2018 WI 23
SUPREME COURT OF WISCONSIN
CASE NO.: 2013AP653-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Wendy Alison Nora, Attorney at Law:
Office of Lawyer Regulation,
Complainant-Respondent,
v.
Wendy Alison Nora,
Respondent-Appellant.
DISCIPLINARY PROCEEDINGS AGAINST NORA
OPINION FILED: March 30, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: November 7, 2017
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the respondent-appellant, there were briefs and an oral
argument by Wendy Alison Nora and Access Legal Services,
Minneapolis, Minnesota.
For the complainant-respondent, there was a brief and an
oral argument by Paul W. Schwarzenbart on behalf of the Office
of Lawyer Regulation, Madison.
2018 WI 23
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2013AP653-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Wendy Alison Nora, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant-Respondent,
MAR 30, 2018
v.
Sheila T. Reiff
Clerk of Supreme Court
Wendy Alison Nora,
Respondent-Appellant.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. Attorney Wendy Alison Nora appeals from
the report of the referee, Attorney Lisa C. Goldman, who found
that Attorney Nora had committed four violations of the Rules of
Professional Conduct for Attorneys and recommended that Attorney
No. 2013AP653-D
Nora's license to practice law in Wisconsin be suspended for one
year.1
¶2 Having heard oral argument and having fully reviewed
this matter, we conclude that the referee's factual findings are
not clearly erroneous and that those findings support the legal
conclusion that Attorney Nora committed the four counts of
professional misconduct alleged in the Office of Lawyer
Regulation's (OLR) amended complaint. We further determine that
the serious nature of Attorney Nora's misconduct and her
continued refusal to acknowledge her improper use of the
judicial system requires a one-year suspension of her license to
practice law in this state.
¶3 Attorney Nora was admitted to the practice of law in
this state in June 1975. She was also licensed to practice law
in the state of Minnesota in 1985. She currently practices law
under the name Access Legal Services in Minneapolis, Minnesota.
¶4 Attorney Nora has been the subject of professional
discipline in this state on one prior occasion. In 1993 this
court suspended Attorney Nora's license to practice law in
1
The referee also recommended that the court order Attorney
Nora to pay certain defense costs incurred by two law firms who
were sued by Attorney Nora and that the court require Attorney
Nora to pay the full costs of this disciplinary proceeding. Due
to the fact that Attorney Nora currently has a bankruptcy
proceeding pending and in order to avoid any possible conflict
with the automatic stay arising from that bankruptcy proceeding,
we have previously held the issues of restitution and costs in
this proceeding in abeyance. Consequently, we will not address
those issues in this decision.
2
No. 2013AP653-D
Wisconsin for 30 days, as discipline reciprocal to that imposed
by the Supreme Court of Minnesota. In re Disciplinary
Proceedings Against Nora, 173 Wis. 2d 660, 495 N.W.2d 99 (1993)
(Nora I).2
¶5 The allegations of misconduct in this case arise out
of a foreclosure action in the Dane County circuit court against
a residential property owned by Attorney Nora (the foreclosure
action) and three subsequent civil actions filed by Attorney
Nora against the circuit court judge and opposing counsel
involved in the foreclosure action. An understanding of some of
the procedural history of the foreclosure action, as found by
the referee or which is undisputed, is necessary to understand
the misconduct findings against Attorney Nora.
2
Attorney Nora's license to practice law in Minnesota was
indefinitely suspended with the ability to petition for
reinstatement after 30 days. The misconduct that resulted in
that suspension involved making misrepresentations concerning
the reopening and capitalization of a bank, failing to
adequately investigate the person who was to provide capital to
the bank, improperly authorizing the issuance of cashier checks
by the bank, bringing a frivolous claim against a bank,
transferring assets of her Minnesota law partnership in an
attempt to insulate those assets from collection, bringing
litigation primarily as a delay tactic, and asserting a legal
theory not justified by existing law. Nora I, 173 Wis. 2d at
660-61; see also In re Disciplinary Action Against Nora, 450
N.W.2d 328 (Minn. 1990). While her Wisconsin license was
reinstated in May 1993 after the 30-day suspension had expired,
she did not successfully petition to have her Minnesota license
reinstated until January 2007.
3
No. 2013AP653-D
¶6 On March 3, 2009, the law firm of Gray and Associates,
S.C. (the Gray firm) filed a foreclosure action3 against Attorney
Nora's residential property on behalf of Residential Funding
Corporation (RFC), which was a related entity of GMAC Mortgage
Group LLC. Shortly after the initiation of the foreclosure
action, the law firm of Bass & Moglowsky, S.C. (the Bass firm)
also appeared as co-counsel on behalf of RFC. Judge Juan B.
