2017 WI 49
SUPREME COURT OF WISCONSIN
CASE NO.: 2016AP663-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against John H. Peiss, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
John H. Peiss,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST PEISS
OPINION FILED: May 11, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED: ABRAHAMSON, J. concurs (opinion filed).
CONCURRED/DISSENTED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2017 WI 49
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2016AP663-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against John H. Peiss, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant, MAY 11, 2017
v. Diane M. Fremgen
Clerk of Supreme Court
John H. Peiss,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
revoked.
¶1 PER CURIAM. We review the report of Referee John B.
Murphy recommending that Attorney John H. Peiss's license to
practice law in Wisconsin should be revoked, as discipline
reciprocal to that imposed by the Supreme Court of Illinois.
Upon careful review of the matter, we accept the referee's
recommendation. We also assess the costs of the proceeding,
which are $2,026.90 as of December 28, 2016, against Attorney
Peiss.
No. 2016AP663-D
¶2 Attorney Peiss was admitted to practice law in
Wisconsin in 1982. He was also admitted to practice law in
Illinois on March 6, 1992. Attorney Peiss's license to practice
law in Wisconsin was suspended in 1999 for failure to comply
with continuing legal education requirements and failure to pay
state bar dues. In 2010, Attorney Peiss's Wisconsin law license
was suspended for one year as discipline reciprocal to that
imposed by the Supreme Court of Illinois. Attorney Peiss's
misconduct in Illinois consisted of conversion and the
unauthorized practice of law. See In re Disciplinary
Proceedings Against Peiss, 2010 WI 115, 329 Wis. 2d 325, 788
N.W.2d 636. His Wisconsin license remains suspended.
¶3 On September 21, 2015, the Supreme Court of Illinois
entered an order disbarring Attorney Peiss in that state. The
disbarment was based on four counts of misconduct: (1)
practicing law in a jurisdiction where doing so violates the
regulation of the legal profession in that jurisdiction by
practicing law in Illinois while suspended; (2) committing a
criminal act that reflects adversely on the attorney's honesty,
trustworthiness or fitness as a lawyer in other respects by
committing the criminal offense of theft; (3) engaging in
conduct involving dishonesty, fraud, deceit or
misrepresentation; and (4) engaging in conduct prejudicial to
the administration of justice.
¶4 Attorney Peiss did not notify the Office of Lawyer
Regulation (OLR) of the Illinois disbarment within 20 days of
its effective date.
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¶5 On April 1, 2016, the OLR filed a complaint against
Attorney Peiss alleging the following counts of misconduct:
Count One: By virtue of the Illinois disciplinary
disbarment, Attorney Peiss is subject to reciprocal
discipline in Wisconsin pursuant to SCR 22.22.1
Count Two: By failing to notify the OLR of his
disbarment in Illinois for professional misconduct
within 20 days of the effective date of its
imposition, Attorney Peiss violated SCR 22.22(1).
¶6 Attorney Peiss filed an answer to the OLR's complaint
on July 12, 2016. He filed an amended answer on September 9,
2016. The amended answer raised three affirmative defenses:
(1) that the hearing in Illinois was conducted without notice
to, or service of process on Attorney Peiss; (2) that Attorney
Peiss had no opportunity to be heard in the Illinois action; and
(3) that there was no proof of any misconduct in Illinois.
¶7 The OLR filed a motion for summary judgment.
Following briefing, the referee granted the summary judgment
motion. The referee noted that under SCR 22.22(3), this court
shall impose the identical discipline imposed in another
jurisdiction unless one or more of three exceptions apply.
1
SCR 22.22 provides: Reciprocal Discipline.
(1) An attorney on whom public discipline for
misconduct or a license suspension for medical
incapacity has been imposed by another jurisdiction
shall promptly notify the director of the matter.
Failure to furnish the notice within 20 days of the
effective date of the order or judgment of the other
jurisdiction constitutes misconduct.
