Office of Lawyer Regulation v. Butler

PATIENCE DRAKE ROGGENSACK, J.

¶ 28. (dissenting). I dissent because I would reject the parties' stipulation asking this court to suspend Benjamin C. Butler's license to practice law in Wisconsin for 30 days as reciprocal discipline to that imposed by Illinois for his admitted acts of criminal conduct that occurred in Wisconsin, and I would require the Office of Lawyer Regulation (OLR) to apply Wisconsin's Rules of Professional Conduct for Attorneys to Attorney Butler's misconduct.

¶ 29. Attorney Butler's conviction was the result of a plea bargain. The criminal act which he admitted committing constitutes one count of second-degree reckless endangerment, contrary to Wis. Stat. § 941.30(2), which is a Class G felony.

¶ 30. In order to accept a plea and convict a defendant of second-degree reckless endangerment, the circuit court must determine that there are facts sufficient to prove that (1) Attorney Butler endangered the safety of another human being; and (2) he did so by criminally reckless conduct. See Wis JI — Criminal 1347. "Criminal recklessness" is defined in Wis. Stat. § 939.24(1) as *14conduct that "creates an unreasonable and substantial risk of death or great bodily harm to another human being and the actor is aware of that risk."

¶ 31. Supreme Court Rule (SCR) 22.22(3) directs this court in reciprocal discipline matters to impose identical discipline to that imposed by another state unless the misconduct justifies substantially different discipline in this state. SCR 22.22(3)(c). It seems probable that creating an "unreasonable and substantial" risk of great bodily harm when the defendant "is aware of that risk" would have resulted in more than a 30-day license suspension if OLR had begun its own investigation in light of SCR 20:8.4(b),1 rather than relying on the judgment of the State of Illinois.

¶ 32. My conclusion is supported by discipline meted out for past criminal convictions, which we have held violate SCR 20:8.4(b). See In re Disciplinary Proceedings Against Compton, 2010 WI 112, ¶¶ 1, 7, 329 Wis. 2d 318, 787 N.W2d 831 (two years suspension based on conviction of possession of narcotic drugs, a Class I felony, and bail jumping, a Class H felony, based on the use of those drugs); In re Disciplinary Proceedings Against Soldon, 2010 WI 27, ¶¶ 1, 6, 324 Wis. 2d 4, 782 N.W.2d 81 (six months suspension based on retail theft read-in and conviction of fleeing a law enforcement officer, a Class I felony); In re Disciplinary Proceedings Against George, 2008 WI 21 ¶¶ 3, 30, 308 Wis. 2d 50, 746 N.W.2d 236 (four years and three months suspension based on federal conviction of con*15spiracy to commit offenses against federal programs in violation of 18 U.S.C. § 371); In re Disciplinary Proceedings Against Gral, 2007 WI 22, ¶¶ 1, 4, 299 Wis. 2d 160, 727 N.W.2d 495 (suspension of three years based on federal conviction of mail fraud).

¶ 33. In my view, a conviction based conduct that creates an unreasonable and substantial risk of great bodily harm when the defendant is aware of that risk is at least as serious as the crimes that form the bases for the suspensions above. Because I conclude that the convictions at issue here would justify substantially different discipline in Wisconsin than has resulted in Illinois and that SCR 22.22(3)(c) requires this court to reject the parties' stipulation on that basis, I respectfully dissent.

¶ 34. I am authorized to state that Justice N. PATRICK CROOKS joins in this dissent.

SCR 20:8.4 provides in relevant part: "It is professional misconduct for a lawyer to:

(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects[.]"