2017 WI 48
SUPREME COURT OF WISCONSIN
CASE NO.: 2016AP2267-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Adam A. Gillette, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Adam A. Gillette,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST GILLETTE
OPINION FILED: May 11, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
CONCURRED/DISSENTED: ABRAHAMSON, J. concurs and dissents (opinion
filed).
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2017 WI 48
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2016AP2267-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Adam A. Gillette, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant,
MAY 11, 2017
v.
Diane M. Fremgen
Clerk of Supreme Court
Adam A. Gillette,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. The Office of Lawyer Regulation (OLR)
and Attorney Adam A. Gillette have filed a stipulation pursuant
to Supreme Court Rule (SCR) 22.12 that Attorney Gillette's
license to practice law in Wisconsin should be suspended for a
period of 60 days, as discipline reciprocal to that imposed by
No. 2016AP2267-D
the Supreme Court of Minnesota.1 After reviewing the matter, we
approve the stipulation and impose the stipulated reciprocal
discipline. Although the stipulation did not expressly request
that we impose the other forms of discipline imposed by the
Supreme Court of Minnesota, we also follow our practice of
ordering Attorney Gillette to comply with the terms and
conditions of the Minnesota disciplinary order, including a two-
year period of probation. We do not impose any costs in this
stipulated matter.
¶2 Attorney Gillette was admitted to the practice of law
in Minnesota in October 2003. He was also admitted to the
practice of law in this state in December 2009. According to
the stipulation, Attorney Gillette's most recent professional
address was a law firm in Minneapolis, Minnesota.
¶3 Attorney Gillette has not been the subject of previous
professional discipline in this state. His license to practice
law in Wisconsin, however, is currently administratively
suspended. In June 2016 his license was suspended for failure
to comply with mandatory continuing legal education (CLE)
reporting requirements. In October 2016 his license was also
1
The stipulation in this matter was filed with the court on
February 28, 2017, and was promptly taken under advisement. On
April 19, 2017, nearly two months later, the OLR filed a
memorandum in support of the stipulation. Supreme Court Rule
22.12 does not provide a formal deadline for filing such a
memorandum, but this belated submission arrived well after the
court had deliberated and decided the matter. Nothing in the
memorandum has affected the court's decision to accept the
stipulation.
2
No. 2016AP2267-D
suspended for failure to pay bar dues and assessments and for
failure to file a trust account certificate.
¶4 On November 21, 2016, the OLR filed a disciplinary
complaint alleging that Attorney Gillette should be subject to
reciprocal discipline due to a 60-day suspension imposed by the
Supreme Court of Minnesota. On February 28, 2017, after the
OLR's complaint had been served on Attorney Gillette, the OLR
and Attorney Gillette entered into a stipulation whereby
Attorney Gillette agreed that the facts alleged in the OLR's
complaint supported the imposition of a 60-day suspension as
reciprocal discipline.
¶5 According to the stipulation and the Minnesota
disciplinary records attached to the OLR's complaint, Attorney
Gillette committed a number of violations of the Minnesota Rules
of Professional Conduct (MRPC) in connection with two client
matters.
¶6 In the first matter, Attorney Gillette and the firm
with which he was associated were retained to represent a
husband and wife in connection with possible claims against
investment brokers due to failed investments. The firm
determined in April 2010 that the clients were unlikely to
prevail on any claims. From this point forward, Attorney
Gillette and the firm did no further work on the matter.
Attorney Gillette was directed to convey the firm's opinion to
the clients.
¶7 Attorney Gillette, however, did not advise the clients
of this opinion. To the contrary, he falsely informed the
3
No. 2016AP2267-D
husband on multiple occasions over the next five years that he
was continuing to pursue the matter. Attorney Gillette even
went so far as to tell the client that the matter had been
settled for a substantial sum of money. Ultimately, Attorney
Gillette reported his deception to his law firm. In the time
period when he had been misleading the client about the progress
of claims against the brokers, the statute of limitations for
any such claim expired.
¶8 In the second client matter, Attorney Gillette and his
firm were retained in December 2014 by a check cashing business
to address a situation where the client believed that its bank
had improperly reversed a deposit. The client paid an advanced
fee to the law firm. Attorney Gillette, however, failed to
perform any work on the matter or to take any action to preserve
any claims the client may have had against the bank. In May
2015 the statute of limitations expired for any claim by the
client against the bank. As had occurred with the first client
matter discussed above, ultimately Attorney Gillette reported
his neglect of the matter to his law firm.