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Attorney Peiss argued that "the procedure in the other
jurisdiction was so lacking in notice or opportunity to be heard
as to constitute a deprivation of due process." See SCR
22.22(3)(a). Attorney Peiss claimed that the failure of the
Illinois disciplinary authorities to personally serve him with
either of the two complaints filed in the Illinois action was
fatal to the Illinois court's prosecution of the disciplinary
case against him. The referee disagreed.
¶8 The referee noted that the pertinent Illinois rule,
Attorney Registration and Disciplinary Commission (ARDC) Rule
214(b) provides that an attorney may be served either by
personal service or, if a person authorized to make personal
service files an affidavit that the respondent resides out of
state, has left the state, on due inquiry cannot be found, or is
concealed within the state so that process cannot be served upon
him, the respondent may be served by ordinary mail.
¶9 The referee said a review of the Illinois ARDC record
and statements of Attorney Peiss confirm that he was not
personally served. However, the referee said the Illinois
record makes clear that at the time the ARDC's original
complaint was filed, Attorney Peiss was in contact with the ARDC
and was aware as early as June of 2013 that a disciplinary
inquiry was under way. In addition, the referee said following
the filing of the first complaint, Attorney Peiss was in contact
with an investigator from the ARDC and was aware the ARDC wanted
to personally serve the complaint on him. According to the
Illinois record, Attorney Peiss told an ARDC investigator that
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he would return to Chicago to accept service of the complaint on
August 6, 2013. Attorney Peiss never made contact with the ARDC
to accept service. ARDC later hired a process server to attempt
service on Attorney Peiss in Madison, Wisconsin, where he was
taking care of his mother who had suffered a stroke. This
attempt at personal service was also unsuccessful and substitute
service was made by mail. Attorney Peiss did not answer the
complaint.
¶10 The referee went on to note that the ARDC subsequently
filed an amended complaint on December 10, 2013. This complaint
was mailed to Attorney Peiss, and the record indicates that he
received the complaint but failed to file an answer. The
Illinois matter came on for a hearing before the Board of
Illinois Attorney Registration and Disciplinary Commission
(Board) on June 16, 2014. Attorney Peiss appeared at the
hearing and was represented by counsel. The referee noted that
because the substantive accusations of the amended complaint had
been deemed admitted by Attorney Peiss's failure to file an
answer, the hearing dealt with the disciplinary recommendation.
However, the referee said it appeared from the report and
recommendation in the Illinois case that the Board did allow
Attorney Peiss to make some due process arguments pertaining to
the alleged lack of personal service, but the Board was not
persuaded by his claims. The chair of the Board specifically
said that "after listening to respondent's testimony and
observing his demeanor at the hearing, we did not find him
credible."
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¶11 The referee said:
[I]t [is] impossible to believe that the respondent
was in any way deprived of due process in the Illinois
proceedings against him. Any problems in service were
the direct result of the respondent's own misbehavior
and not the result of any failure on the part of the
ARDC. Further, the due process issue was considered
by the Illinois authorities at the June 2015 [sic]
hearing and respondent's arguments were properly
rejected by that tribunal.
¶12 The referee went on to point out that Attorney Peiss
"undertook the same sort of behavior" when attempts were made to
serve the complaint in the instant action. The referee noted
that according to an affidavit of the process server, numerous
attempts at personal service were made without success and when
the process server finally made telephone contact with Attorney
Peiss to discuss meeting to accept service, Attorney Peiss's
response was, "ah no," whereupon he hung up on the process
server, after which the complaint had to be served by mail.
¶13 The referee rejected Attorney Peiss's argument that
reciprocal discipline was unwarranted because he was denied due
process in the Illinois proceeding. The referee granted the
OLR's motion for summary judgment and recommended that this
court impose discipline reciprocal to that imposed by the
Supreme Court of Illinois, i.e. the revocation of Attorney
Peiss's license to practice law in Wisconsin. The referee also
recommended that Attorney Peiss be assessed the full costs of
this proceeding.
¶14 Attorney Peiss has not appealed the referee's report
and recommendation. Accordingly, this court reviews the matter
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pursuant to SCR 22.17(2), which provides that if no appeal is
timely filed, the court shall review the referee's report;
adopt, reject or modify the referee's findings and conclusions
or remand the matter to the referee for additional findings; and
determine and impose appropriate discipline.
