
Clerk of Supreme Court
John Kenyatta Riley,

Respondent-Appellant.

ATTORNEY disciplinary proceeding. Attorney publicly

reprimanded.

¶1 ROGGENSACK, C.J., ZIEGLER, J., AND GABLEMAN,

J. Attorney John Kenyatta Riley appeals from the report of the

referee, Attorney Hannah C. Dugan, who concluded that Attorney

Riley had violated three Rules of Professional Conduct for

Attorneys and recommended that he be publicly reprimanded and

that he be required to pay the full costs of this disciplinary

proceeding.
 No. 2010AP2942-D

¶2 After our careful review of this matter and the legal

issues it presents, a majority of the court has agreed that

Attorney Riley committed professional misconduct, that he should

be publicly reprimanded, and that he should be required to pay

the full costs of this disciplinary proceeding, which were

$16,961.70 as of November 6, 2012. This is, therefore, the

mandate of the court. A majority of the court, however, does

not agree as to a single rationale for reaching that result.

Three justices, Chief Justice Roggensack, Justice Ziegler, and

Justice Gableman, agree with the reasoning set forth in this

lead opinion. Justice Abrahamson and Justice Ann Walsh Bradley

concur in the mandate, but do not join this opinion.1 Each of

them sets forth her views in a concurring opinion. Justice

Prosser dissents.2

I. FACTUAL AND PROCEDURAL BACKGROUND

¶3 Attorney Riley was admitted to the practice of law in

Wisconsin in May 1996. He has been the subject of professional

discipline on one prior occasion. In 2009 Attorney Riley
consented to the imposition of a private reprimand for violating

SCRs 20:1.3 (lack of diligence) and 20:1.4(b) (failure to

1
The mandate that follows this lead opinion is the mandate
of the court as agreed upon by all of the participating justices
except Justice Prosser.
2
Justice N. Patrick Crooks participated in the oral
argument of this matter, but he passed away while the matter was
pending. Justice Rebecca G. Bradley did not participate in this
matter.

2
 No. 2010AP2942-D

explain a legal matter to a client). He currently practices in

Milwaukee with the law firm of Eisenberg, Riley and Zimmerman,

S.C.

¶4 This case involves the intersection of the careers of

two attorneys, Attorney Riley and Attorney Brian K. Polk. An

understanding of Attorney Polk's employment history is necessary

to an understanding of the charges of professional misconduct

against Attorney Riley.

A. Attorney Polk's Employment History and Reinstatement

Proceeding

¶5 From July 1997 until June 2000, Attorney Polk worked

as an associate attorney for the law firm of Eisenberg, Weigel,

Carlson, Blau, Reitz & Clemens, S.C. (Eisenberg, Weigel)3 doing

"intake" work for personal injury cases. He ended his

employment with that firm because he claims he became

disillusioned with the lack of opportunities to do more

substantive legal work. After leaving the Eisenberg, Weigel

firm, Attorney Polk was unemployed for a while and failed to
comply with his continuing legal education (CLE) reporting

requirement. His license was administratively suspended for

that reason in June 2001.

¶6 Over the next several years, Attorney Polk held a

number of different non-legal jobs. Although his license to

practice law in Wisconsin remained administratively suspended,

3
One of the named partners of the Eisenberg, Weigel firm
was Attorney Alvin H. Eisenberg.

3
 No. 2010AP2942-D

at some point in the fall of 2005 Attorney Polk began to work

for a new law firm4 that Attorney Alvin Eisenberg had founded

after the breakup of the Eisenberg, Weigel firm.5 Attorney Polk

was made part of the personal injury "team" that was led by

Attorney Eisenberg. He solicited individuals to become personal

injury clients of the firm, he met with and gave legal advice to

clients about their claims, he did property damage settlements,

and he corresponded with third parties using firm letterhead and

identifying himself in the signature block as an "attorney at

law." During the time that Attorney Polk worked for the new

Eisenberg firm, he spent approximately 50 hours per week or more

in the firm's offices. Attorney Polk was given his own office

and telephone extension, and his extension was listed on the

firm's telephone extension list. Because the firm was reluctant

to use Attorney Polk's real name over its intercom system, for a

4
The initial name of the new firm founded by Attorney
Eisenberg is not clear from the record of this matter. Thus,
for purposes of this opinion, the firm will be referenced as
"the new Eisenberg firm." At some point after Attorney Riley
joined the new Eisenberg firm, the name of the firm was changed
to Eisenberg & Riley. The record does not disclose exactly when
this occurred, but it apparently occurred prior to September 6,
2006, the date of the hearing that is at issue in this matter,
because Attorney Riley identified himself at that hearing as
"Attorney Kenyatta Riley [of] the Law Offices of Eisenberg and
Riley."
5
There were ongoing disputes, civil actions and attorney
regulatory complaints between Attorney Eisenberg and Attorney
Joseph Weigel in connection with the breakup of the Eisenberg,
Weigel firm. See In re Disciplinary Proceedings Against Weigel,
2012 WI 124, 345 Wis. 2d 7, 823 N.W.2d 798, cert. denied,
___U.S.___, 135 S. Ct. 375 (2014).

4
 No. 2010AP2942-D

while the firm used the pseudonym "James Pearson" for Attorney

Polk when paging him over the firm's intercom system. Attorney

Polk testified in this proceeding that he stopped working for

the new Eisenberg firm in the first half of 2006.6

¶7 Attorney Riley was familiar with Attorney Polk because

Attorney Riley also had been an associate attorney at the

Eisenberg, Weigel firm during the same time period as Attorney

Polk. Attorney Riley moved to a different law firm and then

opened his own solo practice. It appears that Attorney Riley

also began working as an associate attorney at the new Eisenberg

firm in the middle part of 2005, shortly before Attorney Polk

began his employment with that firm. During the time when

Attorney Polk was also employed by the new Eisenberg firm,

Attorney Riley did not have any management responsibilities in

that firm. At a later date, he did begin to take on management

responsibilities.

¶8 In February 2006, while Attorney Polk was still

working as an attorney at the new Eisenberg firm, he filed a
petition for the reinstatement of his license to practice law in

this state. After conducting an investigation, the Office of

Lawyer Regulation (OLR) filed a response opposing the

6
Attorney Eisenberg received a consensual public reprimand
in connection with hiring Attorney Polk to engage in law-related
work and allowing him to hold himself out as an attorney while
his license to practice law was administratively suspended.
Public Reprimand of Alvin H. Eisenberg, No. 2012-8 (electronic
copy available at
https://compendium.wicourts.gov/app/raw/002479.html).

5
 No. 2010AP2942-D

reinstatement petition due to a number of concerns about

Attorney Polk's character and fitness to practice law, including

his receipt of a citation for loitering-illegal drug activity,

his multiple citations and convictions for operating after

revocation of his driver's license and for other traffic

offenses, and his failure to pay multiple civil judgments. The

OLR's response did not mention any concerns regarding Attorney

Polk's employment history or his unauthorized practice of law

during his administrative suspension, presumably because it was

not aware of Attorney Polk's employment at the new Eisenberg

firm.

¶9 Because there appeared to be a number of disputed

factual issues regarding the concerns raised by the OLR, on June

23, 2006, this court referred the matter to a referee, Reserve

Judge Dennis Flynn, to receive evidence and make factual

determinations regarding (1) the number and type of

citations/convictions that Attorney Polk had received in

connection with his operation of a motor vehicle, (2) the facts
surrounding the incident for which Attorney Polk had received

the citation for loitering-illegal drug activity and whether he

had misrepresented those facts to the OLR in its investigation,

and (3) the facts concerning the nature and status of the

outstanding civil judgments against Attorney Polk. The court's

order further provided that the referee "may also consider any

other matter that the referee deems helpful to this court's

decision of the reinstatement petition."

6
 No. 2010AP2942-D

¶10 Attorney Riley did not have any role in the

preparation or filing of Attorney Polk's reinstatement petition.

Attorney Polk represented himself during most of the

reinstatement proceeding. Prior to the evidentiary hearing

scheduled by Judge Flynn, however, Attorney Polk spoke with

Attorney Eisenberg about concerns he had with the upcoming

hearing. Attorney Eisenberg then spoke with Attorney Riley and

directed him to assist Attorney Polk with the reinstatement

hearing. The initial understanding among the three lawyers was

that Attorney Riley would act as "second chair" for the hearing,

meaning that Attorney Polk would still be primarily responsible

for presenting evidence, examining witnesses, and making

argument.

¶11 According to Attorney Riley, prior to the hearing he

did not draft any legal documents and did not solicit witnesses

to testify on Attorney Polk's behalf or prepare any witnesses to

testify. The referee found, however, that prior to the hearing,

Attorney Polk had specifically discussed with Attorney Riley
that Attorney Polk was concerned about not having disclosed his

employment with the new Eisenberg firm to the OLR in the

reinstatement investigation.

¶12 The evidentiary hearing before Judge Flynn took place

on September 6, 2006. Despite the initial understanding that

Attorney Riley would act as only a "second chair," he took the

lead role in presenting Attorney Polk's case at the hearing. He

handled the direct and cross-examination of all witnesses, made

7
 No. 2010AP2942-D

and responded to objections, argued legal issues, and presented

closing argument in favor of Attorney Polk's reinstatement.

¶13 Some understanding of the flow of the hearing is

necessary to understand the charges against Attorney Riley and

his arguments against those charges. Although Attorney Polk, as

the petitioner for reinstatement, bore the burden of proof, the

parties and the referee agreed to hear first the testimony of a

police officer who had been involved in issuing the citation for

loitering-illegal drug activity to Attorney Polk so that the

officer would not need to wait through other testimony and could

return to his police duties. The OLR's attorney conducted the

direct examination of the officer, and Attorney Riley cross-

examined the officer on behalf of Attorney Polk.

¶14 After the completion of the officer's testimony, the

hearing returned to the standard procedure, and Attorney Riley

proceeded to present evidence on Attorney Polk's behalf. The

first witness he called was Attorney Polk. Presumably because

the referee had just heard the testimony of the police officer
regarding the events that led to the issuance of the citation

for loitering-illegal drug activity, Attorney Riley began

Attorney Polk's direct examination not with the normal

background questions, but rather with a substantial number of

substantive questions regarding those same events. Attorney

Riley's questions and Attorney Polk's responses on this subject

occupied approximately ten pages of the hearing transcript.

¶15 The next topic on which Attorney Riley questioned
Attorney Polk was the various traffic citations he had received,
8
 No. 2010AP2942-D

including the multiple offenses for having driven with a

suspended or revoked driver's license. This also was a

substantial discussion, occupying approximately 12 pages of

transcript.

¶16 Attorney Riley then turned the questioning to the

topic of the civil judgments that had been entered against

Attorney Polk. After eliciting some information about the

status of those judgments, Attorney Riley asked Attorney Polk a

series of questions regarding his ability or inability to have

satisfied those judgments over the preceding years. Attorney

Polk testified generally that during the period of the

suspension of his law license, the jobs he had held were non-

professional jobs with limited rates of compensation. Attorney

Polk further testified that he had used the money he had earned

to provide for his family rather than to satisfy the judgments

that had been entered against him. Attorney Riley asked two

more questions that were clearly intended to allow Attorney Polk

to repeat and emphasize that his lack of income had been the
reason for not paying the judgments. It was after these two

questions that Attorney Riley asked Attorney Polk to summarize

his employment history in the following exchange, which is the

basis for the charges in this disciplinary proceeding:

Q. And I know you touched on it earlier, but can you
tell the Court what kind of jobs you've had since
the loss of your [law] license. What have you
done?