¶9 Attorney Gillette stipulated in the Minnesota
disciplinary proceeding that his conduct in the two client
representations had violated MRCP 1.1, 1.3, 1.4, 4.1, and
8.4(c).
¶10 In its October 10, 2016 disciplinary order, In re
Disciplinary Action Against Gillette, 886 N.W.2d 214 (Minn.
2016), the Supreme Court of Minnesota noted that Attorney
Gillette had produced evidence that during the relevant time
4
No. 2016AP2267-D
period he had suffered from an untreated mental-health issue,
for which he had subsequently sought treatment. He had also
produced evidence that he was remorseful for his misconduct.
Ultimately, given this partially mitigating evidence, the
Supreme Court of Minnesota accepted the joint recommendation of
the parties for a 60-day suspension of Attorney Gillette's
license to practice law in Minnesota. The Minnesota order also
directed Attorney Gillette within one year to successfully
complete the professional responsibility examination that is
required for admission to the practice of law in that state.
Finally, the order also placed Attorney Gillette on probation
with a list of conditions for a period of two years following
the reinstatement of his Minnesota license.2
¶11 Under SCR 22.22(3),3 this court shall impose the
identical discipline imposed in another jurisdiction, unless one
2
The SCR 22.12 stipulation notes that the Supreme Court of
Minnesota has already conditionally reinstated Attorney
Gillette's license to practice law in that state. See In re
Disciplinary Action Against Gillette, 888 N.W.2d 684 (Minn.
2016).
3
SCR 22.22(3) provides:
(3) The supreme court shall impose the identical
discipline or license suspension unless one or more of
the following is present:
(a) The procedure in the other jurisdiction was
so lacking in notice or opportunity to be heard as to
constitute a deprivation of due process.
(b) There was such an infirmity of proof
establishing the misconduct or medical incapacity that
the supreme court could not accept as final the
(continued)
5
No. 2016AP2267-D
or more of three exceptions apply. In his stipulation with the
OLR, Attorney Gillette states that he does not claim any of the
exceptions in SCR 22.22(3). He agrees that this court should
impose the 60-day suspension of his license to practice law in
Wisconsin sought by the OLR.
¶12 Attorney Gillette further states that the stipulation
was not the result of plea bargaining, that he understands the
misconduct allegations against him and his right to contest the
matter, and that he is aware of the potential ramifications of
the stipulated level of discipline. He acknowledges his right
to consult with counsel. He asserts that he is entering into
the stipulation knowingly and voluntarily, and that his entry
into the stipulation represents his decision not to contest the
misconduct allegations or the level of discipline sought by the
OLR.
¶13 Having reviewed the matter, we accept the stipulation
and impose a 60-day suspension of Attorney Gillette's license to
practice law in Wisconsin, as discipline reciprocal to that
imposed by the Supreme Court of Minnesota.
¶14 We note, however, that the Minnesota order contained
additional elements of discipline beyond the imposition of a 60-
day suspension of his license to practice law in that state.
conclusion in respect to the misconduct or medical
incapacity.
(c) The misconduct justifies substantially
different discipline in this state.
6
No. 2016AP2267-D
For example, the Minnesota order directed Attorney Gillette to
complete the professional responsibility examination required
for admission to the bar of that state and imposed a two-year
period of probation with a number of specified conditions.
These elements of the Minnesota disciplinary order are generally
not imposed in Wisconsin disciplinary proceedings. In such
situations, this court orders the respondent attorney to comply
with the terms and conditions imposed by the disciplinary order
in the other jurisdiction in order to make the discipline
identical under SCR 22.22. See, e.g., In re Disciplinary
Proceedings Against Hooker, 2010 WI 13, ¶11, 322 Wis. 2d 552,
779 N.W.2d 419; In re Disciplinary Proceedings Against Moree,
2004 WI 118, 275 Wis. 2d 279, 684 N.W.2d 667. Although the
stipulation spoke in terms of agreeing to the imposition of a
60-day suspension, it also acknowledged these other terms and
conditions of the Minnesota disciplinary order. Consequently,
we follow our practice of ordering Attorney Gillette to comply
with them.
¶15 Because this matter has been resolved through a
stipulation without the appointment of a referee and the OLR has
7
No. 2016AP2267-D
not sought the imposition of any costs, we do not impose them in
this matter.4
¶16 IT IS ORDERED that the license of Adam A. Gillette to
practice law in Wisconsin is suspended for a period of 60 days,
effective May 31, 2017.
