Office of Lawyer Regulation v. John Kenyatta Riley , 371 Wis. 2d 311 ( 2016 )

2016 WI 70SUPREME COURT OF WISCONSIN
CASE NO.: 2010AP2942-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against
John Kenyatta Riley, Attorney at Law:
Office of Lawyer Regulation,
Complainant-Respondent,
v.
John Kenyatta Riley,
Respondent-Appellant.
DISCIPLINARY PROCEEDINGS AGAINST RILEY
OPINION FILED: July 15, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 23, 2012
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED: Abrahamson, J. and Bradley, A.W., J. (Part I of
concurrence only)
DISSENTED: Prosser, J.
NOT PARTICIPATING: Bradley, R.G., J.
ATTORNEYS:
For the respondent-appellant, there were briefs filed by
Stacie H. Rosenzweig, Halling & Cayo, Milwaukee and Paul R.
Erickson, Gutglass, Erickson, Bonville & Larson, SC, Milwaukee.
Oral argument by Paul R. Erickson.
For the Office of Lawyer Regulation, there was a brief
filed by Matthew J. Price, Foley & Lardner, LLP, Milwaukee and
oral argument by Matthew J. Price.
2016 WI 70NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2010AP2942-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against John Kenyatta Riley, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant-Respondent,
JUL 15, 2016
v.
Diane M. Fremgen
Clerk of Supreme Court
John Kenyatta Riley,
Respondent-Appellant.
ATTORNEY disciplinary proceeding. Attorney publicly
reprimanded.
¶1 ROGGENSACK, C.J., ZIEGLER, J., AND GABLEMAN,
J. Attorney John Kenyatta Riley appeals from the report of the
referee, Attorney Hannah C. Dugan, who concluded that Attorney
Riley had violated three Rules of Professional Conduct for
Attorneys and recommended that he be publicly reprimanded and
that he be required to pay the full costs of this disciplinary
proceeding.
No. 2010AP2942-D
¶2 After our careful review of this matter and the legal
issues it presents, a majority of the court has agreed that
Attorney Riley committed professional misconduct, that he should
be publicly reprimanded, and that he should be required to pay
the full costs of this disciplinary proceeding, which were
$16,961.70 as of November 6, 2012. This is, therefore, the
mandate of the court. A majority of the court, however, does
not agree as to a single rationale for reaching that result.
Three justices, Chief Justice Roggensack, Justice Ziegler, and
Justice Gableman, agree with the reasoning set forth in this
lead opinion. Justice Abrahamson and Justice Ann Walsh Bradley
concur in the mandate, but do not join this opinion.1 Each of
them sets forth her views in a concurring opinion. Justice
Prosser dissents.2
I. FACTUAL AND PROCEDURAL BACKGROUND
¶3 Attorney Riley was admitted to the practice of law in
Wisconsin in May 1996. He has been the subject of professional
discipline on one prior occasion. In 2009 Attorney Riley
consented to the imposition of a private reprimand for violating
SCRs 20:1.3 (lack of diligence) and 20:1.4(b) (failure to
1
The mandate that follows this lead opinion is the mandate
of the court as agreed upon by all of the participating justices
except Justice Prosser.
2
Justice N. Patrick Crooks participated in the oral
argument of this matter, but he passed away while the matter was
pending. Justice Rebecca G. Bradley did not participate in this
matter.
2
No. 2010AP2942-D
explain a legal matter to a client). He currently practices in
Milwaukee with the law firm of Eisenberg, Riley and Zimmerman,
S.C.
¶4 This case involves the intersection of the careers of
two attorneys, Attorney Riley and Attorney Brian K. Polk. An
understanding of Attorney Polk's employment history is necessary
to an understanding of the charges of professional misconduct
against Attorney Riley.
A. Attorney Polk's Employment History and Reinstatement
Proceeding
¶5 From July 1997 until June 2000, Attorney Polk worked
as an associate attorney for the law firm of Eisenberg, Weigel,
Carlson, Blau, Reitz & Clemens, S.C. (Eisenberg, Weigel)3 doing
"intake" work for personal injury cases. He ended his
employment with that firm because he claims he became
disillusioned with the lack of opportunities to do more
substantive legal work. After leaving the Eisenberg, Weigel
firm, Attorney Polk was unemployed for a while and failed to
comply with his continuing legal education (CLE) reporting
requirement. His license was administratively suspended for
that reason in June 2001.
¶6 Over the next several years, Attorney Polk held a
number of different non-legal jobs. Although his license to
practice law in Wisconsin remained administratively suspended,
3
One of the named partners of the Eisenberg, Weigel firm
was Attorney Alvin H. Eisenberg.
