2013 WI 26
SUPREME COURT OF WISCONSIN
CASE NO.: 12AP1245-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Eric S. Brittain, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Eric S. Brittain,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST BRITTAIN
OPINION FILED: March 22, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2013 WI 26
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP1245-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Eric S. Brittain, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant,
MAR 22, 2013
v.
Diane M. Fremgen
Clerk of Supreme Court
Eric S. Brittain,
Respondent.
ATTORNEY disciplinary proceeding. Attorney publicly
reprimanded.
¶1 PER CURIAM. We review the report and recommendation
of the referee, Richard C. Ninneman, approving a stipulation
filed by the Office of Lawyer Regulation (OLR) and Attorney
Eric S. Brittain regarding Attorney Brittain's professional
misconduct in the handling of two client matters. The OLR and
Attorney Brittain stipulate that Attorney Brittain committed
professional misconduct. The referee concluded that the
appropriate sanction for the misconduct is a public reprimand.
No. 2012AP1245-D
Upon careful consideration, we adopt the stipulated facts and
the referee's conclusions of law. We also agree that a public
reprimand is an appropriate level of discipline, and we deem it
appropriate to order Attorney Brittain to pay the full costs of
the proceeding, which are $3,348.31 as of January 31, 2013.
¶2 Attorney Brittain was licensed to practice law in
Wisconsin in 2003, and most recently practiced in Glendale,
Wisconsin. He has not previously been the subject of
professional discipline.
¶3 On June 5, 2012, the OLR filed a complaint alleging
four counts of misconduct arising out of Attorney Brittain's
representation of clients in two criminal matters. In the first
matter, Attorney Brittain was retained to defend V.K., who was
charged with misdemeanor battery and disorderly conduct in
Waukesha County. Judge J. Mac Davis initially served as the
presiding judge in the matter.
¶4 On November 25, 2008, Attorney Brittain appeared in
court for the first day of a scheduled jury trial and made an
opening statement on behalf of V.K. In the course of the
opening statement Attorney Brittain told the jury, "I want to
talk about violence. And, well, what it is like to be in an
environment where people yell and scream. And I know that
environment because I grew up in one, and my mom was very
erratic, very emotionally unstable." Judge Davis immediately
interrupted and admonished Attorney Brittain that it was
inappropriate to reflect on personal matters in an opening
statement. After Judge Davis asked that he refocus his remarks,
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No. 2012AP1245-D
Attorney Brittain approached his client, put his hands on his
client's shoulders, and told the jury, "I know . . . a brave man
when I see one."
¶5 Judge Davis immediately interrupted again and
admonished Attorney Brittain that his conduct was inappropriate.
Judge Davis directed Attorney Brittain to return to the lectern
and instructed that he was not allowed to vouch for his client
and that he should not put his hands on his client or talk about
his client's character in that fashion.
¶6 Continuing his opening statement, Attorney Brittain
told the jury:
Imagine what it is to be falsely accused of
something, and to know what a conviction would mean to
you, especially if you have a two-year[-]old son and
your wife is emotionally unstable and erratic, and
you're falsely accused, what that means.
I'm going to tell you what happened that day.
I'm going to tell you about [the defendant]. I'm
going to do it in the first person narrative as if I
am [the defendant] so that you can know what happened.
¶7 Judge Davis again interrupted and said the court would
not allow Attorney Brittain to make an opening statement in the
form of a first person narrative. After Attorney Brittain said
he would renew an earlier motion seeking Judge Davis's recusal
based on alleged bias, Judge Davis excused the jury. In the
conference that followed outside the presence of the jury, Judge
Davis said Attorney Brittain was raising his voice and sticking
his finger in the face of the assistant district attorney who
was prosecuting the case. Attorney Brittain disagreed with
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No. 2012AP1245-D
Judge Davis's statements. He also continued to challenge
rulings made by Judge Davis as to the form of the opening
statement. Judge Davis reaffirmed his earlier rulings and
instructed Attorney Brittain not to give any first person
remarks, not to vouch for his client's credibility, and not to
talk about his personal life experiences.
¶8 After the jury returned to the courtroom, Judge Davis
sustained two more objections by the assistant district attorney
based on Attorney Brittain making inappropriate comments during
his opening statement. After Judge Davis sustained the second
objection, Attorney Brittain turned to look at Judge Davis,
paused, and then said to the jury, "And so, [l]adies and
[g]entleman, under a lot of——a lot of obstacles, we are here
today."
¶9 After opening statements were concluded, Judge Davis
again excused the jury and found Attorney Brittain in summary
contempt of court for the comment about "obstacles." Judge
Davis sanctioned Attorney Brittain with a forfeiture of $50. On
February 16, 2009, the court entered the written order of
contempt against Attorney Brittain based on the oral contempt
order of November 25, 2008. Attorney Brittain appealed the
contempt order. The court of appeals affirmed Judge Davis's
order holding Attorney Brittain in contempt.