A. Worked as——worked for 7-Up Bottling loading
trucks, riding a forklift. Worked at a video
distribution center, doing everything from
9
 No. 2010AP2942-D

sweeping the floors to loading trucks. At one
point in time, for a period of time, I worked for
Progressive Training Consultants. During that
period I did some consulting work on the
Marquette Interchange. But for the most part,
I've had labor related, you know, jobs, warehouse
type of work.
¶17 Importantly, Attorney Polk's answer did not make any

mention of his employment with the new Eisenberg firm. Attorney

Riley did not ask any follow-up questions to bring out that fact

or to clarify that Attorney Polk's answer was not complete.

Attorney Riley stayed with the same subject matter regarding the

unpaid judgments, but he moved on to asking about specific

judgments and whether they had been satisfied.

¶18 On cross-examination, the OLR's counsel asked Attorney

Polk a lengthy series of questions concerning whether during the

suspension of his license to practice law (1) he had attempted

to practice law, (2) he had held himself out as an attorney, (3)

he had provided legal advice to anyone, (4) he had done any

legal research, or (5) he had engaged in any "law work activity"

or "any work normally performed by clerks or paralegal

personnel." Attorney Polk responded negatively to each of these

questions. He again did not mention his work for the new

Eisenberg firm.

¶19 Attorney Riley's redirect examination of Attorney Polk

did not did not include any questions regarding Attorney Polk's

employment history. It focused solely on why Attorney Polk had

not contested the loitering citation.

¶20 Following the hearing, Judge Flynn issued a report and
recommendation, as requested in this court's June 23, 2006

10
 No. 2010AP2942-D

order. Because Attorney Polk did not disclose his employment

with the new Eisenberg firm, Judge Flynn's report did not

discuss the impact of Attorney Polk's work on legal matters

while suspended on his suitability for reinstatement. Judge

Flynn, however, did comment in several parts of his report on

Attorney Polk's employment history generally when discussing

Attorney Polk's claim that he lacked funds to satisfy the

judgments that had been entered against him. Specifically,

Judge Flynn stated that, given Attorney Polk's testimony at the

hearing, the jobs he had held during his suspension "had been

for low wages" and that Attorney Polk had used the money he had

earned to support his family. In addition, Judge Flynn accepted

Attorney Polk's testimony that he had not been employed or

sought employment for the last six months because he had been

waiting for his license to practice law to be reinstated.

Although the referee generally accepted Attorney Polk's

testimony regarding his employment history and the low wages he

had earned, the referee nonetheless rejected Attorney Polk's
claim that he had been financially unable either to pay the

debts in full or to work out a payment plan. The referee's

findings and comments regarding Attorney Polk's job history and

ability to make payments demonstrate that these subjects were a

relevant factor in the referee's ultimate legal conclusion that

Attorney Polk did not have a proper understanding of and

attitude toward the standards that are imposed upon Wisconsin

attorneys.

11
 No. 2010AP2942-D

¶21 Ultimately, given the referee's findings, this court

denied Attorney Polk's reinstatement petition. In re

Reinstatement of Polk, 2007 WI 51, 300 Wis. 2d 280, 732 N.W.2d

419.

B. Procedural History of Current Disciplinary Proceeding Against

Attorney Riley

¶22 In the course of an investigation in 2008, the OLR

learned that Attorney Polk had been employed by the new

Eisenberg firm in 2005-06 while Attorney Riley had also worked

there. When the OLR asked Attorney Riley about that fact, he

indicated that he had not known that. Attorney Riley claims

that he then investigated whether Attorney Polk had been

employed by the new Eisenberg firm. Although he asserts that

this was the first time he learned of Attorney Polk's work at

the law firm, he never advised the OLR, Judge Flynn, or this

court at that time that Attorney Polk's testimony at the

September 6, 2006 hearing had been false or misleading because

of the omission of his employment at the new Eisenberg firm.
¶23 The OLR subsequently filed a formal complaint against

Attorney Riley regarding his actions in representing Attorney

Polk at the September 6, 2006 evidentiary hearing. Although the

complaint was framed as a single count, it alleged that Attorney

Riley's actions at the hearing and thereafter had violated three

separate Rules of Professional Conduct for Attorneys. First, it

12
 No. 2010AP2942-D

alleged that Attorney Riley had violated former SCR 20:3.3(a)(4)7

by offering material evidence that he knew to be false and

failing to take reasonable remedial measures. Second, it

accused Attorney Riley of violating SCR 20:3.4(b)8 by either

falsifying evidence or counseling or assisting a witness to

testify falsely. Third, it alleged that Attorney Riley's

questioning of Attorney Polk and his failure to disclose

Attorney Polk's omission of his employment at the new Eisenberg

firm from his response regarding his employment history had

constituted conduct involving dishonesty, fraud, deceit or

misrepresentation, in violation of SCR 20:8.4(c).9

¶24 As noted above, Attorney Hannah Dugan was appointed as

referee. After the OLR took depositions of Attorney Riley and

Attorney Polk, Attorney Riley filed a motion for summary

judgment. He argued that he could not have violated the three

identified rules because he had no knowledge of Attorney Polk's

employment at the new Eisenberg firm until the OLR notified him

7
Former SCR 20:3.3(a)(4) (effective through June 30, 2007)
provided that a lawyer shall not knowingly "offer evidence that
the lawyer knows to be false. If a lawyer has offered material
evidence and comes to know of its falsity, the lawyer shall take
reasonable remedial measures."
8
SCR 20:3.4(b) states that a lawyer shall not "falsify
evidence, counsel or assist a witness to testify falsely, or
offer an inducement to a witness that is prohibited by
law; . . . ."
9
SCR 20:8.4(c) states it is professional misconduct for a
lawyer to "engage in conduct involving dishonesty, fraud, deceit
or misrepresentation; . . . ."

13
 No. 2010AP2942-D

of that fact in 2008 and because Attorney Polk's testimony about

his employment was not material to the reinstatement proceeding

before Judge Flynn.

¶25 Referee Dugan denied Attorney Riley's summary judgment

motion. She concluded that there was a genuine dispute of

material fact regarding whether Attorney Riley had known about

Attorney Polk's employment at the new Eisenberg firm and had

failed to remedy Attorney Polk's false testimony. Given the

presence of a dispute of material fact, the referee indicated at

that stage in the proceeding she did not believe that whether

there was a genuine issue of material fact regarding Attorney

Polk's employment in the Polk reinstatement proceeding was

relevant to whether there was a genuine issue of material fact

in the current disciplinary proceeding against Attorney Riley.

¶26 After the summary judgment motion was denied, the

parties proceeded to a full evidentiary hearing. The primary

focus of that hearing was whether Attorney Riley had known at

the time of the September 6, 2006 hearing that Attorney Polk had
been employed by and had performed law-related work for the new

Eisenberg firm, which would have determined whether he knew of

the falsity of Attorney Polk's testimony.

¶27 Attorney Riley denied that he had been aware that

Attorney Polk had been employed by the new Eisenberg firm in

late 2005 and early 2006. He acknowledged that he had seen

Attorney Polk in the firm's offices in that timeframe, but

claimed he had believed that Attorney Polk was merely a guest
using the firm's resources either to work on his petition for
14
 No. 2010AP2942-D

reinstatement or to do his own consulting work. Attorney Riley

explained that the environment at the new Eisenberg firm at that

time was "free-wheeling," with numerous people coming and going

through the firm's offices.

C. Referee's Report and Recommendation

¶28 The referee did not accept Attorney Riley's denials.

In her report the referee pointed out that multiple witnesses

had testified that during the relevant months of 2005-2006,

Attorney Polk had been at the offices of the new Eisenberg firm

for many hours each week, that he had attended regular firm

meetings of the personal injury team, that Attorney Riley had

seen him at those meetings, that Attorney Polk had met with

clients and had performed other normal law-office activities,

and that the offices of Attorney Riley and Attorney Polk at the

law firm were in close proximity. While stating that in light

of this evidence it would seem incredible for Attorney Riley not

to have known of Attorney Polk's employment and practice of law

with the new Eisenberg firm, the referee nonetheless believed
that this evidence, by itself, was not sufficient to constitute

the required clear, satisfactory, and convincing evidence the

OLR needed to meet its burden of proof that Attorney Riley knew

Attorney Polk's response at the hearing was false by omission.10

10
In an attorney disciplinary proceeding, the OLR must
prove any violation of the Rules of Professional Conduct for
Attorneys by clear, satisfactory, and convincing evidence. SCR
22.16(5).

15
 No. 2010AP2942-D

¶29 The referee also found Attorney Riley's claims that he

had agreed to act only as a second chair and that he had not

prepared for the September 6, 2006 hearing were not as credible

as Attorney Polk's testimony. In particular, the referee

credited Attorney Polk's statement that prior to the September

6, 2006 hearing, he had specifically discussed with Attorney

Riley his concern that he had not disclosed his employment with

the new Eisenberg firm.11 The referee stated that Attorney Riley

had never directly refuted this statement in his testimony at

the hearing. Consequently, the referee further found that

Attorney Riley had known that Attorney Polk's failure to

disclose his employment with the new Eisenberg firm in his

answer to Attorney Riley's question at the September 6, 2006

hearing had made Attorney Polk's testimony false by omission.

¶30 The referee next addressed Attorney Riley's argument

that Attorney Polk's testimony about his employment history was

not material to the issues in Attorney Polk's reinstatement

proceeding.
¶31 The referee believed that this court's June 23, 2006

order had created a "hybrid" standard for obtaining

reinstatement after a more-than-three-year administrative

suspension. She was unsure whether Attorney Polk's employment

11
The referee included the following statement in her
report: "Brian Polk's statements that prior to the
[reinstatement] hearing that he raised with Attorney Riley
concerns about not disclosing that he was working at the [new
Eisenberg] firm are forthright, clear and convincing."

16
 No. 2010AP2942-D

history would have been material under only this court's

reinstatement rules for administrative suspensions and this

"hybrid" standard.

¶32 She therefore turned to whether the information about

Attorney Polk's employment at the new Eisenberg firm had been

material to the issues identified in this court's June 23, 2006

order. The referee did not expressly conclude whether Attorney

Polk's employment history was material to the three specific

subjects set forth in that order (i.e., loitering citation,

traffic violations, and unpaid civil judgments). She concluded,

however, that his law firm employment had been material to Judge

Flynn's analysis of the "catch-all" provision in the order ("any

other matter that the referee deems helpful to this court's

decision of the reinstatement petition"). Specifically,

although the June 23, 2006 order did not expressly direct Judge

Flynn to make findings regarding Attorney Polk's employment

history during his suspension, Referee Dugan believed that

information about Attorney Polk's having engaged in law-related
work for a law firm would have been material to the referee's

determination of Attorney Polk's fitness to return to the

practice of law.

¶33 The referee also discussed that there was no dispute

that in 2008, after having been advised by the OLR that it had

learned of Attorney Polk's employment at the new Eisenberg firm,

Attorney Riley testified that he had conducted his own

investigation and clearly knew at that point that Attorney
Polk's testimony had been false by omission. The referee noted
17
 No. 2010AP2942-D

that, despite being aware of this false testimony, Attorney

Riley did not attempt to remedy the prior false evidence by

advising Judge Flynn, the OLR, or this court.

