Office of Lawyer Regulation v. Alan D. Eisenberg

2013 WI 37

SUPREME COURT OF WISCONSIN
CASE NO.: 2009AP284-D
COMPLETE TITLE:
In the Matter of Disciplinary Proceedings
Against Alan D. Eisenberg, Attorney at Law:

Office of Lawyer Regulation,
Complainant-Respondent,
v.
Alan D. Eisenberg,
Respondent-Appellant.
DISCIPLINARY PROCEEDINGS AGAINST EISENBERG

OPINION FILED: May 2, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: November 6, 2012

SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:

JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:

ATTORNEYS:
For the respondent-appellant, there was a brief filed by
Alan D. Eisenberg, pro se, and oral argument by Alan D.
Eisenberg.
For the Office of Lawyer Regulation, there was a brief
filed by Paul W. Schwarzenbart and oral argument by Paul W.
Schwarzenbart.
 2013 WI 37
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2009AP284-D

STATE OF WISCONSIN : IN SUPREME COURT

In the Matter of Disciplinary Proceedings
against Alan D. Eisenberg, Attorney at Law:

Office of Lawyer Regulation, FILED
Complainant-Respondent,
MAY 2, 2013
v.
Diane M. Fremgen
Clerk of Supreme Court
Alan D. Eisenberg,

Respondent-Appellant.

ATTORNEY disciplinary proceeding. Attorney's license

suspended.

¶1 PER CURIAM. This is the sixth disciplinary

proceeding involving Attorney Alan D. Eisenberg. In this matter
Attorney Eisenberg has appealed from the report of the referee,

Attorney John R. Decker, in which the referee recommended that
the period of ineligibility for Attorney Eisenberg to petition

for reinstatement from the prior revocation of his license to
practice law be extended for a period of two years, and that

Attorney Eisenberg be ordered to pay the full costs of this
 No. 2009AP284-D

disciplinary proceeding, which were $27,689.29 as of

November 19, 2012.

¶2 After fully reviewing this matter, we reject Attorney

Eisenberg's arguments on appeal. We accept the referee's

findings of fact and agree that those facts provide clear,

satisfactory, and convincing evidence that Attorney Eisenberg

committed five violations of the Rules of Professional Conduct

for Attorneys. We further agree with the referee that those

violations require the imposition of an additional two-year

suspension, which shall run consecutive to the existing five-

year period in which Attorney Eisenberg is prohibited from

petitioning for the reinstatement of his license to practice law

in Wisconsin due to the prior revocation of his license. We

also determine that Attorney Eisenberg should be required to pay

the full costs of this proceeding.

¶3 Attorney Eisenberg was admitted to the practice of law

in this state in 1966. He has been the subject of professional

discipline on five prior occasions. In 1970 this court
suspended Attorney Eisenberg's license for a period of one year

due to his unprofessional conduct. In re Disciplinary

Proceedings Against Eisenberg, 48 Wis. 2d 364, 180 N.W.2d 529

(1970) (Eisenberg I). In 1988 we imposed a two-year suspension

for a lengthy list of ethical violations, including multiple

false statements. In re Disciplinary Proceedings Against

Eisenberg, 144 Wis. 2d 284, 423 N.W.2d 867 (1988) (Eisenberg

II). In 1996 Attorney Eisenberg received a public reprimand for

failing to close out a client trust account and thereby to wrap
2
 No. 2009AP284-D

up his law practice during the suspension imposed in Eisenberg

II. Public Reprimand of Alan D. Eisenberg, No. 1996-3

(Eisenberg III). In 2004 we again suspended Attorney

Eisenberg's license for a period of one year for misconduct that

included, among other things, directing his staff to fabricate

billing records, which he then incorporated into an affidavit

that he personally signed, disrupting an administrative hearing

with "rude, abusive, controlling, [and] disrespectful" behavior,

and entering into a prohibited transaction with a client. In re
Disciplinary Proceedings Against Eisenberg, 2004 WI 14, ¶¶19 and

24-25, 269 Wis. 2d 43, 675 N.W.2d 747 (Eisenberg IV). Finally,

in 2010 we revoked Attorney Eisenberg's license for misconduct

in filing and maintaining a frivolous lawsuit that served merely

to harass or maliciously injure the opposing party. In re

Disciplinary Proceedings Against Eisenberg, 2010 WI 11, 322

Wis. 2d 518, 778 N.W.2d 645 (Eisenberg V). Under this court's

rules, Attorney Eisenberg will not be eligible to petition for

the reinstatement of his license until April 1, 2015. See

SCR 22.29(2) ("A petition for reinstatement of a license that is

revoked may be filed at any time commencing five years after the

effective date of revocation.").