¶15 Upon careful review of the matter, we adopt the
referee's findings of fact and conclusions of law. We agree
with the referee that Attorney Peiss failed to demonstrate that
he was denied due process in the Illinois proceeding.
Accordingly, we approve the referee's recommendation and impose
the identical discipline imposed by the Supreme Court of
Illinois, namely the revocation of Attorney Peiss's license to
practice law in Wisconsin. We also assess the full costs of the
proceeding against Attorney Peiss.
¶16 IT IS ORDERED that the license of John H. Peiss to
practice law in Wisconsin is revoked, effective the date of this
order.
¶17 IT IS FURTHER ORDERED that, to the extent he has not
already done so, John H. Peiss shall comply with the provisions
of SCR 22.26 concerning the duties of a person whose license to
practice law in Wisconsin has been revoked.
¶18 IT IS FURTHER ORDERED that within 60 days of the date
of this order, John H. Peiss shall pay to the Office of Lawyer
Regulation the costs of this proceeding.
¶19 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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¶20 SHIRLEY S. ABRAHAMSON, J. (concurring) This is a
reciprocal discipline case.1 It raises the question of what is
"identical discipline" in a reciprocal discipline matter.2
¶21 The Office of Lawyer Regulation seeks revocation of
Attorney Peiss's Wisconsin license in the instant case, while
the Illinois discipline was "disbarment." The documents filed
by the OLR in the instant case, like the documents filed in
other reciprocal discipline cases, do not explain the extent to
which the other state's discipline (here disbarment) is or is
not identical to the Wisconsin discipline of revocation.
¶22 This failure on the part of the OLR hampers the work
of this court. The per curiam opinion is defective in not
equating disbarment and revocation.
¶23 I conclude that the OLR should improve its
presentation in reciprocal discipline cases by comparing the
Wisconsin discipline to be imposed with the discipline imposed
in the other state.
¶24 For example, my research of Illinois law indicates
that disbarment in Illinois amounts to a five-year revocation of
the license before the attorney may seek reinstatement. See
1
In my dissent in In re Disciplinary Proceedings Against
Buzawa, No. 2016AP2351-D, unpublished order (Wis. S. Ct. Apr.
10, 2017; separate writing May 11, 2017), I compared what I view
as the correct procedure used in the instant case with what I
considered a flawed procedure used in Buzawa to gauge a lawyer's
challenge to another state's discipline proceeding. The Buzawa
order is attached as Attachment A.
2
See SCR 22.22(3).
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No. 2016AP663-D.ssa
Illinois Rule 767. Thus, disbarment in Illinois appears to be
identical to license revocation in Wisconsin. SCR 22.29(2).
¶25 The OLR has an advantage over a justice or a Supreme
Court commissioner in determining Illinois law. In contrast
with a justice or court staff——who may not engage in ex parte
communications——the OLR may do its own research on other states'
laws, may seek assistance from officials in other states, and
may submit proof regarding the nature of the other state's
discipline. A lawyer challenging the proposed Wisconsin
discipline may submit his or her own documentation regarding the
imposition of identical discipline.
¶26 If this case were initially a Wisconsin matter, the
court in all probability would order restitution to the
attorney's victims. The Illinois proceeding did not order
restitution. Should Wisconsin nevertheless seek restitution
before the Wisconsin license is reinstated?
¶27 The instant case, as well as other reciprocal
discipline cases, raise the question of what is identical
discipline. I suggest that the OLR Procedure Review Committee
(Professor Marsha Mansfield, University of Wisconsin Law School,
Reporter), appointed by the court in June 2016, should consider
reviewing and revising the Supreme Court Rules governing
reciprocal discipline when a lawyer licensed in Wisconsin is
disciplined in another state.
¶28 For the reasons set forth, I write separately.
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1
Office of Lawyer Regulation v. John H. Peiss
Court: Wisconsin Supreme Court
Date filed: 2017-05-11
Citations: 375 Wis. 2d 82, 2017 WI 49
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