Colas was assigned to preside over the foreclosure action.
¶7 In July 2009, after Attorney Nora had filed a number
of motions and an answer to the complaint, Attorney David
Potteiger of the Bass firm filed a motion for summary judgment
on the issue of the foreclosure of the mortgage by RFC.
¶8 In August 2009 there were discussions between Attorney
Nora and RFC/GMAC regarding the execution of a possible
Foreclosure Repayment Agreement (the Agreement) that RFC/GMAC
had offered to Attorney Nora. The following facts were found by
the referee based on Attorney Nora's admission of the facts
alleged in the OLR's amended complaint, either through
admissions in Attorney Nora's answer to the amended complaint or
through an oral admission during argument on OLR's motion for
summary judgment.
¶9 On August 23, 2009, Attorney Nora executed a copy of
the Agreement, but she had modified a number of material terms.
Specifically, she had written into the Agreement that she
3
Residential Funding Co. LLC v. Nora, Dane County Case No.
09-CV-1096.
4
No. 2013AP653-D
reserved the right to challenge the amount that remained due on
the note and that she also reserved the right to assert
counterclaims against RFC/GMAC.
¶10 After consulting with his client, on August 25, 2009,
Attorney Potteiger "informed [Attorney] Nora in writing that the
reservation of her counterclaims found in [Attorney] Nora's
Foreclosure Repayment Agreement counteroffer was rejected" and
that "no settlement offer existed."4 Specifically, Attorney
Potteiger explained in an affidavit that he had sent an email to
Attorney Nora at 4:20 p.m. on August 25, 2009, advising her of
his client's rejection of her counteroffer. At the time that
the referee held a hearing on the OLR's summary judgment motion,
Attorney Nora did not claim that she had failed to receive
Attorney Potteiger's August 25, 2009 email.
¶11 At approximately 9:44 a.m. on August 26, 2009,
Attorney Nora sent a letter and a copy of the Agreement to Judge
Colas via facsimile transmission. Her letter said that as a
result of the Agreement, proceedings in the foreclosure action
"are stayed." Even if the Agreement was not then in effect,
Attorney Nora's letter implied that an agreement was imminent,
which still required the foreclosure action to be stayed. The
referee found that this was a knowing misrepresentation, as
Attorney Nora knew when she sent the letter that her
4
In her answer, Attorney Nora specifically admitted the
truth of these statements, which were found in paragraph 22 of
the OLR's Amended Complaint.
5
No. 2013AP653-D
counteroffer had been rejected and the offer of an Agreement had
been withdrawn by RFC.
¶12 On September 21, 2009, Judge Colas denied Attorney
Nora's request to schedule oral argument on RFC's summary
judgment motion, but extended the time for her to file a
response until October 1, 2009. Rather than file a summary
judgment response, however, three days before that response was
due Attorney Nora filed a personal bankruptcy petition, which
stayed the foreclosure action.
¶13 The bankruptcy stay was lifted on December 18, 2009,
which meant that the remaining few days to file a response to
the summary judgment motion in the foreclosure action resumed
running. Attorney Nora, however, did not file a response to
RFC's summary judgment motion. On January 6, 2010, Attorney
Potteiger notified Judge Colas in writing (with a copy to
Attorney Nora) that the bankruptcy stay had been lifted.
Attorney Potteiger sent a subsequent letter to Judge Colas
indicating that, in light of the lifting of the stay and
Attorney Nora's failure to file a response, the court could
consider the summary judgment motion as being unopposed.
Between January 14-22, 2010, Attorney Nora filed a number of
motions and what she labeled as a "verified response" to the
summary judgment motion. On February 9, 2010, Judge Colas
granted RFC's motion for summary judgment allowing foreclosure
of Attorney Nora's residential property. He struck Attorney
Nora's "verified response" both because it was untimely and
because it was a "mixture of argument, motions, and allegations
6
No. 2013AP653-D
of fact" rather than a brief with properly developed arguments
and supporting affidavits. Attorney Nora did not appeal the
grant of summary judgment of foreclosure.