¶10 The OLR's complaint alleged that by injecting personal
and irrelevant information about himself during his opening
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No. 2012AP1245-D
statement, Attorney Brittain violated SCR 20:3.4(e);1 by vouching
for his client during his opening statement, Attorney Brittain
violated SCR 20:3.4(e); and by suggesting in his opening
statement that Judge Davis was creating "obstacles" to the
defense, Attorney Brittain engaged in conduct intended to
disrupt a tribunal, in violation of SCR 20:3.5(d).2
¶11 The other client matter detailed in the OLR's
complaint involved Attorney Brittain's representation of R.C.,
who was charged in Milwaukee County with burglary of a building
or dwelling. Judge Jean DiMotto served as the presiding judge
in the matter. On November 11, 2009, the matter came before
Judge DiMotto on the defendant's arraignment.
¶12 After Judge DiMotto had accepted the defendant's not
guilty plea and was prepared to adjourn the proceeding, Attorney
Brittain initiated a further exchange with the court regarding
discovery demands, including a request to have access to his
client's vehicle, which the City of Milwaukee Police Department
had impounded, for an expert inspection. Because there were
differences between the parties as to the discovery request
1
SCR 20:3.4(e) states a lawyer shall not "in trial, allude
to any matter that the lawyer does not reasonably believe is
relevant or that will not be supported by admissible evidence,
assert personal knowledge of facts in issue except when
testifying as a witness, or state a personal opinion as to the
justness of a cause, the credibility of a witness, the
culpability of a civil litigant or the guilt or innocence of an
accused; . . . ."
2
SCR 20:3.5(d) states a lawyer shall not "engage in conduct
intended to disrupt a tribunal."
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No. 2012AP1245-D
concerning the vehicle and there was no motion before the court
on that issue, Judge DiMotto told Attorney Brittain that the
issue was premature and that he should bring a motion. Judge
DiMotto then indicated the proceeding was closed for the day.
¶13 Raising his voice, Attorney Brittain continued to
attempt to address the court about the discovery issues. He
repeatedly disregarded Judge DiMotto's instructions that the
case was done for the day and said, "You[r] Honor, I believe
your behavior is inappropriate."
¶14 On the morning of December 17, 2009, the matter came
before Judge DiMotto for a hearing on the defendant's motion to
compel discovery. During the hearing, again raising his voice,
Attorney Brittain asked Judge DiMotto to recuse herself and
called her statements about his pattern of behavior
"ridiculous." Judge DiMotto adjourned the hearing at
approximately 10:45 a.m. The hearing on the motion reconvened
at 2:05 p.m. that afternoon. In opening the afternoon portion
of the hearing, Judge DiMotto noted the time and said that the
parties "left on an adjourned basis about 10:45 [a.m.] perhaps
this morning." Attorney Brittain interrupted and objected to
Judge DiMotto's having characterized the close of the morning's
hearing as an adjournment.
¶15 In support of his motion for recusal, Attorney
Brittain denied that he had shouted at Judge DiMotto. He said
Judge DiMotto had engaged in behaviors which were
"inappropriate," that she had raised her voice at him, and he
suggested that Judge DiMotto suffered from a physical or health
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No. 2012AP1245-D
issue that affected her "ability to be appropriate" and which
could affect his client's right to a fair trial.
¶16 The OLR's complaint alleged that by engaging in
abusive, belligerent, and obstreperous conduct directed at Judge
DiMotto in the course of representing his client, Attorney
Brittain engaged in conduct intended to disrupt a tribunal, in
violation of SCR 20:3.5(d).
¶17 Attorney Brittain filed an answer on July 24, 2012.
On December 28, 2012, the OLR and Attorney Brittain entered into
a stipulation whereby Attorney Brittain admitted the allegations
in the OLR's complaint. The stipulation noted that the OLR was
requesting that this court publicly reprimand Attorney Brittain.
Attorney Brittain indicated he did not oppose the OLR's
recommendation. On January 11, 2013, the referee entered an
order approving the stipulation and recommending that the court
publicly reprimand Attorney Brittain for his professional
misconduct.
¶18 This court will affirm a referee's findings of fact
unless they are clearly erroneous, but conclusions of law are
reviewed de novo. See In re Disciplinary Proceedings Against
Eisenberg, 2004 WI 14, ¶5, 269 Wis. 2d 43, 675 N.W.2d 747. This
court is free to impose whatever discipline it deems
appropriate, regardless of the referee's recommendation. See in
re Disciplinary Proceedings Against Widule, 2003 WI 34, ¶44, 261
Wis. 2d 45, 660 N.W.2d 686.
¶19 After careful review of the record, we adopt the
referee's findings of fact and conclusions of law. We also
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No. 2012AP1245-D
agree with the referee that a public reprimand is an appropriate
level of discipline. We further deem it appropriate to require
Attorney Brittain to pay the full costs of the proceeding, which
are $3,348.31.
¶20 IT IS ORDERED that Eric S. Brittain is publicly
reprimanded for professional misconduct.
¶21 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Eric S. Brittain shall pay the Office of Lawyer
Regulation the costs of this proceeding.
¶22 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.
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No. 2012AP1245-D
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