Office of Lawyer Regulation v. Eric S. Brittain

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