3
No. 2010AP2942-D
at some point in the fall of 2005 Attorney Polk began to work
for a new law firm4 that Attorney Alvin Eisenberg had founded
after the breakup of the Eisenberg, Weigel firm.5 Attorney Polk
was made part of the personal injury "team" that was led by
Attorney Eisenberg. He solicited individuals to become personal
injury clients of the firm, he met with and gave legal advice to
clients about their claims, he did property damage settlements,
and he corresponded with third parties using firm letterhead and
identifying himself in the signature block as an "attorney at
law." During the time that Attorney Polk worked for the new
Eisenberg firm, he spent approximately 50 hours per week or more
in the firm's offices. Attorney Polk was given his own office
and telephone extension, and his extension was listed on the
firm's telephone extension list. Because the firm was reluctant
to use Attorney Polk's real name over its intercom system, for a
4
The initial name of the new firm founded by Attorney
Eisenberg is not clear from the record of this matter. Thus,
for purposes of this opinion, the firm will be referenced as
"the new Eisenberg firm." At some point after Attorney Riley
joined the new Eisenberg firm, the name of the firm was changed
to Eisenberg & Riley. The record does not disclose exactly when
this occurred, but it apparently occurred prior to September 6,
2006, the date of the hearing that is at issue in this matter,
because Attorney Riley identified himself at that hearing as
"Attorney Kenyatta Riley [of] the Law Offices of Eisenberg and
Riley."
5
There were ongoing disputes, civil actions and attorney
regulatory complaints between Attorney Eisenberg and Attorney
Joseph Weigel in connection with the breakup of the Eisenberg,
Weigel firm. See In re Disciplinary Proceedings Against Weigel,
2012 WI 124, 345 Wis. 2d 7, 823 N.W.2d 798, cert. denied,
___U.S.___, 135 S. Ct. 375 (2014).
4
No. 2010AP2942-D
while the firm used the pseudonym "James Pearson" for Attorney
Polk when paging him over the firm's intercom system. Attorney
Polk testified in this proceeding that he stopped working for
the new Eisenberg firm in the first half of 2006.6
¶7 Attorney Riley was familiar with Attorney Polk because
Attorney Riley also had been an associate attorney at the
Eisenberg, Weigel firm during the same time period as Attorney
Polk. Attorney Riley moved to a different law firm and then
opened his own solo practice. It appears that Attorney Riley
also began working as an associate attorney at the new Eisenberg
firm in the middle part of 2005, shortly before Attorney Polk
began his employment with that firm. During the time when
Attorney Polk was also employed by the new Eisenberg firm,
Attorney Riley did not have any management responsibilities in
that firm. At a later date, he did begin to take on management
responsibilities.
¶8 In February 2006, while Attorney Polk was still
working as an attorney at the new Eisenberg firm, he filed a
petition for the reinstatement of his license to practice law in
this state. After conducting an investigation, the Office of
Lawyer Regulation (OLR) filed a response opposing the
6
Attorney Eisenberg received a consensual public reprimand
in connection with hiring Attorney Polk to engage in law-related
work and allowing him to hold himself out as an attorney while
his license to practice law was administratively suspended.
Public Reprimand of Alvin H. Eisenberg, No. 2012-8 (electronic
copy available at
https://compendium.wicourts.gov/app/raw/002479.html).
5
No. 2010AP2942-D
reinstatement petition due to a number of concerns about
Attorney Polk's character and fitness to practice law, including
his receipt of a citation for loitering-illegal drug activity,
his multiple citations and convictions for operating after
revocation of his driver's license and for other traffic
offenses, and his failure to pay multiple civil judgments. The
OLR's response did not mention any concerns regarding Attorney
Polk's employment history or his unauthorized practice of law
during his administrative suspension, presumably because it was
not aware of Attorney Polk's employment at the new Eisenberg
firm.
¶9 Because there appeared to be a number of disputed
factual issues regarding the concerns raised by the OLR, on June
23, 2006, this court referred the matter to a referee, Reserve
Judge Dennis Flynn, to receive evidence and make factual
determinations regarding (1) the number and type of
citations/convictions that Attorney Polk had received in
connection with his operation of a motor vehicle, (2) the facts
surrounding the incident for which Attorney Polk had received
the citation for loitering-illegal drug activity and whether he
had misrepresented those facts to the OLR in its investigation,
and (3) the facts concerning the nature and status of the
outstanding civil judgments against Attorney Polk. The court's
order further provided that the referee "may also consider any
other matter that the referee deems helpful to this court's
decision of the reinstatement petition."
6
No. 2010AP2942-D
¶10 Attorney Riley did not have any role in the
preparation or filing of Attorney Polk's reinstatement petition.
Attorney Polk represented himself during most of the
reinstatement proceeding. Prior to the evidentiary hearing
scheduled by Judge Flynn, however, Attorney Polk spoke with
Attorney Eisenberg about concerns he had with the upcoming
hearing. Attorney Eisenberg then spoke with Attorney Riley and
directed him to assist Attorney Polk with the reinstatement
hearing. The initial understanding among the three lawyers was
that Attorney Riley would act as "second chair" for the hearing,
meaning that Attorney Polk would still be primarily responsible
for presenting evidence, examining witnesses, and making
argument.
