2021 WI 75
SUPREME COURT OF WISCONSIN
CASE NO.: 2018AP1781-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Robert B. Moodie, Attorney at Law:
Office of Lawyer Regulation,
Complainant-Respondent,
v.
Robert B. Moodie,
Respondent-Appellant.
ATTORNEY MOODIE REINSTATEMENT PROCEEDIGNS
Reported at 391 Wis. 26 196,942 N.W.2d 302
PDC No:2020 WI 39 - Published
OPINION FILED: August 31, 2021
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
Per Curiam. ZIEGLER, C.J., filed a concurring opinion.
NOT PARTICIPATING:
ATTORNEYS:
2021 WI 75
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2018AP1781-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Robert B. Moodie, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant-Respondent, AUG 31, 2021
v. Sheila T. Reiff
Clerk of Supreme Court
Robert B. Moodie,
Respondent-Appellant.
ATTORNEY reinstatement proceeding. Reinstatement granted.
¶1 PER CURIAM. We review the report and recommendation
of Referee Jean A. DiMotto that Attorney Robert B. Moodie's
petition for reinstatement of his license to practice law in
Wisconsin be granted.1 Upon careful of review of the matter, we
1 Because neither party appealed from the referee's report
and recommendation, our review proceeds under Supreme Court Rule
(SCR) 22.33(3), which provides that "[i]f no appeal is timely
filed, the supreme court shall review the referee's report,
order reinstatement, with or without conditions, deny
reinstatement, or order the parties to file briefs in the
matter."
No. 2018AP1781-D
agree that Attorney Moodie's license should be reinstated. We
also agree with the referee that Attorney Moodie should be
required to pay the full costs of this reinstatement proceeding,
which are $3,594.27 as of June 2, 2021.
¶2 Attorney Moodie was admitted to practice law in
Wisconsin in 1982. He had no disciplinary history prior to the
matter giving rise to this reinstatement proceeding.
¶3 Effective June 3, 2020, this court suspended Attorney
Moodie's law license for a period of six months as discipline
for his conversion of fees belonging to his law firm to his
personal use. In re Disciplinary Proceedings Against Moodie,
2020 WI 39, 391 Wis. 2d 196, 942 N.W.2d 302.
¶4 On October 1, 2020, Attorney Moodie filed a petition
for reinstatement of his law license. The petition alleged,
among other things, that Attorney Moodie had complied fully with
the terms of this court's suspension order, that he had
maintained competence and learning in the law, that his conduct
since the suspension had been exemplary and above reproach, and
that he had fully complied with the requirements set forth in
SCR 22.26.
¶5 On January 12, 2021, the Board of Bar Examiners filed
a memorandum, stating that Attorney Moodie was currently in
compliance with the court's continuing legal education and
ethics and professional responsibility requirements for
reinstatement.
¶6 On March 4, 2021, the Office of Lawyer Regulation
(OLR) filed a response to Attorney Moodie's petition for
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reinstatement. The OLR stated that it supported Attorney
Moodie's petition for reinstatement so long as he could prove at
the reinstatement hearing that, in the words of this court's
disciplinary decision, he can "fully account for his moral
lapses and explain how they have been addressed to ensure they
will not happen again." Moodie, 391 Wis. 2d 196, ¶17.
¶7 On October 12, 2020, this court appointed a referee,
who conducted a reinstatement hearing on April 8, 2021.
Attorney Moodie testified at the hearing, as well as two
witnesses who supported his reinstatement. The referee also
received several letters in support of Attorney Moodie's
reinstatement.
¶8 On May 12, 2021, the referee filed a report and
recommendation. The referee concluded that Attorney Moodie had
satisfied the requirements for reinstatement. See (former)
SCR 22.31(1) and SCR 22.29(4)(a)-(4m).2 The referee observed
that Attorney Moodie testified in a contrite and forthright
manner during the reinstatement hearing and expressed "abject
remorse and shame" for his misconduct. The referee noted that
Attorney Moodie "has been reckoning with his misconduct for four
Effective January 1, 2021, substantial changes were made
2
to the rules pertaining to lawyer disciplinary procedures,
including the reinstatement rules, SCR 22.29 through 22.33.
See S. Ct. Order 19-06, 19-07, 19-08, 19-09, 19-10, 19-11, and
19-12, 2020 WI 62 (issued June 30, 2020, eff. Jan. 1, 2021).
Because this reinstatement proceeding commenced prior to January
1, 2021, unless otherwise indicated, all references to the
supreme court rules will be to those in effect prior to
January 1, 2021.