¶17 IT IS FURTHER ORDERED that Adam A. Gillette shall
comply with all of the terms and conditions set forth in the
Supreme Court of Minnesota's order dated October 10, 2016. In re
Disciplinary Action Against Gillette, 886 N.W.2d 214 (Minn.
2016).
¶18 IT IS FURTHER ORDERED that Adam A. Gillette shall
comply with the provisions of SCR 22.26 concerning the duties of
a person whose license to practice law in Wisconsin has been
suspended.
4
In addition to filing a belated memorandum in support of
the stipulation, the OLR also filed a belated statement of costs
on April 19, 2017. It reported counsel fees and disbursements
in the amount of $469.00, but recommended that the court not
assess any costs against Attorney Gillette because he had
entered into what it characterized as a "comprehensive
stipulation" that had avoided the appointment of a referee and
"the expenditure of significant lawyer regulation system
resources."
8
No. 2016AP2267-D
¶19 IT IS FURTHER ORDERED that compliance with all
conditions of this order is required for reinstatement from the
disciplinary suspension imposed herein.5
5
In addition to obtaining reinstatement from the
disciplinary suspension imposed by this order, before he is able
to practice law in Wisconsin, Attorney Gillette will also be
required to complete the procedures for reinstatement from the
administrative suspensions currently in effect for failure to
comply with the mandatory CLE reporting requirements, for
failure to pay applicable bar dues and assessments, and for
failure to file a trust account certificate.
9
No. 2016AP2267-D.ssa
¶20 SHIRLEY S. ABRAHAMSON, J. (concurring in part and
dissenting in part). I concur with the per curiam opinion
accepting the stipulation between Attorney Gillette and OLR and
suspending Attorney Gillette's license for 60 days as reciprocal
discipline identical to that imposed by the Supreme Court of
Minnesota.
¶21 I dissent from the per curiam's order requiring
Attorney Gillette to comply with the terms and conditions
imposed by the disciplinary order in Minnesota to make the
discipline identical under SCR 22.22(3).
¶22 This proceeding raises two questions for me.
¶23 First, the proceeding raises the question whether the
court has extended a stipulation beyond its terms. Attorney
Gillette and the OLR did not stipulate to any Minnesota
discipline other than a 60-day suspension.
¶24 Second, the proceeding raises the question of what is
identical discipline in a reciprocal discipline matter. Supreme
Court Rule 22.22(3) provides that in reciprocal discipline cases
this court "shall impose the identical discipline" imposed by
the other state.
¶25 Minnesota has imposed forms of discipline on Attorney
Gillette that Wisconsin typically does not impose.
Nevertheless, the per curiam imposes this Minnesota discipline
on Attorney Gillette as part of Attorney Gillette's Wisconsin
discipline.
¶26 Two other reciprocal disciplinary proceedings have
been pending before this court while the instant case has been
1
No. 2016AP2267-D.ssa
considered: In re Disciplinary Proceedings Against Buzawa, No.
2016AP2351-D, unpublished order (Wis. S. Ct. Apr. 10, 2017;
separate writing May 11, 2017), and In re Disciplinary
Proceedings Against Peiss, 2017 WI 49, ___ Wis. 2d ___, ___
N.W.2d ___. They too present issues about identical reciprocal
discipline.
I
¶27 Attorney Gillette's stipulation with OLR reads, in
relevant part, as follows:
10. Gillette agrees that it would be appropriate for
the Supreme Court of Wisconsin to impose the level of
discipline sought by OLR's Director, specifically, a
60 day suspension of Gillette's license to practice
law in Wisconsin. (Emphasis added.)
¶28 This is the only provision in the stipulation relating
to the Minnesota or Wisconsin discipline.
¶29 OLR's Memorandum in Support of SCR 22.12 Stipulation,
filed on April 19, 2017, states: "Gillette and OLR signed a SCR
22.12 Stipulation requesting the Supreme Court of Wisconsin to
approve the parties' stipulation and suspend Gillette's
Wisconsin license to practice law for 60 days based upon the
Minnesota action."1
1
The per curiam is critical of the length of time (about
two months) it took the OLR to file this memorandum with the
court.