¶4 The OLR filed its complaint in this matter in February

2009. The proceedings before the referee did not move forward

for a period of time given the pendency of the disciplinary

proceeding that resulted in the Eisenberg V decision. Attorney

Eisenberg subsequently filed two motions to dismiss this matter,

but both were denied by the referee. He also filed a motion in
3
 No. 2009AP284-D

this court requesting that Referee Decker be disqualified and

that a new referee be appointed to decide the disqualification

issue. This court denied his request for the appointment of a

different referee to decide the disqualification motion and

referred the recusal/disqualification motion to Referee Decker

for a decision. The referee subsequently denied that motion.

After the passage of a considerable amount of time between

sessions of an evidentiary hearing, the referee issued his

report and recommendation. Attorney Eisenberg appealed, and

oral argument on his appeal was conducted in November 2012.

¶5 The OLR's complaint in this proceeding relates to two

separate representations. The referee ultimately found the

following facts regarding the underlying matters.

¶6 In the first matter, Attorney Eisenberg represented a

man, T.H., regarding the euthanization of a pet dog. Prior to

undertaking this representation, Attorney Eisenberg had

previously represented a plaintiff dog owner in a civil action

against a neighbor, an off-duty police officer who had shot the
plaintiff's dog. Attorney Eisenberg had argued on behalf of the

plaintiff in that case that the plaintiff dog owner had a legal
claim for negligent infliction of emotional distress. This

court ultimately ruled in that case that the plaintiff could not
state a claim for negligent infliction of emotional distress

because such a claim requires that the person seeking
compensation must have witnessed the death of a close relative,

and under the law of this state a pet dog is considered the

personal property of the owner and not a close relative.
4
 No. 2009AP284-D

Rabideau v. City of Racine, 2001 WI 57, 243 Wis. 2d 486, 627

N.W.2d 795. From his work on the Rabideau case, Attorney

Eisenberg was aware of the legal categorization of pet dogs as

personal property.

¶7 T.H. had formerly been married to S.H., and they had

owned a Labrador retriever during their marriage. After T.H.

moved out of the family residence and while the divorce

proceeding was pending, the dog resided with S.H. and the

couple's son, but not with T.H. S.H. and T.H. entered into a

marital settlement agreement (MSA), which was ultimately

incorporated into the judgment of divorce. In the MSA, T.H.

expressly agreed that S.H. would be awarded, inter alia, all
"personal belongings and other personal property currently in

her possession at the time of the final hearing," and that T.H.

was divested of any right or legal interest in any of the

property awarded to S.H. This MSA was never modified. The dog

was therefore awarded to S.H. in the divorce judgment.

¶8 S.H. had the dog euthanized at a veterinary hospital

in August 2000. T.H. learned of this fact a short time later.

He then retained Attorney Eisenberg regarding a potential claim.

¶9 Despite his knowledge of the legal characterization of

pet animals as personal property and of the terms of the MSA and

the divorce judgment, which awarded all personal property in her

possession to S.H., Attorney Eisenberg filed a large-claim civil

action on T.H.'s behalf on the theory that T.H. was the lawful

owner of the dog. Although the referee found that the initial

belief in Attorney Eisenberg's office was that S.H. had been
5
 No. 2009AP284-D

responsible, with or without her mother's assistance, for the

euthanization of the dog, Attorney Eisenberg did not name S.H.

as a defendant. Apparently for strategic reasons Attorney

Eisenberg named B.S., who was S.H.'s mother and T.H.'s former

mother-in-law, as the sole defendant.1

¶10 Attorney Eisenberg subsequently claimed that the

veterinary hospital had told him that it had been B.S. who (1)

had brought the dog to the hospital, (2) had falsely claimed

that she was the owner, and (3) had demanded that the dog be

euthanized. The referee found that this claim was "incredible

and false." Attorney Eisenberg also claimed that S.H. had

admitted to him in a later telephone conversation that her

mother had been the individual responsible for the euthanization

of the dog. The referee also found this to be a "fabrication"

by Attorney Eisenberg.

¶11 In April 2001 counsel for B.S. sought to take the

deposition of T.H., but was unable to do so because T.H. refused

to answer counsel's questions and Attorney Eisenberg refused to
instruct T.H. to answer. B.S.'s counsel attempted to resolve

the discovery dispute in a telephone call with Attorney
Eisenberg, but Attorney Eisenberg continued to refuse to

instruct his client to answer. Instead, Attorney Eisenberg

1
The referee described his view of the way in which the
lawsuit was structured as follows: "[Attorney] Eisenberg
constructed a compelling narrative for the case: vicious,
vindictive ex-mother-in-law has the perfectly healthy dog
belonging to her ex-son-in-law euthanized. The only problem
with the narrative was that it was untrue."

6
 No. 2009AP284-D

questioned opposing counsel about the facts of the case and then

hung up after calling opposing counsel a liar.

¶12 B.S. was forced to bring a motion to compel discovery.

Attorney Eisenberg did not appear for the hearing on the motion.