¶14 On February 22, 2010, after the grant of summary
judgment, Attorney Nora filed a request in the foreclosure
action seeking accommodations on account of an alleged
disability.5 She subsequently requested Judge Colas to appoint a
guardian ad litem (GAL) for her. On March 29, 2010, Judge Colas
denied Attorney Nora's request for reconsideration of his order
granting summary judgment of foreclosure to RFC and her request
for the appointment of a GAL. His order noted that all
essential legal work in the case had concluded prior to Attorney
Nora's request for an accommodation or the appointment of a GAL,
that she had failed to present evidence meeting the standard for
the appointment of a GAL, and that she had offered no legal
authority for applying her accommodation and GAL requests
retroactively to allow her to relitigate the summary judgment
motion. Judge Colas denied a subsequent motion by Attorney Nora
in which she sought reconsideration of the denial of her request
for a GAL and sought the recusal of Judge Colas.
5
The referee noted that Attorney Nora testified in this
proceeding that she had sought assistance with accommodation
issues from the clerk of circuit court in January 2010 because
of medical issues, but the clerk's office advised her that she
needed to request additional time to respond to pleadings and
motions from Judge Colas. She did not do so until after he had
granted summary judgment against her.
7
No. 2013AP653-D
¶15 On November 15, 2010, almost eight months after Judge
Colas had granted summary judgment against Attorney Nora, she
sued him personally in the United States District Court for the
Western District of Wisconsin (the Western District Court),
alleging that he had violated the Americans with Disabilities
Act (ADA), as revised. Her claim essentially was that Judge
Colas had violated her federal statutory rights to disability
accommodations due to an alleged back injury by not granting her
extensions of time to respond to RFC's filings in the
foreclosure action. As part of her request for relief, she
asked the federal court to remove Judge Colas from the
foreclosure action and to vacate the summary judgment order of
foreclosure. Within a week of filing the federal complaint
against Judge Colas, she filed a motion in the state foreclosure
action to disqualify Judge Colas from continuing to preside on
the ground that he was now an adverse party to Attorney Nora in
a lawsuit. Attorney Nora ultimately dismissed the federal
action in March 2011.
¶16 The referee found that there had been no good faith
basis for Attorney Nora's federal ADA claim against Judge Colas.
Attorney Nora alleged that in the state foreclosure action, he
had denied her disability accommodations, but the referee found
that she had not asked Judge Colas for disability accommodations
prior to his grant of summary judgment nor had she properly
responded to RFC's summary judgment motion despite having months
to do so. Moreover, although Attorney Nora claimed that she had
initiated the federal action in order to obtain disability
8
No. 2013AP653-D
accommodations in the foreclosure action, the referee stated
that Attorney Nora admitted that she was no longer experiencing
a disability at the time she filed the federal action, as
evidenced by the fact that she never sought disability
accommodations in the federal action. The referee found that
Attorney Nora's federal action against Judge Colas, especially
her request that the federal court remove him from the
foreclosure action and void the grant of summary judgment, had
not been brought for a legitimate purpose, but rather to harass
Judge Colas and to obstruct the foreclosure of her property.
¶17 On November 29, 2010, the day before the scheduled
sheriff's sale of her Madison property and two weeks after she
had initiated her federal lawsuit against Judge Colas, Attorney
Nora sent an email to Attorney Potteiger, the Bass firm, another
lawyer, and the Gray firm, threatening to sue them in federal
court if they did not cancel the sheriff's sale. She filed a
federal complaint in the Western District Court the same day
alleging, among other things, that the opposing attorneys had
violated the federal Racketeer Influenced and Corrupt
Organizations Act (RICO), by, among other things, creating a
fraudulent assignment of her mortgage and note to RFC and
bringing the foreclosure action based on those fraudulent
assignments.6 In her prayer for relief, Attorney Nora asked the
6
This action against her former opposing counsel in the
Western District Court will be referenced in this opinion as
"the RICO district court action" to distinguish it from the
action against Judge Colas and a similar action filed in a
federal bankruptcy court, which is discussed below.
9
No. 2013AP653-D
federal court essentially to void the state court foreclosure
judgment and to award her title to her home free and clear of
any lien by RFC and GMAC. She also sought an injunction against
the sheriff's sale and what the referee characterized as
"exorbitant" compensatory and punitive damages.
¶18 Some of the defendant attorneys and law firms were
forced to hire counsel to defend against Attorney Nora's
complaint. On September 30, 2012, the Western District Court
granted the defendants' motions to dismiss, holding that
Attorney Nora's claims were barred by both the Rooker-Feldman
doctrine7 and claim preclusion. Attorney Nora appealed, and the
United States Court of Appeals for the Seventh Circuit affirmed.