(continued)
2
No. 2016AP2267-D.ssa
¶30 It is evident from the stipulation and the OLR
memorandum that Attorney Gillette stipulated only to the 60-day
suspension of his license to practice law in Wisconsin. He did
not stipulate to any other reciprocal discipline. He could have
so stipulated, but he did not. He might so stipulate if asked,
but he has not been asked.
¶31 Instead, the court takes a short-cut and reads the
stipulation to include terms not stated. To respond to this
criticism that the court has not abided by the parties'
stipulation, the court in n.4 tries to prove the stipulation is
broader than its terms. It bootstraps Litigation Counsel
William Weigel's description of the stipulation as a
"comprehensive stipulation" in his separate statement of OLR
costs to mean that Attorney Gillette stipulated to more than the
60-day suspension.
¶32 Attorney John T. Payette, Assistant Litigation
Counsel, not Attorney Weigel, signed the Complaint and Motion
for reciprocal discipline on November 21, 2016, the stipulation
I am confident that the OLR Procedure Review Committee
(Professor Marsha Mansfield, University of Wisconsin Law School,
Reporter) will examine the time it takes each entity in the
chain of discipline proceedings to perform its function,
including the OLR, the Preliminary Review Committee, the
referee, and this court. This court's Internal Operating
Procedures (printed in volume 6 of the Wisconsin Statutes)
provide that per curiam opinions in attorney disciplinary
proceedings are prepared by a court commissioner for the court's
consideration. Wis. S. Ct. IOP III-H (Feb. 13, 2017).
Several years ago when I did a "time" study I found what
appeared to be unwarranted delay at every step.
3
No. 2016AP2267-D.ssa
with Attorney Gillette on February 28, 2017, and the OLR
Memorandum on April 19, 2017. OLR Attorney Payette's
description of the stipulation, not Attorney Weigel's obvious
off-hand comment in a document relating to costs, is of import.
¶33 The instant case is not consistent with Office of
Lawyer Regulation v. Curtin, 2014 WI 90, 357 Wis. 2d 247, 849
N.W.2d 747, or In re Disciplinary Proceedings Against Milos,
2012 WI 6, 338 Wis. 2d 316, 808 N.W.2d 128.
¶34 In Curtin, the stipulation filed by OLR and Attorney
Curtin requested the court to publicly reprimand Attorney Curtin
as reciprocal discipline identical to that imposed by Arizona;
no request was made to impose other discipline imposed by
Arizona. Arizona imposed a reprimand, a year of probation, and
participation in a trust account ethics program. The Wisconsin
Supreme Court imposed only a public reprimand, not the other
discipline imposed by Arizona.
¶35 This court does not explain why Attorney Gillette is
being treated differently than Attorney Curtin, although the key
aspects of the stipulations in the two cases are the same.
¶36 In contrast, in In re Disciplinary Proceedings Against
Milos, 2012 WI 6, 338 Wis. 2d 316, 808 N.W.2d 128, the OLR and
Attorney Milos stipulated to the imposition of discipline
identical to that imposed by Illinois. Illinois imposed a 90-
day suspension and directed Attorney Milos to complete the
Illinois Commission's Professionalism Seminar and to reimburse
the Client Protection Program Trust Fund. This court ordered a
90-day suspension and compliance "with the terms and conditions
4
No. 2016AP2267-D.ssa
set forth in the Illinois Supreme Court's order." This court
does not explain why Attorney Gillette is being treated the same
as Attorney Milos although the key aspects of the stipulations
in the two cases are different.2
II
¶37 The court's order imposing the Minnesota terms to make
the discipline identical in Wisconsin relies on two prior cases:
In re Disciplinary Proceedings Against Moree, 2004 WI 118, 275
Wis. 2d 279, 281, 684 N.W.2d 667, and In re Disciplinary
Proceedings Against Hooker, 2010 WI 13, 322 Wis. 2d 552, 779
N.W.2d 419. Neither case is applicable in the instant case.
¶38 In Moree, unlike in the instant case, "[t]he OLR and
Attorney Moree request and stipulate that as reciprocal
discipline this court impose a three-month suspension . . . and
order him to comply with the terms and conditions established by
the Illinois Supreme Court." Moree, 275 Wis. 2d at 281. Moree
agreed to imposition of the Illinois conditions. See also the
Milos case, described above.