Instead, 25 minutes after the scheduled start time for the

hearing, Attorney Eisenberg called an associate attorney in his

firm who had graduated from law school just one month earlier

and instructed her to appear in his stead. Consequently, the

court and opposing counsel were forced to wait 35 minutes before

the associate reached the courtroom. The circuit court granted

the motion to compel and ordered that Attorney Eisenberg pay the

opposing side's costs and attorney fees, including the fees for

the 35 minutes spent waiting for Attorney Eisenberg or his

associate to appear.

¶13 When the deposition of T.H. resumed, B.S.'s counsel

presented T.H. with documentation from the veterinary hospital

which showed that S.H., not his former mother-in-law, had signed

the consent form for the dog to be euthanized. T.H. indicated
that he had never seen the form before and acknowledged that it

made "everything irrelevant." T.H. also acknowledged that the
dog had bitten people in a few incidents over the years and that

he had been convicted on a municipal charge of cruelty to
animals for an incident involving the dog.

¶14 The circuit court ultimately granted B.S.'s summary
judgment motion and dismissed the case. Finding that both T.H.

and Attorney Eisenberg had no basis in law or fact to assert

that T.H. had any ownership interest in the dog at the time it
7
 No. 2009AP284-D

had been euthanized, the circuit court also ruled that the

action had been frivolous and ordered Attorney Eisenberg and

T.H. to pay B.S. the sum of $3,680.70, plus costs. Ultimately,

in September 2001 this sanction order was reduced to a judgment

in the amount of $3,785.70 against Attorney Eisenberg and T.H.,

jointly and severally.

¶15 Attorney Eisenberg did not make any payments toward

the judgment for a number of years. He initially filed a motion

for reconsideration, which was denied. He then filed an appeal,

which was dismissed as untimely. Almost five years after the

judgment had been entered, Attorney Eisenberg filed a motion to

vacate and dismiss the judgment because he wanted "to do certain

things financially" and "to move on with certain things in his

life." That motion was denied, and the denial was upheld on

appeal. Finally, in January 2008, more than six years after the

entry of the sanction order and judgment, Attorney Eisenberg

tendered a check to B.S. in satisfaction of the judgment.

¶16 On the basis of these facts, the referee concluded
that by alleging that T.H. was the "owner" of the dog when T.H.

had agreed to relinquish any claim to ownership in the MSA and
the divorce judgment, Attorney Eisenberg knowingly advanced a

factual position where the basis for doing so was frivolous, in
violation of SCR 20:3.1(a)(2).2 Second, the referee determined

2
SCR 20:3.1(a)(2) states that in representing a client, a
lawyer shall not "knowingly advance a factual position unless
there is a basis for doing so that is not frivolous; . . . ."

8
 No. 2009AP284-D

that Attorney Eisenberg had violated SCR 20:3.4(a) and (d)3 by

encouraging his client to make objections to legally proper

questions in his deposition, by disrupting the deposition with

deceitful and inflammatory representations about the examining

attorney, and by opposing a motion to compel discovery in bad

faith. Finally, the referee concluded that Attorney Eisenberg's

failure to comply with the court's sanction order and judgment

for a period of several years constituted a violation of

SCR 20:3.4(c).4

¶17 The second matter at issue in this disciplinary

proceeding involves Attorney Eisenberg's financial arrangement

with a nonlawyer in the representation of a claimant in a

worker's compensation proceeding. Under the applicable statutes

and the rules of the Department of Workforce Development (DWD),

3
SCR 20:3.4(a) and (d) state as follows:

A lawyer shall not:

(a) unlawfully obstruct another party's access to
evidence or unlawfully alter, destroy or conceal a
document or other material having potential
evidentiary value. A lawyer shall not counsel or
assist another person to do any such act;

. . .

(d) in pretrial procedure, make a frivolous
discovery request or fail to make reasonably diligent
effort to comply with a legally proper discovery
request by an opposing party; . . . .
4
SCR 20:3.4(c) states that a lawyer shall not "knowingly
disobey an obligation under the rules of a tribunal, except for
an open refusal based on an assertion that no valid obligation
exists; . . . ."

9
 No. 2009AP284-D

nonlawyers are permitted to represent worker's compensation

claimants in negotiating settlements with insurers and to appear

before an administrative law judge (ALJ) on behalf of a claimant

if they meet certain requirements, including obtaining a license

from the DWD. Wis. Stat. § 102.17(1)(c). A nonlawyer who does

not have the necessary license or meet the requirements must

work with a licensed attorney, who represents the claimant. If

multiple attorneys have represented a claimant in succession and

they are unable to agree on how the fees are to be allocated, it

is the ALJ who allocates fees among the various attorneys. When

an attorney is involved, the DWD directs fees to be paid only to

attorneys. Thus, nonattorney individuals who are not authorized

to appear before an ALJ and who work on a worker's compensation

matter must have an affiliation with an attorney of record and

receive compensation from the attorney.