¶19 The referee in this disciplinary case found that,
based on Attorney Nora's 40 years of experience as an attorney
and her comments during the summary judgment hearing, she
understood the Rooker-Feldman doctrine before she filed any of
her federal court actions. The referee further found that
Attorney Nora did not have a good faith basis for filing the
RICO district court action against the defendants in the Western
7
The Rooker-Feldman doctrine, which is based on the concept
that only the United States Supreme Court may review state court
judgments applying federal law, broadly prohibits federal courts
from exercising subject matter jurisdiction over claims that
seek relief that is tantamount to vacating a state court
judgment. United States v. Alkaramla, 872 F.3d 532, 534 (7th
Cir. 2017); Mains v. Citibank, N.A., 852 F.3d 669, 675 (7th Cir.
2017); see also Rooker v. Fidelity Trust Co., 263 U.S. 413
(1923); District of Columbia Court of Appeals v. Feldman, 460
U.S. 462 (1983).
10
No. 2013AP653-D
District Court and that she had filed that action in order to
harass them for taking away her Madison residence.
¶20 On March 18, 2013, nearly six months after the Western
District Court had ruled that her claims against her former
opposing counsel could not be brought in federal court, Attorney
Nora filed an adversarial proceeding against many of the same
defendants in a bankruptcy proceeding in the United States
Bankruptcy Court for the Southern District of New York (the
Southern District Bankruptcy Court).8 The referee found that the
allegations in Attorney Nora's complaints in the RICO district
court action and the Southern District adversarial proceeding
were almost identical, that Attorney Nora knew that the
adversarial proceeding was barred by the Rooker-Feldman
doctrine, and that she had initiated the adversarial proceeding
to harass her former opposing counsel and to reverse the state
court foreclosure judgment.
¶21 After nearly eight months, Attorney Nora dismissed her
Southern District adversarial proceeding as part of a settlement
with the defendant attorneys and law firms. The referee found
that the defendant attorneys spent a considerable amount of time
8
This adversarial proceeding will be referenced in this
opinion as "the Southern District adversarial proceeding."
11
No. 2013AP653-D
and money defending both the RICO district court action and the
Southern District adversarial proceeding.9
¶22 On the basis of these factual findings, either as
admitted by Attorney Nora or as found by the referee after an
evidentiary hearing, the referee concluded that the OLR had
proven all four counts of misconduct alleged in its amended
complaint by clear, satisfactory, and convincing evidence.
Specifically, the referee determined with respect to Count 2
that Attorney Nora's August 26, 2009, facsimile transmission to
Judge Colas alleging that her execution of a modified version of
the Agreement stayed the foreclosure action constituted a false
statement of material fact made to a tribunal, in violation of
SCR 20:3.3(a)(1). On Count 1, the referee concluded that in
bringing the federal lawsuit against Judge Colas, Attorney Nora
had knowingly advanced a claim that was unwarranted under
existing law (or a good faith argument for an extension,
modification, or reversal of the law) and had filed a suit when
she knew that the action would serve merely to harass or
maliciously injure another, in violation of SCR 20:3.1(a). With
respect to Counts 3 and 4, the referee also concluded that
Attorney Nora's two federal complaints against her former
9
For example, the referee determined that the Gray firm had
spent over $25,000 hiring a separate law firm to defend against
just the RICO district court action. Further, the Bass firm's
malpractice insurance premiums rose as a result of Attorney
Nora's allegations in the RICO district court action and the
Southern District adversarial proceeding.
12
No. 2013AP653-D
opposing counsel had likewise constituted violations of
SCR 20:3.1(a).
¶23 Citing the factors that this court has set forth for
analyzing the appropriate level of discipline,10 the referee
recommended that the court suspend Attorney Nora's license to
practice law in this state for a period of one year. The
referee acknowledged that other attorneys have committed more
numerous violations, but stated that Attorney Nora's "violations
involving an aggressive strategy to harm others warrant a
suspension necessitating a petition for reinstatement so some
investigation into her ability to conform her litigation tactics
to appropriate boundaries occurs." The referee compared
Attorney Nora's misconduct to the filing and maintaining of a
frivolous lawsuit that resulted in this court imposing a six-
month suspension. In re Disciplinary Proceedings Against
Widule, 2003 WI 34, 261 Wis. 2d 45, 660 N.W.2d 686. Unlike
Attorney Widule, however, Attorney Nora had a prior disciplinary
suspension for misconduct (dishonesty and improper litigation
tactics) that the referee concluded was similar to the
misconduct at issue in the present proceeding. Consequently,
10
Those factors include: "(1) the seriousness, nature and
extent of the misconduct; (2) the level of discipline needed to
protect the public, the courts, and the legal system from
repetition of the attorney's misconduct; (3) the need to impress
upon the attorney the seriousness of the misconduct; and (4) the
need to deter other attorneys from committing similar
misconduct." In re Disciplinary Proceedings Against Carroll,
2001 WI 130, ¶40, 248 Wis. 2d 662, 636 N.W.2d 718.
13
No. 2013AP653-D
the referee believed that a more severe level of discipline was
warranted for Attorney Nora.