¶34 Having found that Attorney Polk had given false

testimony in response to Attorney Riley's question and that

Attorney Riley was aware of the falsity, and having determined

that Attorney Polk's testimony was material to Judge Flynn's

task in Attorney Polk's reinstatement proceeding, Referee Dugan

concluded that the OLR had met its burden of proof by clear,

satisfactory, and convincing evidence on each of the three rule

violations alleged in this case. First, the referee determined

that Attorney Riley had offered false material evidence at the

reinstatement hearing and, after having learned of the falsity,

had failed to take reasonable remedial measures, in violation of

former SCR 20:3.3(a)(4). Second, the referee concluded that

Attorney Riley had violated SCR 20:3.4(b) by having assisted a

witness to testify falsely. Third, the referee determined that

Attorney Riley's involvement with Attorney Polk's false
testimony constituted conduct involving dishonesty, fraud,

deceit or misrepresentation, in violation of SCR 20:8.4(c).12

12
The referee noted that this court has held that omissions
that cause a statement to be false can constitute unethical
conduct in violation of SCR 20:8.4(c). See, e.g., In re
Disciplinary Proceedings Against Knickmeier, 2004 WI 115, 275
Wis. 2d 69, 683 N.W.2d 445, cert. denied, 544 U.S. 1041 (2005);
In re Disciplinary Proceedings Against Urban, 2002 WI 63, 253
Wis. 2d 194, 645 N.W.2d 612.

18
 No. 2010AP2942-D

¶35 Having found violations of all three rules as charged

in the OLR's complaint, the referee recommended that the court

publicly reprimand Attorney Riley, as requested by the OLR.

¶36 The referee relied on several cases cited by the OLR

as support for a public reprimand. She asserted that some of

those cases involved omissions by counsel that constituted false

evidence in violation of SCR 20:3.3. See, e.g., In re

Disciplinary Proceedings Against McNeely, 2008 WI 91, 313

Wis. 2d 283, 752 N.W.2d 857 (60-day suspension imposed for three

ethical violations, including violations of SCRs 20:3.3(a)(1)

and 20:8.4(c)); In re Disciplinary Proceedings Against Lister,

2007 WI 55, 300 Wis. 2d 326, 731 N.W.2d 254 (five-month

suspension imposed for 17 proven counts of misconduct).13 The

referee also pointed to several cases in which attorneys had

been disciplined for having made false statements to tribunals,

in violation of SCRs 20:3.3 and/or 20:8.4(c). In re

Disciplinary Proceedings Against Alia, 2006 WI 12, 288

Wis. 2d 299, 709 N.W.2d 399 (90-day suspension where attorney
altered exhibit and used it to elicit false testimony at trial);

In re Disciplinary Proceedings Against Kalal, 2002 WI 45, 252

13
Although this court spoke of the fact in the Lister
opinion that Attorney Lister had not indicated to the circuit
court that he was unsure of a fact stated in an argument, that
was not really an omission case because Attorney Lister made an
affirmative representation to the circuit court that was simply
contrary to fact. His statement was not false or misleading
because of an omission of another fact. 300 Wis. 2d 326, ¶¶9,
64.

19
 No. 2010AP2942-D

Wis. 2d 261, 643 N.W.2d 466 (attorney publicly reprimanded for

making false statement during appellate oral argument); Public

Reprimand of Holly L. Bunch, No. 2009-12 (consensual public

reprimand imposed on prosecutor for misrepresenting to a jury

that the defendant had never previously denied committing the

crime when prosecutor knew of police reports that referenced

such denials)(electronic copy available at

https://compendium.wicourts.gov/app/raw/002196.html).

¶37 In addition, the referee noted two aggravating factors

identified by the OLR: (1) Attorney Riley's refusal to

acknowledge the wrongful nature of his conduct, and (2) his

prior private reprimand for a lack of diligence and a failure to

explain the legal options to clients. Although the OLR had

asserted that there were no mitigating factors, the referee

concluded that Attorney Riley's full cooperation with the OLR in

the present disciplinary process should be acknowledged.

II. ANALYSIS OF ATTORNEY RILEY'S APPEAL

A. Appeal of Summary Judgment Denial
¶38 Attorney Riley appealed from both the referee's order

denying his motion for summary judgment and the referee's final

report and recommendation. He challenges a number of the

referee's findings of fact and raises a host of arguments as to

why he should not be found to have violated any of the three

ethical rules cited in the OLR's complaint.

¶39 Several of the legal issues identified by Attorney

Riley in connection with the summary judgment decision also

20
 No. 2010AP2942-D

apply to the referee's final report. We will address them in

this portion of our opinion.

¶40 The first subject we address is the standard by which

we review the referee's denial of Attorney Riley's motion for

summary judgment. The parties agree that the court should use

the same methodology and standard for reviewing grants or

denials of summary judgment as are used in civil actions. See

Wis. Stat. § 802.08 (setting forth standard for granting a

summary judgment motion); see, e.g., Beidel v. Sideline

Software, Inc., 2013 WI 56, ¶33, 348 Wis. 2d 360, 842 N.W.2d 240

(appellate court reviewing civil cases applies same standard and

methodology used by circuit court); Green Spring Farms v.

Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987).

¶41 The court has referenced motions for summary judgment

and referee decisions on such motions in prior disciplinary

cases and has implied that such decisions should be reviewed

using the same standard applied by circuit courts and appellate

courts in "normal" civil actions. See, e.g., In re Disciplinary
Proceedings Against Humphrey, 2012 WI 32, ¶¶60-62, 339

Wis. 2d 531, 811 N.W.2d 363 (dismissing charge for which the

referee granted the OLR summary judgment because the admitted

allegations of the complaint were an insufficient basis to find

a violation). We therefore will utilize that methodology and

standard of review in reviewing the referee's summary judgment

decision in this case.

¶42 Attorney Riley makes a number of arguments that
challenge the legal sufficiency of the OLR's claims and the
21
 No. 2010AP2942-D

referee's legal analysis of those claims. Two of his arguments

are related and concern the materiality of Attorney Polk's

testimony about his employment during his administrative

suspension. Attorney Riley asserts that, regardless of whether

Attorney Polk's answer about his employment was false and

whether Attorney Riley knew of the falsity of that answer, there

can be no violation of the three ethical rules cited by the OLR

because Attorney Polk's statement was not material to the issues

before Judge Flynn in the reinstatement proceeding, and only

material falsehoods give rise to ethical violations.

¶43 Attorney Riley contends that because the rules

regarding reinstatement petitions following administrative

suspensions of more than three years do not require a

description of the petitioning attorney's business activities

during the suspension, such information was not required in

Attorney Polk's reinstatement proceeding and the information he

did provide about his employment was therefore not material or

relevant to that proceeding.
¶44 Attorney Riley acknowledges, however, that this court

in its June 23, 2006 order identified three subjects on which

the referee was to receive evidence and about which he was to

make factual findings: (1) the number and type of citations or

convictions for motor vehicle offenses, (2) the facts

surrounding the incident for which Attorney Polk received a

citation for loitering-illegal drug activity, and (3) the facts

concerning the nature and status of any outstanding civil
judgments against Attorney Polk. Attorney Riley contends these
22
 No. 2010AP2942-D

were the only matters at issue during the reinstatement hearing

and that Attorney Polk's testimony regarding what jobs he had

held during his administrative suspension was not material to

any of these three subjects. He repeatedly describes Attorney

Polk's employment testimony and the question he asked that

elicited this testimony as merely "boilerplate" or "background,"

implying that it was mere context or pleasantry that had no

effect on the substantive issues that Judge Flynn was to

consider. According to Attorney Riley, since Attorney Polk's

testimony about his employment was not material to the three

subjects identified in our referral order, he had no duty under

former SCR 20:3.3(a)(4) to remediate and cannot be found to have

violated that rule.

¶45 To the extent the OLR argued before the referee that

Attorney Polk's testimony was material because it fell under the

"catch-all" language in the court's June 23, 2006 order,14

Attorney Riley contends that relying on such a catch-all

provision would have made everything Attorney Polk uttered
material. He asserts that this would make him and all other

Wisconsin attorneys liable for any false or misleading statement

made by their clients at any stage in a lawsuit. He argues that

a litigator would need to analyze every statement made by the

litigator's client or witness in order to determine whether

14
On appeal the OLR disclaimed any intention to use the
catch-all provision in the court's June 23, 2006 order as the
basis for the materiality of Attorney Polk's omission.

23
 No. 2010AP2942-D

there was a potential discrepancy that needed to be remediated.

Moreover, since the duty to remediate under former

SCR 20:3.3(a)(4) did not terminate at the end of the case or

representation, the lawyer would continue to have an obligation

to explore facts and issues and potentially to notify the court

long after the lawyer no longer represented the client.

Moreover, he asserts that this ongoing duty would apply even

when the client lost in the litigation and correcting the false

or misleading statement could therefore have no potential impact

on the case. He contends that this is an impossible standard

for any litigator in this state to satisfy, and that nearly

every litigator in practice in this state would have violated

that standard at some point in his/her practice.

¶46 In a related vein, Attorney Riley criticizes Referee

Dugan for stating that Judge Flynn and this court had created a

"hybrid" reinstatement standard in the Polk reinstatement

proceeding so that she could find Attorney Polk's testimony to

24
 No. 2010AP2942-D

be material to that proceeding.15 According to Attorney Riley,

if this court did, in fact, create a "hybrid" standard in its

subsequent decision denying Attorney Polk's petition, as Referee

Dugan believes, he cannot be sanctioned for being ignorant of a

materiality standard that had not been established at the time

of the September 2006 hearing before Judge Flynn.

¶47 We conclude that the omitted information regarding

Attorney Polk's employment with the new Eisenberg firm was

material to the task this court gave to Judge Flynn and to this

court's consideration of Attorney Polk's reinstatement petition.

15
Referee Dugan believed that there was a gap in this
court's rules regarding what standard to apply to a
reinstatement petition following an administrative suspension of
more than three years. She indicated that it was not initially
clear in the Polk reinstatement matter whether to apply the
standards that govern reinstatement petitions following a
disciplinary suspension of more than six months, see SCRs 22.29-
22.33, or the standards that govern reinstatement petitions
following an administrative suspension of less than three years,
see, e.g., SCR 31.11(1). In a formal reinstatement proceeding
following a disciplinary suspension of more than six months, the
lawyer's employment during his/her suspension is explicitly a
matter of concern. See SCR 22.29(4)(k) (petition for
reinstatement shall contain "[a] full description of all the
petitioner's business activities during the period of suspension
or revocation"). A description of the petitioner's business
activities, however, is not explicitly mentioned in the rules
that relate to reinstatement from an administrative suspension,
whether the suspension is less than or more than three years in
duration. She believes that since this court ultimately
indicated that an attorney seeking reinstatement from an
administrative suspension of more than three years must
demonstrate good moral character and fitness to practice law,
this court created a "hybrid" standard, which made evidence
regarding his employment activities during the period of
suspension material to his fitness to resume the practice of
law.

25
 No. 2010AP2942-D

We do not, however, base this determination on a belief that

every subject was material under the catch-all provision in our

June 23, 2006 order. We agree with Attorney Riley that the

rules of professional conduct do not make an attorney a

guarantor of the accuracy of each statement in a client's

testimony, nor do we believe that the rules require an attorney

to interrupt depositions or court hearings repeatedly if the

attorney thinks there might be some trivial discrepancy between

what a witness said under oath and what the attorney understood

to be the truth. We also do not find this omitted information

to be material only because Attorney Polk subsequently admitted

years later that he had practiced law at the new Eisenberg firm.

In other words, it is not necessary that Attorney Riley knew

that Attorney Polk was practicing law (as opposed to simply

working) at the new Eisenberg firm, in order for Attorney Riley

to have violated former SCR 20:3.3(a)(4).