¶18 J.M.Z. was an unlicensed medical doctor who provided

case management and evaluation services for a number of law

firms and lawyers. Because he was not authorized to appear
before an ALJ in worker's compensation matters, he worked with

claimants in such matters in conjunction with licensed
attorneys. He apparently referred a worker's compensation

claimant, G.M., to a law firm where he worked. The lawyer with
whom J.M.Z. worked on such cases subsequently left the firm and

started his own firm. J.M.Z. also subsequently left that firm
and developed a referral relationship with the lawyer in his new

practice. One of the cases that J.M.Z. referred from the prior

firm to the lawyer's new firm was G.M.'s case. A dispute,
10
 No. 2009AP284-D

however, developed between J.M.Z. and the lawyer over J.M.Z.'s

belief that the lawyer was not paying him the amounts J.M.Z.

believed he was owed on referred cases, including G.M.'s

worker's compensation case.

¶19 Ultimately, J.M.Z. ceased working with the attorney

and developed an association with Attorney Eisenberg. Although

J.M.Z. was not a lawyer, Attorney Eisenberg testified in this

disciplinary proceeding that J.M.Z. had "pulled" G.M.'s case out

of the other lawyer's firm and had brought the case along with

him to Attorney Eisenberg's firm. Attorney Eisenberg was then

substituted as counsel of record. He testified, however, that

"there was almost nothing left that needed to be done" on the

case and that "[a]ll my office did was busy work."

¶20 When G.M.'s claim was settled, the prior attorney

filed an attorney's lien against the settlement proceeds.

According to Attorney Eisenberg, J.M.Z. told Attorney Eisenberg

that he wanted to get the money he thought was owed to him. A

letter, dated September 4, 2007, which Attorney Eisenberg
described as a "letter of protection," was sent under Attorney

Eisenberg's handwritten signature to advise the ALJ of Attorney
Eisenberg's and J.M.Z.'s claim against the settlement monies

under a statutory lien for attorney fees. The September 4, 2007
letter was received by the ALJ the following day. The

September 4, 2007 letter described the history of G.M.'s case
and its travels through the various law firms. It stated that

J.M.Z. had actually done the lion's share of the work on G.M.'s

case, much of which had occurred prior to J.M.Z.'s affiliation
11
 No. 2009AP284-D

with Attorney Eisenberg. Although Attorney Eisenberg has

acknowledged that his firm was required to do very little work

on the case, the final paragraph of the letter argued that his

firm should receive the overwhelming majority of the legal fees.

That paragraph also describes an agreement between Attorney

Eisenberg and J.M.Z. regarding G.M.'s case:

For the above reasons, it seems most equitable that
the Law Offices of Alan D. Eisenberg receive all but
$1,000.00 in legal fees and $250.00 in costs, or a net
amount of $23,288.29. Please note that the present
agreement between Attorney Alan D. Eisenberg and
[J.M.Z.] involves a 50/50 split between them once a
matter has been adjudicated and settled. This is
identical to the former agreement between [J.M.Z.] and
[the prior attorney].
¶21 Apparently still upset with the prior attorney, J.M.Z.

sent a copy of Attorney Eisenberg's September 4, 2007 letter to

the OLR apparently as part of his complaint about the prior

attorney. After speaking with J.M.Z. about his arrangements

with the various attorneys, an OLR investigator sent a letter to

Attorney Eisenberg regarding the investigator's contact with

J.M.Z. and Attorney Eisenberg's relationship with J.M.Z. In a

subsequent telephone conversation involving the OLR

investigator, Attorney Eisenberg and J.M.Z., Attorney Eisenberg

denied, contrary to the statement in his September 4, 2007

letter, that there was a fee-splitting agreement between himself

and J.M.Z.

¶22 Two days after this telephone conversation, Attorney

Eisenberg sent a second version of the "letter of protection"

(the September 26, 2007 letter) to the ALJ. The referee found

12
 No. 2009AP284-D

that this September 26, 2007 letter was identical to the first

letter, with the sole exception that the final two sentences

referring to the 50/50 fee split between J.M.Z. and Attorney

Eisenberg and between J.M.Z. and the prior attorney had been

deleted. This letter was also received by the ALJ.

¶23 In subsequent communications with the OLR's

investigator, Attorney Eisenberg claimed that he had never

entered into any fee-splitting agreement with J.M.Z., that he

had not dictated the September 4, 2007 letter, that no rough

draft of that letter had ever been given to him for review, and

indeed that the September 4, 2007 letter had been voided and

never sent to the ALJ.

¶24 The referee explicitly and specifically found that

Attorney Eisenberg's denial of having entered into a fee-

splitting agreement with J.M.Z. and his claim that the

September 4, 2007 letter had not been sent to the ALJ were

false. The referee further found that, although there indeed

had been a fee-splitting agreement, which had been communicated
to the ALJ, there was no evidence that fees had actually been

split between Attorney Eisenberg and J.M.Z. pursuant to their
agreement after its existence had been disclosed to the OLR.