¶24 When we review a referee's report, we will affirm a
referee's findings of fact unless they are found to be clearly
erroneous, but we review 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. We determine
the appropriate level of discipline to impose given the
particular facts of each case, independent of the referee's
recommendation, but benefiting from it. Widule, 261 Wis. 2d 45,
¶44.
¶25 Nearly all of Attorney Nora's arguments on appeal11
focus on challenges to the procedures that the OLR and the
referee followed, both prior to and during this disciplinary
case. The only real challenge to the substance of the referee's
report is found at the very end of Attorney Nora's opening
brief, where she asserts that the evidence was insufficient to
support the referee's conclusions of misconduct on Count 1
(Judge Colas lawsuit), Count 3 (RICO district court action), and
11
In multiple places in her briefs, Attorney Nora purports
to incorporate by reference arguments from prior filings. This
is improper in appellate briefs, which are limited to a
specified number of words or pages by rule. See, e.g., State v.
Armstead, 220 Wis. 2d 626, 642 n.6, 583 N.W.2d 444 (Ct. App.
1998); State v. Flynn, 190 Wis. 2d 31, 58, 527 N.W.2d 343 (Ct.
App. 1994); see also Michael S. Heffernan, Appellate Practice
and Procedure in Wisconsin § 11.14 (7th Ed. 2017).
14
No. 2013AP653-D
Count 4 (Southern District adversarial proceeding). Before
turning to her various procedural arguments, we will analyze the
referee's conclusions of violations on all four counts, as that
impacts some of Attorney Nora's procedural arguments.
¶26 First, we address Count 2. We agree with the referee
that summary judgment on this count was appropriate. Attorney
Nora admitted all of the allegations in the OLR's amended
complaint, either in her answer or during argument on the OLR's
summary judgment motion. Specifically, she admitted that (1)
she had changed a material term in the offer by writing in a
reservation of her claims against the lender and (2) on the day
before she faxed her letter to Judge Colas, Attorney Potteiger
"informed [her] in writing that the reservation of her
counterclaims found in [Attorney] Nora's Foreclosure Repayment
Agreement counteroffer was rejected." Attorney Potteiger's
informing her of that fact necessarily included that she had
received his writing (i.e., his email). Attorney Nora's claim
after summary judgment on Count 2 that she had not received his
email is therefore unavailing. Her admissions demonstrate that
her letter to Judge Colas contained a knowingly false statement.
¶27 Further, Attorney Nora's receipt of Attorney
Potteiger's August 25, 2009 email is unnecessary to uphold the
violation of SCR 20:3.3(a)(1). Like all law students, Attorney
Nora knew that making material revisions to a contract offer and
then signing the revised contract offer does not constitute an
acceptance of the offer, but rather creates a counteroffer that
the other party must affirmatively accept before there is an
15
No. 2013AP653-D
agreement. See, e.g., Schwartz v. Handorf, 7 Wis. 2d 228, 236,
96 N.W.2d 366 (1959); Fricano v. Bank of America NA, 2016 WI App
11, ¶29, 366 Wis. 2d 748, 875 N.W.2d 143 (". . . an acceptance
that varies the terms of the offer constitutes a rejection and a
counteroffer"). She therefore knew at the time of her facsimile
transmission to Judge Colas, even without regard to whether she
had received Attorney Potteiger's reply email, that she had no
binding contract. The assertion in her letter that the
foreclosure action was therefore stayed because of the
Foreclosure Repayment Agreement was a false statement of fact
that Attorney Nora knew to be false. Accordingly, we accept the
referee's conclusion of a violation of SCR 20:3.3(a)(1).
¶28 With respect to Attorney Nora's federal action against
Judge Colas, the referee found that Attorney Nora had not had a
legitimate purpose for filing the complaint and that she had
done so in order to harass Judge Colas and obstruct the
foreclosure action. Attorney Nora attacks these findings only
by making a general allegation that the evidence was
insufficient to support a violation and by asserting that Judge
Colas was not protected by judicial immunity because her request
for retroactive extensions of time due to an alleged disability
were administrative matters. She does not specifically allege
that the referee's findings are clearly erroneous.