¶48 Our determination that the omitted information was

material rests on the language of the order we issued to Judge
Flynn. One of the topics on which Judge Flynn was to receive

testimony and for which he was to make recommendations to this

court was Attorney Polk's nonpayment of a number of civil

judgments. Judge Flynn was to determine the status of those

judgments. This obviously included why a number of those

judgments had not been satisfied and were still outstanding.

¶49 Attorney Polk's defense on this issue was that the

judgments had not been paid due to his lack of financial
resources. Whether he had been employed and what types of jobs
26
 No. 2010AP2942-D

he had held during the period of his administrative suspension

(whether minimum-wage, menial positions or higher-wage,

professional positions) were therefore matters of central

importance to the task given to Judge Flynn. If Attorney Polk

had been able to obtain only minimum wage or part-time jobs,

that fact would have bolstered his argument that he had been

financially unable to pay his legal debts. On the other hand,

if he had held a position with a law firm, even a non-attorney

position, that would have implied that he was earning a somewhat

higher wage and could have made at least some payments of some

amount toward his past debts. A deliberate choice not to pay

one's legal obligations reflects far differently on one's

respect for the law and the legal system than a financial

inability to pay one's debts.

¶50 Attorney Riley's own questioning of Attorney Polk at

the September 2006 hearing and his closing argument at the end

of that hearing demonstrate the materiality of Attorney Polk's

employment to one of the subjects that Judge Flynn was to
consider.

¶51 First, to the extent that Attorney Riley characterizes

Attorney Polk's testimony regarding the jobs he held as merely

"background" information in response to a "boilerplate"

question, the transcript of the reinstatement hearing undercuts

this characterization. As described above, Attorney Riley did

not begin his direct examination of Attorney Polk by asking a

series of general background questions regarding Attorney Polk's
address, education, employment history, etc. Rather, he
27
 No. 2010AP2942-D

immediately proceeded to a series of substantive questions

regarding the circumstances surrounding Attorney Polk's receipt

of the citation for loitering-illegal drug activity and his

multiple violations of the traffic laws. Only after exhausting

his questioning on those two substantive topics, which take up

approximately 22 pages of transcript, did Attorney Riley ask a

series of questions that were clearly designed to allow Attorney

Polk to testify that he could not have paid the several civil

judgments that remained outstanding because the types of non-

legal jobs he had taken during his suspension had provided

insufficient income to cover his family's living expenses. The

question from Attorney Riley that elicited Attorney Polk's false

response was a part of that series of questions regarding the

reasons why the judgments had remained unsatisfied. Moreover,

it was not even the first question in that series. The question

therefore was clearly not a boilerplate question that lawyers

often ask merely to make a witness comfortable and to provide

some general background at the start of a witness's testimony.
It was a substantive part of an intentionally crafted

presentation to explain Attorney Polk's nonpayment of the

multiple civil judgments against him.

¶52 Further, asking this question was not the only time

that Attorney Riley brought Attorney Polk's employment history

to the referee's attention. Indeed, in his closing argument at

the hearing, Attorney Riley argued that Attorney Polk had always

intended to pay off all of the outstanding judgments, but that

28
 No. 2010AP2942-D

he had been unable to do so because of the type of jobs he had

been able to find.16

¶53 Because we determine that the omission of any mention

of having worked for the new Eisenberg firm in Attorney Polk's

testimony regarding his employment was material to his ability

to pay the civil judgments that were outstanding against him, we

need not address whether there is a difference under the rules

of professional conduct regarding the scope of permissible work

for an attorney subject to a disciplinary suspension versus an

attorney subject only to an administrative suspension. We also

do not need to address the referee's contention that the court

created a "hybrid" standard for obtaining reinstatement after

lengthy administrative suspensions or Attorney Riley's criticism

of the idea of a hybrid standard. Contrary to Attorney Riley's

claim, Attorney Polk's false testimony did not become material

only because of this court's subsequent decision denying

Attorney Polk's reinstatement petition; it was material from the

beginning.

16
Attorney Riley's closing argument included the following
explicit reference to Attorney Polk's inability to pay the
judgments because of the low-paying jobs he had taken during his
suspension:

It has been his intent, even from the Ford
satisfaction, to get these judgments paid off. He has
the mindset that he wants to work out payment
arrangements with them. But so far, it's just been
difficult for him because of his employment type
situation.

29
 No. 2010AP2942-D

¶54 Moreover, the fact that this court ultimately denied

Attorney Polk's petition does not erase the materiality of the

testimony. A false statement made to influence a tribunal does

not become less false or less harmful to the adjudicative

process because the tribunal ultimately decides against the

person giving the false testimony on other grounds. See Douglas

R. Richmond, Brian S. Faughnan, and Michael L. Matula,

Professional Responsibility in Litigation 523 (2011) ("A lawyer

may be found to have violated either rule [current ABA Model

Rule 3.3 or 3.4(b)] even where the false testimony did not

affect the outcome of the proceedings."). It is not acceptable

to lie to a court or to a referee if your lie does not cause you

to win.

¶55 Attorney Riley makes another legal argument about the

scope of former SCR 20:3.3(a)(4), although he frames it as a

factual argument. Specifically, he asserts that he did not

"offer" false evidence to the referee because he simply asked

what he calls "an open-ended question about [Attorney Polk's]
employment," to which Attorney Polk gave a "narrative"

description of his jobs. Attorney Riley implies that there can

be a violation of former SCR 20:3.3(a)(4) only if an attorney

actively elicits false testimony, for example, by asking a

witness leading questions designed to lead the witness to

present the false statement. He offers no legal authority for

this position, other than that the rule speaks in terms of

"offering" false evidence.

30
 No. 2010AP2942-D

¶56 We acknowledge that the term "offer" in former

SCR 20:3.3(a)(4) has not been interpreted in prior Wisconsin

disciplinary decisions. Indeed, it does not appear that the

term "offer" in the 1983 version of the American Bar

Association's (ABA) Model Rules of Professional Responsibility,

on which former SCR 20:3.3(a)(4) was based, has been the

explicit focus of a disciplinary decision in other

jurisdictions.

¶57 It is equally true, however, that the comments to the

rule and court decisions from other states have provided notice

that a lawyer has a duty to remediate false testimony given by a

client, regardless of the manner in which the false testimony

was given. The ABA comment to 1983 Model Rule 3.3 states that a

lawyer must take remedial measures "[w]hen false evidence is

offered by the client." ABA Model Rules of Prof'l Conduct R. 33

cmt. (1983).

¶58 We conclude that under the facts of this case,

Attorney Riley "offered" false material testimony for which he
had a duty to take reasonable remedial measures under former

SCR 20:3.3(a)(4) when his client omitted an important fact from

his answers on a subject that was clearly material to the

hearing conducted by Judge Flynn.

¶59 We note that the current version of the Wisconsin

rule, which has been renumbered as SCR 20:3.3(a)(3), makes clear

that a lawyer has a duty to take remedial measures whenever (1)

false testimony or evidence is presented (i.e., "offered") by
the lawyer, the lawyer's client, or a witness called by the
31
 No. 2010AP2942-D

lawyer, (2) the false testimony is material to the proceeding in

which it is presented, and (3) the lawyer knows of the falsity.17

The duty to take remedial measures does not arise only when the

lawyer has affirmatively elicited the false testimony through

pointed questions.

¶60 Attorney Riley also argues that he should have been

granted summary judgment because there was insufficient evidence

to create a genuine issue regarding his knowledge of Attorney

Polk's employment at the new Eisenberg firm and thus, of the

falsity of Attorney Polk's answers at the reinstatement hearing.

¶61 The first question that must be answered here is what

level or type of knowledge is required. Was the OLR obligated

to provide evidence that Attorney Riley should have known of the

omission in Attorney Polk's answer or was it required to provide

evidence and reasonable inferences that Attorney Riley actually

knew of Attorney Polk's employment at the new Eisenberg firm and

17
The current version of SCR 20:3.3(a)(3) provides as
follows:

A lawyer shall not knowingly:

. . .

(3) offer evidence that the lawyer knows to be
false. If a lawyer, the lawyer's client, or a witness
called by the lawyer, has offered material evidence
and the lawyer comes to know of its falsity, the
lawyer shall take reasonable remedial measures,
including, if necessary, disclosure to the tribunal.
A lawyer may refuse to offer evidence, other than the
testimony of a defendant in a criminal matter that the
lawyer reasonably believes is false.

32
 No. 2010AP2942-D

of the omission of that information from Attorney Polk's answer?

Attorney Riley argues that the OLR was required to show his

"actual knowledge" of the falsity of Attorney Polk's response.

The OLR agrees that "actual knowledge" is the appropriate

standard under former SCR 20:3.3(a)(4), although it notes that

such actual knowledge can be inferred from the surrounding

circumstances. We concur that the applicable standard under

former SCR 20:3.3(a)(4) is actual knowledge by the attorney.

The ABA's preamble to the 1983 Model Rules, upon which former

SCR 20:3.3(a)(4) was based, states that the various forms of the

word "know" usually denote actual knowledge of the fact in

question.18 ABA Model Rules of Prof'l Conduct, pmbl. (1983).

There is no reason to use a different standard of knowledge in

this context. The OLR is also correct, however, that knowledge

can be inferred from the circumstances. Moreover, since we are

addressing this in the context of a summary judgment motion, the

OLR correctly points out that the evidence presented and the

inferences to be drawn from that evidence were to be viewed most
favorably to the OLR as the non-moving party. See, e.g.,

Affeldt v. Green Lake Cnty., 2011 WI 56, ¶59, 335 Wis. 2d 104,

803 N.W.2d 56.

¶62 We turn now to Attorney Riley's claim that the

evidence presented at the summary judgment stage was

18
In the current version of the Wisconsin Rules of
Professional Conduct for Attorneys, this definition is now
codified in a specific rule, SCR 20:1.0(g).

33
 No. 2010AP2942-D

insufficient under former SCR 20:3.3(a)(4) to show his actual

knowledge of Attorney Polk's employment at the new Eisenberg

firm. Attorney Riley asserts that the OLR presented only

Attorney Polk's speculation as to what Attorney Riley actually

knew and that any opinions offered by Attorney Polk on this

issue were inadmissible as lay opinions.

¶63 We conclude that there was a genuine issue of material

fact on the issue of Attorney Riley's knowledge, and his summary

judgment motion was therefore properly denied. Attorney Polk

gave the opinion in his deposition testimony that Attorney Riley

knew that he was employed by the new Eisenberg firm. Attorney

Polk was competent to give such a lay opinion because he

explained that it was based on his personal perceptions of the

daily activities at the firm. He said that during the relevant

time period, he was at the firm 50-60 hours per week, working in

an office assigned to him, walking around with client intake

packets, making telephone calls, and going back and forth to and

from the copier. Moreover, he specifically testified that
Attorney Riley "absolutely" saw him doing all of these things.

Attorney Polk's personal observations of Attorney Riley seeing

him do all of these tasks that correspond with working in a law

firm provided Attorney Polk with a proper basis for opining that

Attorney Riley knew he was working for the firm in at least some

capacity. Indeed, Attorney Polk's daily experiences in the firm

during the period of his employment led to him to state that it

was common knowledge among all individuals connected with the
firm at that time that Attorney Polk was employed by the firm
34
 No. 2010AP2942-D

and indeed was representing himself as an attorney to people

outside the firm.