¶25 Based on these facts regarding the representation of
G.M. and the resulting OLR investigation, the referee concluded

that Attorney Eisenberg had committed two violations of the
Rules of Professional Conduct for Attorneys. First, by agreeing

to serve as a conduit to share fees that he did not earn with a

nonlawyer, and by agreeing to split fees on a 50/50 basis with a
13
 No. 2009AP284-D

nonlawyer, Attorney Eisenberg violated SCR 20:5.4(a),5 which is

enforced via SCR 20:8.4(a).6 Second, by falsely stating to the

OLR that he had never entered into a fee-splitting agreement

with J.M.Z. and that his September 4, 2007 letter had never been

sent to the ALJ, Attorney Eisenberg violated SCR 22.03(6),7 which

is enforced via SCR 20:8.4(h).8

5
SCR 20:5.4(a) states:

(a) A lawyer or law firm shall not share legal
fees with a nonlawyer, except that:

(1) an agreement by a lawyer with the lawyer's
firm, partner, or associate may provide for the
payment of money, over a reasonable period of time
after the lawyer's death, to the lawyer's estate or to
one or more specified persons;

(2) a lawyer who purchases the practice of a
deceased, disabled, or disappeared lawyer may,
pursuant to the provisions of SCR 20:1.17, pay to the
estate or other representative of that lawyer the
agreed-upon purchase price;

(3) a lawyer or law firm may include nonlawyer
employees in a compensation or retirement plan, even
though the plan is based in whole or in part on a
profit-sharing arrangement; and

(4) a lawyer may share court-awarded legal fees
with a nonprofit organization that employed, retained
or recommended employment of the lawyer in the matter.
6
SCR 20:8.4(a) says it is professional misconduct for a
lawyer to "violate or attempt to violate the Rules of
Professional Conduct, knowingly assist or induce another to do
so, or do so through the acts of another; . . . ."
7
SCR 22.03(6) provides:

In the course of the investigation, the
respondent's wilful failure to provide relevant
information, to answer questions fully, or to furnish
14
 No. 2009AP284-D

¶26 In his report the referee also commented on Attorney

Eisenberg's conduct and demeanor during the disciplinary

proceedings before the referee. The referee noted that Attorney

Eisenberg gave multiple varying accounts of a number of events,

which often tended to minimize his own involvement and to cast

blame on others. The referee commented that Attorney Eisenberg

had on numerous occasions leveled inaccurate criticisms against

the OLR's director and the attorney representing the OLR, even

making a false accusation that the OLR's counsel had made a

false statement to the referee. The referee found that the

statement made by OLR's counsel was supported by deposition

testimony and documentary evidence. In addition, the referee

stated that Attorney Eisenberg had "attempted to engineer a

false picture of the proceedings" by making numerous false

claims on the record, including that OLR's counsel and the

referee had mocked and laughed at him during the evidentiary

hearing. The referee further found that Attorney Eisenberg had

leveled untrue and unfair attacks on B.S. in an unsuccessful
attempt to discredit her. Moreover, as in other cases, the

referee noted that Attorney Eisenberg had repeatedly complained

documents and the respondent's misrepresentation in a
disclosure are misconduct, regardless of the merits of
the matters asserted in the grievance.
8
SCR 20:8.4(h) says it is professional misconduct for a
lawyer to "fail to cooperate in the investigation of a grievance
filed with the office of lawyer regulation as required by SCR
21.15(4), SCR 22.001(9)(b), SCR 22.03(2), SCR 22.03(6), or SCR
22.04(1); . . . ."

15
 No. 2009AP284-D

that he was being singled out for harsh treatment by the OLR,

going so far as to claim that the OLR was engaged in a "jihad"

against him. The referee summarized Attorney Eisenberg's

attitude and conduct throughout this disciplinary proceeding as

follows: "In sum, [Attorney] Eisenberg refused to acknowledge

any fault or wrongdoing whatsoever, and remained accusatory,

hostile, and defiant throughout."

¶27 With respect to the appropriate level of discipline,

the referee rejected Attorney Eisenberg's argument that the

claims against him were de minimis and should not result in any

discipline. The referee concluded that Attorney Eisenberg's

violations were not based on mere technicalities, but to the

contrary, were serious and substantive ethical violations. The

referee also concluded that the OLR's request for a six-month

extension of the period of ineligibility to seek reinstatement

was not sufficiently supported by authority and was insufficient

under the facts of this case.