¶29 Attorney Nora's assertion about a lack of judicial
immunity, however, is irrelevant. The referee did not find that
her federal action against Judge Colas was without merit because
he was immune from suit. The referee found that Attorney Nora
16
No. 2013AP653-D
claimed she brought the suit because she wanted to obtain
disability accommodations, but she did not seek such
accommodations from Judge Colas before he granted summary
judgment against her and she no longer needed accommodations
when she initiated the federal action. Moreover, the referee
found that Attorney Nora brought the federal claim against Judge
Colas not to gain disability accommodations, but as a way to
force him off the foreclosure action and to undo his prior
summary judgment ruling, which was included in her prayer for
relief in the federal action. Given the facts as found by the
referee, we agree that Attorney Nora's federal action against
Judge Colas, at least to the extent it sought his
disqualification and the vacation of the summary judgment in the
state foreclosure action, was unwarranted under existing law and
was clearly pursued in an attempt to harass or maliciously
injure another, in violation of SCR 20:3.1(a).
¶30 Attorney Nora also alleges that there was insufficient
evidence to support Counts 3 and 4 regarding her RICO actions
against her former opposing counsel. She asserts that attorneys
who actively participate in conspiracies that violate RICO are
liable for damages to an injured party. As in her complaint
against Judge Colas, however, her complaints against her
opposing counsel were not simply seeking an award of damages,
but were attempts to attack the foreclosure judgment
collaterally. According to the referee, Attorney Nora initially
tried in this proceeding to present certain arguments as to why
her RICO complaints had been brought in good faith under
17
No. 2013AP653-D
existing law, but she then abandoned those arguments when she
filed her post-hearing brief. The referee concluded that
Attorney Nora lacked credibility in her claims, that she
understood the Rooker-Feldman doctrine based on her own
assertions of experience with it, that she filed the federal
RICO actions for the ulterior purpose of undoing or avoiding the
state foreclosure judgment despite her knowledge that the
doctrine prohibits subsequent federal actions from overturning
prior state court judgments, and that she pursued the federal
RICO actions to harass her former opponents. Tellingly,
Attorney Nora does not dispute in her briefs that her federal
RICO actions were intended to undo or avoid the foreclosure
judgment or that she knew the Rooker-Feldman doctrine prevented
the federal courts from invalidating that judgment.
Accordingly, we agree with the referee that, based on the
referee's findings, there is sufficient evidence to conclude
that Attorney Nora violated SCR 20:3.1(a) by pursuing the two
RICO actions against her former opposing counsel, as alleged in
Counts 3 and 4.
¶31 We now turn to Attorney Nora's arguments challenging
the process by which the OLR conducted its investigation and
charging decision. She initially argues that this disciplinary
proceeding violated her rights to free speech and to petition
the government under the First Amendment to the United States
Constitution and Article I, § 4 of the Wisconsin Constitution
because the OLR intended to punish her on behalf of her
litigation opponents. We reject her claims. First, she offers
18
No. 2013AP653-D
absolutely no evidence to support her bare claim that the OLR
intended to punish her. Second, Attorney Nora fails to
recognize that there is no First Amendment right to violate
ethical rules in litigation that prohibit attorneys from making
false statements to tribunals and from using court proceedings
to harass or maliciously injure presiding judges or opposing
counsel. See, e.g., Zauderer v. Office of Disciplinary Counsel
of Supreme Court of Ohio, 471 U.S. 626, 638 (1985) ("The States
and the Federal Government are free to prevent the dissemination
of commercial speech that is false, deceptive, or misleading.");
Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974) ("But
there is no constitutional value in false statements of fact.");
McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429,
436 (1988) ("Neither paid nor appointed counsel may deliberately
mislead the court with respect to either the facts or the law,
or consume the time and the energies of the court or the
opposing party by advancing frivolous arguments."); Florida Bar
v. Sayler, 721 So. 2d 1152 (Fla. 1998) ("The First Amendment
does not protect those who make harassing or threatening remarks
about the judiciary or opposing counsel.").
¶32 Attorney Nora also asserts that she was deprived of
due process and equal protection12 during the investigation
12
Although Attorney Nora mentions equal protection in her
brief, she does not develop any legal argument based on equal
protection. Accordingly, we do not consider that issue.
Parsons v. Associated Banc-Corp., 2017 WI 37, ¶39 n.8, 374
Wis. 2d 513, 893 N.W.2d 212.