¶64 In addition, although Attorney Riley attempts to

attack Attorney Polk's credibility, Attorney Polk did explicitly

testify at his deposition that he had at least one discussion

with Attorney Riley prior to the reinstatement hearing regarding

his concern about having held himself out as an attorney while

he had been employed by the new Eisenberg firm. Contrary to

Attorney Riley's arguments, the referee was not free to ignore

or discount this statement when determining whether there was a

genuine dispute of material fact in the summary judgment

context.

¶65 These statements by Attorney Polk and the reasonable

inferences that could be drawn from them were sufficient to

establish clearly and convincingly that Attorney Riley knew

before the September 6, 2006 reinstatement hearing that Attorney

Polk had been employed by the new Eisenberg firm during the

period of his administrative suspension.
¶66 Attorney Riley also argues that he should have been

granted summary judgment with respect to the OLR's claim that he

had violated SCR 20:3.4(b), which provides that a lawyer "shall

not falsify evidence, counsel or assist a witness to testify

falsely, or offer an inducement to a witness that is prohibited

by law." SCR 20:3.4(b). In this case, there is no evidence

that Attorney Riley personally falsified any evidence or offered

a prohibited inducement to Attorney Polk for his testimony at
the reinstatement hearing. The question in this instance is
35
 No. 2010AP2942-D

whether Attorney Riley's conduct at the reinstatement hearing

constitutes counseling or assisting a witness to testify

falsely.

¶67 Attorney Riley asserts that the Wisconsin disciplinary

decisions that have found a violation of SCR 20:3.4(b) have

involved situations where the lawyer either actively instructed

or coached a witness to lie or personally falsified evidence.

See, e.g., Alia, 288 Wis. 2d 299 (altering expert report without

expert's permission); In re Disciplinary Proceedings Against

Arthur, 2005 WI 40, 279 Wis. 2d 583, 694 N.W.2d 910 (instructing

client to lie); In re Disciplinary Proceedings Against Salmen,

187 Wis. 2d 318, 522 N.W.2d 779 (1994) (attorney testifying that

letter he back-dated was genuine). Attorney Riley contends that

the court's previous application of the rule to these situations

means that the rule is limited to such instances. Because there

is no evidence that he instructed Attorney Polk to omit any

mention of his employment at the reinstatement hearing, Attorney

Riley argues that this charge should have been dismissed.
¶68 We acknowledge that this court has not previously

decided whether SCR 20:3.4(b) applies to situations where a

lawyer's client testifies falsely, but there is no evidence of

prior coaching by the lawyer or other assistance by the lawyer

to permit the false testimony.

¶69 We agree with Attorney Riley that the language of the

rule ("counsel or assist a witness") indicates that some action

by the lawyer prior to or at the time of the witness's false
testimony is required. In our view, failing to take action in
36
 No. 2010AP2942-D

the face of another's decision to give false testimony is

different from "assisting" another person to give false

testimony. If SCR 20:3.4(b) is interpreted broadly to cover all

situations where a witness has testified falsely and the lawyer

fails to take remedial measures, then it would appear to cover

the same ground as former SCR 20:3.3(a)(4), and there would be

no need to have two separate rules.

¶70 We believe that SCR 20:3.4(b) should not be

interpreted to reach the conduct that is shown on this record.

There was no evidence in the summary judgment materials (or even

in the evidence presented at the subsequent disciplinary

hearing) that Attorney Riley advised Attorney Polk not to

mention his work at the new Eisenberg firm, planned a way in

which Attorney Polk could omit that information in his testimony

at the reinstatement hearing, or even knew that Attorney Polk

intended to provide a list of his employers during his

suspension that would omit the new Eisenberg firm. Attorney

Polk stated that although he did at some point prior to his
reinstatement hearing discuss with Attorney Riley his concern

about having represented himself as an attorney employed by the

new Eisenberg firm, there is no indication in the summary

judgment record here that the two of them took the step of

discussing how Attorney Polk should address that concern in his

reinstatement hearing testimony. Indeed, Attorney Polk

testified that he and Attorney Riley never had a preparation

session to discuss his upcoming testimony at the reinstatement
hearing. The most the record in this disciplinary proceeding
37
 No. 2010AP2942-D

discloses is that Attorney Polk gave false testimony at the

reinstatement hearing and that Attorney Riley knew of the

omission. While Attorney Riley's knowledge of the falsity of

Attorney Polk's answer at the time the answer was given was

sufficient to require him to take reasonable steps to remediate

the false testimony and to support a violation of former

SCR 20:3.3(a)(4) for not doing so, we do not believe that

Attorney Riley's knowledge, by itself, constitutes counseling or

assisting Attorney Polk's false testimony in violation of

SCR 20:3.4(b). Consequently, we conclude that the OLR's charge

of a violation of SCR 20:3.4(b) must be dismissed.

¶71 Attorney Riley's final argument regarding summary

judgment is comprised of merely four sentences claiming that

there was simply no evidence of dishonesty, fraud, deceit, or

misrepresentation, such that he could not have violated

SCR 20:8.4(c). As an initial matter, this claim is not

sufficiently developed and could be rejected on just that basis

alone.
¶72 Even reaching the merits, we conclude that there was

sufficient evidence of a violation of this rule to warrant an

evidentiary hearing. The language of SCR 20:8.4(c) is broad,

covering "conduct involving dishonesty, fraud, deceit or

misrepresentation." SCR 20:8.4(c) (emphasis added). In

addition, it should be noted that, like former SCR 20:3.3(a)(4),

this rule covers not only affirmative misrepresentations, but

also deceitful omissions. See Knickmeier, 275 Wis. 2d 69, ¶93.
While in this case the primary deceitful words came out of the
38
 No. 2010AP2942-D

mouth of Attorney Polk and not the mouth of Attorney Riley, as

discussed above in connection with the evidence to support a

prima facie case of a violation of former SCR 20:3.3(a)(4),

there was evidence at the summary judgment stage that Attorney

Riley knew of the deceitful omissions but did nothing to remedy

the falsehood. To the contrary, the transcript shows that he

pushed on with the reinstatement hearing and even argued in

closing argument to Judge Flynn that Attorney Polk had always

intended to pay off the outstanding judgments, but had been

unable to do so because of the types of jobs he had been able to

find during his administrative suspension, thereby taking

advantage of the omission in Attorney Polk's testimony. In our

view, that evidence is sufficient to qualify as engaging in

conduct involving deceit or misrepresentation.

B. Appeal of Referee's Final Report and Recommendation

¶73 Attorney Riley also raises several challenges to the

referee's final report. When the court reviews a referee's

final report, it affirms a referee's findings of fact unless
they are found to be clearly erroneous, but it reviews the

referee's conclusions of law on a de novo basis. In re

Disciplinary Proceedings Against Inglimo, 2007 WI 126, ¶5, 305

Wis. 2d 71, 740 N.W.2d 125. Although a referee makes a

recommendation regarding an appropriate sanction, which the

court takes into account, it is this court which ultimately

makes an independent determination of the appropriate level of

discipline given the particular facts of each case. Alia, 288

39
 No. 2010AP2942-D

Wis. 2d 299, ¶88; In re Disciplinary Proceedings Against Widule,

2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686.

¶74 Attorney Riley's initial argument regarding the

referee's final report is that the referee's credibility finding

regarding Attorney Polk's testimony was clearly erroneous,

particularly the referee's acceptance of Attorney Polk's

testimony that he and Attorney Riley had spoken before his

reinstatement hearing about Attorney Polk's concern over having

represented himself as an attorney during his employment with

the new Eisenberg firm. Attorney Riley characterizes Attorney

Polk's testimony as "all over the place" and contends that there

was a discrepancy between Attorney Polk's deposition testimony

and his testimony at the disciplinary hearing. Attorney Riley

contrasts Attorney Polk's testimony with his own testimony,

which he characterizes as consistent as well as "firm and

forthright."

¶75 We find no legal basis to overturn the referee's

credibility determinations with respect to either Attorney Polk
or Attorney Riley. While all factual findings are subject to

the clearly erroneous standard, credibility assessments are

among the most difficult for a party to overturn because, where

there is conflicting testimony, the referee is the ultimate

arbiter of witness credibility. In re Disciplinary Proceedings

Against Riordan, 2012 WI 125, ¶28, 345 Wis. 2d 42, 824

N.W.2d 441; In re Disciplinary Proceedings Against Pump, 120

Wis. 2d 422, 426, 355 N.W.2d 248 (1984). Although Attorney
Riley points to what he perceives as discrepancies in Attorney
40
 No. 2010AP2942-D

Polk's testimony, Attorney Polk explained at the disciplinary

hearing that he was confused to some extent by the manner in

which the time period had been framed in certain questions.

While Attorney Polk in his hearing testimony indicated that he

did not recall discussing with Attorney Riley his law firm

employment and his resulting concerns during the time he was

actually employed by the new Eisenberg firm, at two separate

junctures in his hearing testimony in this proceeding he clearly

and unequivocally testified that he did have such discussions

with Attorney Riley prior to his reinstatement hearing.

Moreover, as the referee pointed out, Attorney Polk's testimony

was against his own interest because he had to admit that he had

lied at the reinstatement hearing after having thought about the

issue and after having discussed his concerns with another

attorney, all of which is detrimental to any future attempt at

reinstatement by Attorney Polk. The referee was entitled to

accept Attorney Polk's testimony on this point and to reject

Attorney Riley's claims to the contrary. The applicable
standard of review requires that we accept those credibility

findings.

¶76 Based in large part on Attorney Polk's testimony, the

referee therefore found that Attorney Riley had discussed

Attorney Polk's law firm employment with him prior to the

September 2006 reinstatement hearing. Because this rests on a

credibility determination that the referee was entitled to make,

this finding is not clearly erroneous. This finding also
supports the further finding that Attorney Riley knew of
41
 No. 2010AP2942-D

Attorney Polk's employment with the new Eisenberg firm at the

time of the 2006 reinstatement hearing, at which Attorney Polk

gave a misleading answer to a question posed by Attorney Riley,

as well as multiple cross-examination questions posed by counsel

for the OLR. Attorney Riley does not claim that he ever

attempted to persuade Attorney Polk to disclose his law firm

employment to Judge Flynn or to take any other measures to

remediate Attorney Polk's misleading testimony. We conclude

that none of the referee's factual findings on these matters are

clearly erroneous, and we therefore rely on them for our legal

analysis.

¶77 Attorney Riley also criticizes the referee's

conclusions of law and her discussion of how she analyzed the

evidence presented to her in light of the charged rule

violations. We need not dwell on the referee's extended

discussion of the complicating factors present in this case or

the interplay between the standards for reinstatements from

disciplinary and administrative suspensions. The bottom line in
our view is that the facts as found by the referee demonstrate

clearly and convincingly that Attorney Riley violated former SCR

20:3.3(a)(4) by offering material testimony from Attorney Polk

regarding his employment history that Attorney Riley knew to be

false by omission at the time it was given and then failing to

42
 No. 2010AP2942-D

take reasonable measures to remediate that false testimony.19 We

therefore agree with the referee's conclusion that Attorney

Riley violated former SCR 20:3.3(a)(4).