¶28 The referee conducted his own review of prior

disciplinary cases and concluded, based on those precedents,

that a two-year extension of Attorney Eisenberg's ineligibility

to seek reinstatement was a proper level of discipline in this

case. As support for this recommendation, the referee discussed

a substantial number of prior decisions, including, inter alia,

In re Disciplinary Proceedings Against Horvath, 219 Wis. 2d 334,

579 N.W.2d 240 (1998), in which an attorney who had been

disciplined on three prior occasions and whose license remained

suspended received an additional two-year suspension for
16
 No. 2009AP284-D

repeatedly engaging in deceitful conduct and failing to

cooperate in a disciplinary investigation, and In re

Disciplinary Proceedings Against Ratzel, 218 Wis. 2d 423, 578

N.W.2d 194 (1998), in which an attorney who had been disciplined

on three prior occasions was suspended for two years for making

fraudulent claims in litigation and making misrepresentations to

the Board of Attorneys Professional Responsibility (BAPR) during

its investigation.

¶29 Finally, the referee recommended that Attorney

Eisenberg be ordered to pay the full costs of the disciplinary

proceeding.

¶30 Attorney Eisenberg has appealed from the referee's

report and recommendation. Our consideration of his appeal and

our review of the referee's findings of fact, conclusions of

law, and sanction recommendation are conducted according to

long-established standards. Specifically, we affirm a referee's

findings of fact unless we determine them 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 establish

the appropriate level of discipline in light of the particular

facts of each case, independent of the referee's recommendation,

but benefiting from it. In re Disciplinary Proceedings Against

Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686.

¶31 Attorney Eisenberg's appellate brief in this court

frames the issue on appeal broadly as whether the referee's

recommendation of an additional two years of ineligibility to
17
 No. 2009AP284-D

petition for reinstatement should be approved and adopted by

this court. He does not present any narrower subissues nor does

he organize his various contentions about this case into

discrete arguments. For the sake of organization, we will

separate his various assertions, to the extent possible, into

matters of process and matters of substance.

¶32 On the procedural side of the ledger, Attorney

Eisenberg levels several criticisms against the referee. First,

he points to a number of quotations from the referee's report,

in which the referee stated, inter alia, that many of Attorney

Eisenberg's statements in this proceeding were willfully false,

that Attorney Eisenberg had engaged in "calculated and

repetitive efforts to confuse and confound," and that the

referee in his decades as a practicing attorney and referee had

never encountered "a more evasive, inconsistent, deceitful, and

untruthful witness."

¶33 Attorney Eisenberg also complains about an incident

where the referee missed a hearing, which then had to be

rescheduled. Attorney Eisenberg asserts that this incident

required him to sit in pain unnecessarily while waiting with a

witness he had brought to the hearing. This incident was also

part of Attorney Eisenberg's prior interlocutory

disqualification motion in this court.

¶34 Although Attorney Eisenberg points to these facts in

his brief and oral argument, he never develops any legal

argument from the facts. His previous motion sought

disqualification of the referee because of the referee's alleged
18
 No. 2009AP284-D

bias against Attorney Eisenberg, but he does not develop any

such argument in his appeal. He cites no legal authority of any

sort regarding the standard for disqualifying a judge or referee

due to bias. He never explains how the facts that he cites

prove that the referee was biased against him under the

applicable standard. We therefore will not address this matter

further because we will not develop Attorney Eisenberg's legal

argument for him.9

¶35 Attorney Eisenberg also criticizes the OLR and its

retained counsel in this proceeding. First, he implies that the

OLR has pursued this and other disciplinary cases against him

because of some vendetta. He contends that he has become the

"OLR's piñata." With respect to OLR's counsel, he contends that

during the evidentiary hearing opposing counsel laughed at and

mocked him.

¶36 Attorney Eisenberg also asserts that the OLR has

informed him that it is withholding nine more counts of

misconduct, which it intends to pursue in the event that he
would petition for the reinstatement of his license. Citing

9
We note, however, that the referee's comments about
Attorney Eisenberg's conduct and testimony in this proceeding
are proper subjects of a referee's report. While Attorney
Eisenberg may not like the manner in which the referee described
his credibility determinations, Attorney Eisenberg has not
presented a single instance in which the referee's comments are
inaccurate or are based on something other than the evidence and
testimony in this proceeding. Similarly, while the incident
with missing a hearing is regrettable, Attorney Eisenberg fails
to show how the referee's missing a hearing was directed
specifically at him or showed a bias against him.

19
 No. 2009AP284-D

only an unpublished court of appeals opinion in a criminal case

that addressed the withholding of requested evidence, Attorney

Eisenberg contends that the OLR's failure to pursue those nine

additional charges in this proceeding violates his due process

rights.

¶37 We find no merit to any of Attorney Eisenberg's

complaints regarding the OLR and its counsel as they pertain to

this disciplinary proceeding. We see no evidence that the OLR

is pursuing disciplinary cases against Attorney Eisenberg simply

because of who he is. Each of the prior disciplinary cases

against Attorney Eisenberg brought by the OLR or its

predecessor, BAPR, resulted in findings of misconduct and the

imposition of professional discipline by this court. Pursuing a

meritorious case in this instance against Attorney Eisenberg is

not an invalid exercise of prosecutorial discretion.