19
No. 2013AP653-D
conducted by the OLR. Specifically, she alleges that the OLR
violated her due process rights by improperly using and re-
disclosing her medical information to the Preliminary Review
Panel (PRP). We need not decide the merits of her claims in the
context of this disciplinary proceeding. We conclude that this
situation is similar to a claim of error at a preliminary
hearing in a criminal case, which we have refused to decide when
there has been a proper subsequent trial. State v. Webb, 160
Wis. 2d 622, 628, 467 N.W.2d 108 (1991) ("We do not decide the
question of whether there was error at the preliminary hearing
in this case, because we hold that a conviction resulting from a
fair and errorless trial in effect cures any error at the
preliminary hearing."). Similarly, to the extent that Attorney
Nora is alleging an error or impropriety in the investigation
phase, we conclude that the subsequent holding of a proper
disciplinary hearing cured any arguable error.13
¶33 Attorney Nora also alleges that her due process rights
were violated in the charging decision. Specifically, she
points to the fact that Attorney Edward A. Hannan, who was the
13
In any event, we question how Attorney Nora's allegations
would foreclose this court from considering whether she can be
disciplined for violation of the Rules of Professional Conduct
for Attorneys. First, the OLR did not offer any of the medical
information in this disciplinary case. Thus, no violation is
based on any of the medical information. Further, the referee
found that the records, which had been submitted to a federal
district court, were not confidential and had not been treated
as confidential by the federal district court, a fact which
Attorney Nora admitted at the disciplinary hearing.
20
No. 2013AP653-D
chair of the Preliminary Review Committee (PRC), had a conflict
of interest because he was representing parties who were adverse
to Attorney Nora in a civil action pending in the Waukesha
County circuit court (Bank of America, N.A. v. Brown, Waukesha
County Case No. 2011CV3333).14
¶34 Attorney Nora is not entitled to any relief regarding
this allegation. Initially, we note that this argument was
raised for the first time on appeal, and we generally do not
address the merits of untimely issues, especially where raising
the issue could have allowed the parties or the tribunal to take
action to eliminate the ground for the objection. Terpstra v.
14
Attorney Nora has filed a request for the court to take
judicial notice of five documents, but it is clear from her
request that she is really asking the court to take judicial
notice of two adjudicative facts from those documents: (1) that
Attorney Hannan served as the chair of the PRC during the 2012-
13 fiscal year when the cause-to-proceed determination regarding
the counts of misconduct alleged in this case was made, and (2)
that during the same time period Attorney Hannan represented
parties who were adverse to Attorney Nora in the Waukesha County
circuit court action. We take judicial notice of these two
adjudicative facts as they are "capable of accurate and ready
determination by resort to sources whose accuracy cannot
reasonably be questioned." Wis. Stat. § 902.01(2)(b). We do
not take judicial notice of all of the contents of the five
documents because not all of those contents meet this criteria.
With respect to the fifth identified document, Attorney Nora's
petition for an interlocutory appeal in this disciplinary
proceeding, there is no need for us to take judicial notice as
that document is before us as a filing in this disciplinary
action.
21
No. 2013AP653-D
Soiltest, Inc., 63 Wis. 2d 585, 593, 218 N.W.2d 129 (1974). We
decline to do so here.15
¶35 Attorney Nora also claims that this disciplinary
proceeding must be invalidated in its entirety because the
referee, Attorney Lisa C. Goldman, was biased against her. As
examples of this alleged bias, Attorney Nora points to various
decisions and rulings by Referee Goldman that were adverse to,
and even critical of, Attorney Nora's requests or positions.
Mere adverse rulings or critical statements based on a judicial
officer's consideration of a litigant's arguments or evidence
and the officer's experience with a litigant during a
proceeding, however, are usually not sufficient to demonstrate
bias on behalf of the presiding judicial official. See, e.g.,
Liteky v. United States, 510 U.S. 540, 555 (1994) ("First,
judicial rulings alone almost never constitute a valid basis for
a bias or partiality motion. . . . Second, opinions formed by
the judge on the basis of facts introduced or events occurring
in the course of the current proceedings, or of prior
15
Even if we were to consider the claim, Attorney Nora has
not demonstrated that her due process rights were violated. The
cause-to-proceed determination in a disciplinary investigation
is made by a Preliminary Review Panel, which is only a subset of
the PRC. Although Attorney Hannan was the chair of the PRC,
Attorney Nora does not allege that he was a member of the panel
that actually reviewed her case. Indeed, at oral argument,
counsel for the OLR advised the court that he was not a member
of that panel, and Attorney Nora did not dispute that fact.
Thus, Attorney Nora cannot show that the cause-to-proceed
determination in this matter was tainted by a panel member who
had a conflict of interest.