2
For other cases in which the court imposed another state's
discipline, see In re Disciplinary Proceedings Against Waters,
2016 WI 15, 367 Wis. 2d 279, 876 N.W.2d 145 (the respondent
attorney did not respond to the court's order to show cause why
identical reciprocal discipline was unwarranted; the court
ordered compliance with restitution and (unstated) conditions
imposed by Michigan); In re Disciplinary Proceedings Against
Manion, 2016 WI 88, 372 Wis. 2d 34, 886 N.W.2d 371 (the
respondent attorney did not respond to the court's order to show
cause why identical reciprocal discipline was unwarranted; the
court "impose[d] discipline substantially identical to that
imposed by the Supreme Court of Arizona"; Arizona had ordered
restitution and (unstated) conditions).
5
No. 2016AP2267-D.ssa
¶39 In In re Disciplinary Proceedings Against Hooker, 2010
WI 13, ¶9, 322 Wis. 2d 552, 779 N.W.2d 419, this court ordered
Attorney Hooker to show cause why the imposition of discipline
identical to that imposed by Colorado would be unwarranted.
Attorney Hooker did not respond to the court order. The court
imposed a form of discipline imposed by Colorado even though
Wisconsin does not typically impose that form of discipline.
¶40 This court in the instant case has not given Attorney
Gillette or OLR notice and an opportunity to be heard on the
issue of what constitutes identical discipline. Instead, this
court unilaterally enlarges Gillette's and the OLR's stipulation
and decides by itself and for itself what constitutes identical
discipline.
¶41 As far as I am concerned, this court has overstepped
the stipulation and has not followed prior reciprocal discipline
cases in the instant case.
¶42 The instant case made me curious about other
reciprocal discipline cases. In searching the OLR discipline
cases of the last five years, I found 24 reciprocal discipline
cases to discuss in considering the instant case, In re
Disciplinary Proceedings Against Buzawa, No. 2016AP2351-D,
unpublished order (Wis. S. Ct. Apr. 10, 2017; separate writing
6
No. 2016AP2267-D.ssa
May 11, 2017), and In re Disciplinary Proceedings Against Peiss,
2017 WI 49, ___ Wis. 2d ___, ___ N.W.2d ___.3
¶43 In most of these reciprocal discipline cases in the
last five years, identical discipline could be and was imposed
in Wisconsin.
3
In many of these cases, the respondent attorney and OLR
stipulated to the reciprocal discipline or the respondent
attorney responded in some fashion to the OLR's complaint. See,
e.g., In re Disciplinary Proceedings Against Silberman, 2017 WI
10, 373 Wis. 2d 187, 890 N.W.2d 586; In re Disciplinary
Proceedings Against Jones, 2016 WI 86, 372 Wis. 2d 23, 886
N.W.2d 92; In re Disciplinary Proceedings Against Boyle, 2016 WI
40, 368 Wis. 2d 590, 879 N.W.2d 114; In re Disciplinary
Proceedings Against Borman, 2016 WI 25, 367 Wis. 2d 543, 877
N.W.2d 370; In re Disciplinary Proceedings Against Aleman, 2015
WI 112, 365 Wis. 2d 676, 872 N.W.2d 655; In re Disciplinary
Proceedings Against Fischer, 2014 WI 107, 852 N.W.2d 487; In re
Disciplinary Proceedings Against Albert, 2014 WI 105, 852
N.W.2d 488; In re Disciplinary Proceedings Against Nickitas,
2014 WI 12, 352 Wis. 2d 641, 843 N.W.2d 438; In re Disciplinary
Proceedings Against Stanek, 2013 WI 41, 347 Wis. 2d 216, 830
N.W.2d 639; In re Disciplinary Proceedings Against Butler, 2012
WI 37, 340 Wis. 2d 1, 811 N.W.2d 807; In re Disciplinary
Proceedings Against Addison, 2012 WI 38, 340 Wis. 2d 16, 813
N.W.2d 201.
In several of these cases, the respondent attorney did not
answer the OLR complaint and motion for reciprocal discipline.
See In re Disciplinary Proceedings Against Gonzalez, 2016 WI 87,
372 Wis. 2d 27, 886 N.W.2d 368; In re Disciplinary Proceedings
Against Waters, 2016 WI 15, 367 Wis. 2d 279, 876 N.W.2d 145; In
re Disciplinary Proceedings Against Stockman, 2014 WI 113, 358
Wis. 2d 341, 854 N.W.2d 370; In re Disciplinary Proceedings
Against Hicks, 2013 WI 9, 345 Wis. 2d 265, 826 N.W.2d 41; In re
Disciplinary Proceedings Against Payne, 2012 WI 109, 344
Wis. 2d 20, 821 N.W.2d 246.