¶38 We further note that in response to Attorney

Eisenberg's claim that OLR's counsel had laughed at him and

mocked him, the referee indicated that he had not observed any
such conduct and that Attorney Eisenberg's claim was false. The

referee cited this claim as one example of Attorney Eisenberg's
attempt to "engineer a false picture of the proceedings."

¶39 With respect to the alleged additional counts that the
OLR is purportedly withholding until Attorney Eisenberg files a

petition for reinstatement, we note that Attorney Eisenberg has
not provided factual support for his claim. Even if his

contention is accurate, any due process claim regarding the

timeliness of prosecuting those claims would relate only to
20
 No. 2009AP284-D

those claims, if they were ever pursued. Attorney Eisenberg

never explains how any delay in prosecuting those other nine

claims, which are not before this court, affects his due process

rights with respect to the five counts of misconduct that the

OLR has pursued and that are before the court in this

proceeding. There simply can be no due process violation in

this case due to the timeliness of other charges of professional

misconduct that have not been alleged in this case.10

¶40 Attorney Eisenberg's arguments regarding the substance

of the referee's report are similarly without merit. He pursues

essentially two substantive arguments in his brief. First, he

merely repeats his version of the facts. For example, he again

claims that he was unaware of the language in the September 4,

2007 "letter of protection," that he signed the letter in haste,

and that he withdrew the letter three weeks later. He therefore

implies that he never actually had a fee-splitting agreement

with J.M.Z., as the letter states. His factual claims, however,

including his assertions regarding the fee-splitting letter of
protection, were expressly rejected by the referee. Attorney

10
Indeed, it is interesting to note that Attorney Eisenberg
also criticizes the OLR for continuing this disciplinary
proceeding after his license was revoked in Eisenberg V. In re
Disciplinary Proceedings Against Eisenberg, 2010 WI 11, 322
Wis. 2d 518, 778 N.W.2d 645. He implies that there was no valid
reason for continuing this disciplinary proceeding and that the
only reasons for the OLR to move forward with this case were to
harass him and to increase the amount of costs he will have to
pay. Given these concerns, it is an irreconcilable conflict
also to claim that the OLR is violating his rights by choosing
not to prosecute additional misconduct charges against him in
this proceeding.

21
 No. 2009AP284-D

Eisenberg is obligated to demonstrate how the referee's factual

findings were clearly erroneous. He has not even attempted to

do so. Simply repeating his version of the facts in the face of

the referee's clear and unambiguous adverse findings of fact has

no appellate worth.

¶41 After conducting our review, we find no basis to

conclude that the referee's findings of fact are clearly

erroneous, with one minor exception that has no bearing on

whether Attorney Eisenberg engaged in professional misconduct.

The referee expressly found that the September 4, 2007 and

September 26, 2007 letters signed by Attorney Eisenberg were

identical, except for the deletion of the final two sentences,

which set forth the fee-splitting agreements between J.M.Z. and

Attorney Eisenberg and between J.M.Z. and the previous attorney.

While much of the earlier parts of the two letters are the same,

there are some other differences, although those differences are

not relevant to the fee-splitting charge at issue in this

disciplinary case. Thus, with the exception of the finding that
the two letters were identical but for the deletion of the last

two sentences, we accept and adopt the referee's findings of
fact.

¶42 The other substantive argument that can be gleaned
from Attorney Eisenberg's brief and oral argument is that any

violations in these two representations were de minimis, and

therefore should not be treated as violations. First, whether

the violations were insubstantial would bear on the level of

discipline that should be imposed, not on whether the findings
22
 No. 2009AP284-D

of fact demonstrate that Attorney Eisenberg committed the rule

violations. Second, we disagree that the violations charged in

this proceeding are de minimis. Alleging and pursuing a

frivolous claim and then engaging in bad faith tactics designed

to frustrate the opponent's discovery and defense of that claim

are serious ethical violations. Moreover, while Attorney

Eisenberg did ultimately satisfy the cost judgment imposed on

him for the frivolous claim against B.S. in an amount that was

substantially greater than the original judgment, his refusal to

pay that cost judgment for years signified a cavalier disregard

for the circuit court's orders. Finally, agreeing to split fees

with a nonlawyer and then lying to investigators about that

agreement is clearly more than a technical violation.

¶43 We note that while Attorney Eisenberg attempts to

downplay the seriousness of his misconduct, he has not

explicitly argued that the facts as found by the referee do not

satisfy the elements of the charges against him. Our review of

the matter leads us to agree with the referee that the facts of

this case clearly and convincingly support a conclusion of
misconduct on each of the five counts at issue.

¶44 We turn now to the question of the proper level of
discipline. Of great importance to this issue is the fact that

this is the sixth time that Attorney Eisenberg has been the
subject of professional discipline due to misconduct. Moreover,

there is a recurring pattern of behavior and disregard for the

rules that govern the privilege of practicing law in this state.