22
No. 2013AP653-D
proceedings, do not constitute a basis for a bias or partiality
motion unless they display a deep-seated favoritism or
antagonism that would make fair judgment impossible. Thus,
judicial remarks during the course of a trial that are critical
or disapproving of, or even hostile to, counsel, the parties, or
their cases, ordinarily do not support a bias or partiality
challenge."). We also disagree with Attorney Nora's claim that
Referee Goldman demonstrated bias by becoming an advocate for
the OLR rather than a neutral and detached magistrate. The
record does not support this assertion.
¶36 Attorney Nora also alleges that Referee Goldman
demonstrated bias by comparing Attorney Nora's continuing
practice of law to a criminal who keeps committing crimes after
charges have already been filed. This claim, however, is not
accurate because it takes the referee's statement out of
context. The referee never called Attorney Nora a criminal or
compared her to a criminal. It is clear from the context of the
referee's statement, which was made in the course of denying the
OLR's motion for leave to file an amended complaint to add new,
unrelated counts, that the referee believed such an amendment at
that point in the case would interfere with the efficient
resolution of this ongoing proceeding. The referee was simply
reasoning by analogy to the question of amending criminal
complaints to add new alleged crimes. Her point was that when
there can be a new criminal charge based on conduct that
occurred after the initial criminal complaint has been filed,
courts usually require prosecutors to initiate a second criminal
23
No. 2013AP653-D
proceeding rather than delaying a pending criminal case through
an amendment of that complaint. The referee's comments about
this procedural issue evince no animus toward Attorney Nora.
¶37 Finally, Attorney Nora claims that the referee
admitted her bias because in her decision denying Attorney
Nora's second motion for disqualification, the referee stated
that she had "not acted impartially." This argument borders on
the frivolous, as it is clear from the surrounding text that the
inclusion of the word "not" was an unintended, typographical
error. The referee unambiguously rejected Attorney Nora's
claims that she was biased. There is no legal basis for this
court to find otherwise.
¶38 In the end, we find no basis in the record to overturn
Referee Goldman's subjective determination that she could be
fair in her duties or to conclude that Referee Goldman was
objectively biased.
¶39 We have considered the rest of Attorney Nora's
arguments alleging prosecutorial misconduct by the OLR and
erroneous procedures by the referee. We conclude that they are
without legal merit, although we will not address them
specifically in this opinion.
¶40 We turn now to the issue of the appropriate sanction
for the four counts of misconduct that we have found. We agree
with the referee's analysis of Attorney Nora's misconduct in
comparison to the misconduct that resulted in a six-month
suspension for Attorney Widule. Unlike Attorney Widule,
Attorney Nora has been disciplined previously for misconduct,
24
No. 2013AP653-D
some of which was similar in nature. Moreover, her misconduct
in this case is aggravated by the fact that it was not an
isolated occurrence, but rather was a pattern of multiple
instances of misconduct that stretched over a substantial period
of time. In addition, her misconduct was not based on her
failure to do something, but on her affirmative and aggressive
attempts to use the judicial system to obstruct the foreclosure
of her property and to harass those she apparently deemed
responsible for the loss of that property. She has offered no
basis for this court to conclude that she recognizes her
misconduct or that she would change her tactics in similar
circumstances in the future. Accordingly, we conclude that the
misconduct at issue here requires a more severe level of
discipline than we imposed on Attorney Widule. We determine
that a one-year suspension of Attorney Nora's license to
practice law in Wisconsin is necessary and appropriate under
these circumstances.
¶41 Finally, it seems apparent that Attorney Nora believes
that she must personally fight abuses or improprieties in the
real estate lending industry. A lawyer's fight for any cause,
however noble one might think it to be, must be conducted within
the ethical rules that govern the lawyer's conduct. Attorney
Nora must demonstrate that she understands this principle and
can conform her conduct to the applicable ethical rules before
she may return to the practice of law in this state.
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No. 2013AP653-D
¶42 IT IS ORDERED that the license of Wendy Alison Nora to
practice law in Wisconsin is suspended for a period of one year,
effective April 30, 2018.
¶43 IT IS FURTHER ORDERED that the issues of restitution
and the assessment of costs shall continue to be held in
abeyance for resolution at a subsequent time after the automatic
stay arising from Attorney Nora's bankruptcy proceeding has been
lifted.
¶44 IT IS FURTHER ORDERED that Wendy Alison Nora 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.
¶45 IT IS FURTHER ORDERED that compliance with all
conditions of this order is required for reinstatement from the
suspension imposed herein.
26