In a few of these cases the respondent attorney challenged
the other state's disciplinary proceedings. See, e.g., In re
Disciplinary Proceedings Against Selmer, 2016 WI 71, 371
Wis. 2d 377, 882 N.W.2d 815; In re Disciplinary Proceedings
Against Strizic, 2015 WI 57, 362 Wis. 2d 659, 864 N.W.2d 869.
7
No. 2016AP2267-D.ssa
¶44 The other reciprocal discipline cases pose a variety
of issues. I have discussed Curtin and Milos above. Here is a
synopsis of some of these other reciprocal discipline cases.
¶45 In In re Disciplinary Proceedings Against Taber, 2012
WI 9, 338 Wis. 2d 534, 809 N.W.2d 29, Arizona imposed a one-year
suspension, probation with conditions, and restitution. The
attorney did not respond to this court's order to show cause why
reciprocal discipline was not warranted. The Wisconsin Supreme
Court suspended the attorney's license for one year and ordered
the attorney to comply with the terms of probation and
restitution. For other reciprocal discipline cases in which the
attorney did not respond to the court's order to show cause and
the court imposed conditions imposed by the other state not
generally imposed in Wisconsin, see In re Disciplinary
Proceedings Against Waters, 2016 WI 15, 367 Wis. 2d 279, 876
N.W.2d 145; In re Disciplinary Proceedings Against Manion, 2016
WI 88, 372 Wis. 2d 34, 886 N.W.2d 371.
¶46 In In re Disciplinary Proceedings Against Eichhorn-
Hicks, 2012 WI 18, 338 Wis. 2d 753, 809 N.W.2d 379, Minnesota
imposed a public reprimand, a one-year suspension, and probation
for two years with conditions. Because the period of probation
(without any violation) expired before this court imposed
reciprocal discipline, the discipline imposed in Wisconsin was
identical to that imposed by Minnesota: a public reprimand and
one-year suspension. The issue in Eichhorn-Hicks was whether
8
No. 2016AP2267-D.ssa
Wisconsin's one-year suspension should be effective as of the
date of the order or whether it should be retroactive.4
¶47 In In re Disciplinary Proceedings Against Nett, 2014
WI 106, 358 Wis. 2d 300, 852 N.W.2d 486, Minnesota suspended
Attorney Nett's Minnesota license with no right to petition for
reinstatement for a minimum of nine months. The attorney did
not timely respond to the Wisconsin Supreme Court's order to
show cause why reciprocal discipline is not warranted but sent a
letter to the OLR stating that she did not contest the OLR's
complaint requesting the court to suspend her license for one
year. This court stated it was imposing identical discipline
and suspended the attorney's Wisconsin license for one year, not
the nine months to which Minnesota referred. No explanation
appears for the one-year suspension rather than nine months.
¶48 In sum, three cautions arise from the instant case and
my analysis of the 24 reciprocal discipline cases in the last
five years:
(1) A stipulation is a stipulation is a stipulation. If
the court does not want to adhere to the stipulation,
it must take appropriate steps to decline the
stipulation. Although this court just cannot
4
Retroactive discipline in Wisconsin to run coterminous
with the suspension imposed by the other state was also raised
in In re Disciplinary Proceedings Against Nickitas, 2014 WI 12,
352 Wis. 2d 641, 843 N.W.2d 438.
Retroactive imposition of discipline is an issue that comes
up frequently in various types of discipline cases.
9
No. 2016AP2267-D.ssa
unilaterally stretch the terms of the stipulation to
make it suit the court's purposes, it has.
(2) The court should treat similarly situated persons
similarly. On the basis of my five-year study, the
case law in reciprocal discipline is not consistent.
(3) The instant case and the numerous reciprocal
discipline cases I summarize above are illustrative of
foreseeable and recurring problems in reciprocal
discipline. I suggest that the OLR Procedure Review
Committee (Professor Marsha Mansfield, University of
Wisconsin Law School, Reporter), appointed by the
court in June 2016, review and revise the Supreme
Court Rules imposing reciprocal identical discipline
when a lawyer licensed in Wisconsin is disciplined in
another state.
¶49 For the reasons set forth, I dissent from the per
curiam opinion imposing discipline beyond the 60-day suspension
to which Attorney Gillette and the OLR stipulated.
10
No. 2016AP2267-D.ssa
1