¶78 Attorney Riley also makes a brief argument that the

referee's conclusion and discussion of a violation of SCR

20:8.4(c) lack factual and legal support. Like his argument

regarding the referee's summary judgment ruling on this charge,

his argument regarding the referee's ultimate conclusion of a

violation of SCR 20:8.4(c) is not well developed. For the

reasons set forth above in connection with the referee's summary

judgment decision, we conclude that the facts as found by the

referee regarding Attorney Riley's knowledge of Attorney Polk's

misleading testimony and Attorney Riley's continuing to advocate

for Attorney Polk's reinstatement also support a legal

19
One of Attorney Riley's criticisms is directed toward the
referee's observation that after the OLR in 2008 told Attorney
Riley that it had learned of Attorney Polk's employment with the
new Eisenberg firm, Attorney Riley did not take remedial
measures at that time by notifying Judge Flynn, this court, or
the OLR that Attorney Polk's 2006 testimony had been false by
omission. Attorney Riley argues that he had no duty to take
remedial measures at that point because this court had by that
time already denied Attorney Polk's reinstatement petition and
the OLR already knew the relevant facts. Again, we need not
address whether the rule required additional action by Attorney
Riley in 2008. It is clear from the facts found by the referee
that Attorney Riley knew of the falsity in Attorney Polk's
testimony at the time it was given. He had a duty to take
remedial measures at that time. His failure to take proper
actions at that time is sufficient to support a conclusion of a
violation of former SCR 20:3.3(a)(4).

43
 No. 2010AP2942-D

conclusion that Attorney Riley engaged in conduct involving

deceit and misrepresentation, in violation of SCR 20:8.4(c).

¶79 Finally, Attorney Riley attacks the OLR's process for

investigating and litigating this case, arguing that he never

should have been charged with ethical violations in the first

place because the OLR's investigation was flawed and there was

no cause to proceed. We need not address these claims in any

detail. Many of Attorney Riley's claims in this regard, such as

a lack of materiality of Attorney Polk's false testimony, have

already been considered and rejected above. To the extent

Attorney Riley challenges the Preliminary Review Committee's

finding of cause to proceed, we believe it is sufficient to note

that the subsequent complaint filed by the OLR survived summary

judgment and is ultimately resulting in a conclusion by a

majority of the court that Attorney Riley committed two

violations of the Rules of Professional Conduct for Attorneys.

C. Level of Discipline

¶80 We now turn to the matter of the proper level of
discipline that we believe should be imposed for the two ethical

violations we have found. The referee has recommended that

Attorney Riley be publicly reprimanded for his professional

misconduct. In addition to considering prior disciplinary

decisions cited by the OLR, the referee also noted three

aggravating factors and one mitigating factor. The three

aggravating factors were Attorney Riley's prior private

reprimand, his refusal to acknowledge the wrongful nature of his
conduct, and the harm to the judicial system caused by his
44
 No. 2010AP2942-D

misconduct.20 Although the OLR alleged that there were no

mitigating factors, the referee found that Attorney Riley had

fully cooperated with the OLR's investigation and the litigation

of the disciplinary case, which should be acknowledged.

¶81 Attorney Riley does not challenge the referee's

recommendation regarding the appropriate level of discipline,

other than to argue that he committed no misconduct. Whether or

not a respondent attorney specifically challenges a discipline

recommendation, however, the court is obligated to conduct its

own analysis of the proper level of discipline.

¶82 In our view, a public reprimand is an appropriate

sanction for Attorney Riley's professional misconduct. We

believe that a public sanction is necessary to impress upon

Attorney Riley the wrongfulness of his conduct, as well as to

deter both him and other attorneys from engaging in similar

conduct in the future. Allowing false evidence to be presented

to a tribunal when the attorney knows it is false is a serious

20
Specifically, the referee asserted that Attorney Riley
had "misused the justice system" by participating in the
offering of false evidence in an optional reinstatement
proceeding that needlessly resulted in review and the
preparation of a split decision by this court. Attorney Riley
objects to this assertion, stating that this court's rules
required it to review and issue a decision on Attorney Polk's
reinstatement petition regardless of whether Attorney Polk made
a false statement at the reinstatement hearing. Attorney Riley
is correct regarding this court's review, but his failure to
take remedial measures harmed the judicial process of reviewing
the petition because this court was forced to review a false
account of the facts.

45
 No. 2010AP2942-D

ethical violation that undermines the truth-seeking function of

the entire judicial system and contradicts the ideal of an

attorney being an officer of the court as well as an advocate

for a particular client.

¶83 We consider a consensual public reprimand accepted by

an assistant district attorney for similar conduct. Public

Reprimand of Holly L. Bunch, No. 2009-12 )(electronic copy

available at

https://compendium.wicourts.gov/app/raw/002196.html). Although

Attorney Bunch was aware of two police reports stating that a

defendant had expressly denied committing the charged crimes,

she made multiple false statements to the jury that the

defendant had never denied committing the crime until he had

been on the witness stand at trial because those reports had not

been entered into evidence.

¶84 Although Attorney Riley's misconduct is clearly

serious because it undermined a tribunal's ability to decide a

pending matter based on true and complete information, it is not
more serious than the misconduct committed by Attorney Bunch.

There is no evidence in this record that he conspired with

Attorney Polk prior to the reinstatement hearing to omit any

reference to Attorney Polk's employment with the new Eisenberg

firm or that he even knew prior to the reinstatement hearing

that Attorney Polk was planning to omit that information from

his testimony. Attorney Riley's misconduct here was failing to

take any reasonable measures to remediate the false testimony
given by Attorney Polk, his client. Consequently, we conclude
46
 No. 2010AP2942-D

that a public reprimand is the most appropriate disciplinary

sanction, given the particular facts of this case.

¶85 Finally, we address the issue of costs. Attorney

Riley did not object to the OLR's statement of costs. We see no

reason in this case to depart from the court's general practice

of imposing full costs against an attorney who is found to have

committed professional misconduct. See SCR 22.24(1m). Because

two concurring justices also agree with this conclusion,

Attorney Riley will be obligated to pay the full costs of this

proceeding.

¶86 In summary, we conclude that Attorney Riley "offered"

false testimony to the reinstatement referee under former SCR

20:3.3(a)(4) when his client gave false and misleading answers

to a question that he posed and to questions posed by opposing

counsel. We further conclude, based on the referee's factual

findings, that Attorney Riley knew this testimony was false at

the time it was given. Attorney Polk's false testimony was

material to the reinstatement proceeding in which it was given
because it related to his claimed inability to pay the

outstanding civil judgments against him, which was one of the

topics expressly identified in our order referring the

reinstatement matter to the referee. Because Attorney Riley did

not take any reasonable measures to remediate the false

testimony given by Attorney Polk and therefore offered by

Attorney Riley, he violated former SCR 20:3.3(a)(4). Given his

failure to take remedial measures and his continuing to argue in
the reinstatement proceeding that the jobs Attorney Polk had
47
 No. 2010AP2942-D

held during his administrative suspension did not provide enough

income for him to have made payments toward the outstanding

civil judgments, Attorney Riley also violated SCR 20:8.4(c).

¶87 While two of our colleagues who concur in the mandate

of the court are not willing to sign on to this opinion, the

outcome of this case should still serve as a reminder to

attorneys in this state that under the current version of the

rule, SCR 20:3.3(a)(3), they have a duty to take reasonable

remedial measures whenever they have actual knowledge that

material testimony given by a client or another witness called

by the attorney is false, either because of an affirmatively

untrue statement or an omission that makes the statement false,

regardless of whether the attorney asked the question that led

to the false testimony. That standard was met by the particular

facts of this case with respect to false testimony given by

Attorney Riley's client. This rule, in either its former or

current form, however, does not make an attorney the guarantor

of the factual accuracy of everything that is said by a client
or other witness called by the attorney. The attorney's

obligation arises only when the attorney has actual knowledge of

the falsity and only when the false testimony is material to the

proceeding. When those conditions are present, however, the

lawyer may not just sit silently and allow the false testimony

to mislead the opposing party and the tribunal. The lawyer is

not just a zealous advocate on behalf of a client, but also an

officer of the court, who bears obligations to assist the court
in its search for the truth.
48
 No. 2010AP2942-D

¶88 IT IS ORDERED that John Kenyatta Riley is publicly

reprimanded for his professional misconduct.

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

of this order, John Kenyatta Riley shall pay to the Office of

Lawyer Regulation the costs of this proceeding.

¶90 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.

¶91 REBECCA G. BRADLEY, J., did not participate.

49
 No. 2010AP2942-D.ssa

¶92 SHIRLEY S. ABRAHAMSON, J. (concurring). I agree

that a public reprimand and full costs should be imposed. I do

not, however, join the opinion of three justices of this court.

The opinion of the three justices is not a majority opinion. It

is, in the terminology of the court, a "lead opinion."

¶93 The phrase "lead opinion" is not, as far as I am

aware, defined in our Internal Operating Procedures or elsewhere

in the case law. Our Internal Operating Procedures (IOP) refer

to "lead opinions," but only in stating that if, during the

process of circulating and revising opinions, "the opinion

originally circulated as the majority opinion does not garner

the vote of a majority of the court, it shall be referred to in

separate writings as the 'lead opinion.'" Wis. S. Ct. IOP

II.G.4.1

¶94 I would describe a lead opinion as one that states

(and agrees with) the mandate of a majority of the justices, but

represents the reasoning of less than a majority of the
participating justices. So, for example, in a case with six

justices participating, if three justices join one opinion, two

justices join the same mandate only or join a different opinion

reaching the same mandate, and one justice dissents, there is a

single mandate, but no majority opinion. See Hoffer Props. LLC

v. DOT, 2016 WI 5, 366 Wis. 2d 372, 874 N.W.2d 533. Rather, one

1
Our internal operating procedures are contained in volume
6 of the Wisconsin Statutes.

1
 No. 2010AP2942-D.ssa

of the opinions agreeing with the mandate will be designated the

lead opinion.

¶95 The use of the term "lead opinion" without an agreed-

upon definition has the potential to cause confusion among the

bench, the bar, and the public. Also, the precedential effect

(or lack thereof) of a "lead opinion" is uncertain. Are lead

opinions in this court comparable to plurality opinions in the

United States Supreme Court?2 Apparently, the court of appeals

considers a plurality decision of this court persuasive but does

not always consider it binding. See, e.g., State v. King, 205

Wis. 2d 81, 88-89, 555 N.W.2d 189 (Ct. App. 1996) (citing State

v. Dowe, 120 Wis. 2d 192, 194, 352 N.W.2d 660 (1984)).

¶96 I write separately to express several concerns.

I

¶97 The lead opinion is overly lengthy, and gratuitously

addresses too many issues that have not been fully briefed or

carefully studied. The issues are difficult and of the utmost

2
See Marks v. United States, 430 U.S. 188, 193 (1977)
("When a fragmented Court decides a case and no single rationale
explaining the result enjoys the assent of five Justices, 'the
holding of the Court may be viewed as that position taken by
those Members who concurred in the judgment on the narrowest
grounds . . . .'") (quoting Gregg v. Georgia, 428 U.S. 153, 169
n.15 (1976) (opinion of Stewart, Powell, and Stevens, JJ.)).

For discussions by this court of the precedential effect of
plurality opinions in the United States Supreme Court, see, for
example, State v. Griep, 2015 WI 40, ¶36, 361 Wis. 2d 657, 863
N.W.2d 567; State v. Deadwiller, 2013 WI 75, ¶30, 350
Wis. 2d 138, 834 N.W.2d 362.

2
 No. 2010AP2942-D.ssa

importance to attorneys and disciplinary proceedings. The

issues need more consideration.