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No. 2018AP1781-D
years now"; that he understands that it was driven by his
personal dissatisfaction with the direction of his former law
firm's management; and that he "now recognizes what he could
have done differently to avoid the misconduct: discuss with his
partners their and his different viewpoints about running a
firm, client development and retention, and compensation." The
referee found that Attorney Moodie has not practiced law during
the period of his suspension; that he has complied with the
terms of the order of suspension and will continue to do so
until his license is reinstated; that he has maintained
competence and learning in the law; that his conduct since the
suspension has been exemplary and above reproach; that he has a
proper understanding of and attitude towards the standards that
are imposed upon members of the bar and will act in conformity
with those standards; that he can be safely recommended to the
legal profession, the courts, and the public as a person fit to
be consulted by others and to represent them and otherwise act
in matters of trust and confidence and in general to aid in the
administration of justice as a member of the bar and as an
officer of the courts; and that he owes no restitution. The
referee also found that, if his license is reinstated, Attorney
Moodie has planned his resumption of practice in such a way as
to obviate the risk of his misconduct reoccurring; specifically,
to practice only as a solo practitioner, only for friends and
former clients, and only in his areas of competence——small
business transactions, estate planning, and residential real
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No. 2018AP1781-D
estate matters. The referee also noted that the OLR had no
objection to Attorney Moodie's reinstatement.
¶9 Ultimately, the referee wrote that she was "satisfied
that Mr. Moodie has complied with all requirements for
reinstatement, that he understands the wrongfulness of his
conduct and his underlying motivation for it, that he is
authentically remorseful, and has indeed become a better person"
during the four years since his misconduct came to light. Thus,
the referee recommended that the court reinstate Attorney
Moodie's law license. The referee also recommended that
Attorney Moodie be ordered to pay the full costs of this
reinstatement proceeding.
¶10 The standards that apply to all petitions seeking
reinstatement after a disciplinary suspension or revocation are
set forth in SCR 22.31(1). In particular, the petitioning
attorney must demonstrate by clear, satisfactory, and convincing
evidence that he or she has the moral character necessary to
practice law in this state, that his or her resumption of the
practice of law will not be detrimental to the administration of
justice or subversive of the public interest, and that the
attorney has complied fully with the terms of the suspension
order and of SCR 22.26. In addition, SCR 22.31(1)(c)
incorporates the statements that a petition for reinstatement
must contain pursuant to SCR 22.29(4)(a)–(4m). Thus, the
petitioning attorney must demonstrate that the required
representations in the reinstatement petition are substantiated.
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No. 2018AP1781-D
¶11 As in disciplinary proceedings, this court will affirm
a referee's findings of fact unless they are found to be clearly
erroneous. Conclusions of law are reviewed de novo. See In re
Disciplinary Proceedings Against Banks, 2010 WI 105, ¶16, 329
Wis. 2d 39, 787 N.W.2d 809.
¶12 Upon review of the record, we agree with the referee
that Attorney Moodie has established by clear, satisfactory, and
convincing evidence that he has satisfied all the criteria
necessary for reinstatement. See SCR 22.31(1) and
SCR 22.29(4)(a)-(4m). Accordingly, we adopt the referee's
findings of fact and conclusions of law and we accept the
referee's recommendation to reinstate Attorney Moodie's license
to practice law in Wisconsin. We further determine, consistent
with our general practice, that Attorney Moodie should be
required to pay the full costs of this reinstatement proceeding.
¶13 IT IS ORDERED that Robert B. Moodie's petition for
reinstatement of his license to practice law in Wisconsin from
the disciplinary suspension is granted, effective the date of
this order.
¶14 IT IS FURTHER ORDERED that, within 60 days of the date
of this order, Robert B. Moodie shall pay to the Office of
Lawyer Regulation the costs of this proceeding, which are
$3,594.27 as of June 2, 2021.
¶15 ANN WALSH BRADLEY, J., did not participate.
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No. 2018AP1781-D.akz
¶16 ANNETTE KINGSLAND ZIEGLER, C.J. (concurring). I
agree with the court's decision to reinstate Attorney Moodie's
license to practice law. I respectfully concur because, as I
predicted in April 2020 when we ordered Attorney Moodie's
license suspension, the disciplinary term imposed far exceeded
six months. In re Disciplinary Proceedings Against Moodie, 2020
WI 39, ¶¶26-34, 391 Wis. 2d 196, 942 N.W.2d 302 (Ziegler, J.,
dissenting). When it comes to lawyer discipline, courts should
say what they mean and mean what they say. Id., ¶26. The court
failed to do so in this case.
¶17 In this case, we did not individualize our
determination and defaulted to a six-month mandatory suspension,
built upon prior disciplinary orders. Id., ¶¶14-15. However,
we have consistently said there is no fixed formula for
determining the "right" amount of lawyer discipline. See In re
Disciplinary Proceedings Against Siderits, 2013 WI 2, ¶33, 345
Wis. 2d 89, 824 N.W.2d 812, (acknowledging that the imposition
of discipline in attorney disciplinary cases "is not an exact
science"). Each case is different, and discipline must be
tailored to each instance of misconduct. See id., ¶¶31-32; see
also In re Disciplinary Proceedings Against Nunnery, 2011 WI 39,
¶5, 334 Wis. 2d 1, 798 N.W.2d 239 ("We determine the appropriate
level of discipline given the particular facts of each case.").