This is not the first time that Attorney Eisenberg has been
23
 No. 2009AP284-D

found to have commenced sham or frivolous litigation. It is

also not the first time that he has provided false statements to

the regulatory authorities investigating his conduct. Indeed,

even during the course of this disciplinary proceeding, the

referee found that Attorney Eisenberg had repeatedly changed his

story on several issues in an apparent attempt to avoid

discipline for his misconduct. The referee found that his

claims were nothing more than fabrications. Further, as we

noted above, the misconduct we have found in this case is

serious and represents a flagrant misuse of the law and the

position of attorney for self-serving ends. Finally, Attorney

Eisenberg has not demonstrated an acceptance of responsibility

or remorse for his misconduct. To the contrary, as the referee

pointed out, he has attempted to place blame on everyone else,

including the OLR's counsel and the referee, and to minimize the

seriousness of his misconduct. We therefore agree with the

referee that our prior precedents and the particular facts of

this case warrant imposing a two-year suspension, which shall
run consecutive to the period of ineligibility required by the

prior revocation of Attorney Eisenberg's license to practice law
in this state.11

11
We have on prior occasions extended the ineligibility of
a previously revoked or suspended attorney to petition for
reinstatement upon a finding that an additional period of
suspension is warranted by the attorney's further misconduct.
See, e.g., In re Disciplinary Proceedings Against Weber, 219
Wis. 2d 342, 345, 579 N.W.2d 229 (1998) (imposing additional
six-month period of ineligibility on attorney whose license had
been previously revoked); see also In re Disciplinary
Proceedings Against Edgar, 2003 WI 49, ¶13, 261 Wis. 2d 413, 661
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 No. 2009AP284-D

¶45 Finally, we address the issue of the costs of this

proceeding. Attorney Eisenberg submitted two letters in

response to the OLR's initial statement of costs, in which he

made unsupported claims regarding the OLR's attorney fees and

the referee's fees. He asked for mediation or arbitration

regarding the OLR's fees or for an evaluation of the OLR's and

the referee's fee invoices by a third party. A portion of

Attorney Eisenberg's brief in this court and a significant part

of his oral argument was also directed to arguing that he should

not have to pay any costs. However, when the OLR filed its

supplemental statement of costs after oral argument, Attorney

Eisenberg did not lodge any objection.

¶46 In addition to claiming that the referee's and the

OLR's fees were inflated, Attorney Eisenberg also contends that

there was no need for much of the OLR's and the referee's work

because the OLR claimed that his defenses to the charges in this

proceeding were frivolous. He claims that he offered to

voluntarily refrain from ever seeking the reinstatement of his
license, which would have eliminated the need for any further

fees, but the OLR refused his offer. He further states that he
has no financial resources to pay any cost award.

¶47 The general policy of this court, absent extraordinary
circumstances, is to impose the full costs of a disciplinary

proceeding on the attorney whose misconduct necessitated the

N.W.2d 817 (imposing one-year suspension to run consecutive to
the end of a prior two-year suspension).

25
 No. 2009AP284-D

proceeding. SCR 22.24(1m). An attorney who objects to a

statement of costs filed by the OLR must state, with

specificity, the bases for the objection and must also provide

an amount that he/she believes to be reasonable under the

circumstances. SCR 22.24(2). Attorney Eisenberg has not

complied with either requirement. He makes only broad,

unsupported assertions and never indicates what he believes to

be a reasonable amount of costs. Moreover, to the extent that

Attorney Eisenberg contends that some expenses incurred by the

OLR's counsel or the referee were unnecessary because the OLR

claimed his defenses were without merit, we note that Attorney

Eisenberg continued to litigate this matter aggressively, cross-

examining the OLR's witnesses, calling his own witnesses and

appealing the referee's report and recommendation to this court.

One cannot litigate aggressively and then criticize the opposing

party for doing the same. We therefore find no extraordinary

circumstances that would warrant deviating from our general

policy. To the extent that Attorney Eisenberg contends that he
is financially unable to pay the costs of this proceeding, he

has provided no proof of his financial situation. He may
provide financial information to the OLR and negotiate a payment

plan with that agency.
¶48 IT IS ORDERED that the license of Alan D. Eisenberg to

practice law in Wisconsin is suspended for a period of two
years, effective April 1, 2015.

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 No. 2009AP284-D

¶49 IT IS FURTHER ORDERED that within 60 days of the date

of this order, Alan D. Eisenberg shall pay to the Office of

Lawyer Regulation the costs of this proceeding.

¶50 IT IS FURTHER ORDERED that, to the extent he has not

already done so, Alan D. Eisenberg 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 or

revoked.

¶51 IT IS FURTHER ORDERED that compliance with all

conditions of this order is required for reinstatement. See

SCR 22.28(3).

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 No. 2009AP284-D

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