¶98 The issues might be better left for future study by a

committee this court should create to review the entire Rules of

Professional Conduct for Attorneys, as I proposed in Rule

Petition 15-01. Instead, the court dismissed the petition. The

ruse for dismissal was that the creation of a committee is not a

proper subject for a rule petition. For a discussion of the

need for a committee, see my dissent to the order dismissing

Rule Petitions 15-01, available at

https://www.wicourts.gov/sc/rulhear/DisplayDocument.pdf?content=

pdf&seqNo=158416; In re Disciplinary Proceedings Against

Templin, 2016 WI 18, ¶¶55-60, 367 Wis. 2d 351, 877 N.W.2d 107

(Abrahamson, J., concurring); In the Petition for Reinstatement

of Attorney Jeffrey P. Neterval, unpublished order, ¶¶2-9 (Mar.

22, 2016) (Abrahamson, J., concurring); In the matter of the

Reactivation of David W. Klaudt's License to Practice Law in

Wisconsin, unpublished order, ¶¶3-11 (Mar. 22, 2016)
(Abrahamson, J., concurring).

II

¶99 This is a landmark case in attorney discipline, as

Justice Prosser has pronounced. But its landmark status, from

my perspective, is the length of time the instant case has

lingered in this court. I think it wins the prize for taking

longer to decide than any other OLR proceeding I can remember or

find. It is a prime example of significant, unnecessary delays
in completing a disciplinary matter. Delay appears to exist at

3
 No. 2010AP2942-D.ssa

every level of the disciplinary proceedings, but the final delay

at this court in releasing the lead opinion is outrageous.

¶100 The attorney's conduct that is the subject of this

proceeding dates back to 2006. The OLR complaint was filed on

December 1, 2010. The referee held hearings in February 2012

and issued her report on April 18, 2012.

¶101 On October 23, 2012, this court held oral argument in

the instant case. More than 10 months elapsed before staff

circulated a draft per curiam opinion. Justice David T. Prosser

circulated the first draft of his dissent to the court on July

31, 2015, almost three years after oral argument and almost two

years after the per curiam was circulated. The first draft of

my concurrence was circulated on September 14, 2015, almost two

months after the dissent was circulated. The writings have been

subject to discussion and revision, and this opinion is being

released almost four years after oral argument, almost six years

after the complaint was filed, and almost 10 years after the

conduct at issue.
¶102 I favor the court's spending the time needed for each

matter and giving utmost care to each matter. Opinions and

orders in cases, rule matters, and disciplinary proceedings are

important to the people directly involved in each case and to

the public.

¶103 I strongly support the court's longstanding practice

of honoring a justice's hold and giving a justice time to study

and write separately, but I disfavor the court's inconsistent
treatment of requests to hold. Consistency in the court's

4
 No. 2010AP2942-D.ssa

practice of allowing, disallowing, and limiting holds is

important for collegiality and fairness to the litigants and

public. For a discussions of the court's failure to follow

procedures it adopts, see State v. Finley, No. 2014AP2488-CR,

unpublished order (Jan. 11, 2016) (Abrahamson, J., concurring in

part and dissenting in part); Wis. Carry, Inc. v. City of

Madison, No. 2015AP146, unpublished order (Jan. 11, 2016)

(Abrahamson, J., concurring in part and dissenting in part);

Regency West Apartments LLC v. City of Racine, No. 2014AP2947,

unpublished order (Jan. 11, 2016) (Abrahamson, J., concurring in

part and dissenting in part).

¶104 Although I favor the practice of permitting holds, I

also strongly favor giving litigants and the public prompt

decisions. Thus I again urge the court to create uniform time

limits for court staff and for justices to study the matter and

write. For my repeated requests, see, for example, my

concurrences in State ex rel. Nelson v. Wis. Supreme Court, No.

2013AP153-W, unpublished order (Aug. 19, 2015), and Koll v.
Department of Justice, No. 2008AP2027, unpublished order (Oct.

14, 2011).

¶105 Neither the public, the respondent lawyer, the

component parts of the disciplinary proceedings, nor the other

lawyers of the state are well served by the long delay in the

instant case and in too many other cases.

¶106 The court is considering (in closed conference rather

than in open conference) appointing a committee to review the
procedures of the component parts of the OLR and to make

5
 No. 2010AP2942-D.ssa

recommendations for change. See Rule Order 15-01, available at

https://www.wicourts.gov/sc/rulhear/DisplayDocument.pdf?content=

pdf&seqNo=158416 (stating that dismissal of petition does not

preclude the court from appointing a committee to study the

Office of Lawyer Regulation or the Wisconsin Judicial Code).

Although no committee has been formed as of this date, exploring

ways to avoid unnecessary delay and accelerate the process of

attorney discipline will be an important aspect of any study.

III

¶107 To foster transparency and fairness, as well as to

encourage promptness and uniformity in the court's decisions in

discipline cases, I renew my request that the court require the

Clerk of the Supreme Court to make available on the court's

website information about the dates of the relevant steps in

each disciplinary matter, from the filing of the complaint, to

its passage through the component parts of the lawyer regulatory

proceeding, assignment to a court commissioner, assignment for

oral argument or on-brief consideration, and the court's
ultimate decision.

¶108 The United States Supreme Court has similar helpful

information available on its website for litigants and

interested persons about the progress of petitions for

certiorari in the Supreme Court.3 See my concurrence in State ex

3
I have also suggested that similar information be provided
online for petitions for review, petitions for bypass, and
original actions filed in this court.

6
 No. 2010AP2942-D.ssa

rel. Nelson v. Wis. Supreme Court, No. 2013AP153-W, unpublished

order (Aug. 19, 2015).

¶109 For the reasons set forth, I do not join the opinion

of the three justices and write separately to set forth my

concerns.

¶110 I am authorized to state that Justice ANN WALSH

BRADLEY joins Part I of this opinion.

7
 No. 2010AP2942-D.awb

¶111 ANN WALSH BRADLEY, J. (concurring). Although I

agree with the imposition of a public reprimand and full costs,

I do not join the lead opinion. Instead, I join Part I of the

above concurrence.

1
 No. 2010AP2942-D.dtp

¶112 DAVID T. PROSSER, J. (dissenting). This is a

landmark case in attorney discipline. It addresses the issue of

an attorney's ethical responsibilities when the attorney's

client——or a witness called by the attorney——provides false

testimony that the attorney knows is false at the time of the

testimony or learns is false sometime after the testimony.

¶113 It is hard for a judge not to sound the trumpet and

wave the flag for "the truth, the whole truth, and nothing but

the truth" in judicial proceedings. No one in the judiciary is

"for" false testimony. Yet the court's lead opinion, which

emphatically embraces the necessity for "truth" in judicial

proceedings, leaves me quite uncomfortable for a number of

reasons.

¶114 First, this notable case will be associated with an

attorney who was caught in the middle of a mess he did not

create, whereas the two attorneys who are responsible for the

mess have been able to walk away with inadequate discipline or
no discipline.

¶115 Second, I do not perceive that the respondent attorney

set out to misrepresent critical facts to a referee. This is a

case in which the attorney was "directed" by his senior partner

to represent another attorney, without pay. When the attorney

asked the "client" attorney questions on direct examination, the

"client" attorney omitted important information from his

answers, and when the "client" attorney answered questions on
cross examination, he lied. This court determines that the

1
 No. 2010AP2942-D.dtp

respondent attorney assigned to represent the "client" attorney

had an obligation "to take reasonable remedial measures" to

correct his client's false testimony——even if the attorney did

not learn of the falsity until sometime after the testimony was

given——and that all attorneys have such a duty. However, the

opinion does not say much about how this duty should be

discharged.

¶116 Third, the lead opinion is a little light in

discussion about the serious tension between privileged

information, confidentiality, and loyalty to a client, on the

one hand, and an attorney's obligation to the court, on the

other.

¶117 Finally, the lead opinion is almost 50 pages in length

because the court finds it necessary to resolve several close

questions against the respondent attorney, but it reads as

though the respondent attorney should have resolved all these

subtle questions the same way the lead opinion has resolved

them . . . without much difficulty. We ought to ask: Has the

court provided sufficient guidance for the Wisconsin bar to
avoid in the future the same pitfalls that the attorney faced in

this case?

I

¶118 The background facts in this case are complicated and

murky. Several important facts are omitted from the lead

opinion in an effort to eliminate uncertainty by simply ignoring

it.

¶119 At one point, about 2000, Attorneys Alvin Eisenberg,
Brian K. Polk, and the respondent, John Kenyatta Riley, all

2
 No. 2010AP2942-D.dtp

worked at the firm of Eisenberg, Weigel, Carlson, Blau, Reitz &

Clemens, S.C. in Milwaukee.

¶120 Attorney Polk left the firm in June 2000 and permitted

his license to be suspended in 2001 because of noncompliance

with CLE.

¶121 Attorney Riley left the firm sometime in 2000-2001 to

join another firm. He started his own law firm in Milwaukee in

2003.

¶122 In 1990 six attorneys acquired shares in the firm that

Attorney Eisenberg had founded in 1958. In 1999 Joseph Weigel

became president of that firm and engineered the redemption of

all stock owned by Eisenberg. Thereafter:

In January 2005 the Firm, without giving prior notice
to Attorney Eisenberg, moved its law office to a new
location. A letter was left for Attorney Eisenberg
saying there was no office space for him at the new
location, that he should go home, and that his
paychecks would be sent to him.
In re Disciplinary Proceedings Against Weigel, 2012 WI 71, ¶¶8,

9, 12, 342 Wis. 2d 129, 817 N.W.2d 835.

¶123 Ugly litigation followed Attorney Eisenberg's

departure from his old law firm, and soon, he started a new

firm. He brought Brian Polk into the new firm no later than

October 10, 2005, even though Polk's law license was suspended.

¶124 Eisenberg also brought Attorney Riley into the new

firm sometime in 2005. The referee found as fact that,

"[b]etween October 2005 and September of 2006, Attorney Riley

was an associate at the Eisenberg law firm. Attorney Riley

maintained his solo practice offices on Water Street for a short

3
 No. 2010AP2942-D.dtp

while after re-joining Attorney Eisenberg in practice. His work

time was spent between both offices."

¶125 The referee also found that, "[Riley] practiced solo

until early 2006 when he joined Eisenberg Law Office, which

later came to be Eisenberg & Riley then Eisenberg, Riley &

Muwonge, and in 2011 was Eisenberg, Riley & Zimmerman."

(Emphasis added.)

¶126 Attorney Riley was not part of the new Eisenberg

firm's personal injury group in which Polk worked. Rather, he

had a general practice, which included bankruptcy, criminal, and

real estate law. He often was in court when the personal injury

group met.

¶127 These facts suggest that it is not entirely clear

whether Attorney Riley knew the full story about Polk's role at

the new Eisenberg firm. What is undisputed is that Polk filed a

pro se petition for readmission to the bar on February 22, 2006;

and because of opposition to reinstatement by the Office of

Lawyer Regulation (OLR), this court appointed a referee, who

conducted a hearing on September 6, 2006.
¶128 Attorney Eisenberg "directed" Attorney Riley to

represent Polk at that hearing. The referee in this case found

that "[t]he reinstatement hearing [in 2006] was pending at the

same time law firm disputes and other practice concerns were in

play." The referee in this case also found:

The attorney-client relationship between Attorney
Riley and Brian Polk was limited to Attorney Riley
appearing at the reinstatement trial in a "second-
chair" capacity. The representation did not include
Attorney Riley's preparation of the witnesses,
drafting of the petition, prior review of the record,

4
 No. 2010AP2942-D.dtp
strategy sessions or consultation, solicitation of
testimony based on this reinstatement trial's court-
ordered standards, attention to or analysis of answers
to questions. [Attorney Riley] had not previously
represented any clients in Reinstatement [and]
disciplinary proceedings were not within Attorney
Riley's usual area of practice.
(Citations omitted.)