¶18 In our April 2020 decision, the court held that
Attorney Moodie's license would be suspended for a period of six
months. Moodie, 391 Wis. 2d 196, ¶15. In reality, because of
the required reinstatement process, Attorney Moodie's suspension
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No. 2018AP1781-D.akz
has been over twice the suspension period imposed. See SCRs
22.29-22.33. By the time he will be reinstated, Attorney Moodie
will have been removed from the legal profession for almost 15
months.
¶19 The referee and the court in this case cited several
of our precedents involving fund misappropriation. It is true
that in In re Disciplinary Proceedings Against Casey, 174
Wis. 2d 341, 496 N.W.2d 94 (1993), we held that misappropriation
from a law firm must carry the same punishment as
misappropriation from a client. Further, following Casey, in
several cases, we ordered license suspensions for fund
misappropriation that were greater than six months. See, e.g.,
In re Disciplinary Proceedings Against Olson, 216 Wis. 2d 483,
574 N.W.2d 245 (1998) (one-year suspension). However, treating
misappropriation from attorneys and clients similarly, and
imposing suspensions over six months in other cases with unique
facts, does not imply that the court is bound to a six-month
suspension in this case. Attorney disciplinary actions cannot
be reduced simply to formulas or bare cutoffs. See Siderits,
345 Wis. 2d 89, ¶¶31-33; Nunnery, 334 Wis. 2d 1, ¶5.
¶20 Attorney Moodie's case was notably different than
cases cited by the court and relied upon by the OLR. See
Moodie, 391 Wis. 2d 196, ¶28-30 (Ziegler, J., dissenting)
(citing Shea, 190 Wis. 2d 560) (noting that Attorney Moodie had
become senior partner at a reputable law firm after practicing
at the firm for 30 years, without any reports of unethical
conduct; he had taken a relatively small amount of money and
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No. 2018AP1781-D.akz
repaid it in full; he was forthright, cooperated with OLR
investigators, and accepted responsibility for his behavior;
and, very likely, he would never practice in a law firm setting
again). Furthermore, in Casey, this court imposed a short
suspension for an attorney who misappropriated three client
retainers, totaling $2,300. 174 Wis. 2d at 342. Given that
Attorney Moodie would have ultimately collected a large portion
of the proceeds he diverted from the firm, in aggregate, the
amount Attorney Moodie wrongfully withheld from his partners in
this case was approximately $3,000 to $3,500. See Moodie, 391
Wis. 2d 196, ¶28. Like Attorney Moodie, the attorney in Casey
stipulated to his wrongful conduct, but the court suspended
Casey for only 60 days. Casey, 174 Wis. 2d at 343. The referee
in this case, in recommending a suspension four months longer
than the suspension in Casey, was motivated by apparent
constraints imposed through disciplinary cases since Casey.
Nonetheless, no mandatory minimum for license suspensions can be
found in Wisconsin statutes or caselaw.
¶21 If a perceived six-month constraint were not in place,
based on the underlying disciplinary record, it is likely that
the referee would not have recommended a six-month suspension.
Certainly, the referee did not assert that a suspension lasting
over a year was justified. In place of the recommended
discipline, we could have suspended Attorney Moodie's license
for five months and 28 days, mere days shorter than the eventual
six-month suspension. This small change would have ensured just
punishment for Attorney Moodie's misconduct while also
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No. 2018AP1781-D.akz
maintaining honesty and proportionality in our disciplinary
process.
¶22 I disagree that when acting essentially as the
"sentencing" decision maker in a lawyer discipline case, this
court is hamstrung from exercising discretion. I disagree that
we are bound to a mandatory minimum six-month penalty because of
other fact-dependent cases. I disagree that we should have
judicially imposed automatic minimum suspensions for all such
cases no matter the evidence or mitigating circumstances. If we
so constrain ourselves, we abdicate our responsibility to make
individualized determinations, and with it, our ability to
fairly and accurately "protect the public, the courts, and the
legal system from repetition of misconduct." In re Disciplinary
Proceedings Against Sommers, 2012 WI 33, ¶80, 339 Wis. 2d 580,
811 N.W.2d 387.
¶23 We should not shirk our duty to carefully consider
each matter independently, taking into account the gravity of
the offense, its nature, the implications on the legal
profession, and the need to protect the public. In furtherance
of this objective, we should say what we mean and mean what we
say. See Moodie, 319 Wis. 2d 196, ¶¶26-34 (Ziegler, J.,
dissenting); see also S. Ct. Order 19-10, In the Matter of
Amending Supreme Court Rules Pertaining to Permanent Revocation
of a License to Practice Law in Attorney Disciplinary
Proceedings (issued Dec. 18, 2019) (Ziegler, J., dissenting).
We should not create false perceptions to both the public and to
lawyers seeking to practice law. When this court ties its own
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No. 2018AP1781-D.akz
hands by setting a mandatory minimum six-month suspension
(which, in reality, amounts to a far longer suspension than six
months) instead of providing individualized consideration for
each disciplinary matter, the court fails to perform fully its
weighty responsibilities.
¶24 For the foregoing reasons, I respectfully concur.
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No. 2018AP1781-D.akz
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