¶129 The critical question is when Attorney Riley actually

knew that Polk was improperly employed by the Eisenberg law

firm. Did he know it on September 6, 2006, or did he learn it

later?

¶130 The referee found that "Attorney Riley and Brian Polk

spoke about his law firm employment during 2006 when he was

serving as counsel for Brian Polk."

¶131 Attorney Riley disputes this finding. The lead

opinion asserts that it was "not necessary that Attorney Riley

knew that Attorney Polk was practicing law (as opposed to simply

working) at the new Eisenberg firm, in order for Attorney Riley

to have violated former SCR 20:3.3(a)(4)," lead op., ¶47

(emphasis omitted), because "a lawyer has a duty to remediate

false testimony given by a client, regardless of the manner in

which the false testimony was given," id., ¶57. The lead

opinion states that a lawyer had a duty to take reasonable

remedial measures under former SCR 20:3.3(a)(4) when his client

omitted an "important fact" from his answers on a subject that

was "material." Id., ¶58.

¶132 What should be evident to everyone is that Alvin

Eisenberg is the person responsible for employing Brian Polk, an

attorney with a deeply troubled past, including a felony
conviction and a citation for loitering-illegal drug activity,

5
 No. 2010AP2942-D.dtp

while Polk was suspended from the practice of law. Eisenberg

tried hard to hide Polk's role in the firm. Eisenberg was

purportedly paranoid that his rivals at the Weigel law firm

would discover and disclose Polk's employment, discrediting

Eisenberg and discrediting the firm. Eisenberg "directed"

Attorney Riley to assist Polk at the reinstatement hearing. He

knew he could not do it himself.

¶133 Eisenberg eventually was disciplined by OLR with a

public reprimand. Public Reprimand of Alvin H. Eisenberg,

2012-8. However, his "public reprimand" is not published in the

Wisconsin Reports, and it takes a little detective work even to

find it online. Moreover, the reprimand reads in part:

In a May 10, 2008 response to this matter,
Eisenberg stated that, in March of 2006, he discovered
Mr. X's license to practice law was suspended, causing
Eisenberg to terminate Mr. X and tell him he could not
return until his license was reinstated. Eisenberg
further stated that, "[Mr. X] has not returned to this
date."

This matter was referred to a district committee
for investigation. Eisenberg denied to committee
investigators that Mr. X had returned to work at the
firm after being terminated in March of 2006 and
denied that Mr. X used an assumed name. Eisenberg
could give no explanation for letters that were
produced that had been signed using the assumed name,
and he denied authorizing or having knowledge of
anyone in the firm using that name.

In response to the committee report Eisenberg
stated that, after reviewing records, he found that
Mr. X worked for the firm for six days in July and
August 2006. Eisenberg admitted that the firm's
receptionist "keeps a detailed daily record of the
employees' attendance as employees come and go from
the office." Eisenberg should have consulted these
records before responding negatively to previous
questions about whether Mr. X returned to work at the
firm after he was terminated in March 2006.
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See https://compendium.wicourts.gov/app/raw/002479.html.

¶134 These three bland paragraphs should be compared to the

extensive negative discussion of Attorney Riley in the lead

opinion.

¶135 As for Brian Polk (a/k/a "Mr. X"), he was not

readmitted to the bar. He did not appeal the referee's ruling

not to reinstate him and——to the best of my knowledge——he has

not reapplied. But OLR never went after Polk for practicing law

without a license or lying to a referee. Consequently, there is

no OLR "discipline" on his record.

II

¶136 Attorney Riley was charged with violating three

Supreme Court rules: former SCR 20:3.3(a)(4); current SCR

20:3.4(b); and current SCR 20:8.4(c). The text of the rules is

significant.

¶137 In 2006 SCR 20:3.3(a)(4) read:

A lawyer shall not knowingly:

. . . .

(4) offer evidence that the lawyer knows to be
false. If a lawyer has offered material evidence and
comes to know of its falsity, the lawyer shall take
reasonable remedial measures.

(Emphasis added.)

¶138 SCR 20:3.4(b) reads:

A lawyer shall not:

. . . .

(b) falsify evidence, counsel or assist a
witness to testify falsely or offer an inducement to a
witness that is prohibited by law.

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¶139 SCR 20:8.4(c) reads:

It is professional misconduct for a lawyer to:

. . . .

(c) engage in conduct involving dishonesty,
fraud, deceit or misrepresentation.
¶140 OLR's complaint asserted:

By eliciting and allowing Polk's testimony at
Polk's reinstatement hearing regarding Polk's work
history during the suspension of Polk's license that
omitted Polk's employment at Riley's law firm,
Eisenberg & Riley, S.C., when Riley knew of that
employment at the time he elicited and allowed that
testimony, and his failure to remedy that omission at
any time thereafter, Riley violated former SCR
20:3.3(a)(4), SCR 20:3.4(b), and SCR 20:8.4(c).
¶141 Attorney Riley was put in a very difficult situation.

He either knew the full story about Polk's employment at the

time Polk testified, or he didn't. In either event, if he

"offered" the information and if the information was "material"

at the reinstatement hearing, the lead opinion asserts that he

had a duty to take "reasonable remedial measures." Arguably, if

he did not "offer" the information or if the information was not

"material," he did not have a duty to take "reasonable remedial

measures."

¶142 Assuming the existence of a duty, reasonable remedial

measures could be interpreted to mean informing the referee that

Polk's testimony was false, which would have had consequences.

First, it would have destroyed any chance that Polk would win

readmission to the bar. Second, it would almost certainly lead

to OLR prosecution of Riley's boss, Alvin Eisenberg. Third, it

could seriously affect Riley's relationship with Eisenberg and
the law firm, leading to Riley's possible resignation or

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termination.1 Fourth, it could damage the law firm. Fifth, it

could lead to a suit that Attorney Riley had breached the

attorney-client privilege to Polk's detriment. If Attorney

Riley knew all the facts about Polk's employment, he may have

calculated that he would inform the referee if the referee

decided in favor of reinstatement. Of course, the referee

decided against reinstatement. The lead opinion has no room for

"no harm, no foul."

¶143 It may well be that the legal profession must set high

standards of candor and integrity, regardless of the cost to an

individual attorney. But shouldn't the court at least

acknowledge the heavy stakes in this case and the potential

heavy stakes in future cases that will be affected by this

decision?

¶144 To illustrate, the rules cited do not exempt attorneys

who practice criminal law. What are the practical effects of

this case on criminal defense attorneys? What are "reasonable

remedial" steps for a criminal defense attorney who knows or

learns after his client has testified that his client has lied?
I do not sense that the court's decision permits attorneys to

look the other way when they know their client has testified

falsely or omitted "important facts," even in a criminal case.

Clearly, the court does not believe it was enough for Attorney

Riley to withdraw as counsel after the hearing, as he did.

1
OLR's reference to "Riley's law firm" is a bit of an
exaggeration.

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 No. 2010AP2942-D.dtp

¶145 Inasmuch as the referee found that Attorney Riley knew

about Polk's employment with Eisenberg at the time of the

reinstatement hearing, it may seem unnecessary to discuss what

should have happened if he didn't know until later. Notably,

however, the court dismisses the alleged violation of SCR

20:3.4(b) of having assisted a witness to testify falsely: A

lawyer "shall not . . . counsel or assist a witness to testify

falsely . . . ."

¶146 The court says:

We agree with Attorney Riley that the language of
the rule ("counsel or assist a witness") indicates
that some action by the lawyer prior to or at the time
of the witness's false testimony is required. . . . We
believe that SCR 20:3.4(b) should not be interpreted
to reach the conduct that is shown on this record.
There was no evidence in the summary judgment
[record] . . . that Attorney Riley advised Attorney
Polk not to mention his work at the new Eisenberg
firm, planned a way in which Attorney Polk could omit
that information in his testimony . . . , or even knew
that Attorney Polk intended to provide a list of his
employers during his suspension that would omit the
new Eisenberg firm. . . . [T]here is no
indication . . . that the two of them took the step of
discussing how Attorney Polk should address that
concern in his reinstatement hearing testimony.
Indeed, Attorney Polk testified that he and Attorney
Riley never had a preparation session to discuss his
upcoming testimony at the reinstatement hearing.
Lead op., ¶¶69-70.

¶147 Nonetheless, the referee found that "Attorney Riley

and Brian Polk spoke about [Polk's] law firm employment during

2006 when [Riley] was serving as counsel for Brian Polk."

¶148 Asking questions at the hearing about Polk's

employment history could be viewed as "assisting" a witness to
testify falsely. The court declines to take that position. On

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 No. 2010AP2942-D.dtp

the other hand, the referee insisted that Attorney Riley

knowingly "offered" evidence that he knew to be false. The

distinction between knowingly "offering" evidence but not

"assisting" is not clear to me in this case.

¶149 If Attorney Riley reasonably believed he did not

assist Polk in giving false testimony, it is difficult to

understand why he could not reasonably believe that he did not

knowingly offer false evidence at the hearing.

¶150 Ethics scholars might wish to compare the word "offer"

in former SCR 20:3.3(a)(4) with the word "offer" in SCR

20:3.4(b). How does an attorney "offer an inducement to a

witness" if he never mentions an inducement?

¶151 There is another problem inherent in the former rule.

It reads in essence that a lawyer shall not knowingly "offer

evidence" that the lawyer knows to be false. But then, in the

second sentence, the rule provides, "If a lawyer has offered

material evidence and comes to know of its falsity, the lawyer

shall take reasonable remedial measures." (Emphasis added.)

The second sentence establishes a duty to remediate any
"material evidence" that is false, irrespective of prior

knowledge, but it does not appear to require remediation of

false evidence if the false evidence is not "material."

¶152 "Knowingly offer" and "material evidence" thus are

terms that raise serious issues for an attorney in ambiguous

situations.

¶153 These concerns go beyond the question of how to

discharge an attorney's clear duty to the more fundamental
question of whether this attorney had a duty.

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III

¶154 My other concern relates to the tension between an

attorney's duties to his client and his duties to the court.

¶155 Wisconsin Stat. § 905.03(2), entitled "GENERAL RULE OF

PRIVILEGE," reads:

A client has a privilege to refuse to disclose
and to prevent any other person from disclosing
confidential communications made for the purpose of
facilitating the rendition of professional legal
services to the client: between the client or the
client's representative and the client's lawyer or the
lawyer's representative; or between the client's
lawyer and the lawyer's representative; or by the
client or the client's lawyer to a lawyer representing
another in a matter of common interest; or between
representatives of the client or between the client
and a representative of the client; or between lawyers
representing the client.
¶156 There are exceptions to this statute in subsection

(4). It would have been useful for the court to discuss the

applicable exceptions, if any, in this case.

¶157 The same is true with respect to SCR 20:1.6 related to

confidentiality: "(a) 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 paras. (b) and (c)." (Emphasis added.)

What are the applicable exceptions to this rule for Attorney

Riley?

¶158 SCR 20:3.3, Candor toward the tribunal, reads in part:

"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

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lawyer." This rule about false statements "by the lawyer"

strikes me as much clearer and much easier to apply than former

SCR 20:3.3(a)(4).

IV

¶159 To me the lead opinion raises sufficient questions

about its impact on the law and its fairness to the respondent

that I feel bound to respectfully dissent. It should be noted

that the court has not been able to muster a majority of

justices for the lead opinion. It should also be noted that the

rule of lenity seems to be missing from the Rules of

Professional Conduct for Attorneys.

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