¶11 According to Attorney Riley, prior to the hearing he
did not draft any legal documents and did not solicit witnesses
to testify on Attorney Polk's behalf or prepare any witnesses to
testify. The referee found, however, that prior to the hearing,
Attorney Polk had specifically discussed with Attorney Riley
that Attorney Polk was concerned about not having disclosed his
employment with the new Eisenberg firm to the OLR in the
reinstatement investigation.
¶12 The evidentiary hearing before Judge Flynn took place
on September 6, 2006. Despite the initial understanding that
Attorney Riley would act as only a "second chair," he took the
lead role in presenting Attorney Polk's case at the hearing. He
handled the direct and cross-examination of all witnesses, made
7
No. 2010AP2942-D
and responded to objections, argued legal issues, and presented
closing argument in favor of Attorney Polk's reinstatement.
¶13 Some understanding of the flow of the hearing is
necessary to understand the charges against Attorney Riley and
his arguments against those charges. Although Attorney Polk, as
the petitioner for reinstatement, bore the burden of proof, the
parties and the referee agreed to hear first the testimony of a
police officer who had been involved in issuing the citation for
loitering-illegal drug activity to Attorney Polk so that the
officer would not need to wait through other testimony and could
return to his police duties. The OLR's attorney conducted the
direct examination of the officer, and Attorney Riley cross-
examined the officer on behalf of Attorney Polk.
¶14 After the completion of the officer's testimony, the
hearing returned to the standard procedure, and Attorney Riley
proceeded to present evidence on Attorney Polk's behalf. The
first witness he called was Attorney Polk. Presumably because
the referee had just heard the testimony of the police officer
regarding the events that led to the issuance of the citation
for loitering-illegal drug activity, Attorney Riley began
Attorney Polk's direct examination not with the normal
background questions, but rather with a substantial number of
substantive questions regarding those same events. Attorney
Riley's questions and Attorney Polk's responses on this subject
occupied approximately ten pages of the hearing transcript.
¶15 The next topic on which Attorney Riley questioned
Attorney Polk was the various traffic citations he had received,
8
No. 2010AP2942-D
including the multiple offenses for having driven with a
suspended or revoked driver's license. This also was a
substantial discussion, occupying approximately 12 pages of
transcript.
¶16 Attorney Riley then turned the questioning to the
topic of the civil judgments that had been entered against
Attorney Polk. After eliciting some information about the
status of those judgments, Attorney Riley asked Attorney Polk a
series of questions regarding his ability or inability to have
satisfied those judgments over the preceding years. Attorney
Polk testified generally that during the period of the
suspension of his law license, the jobs he had held were non-
professional jobs with limited rates of compensation. Attorney
Polk further testified that he had used the money he had earned
to provide for his family rather than to satisfy the judgments
that had been entered against him. Attorney Riley asked two
more questions that were clearly intended to allow Attorney Polk
to repeat and emphasize that his lack of income had been the
reason for not paying the judgments. It was after these two
questions that Attorney Riley asked Attorney Polk to summarize
his employment history in the following exchange, which is the
basis for the charges in this disciplinary proceeding:
Q. And I know you touched on it earlier, but can you
tell the Court what kind of jobs you've had since
the loss of your [law] license. What have you
done?
A. Worked as——worked for 7-Up Bottling loading
trucks, riding a forklift. Worked at a video
distribution center, doing everything from
9
No. 2010AP2942-D
sweeping the floors to loading trucks. At one
point in time, for a period of time, I worked for
Progressive Training Consultants. During that
period I did some consulting work on the
Marquette Interchange. But for the most part,
I've had labor related, you know, jobs, warehouse
type of work.
¶17 Importantly, Attorney Polk's answer did not make any
mention of his employment with the new Eisenberg firm. Attorney
Riley did not ask any follow-up questions to bring out that fact
or to clarify that Attorney Polk's answer was not complete.
Attorney Riley stayed with the same subject matter regarding the
unpaid judgments, but he moved on to asking about specific
judgments and whether they had been satisfied.
¶18 On cross-examination, the OLR's counsel asked Attorney
Polk a lengthy series of questions concerning whether during the
suspension of his license to practice law (1) he had attempted
to practice law, (2) he had held himself out as an attorney, (3)
he had provided legal advice to anyone, (4) he had done any
legal research, or (5) he had engaged in any "law work activity"
or "any work normally performed by clerks or paralegal
personnel." Attorney Polk responded negatively to each of these
questions. He again did not mention his work for the new
Eisenberg firm.
¶19 Attorney Riley's redirect examination of Attorney Polk
did not did not include any questions regarding Attorney Polk's
employment history. It focused solely on why Attorney Polk had
not contested the loitering citation.
¶20 Following the hearing, Judge Flynn issued a report and
recommendation, as requested in this court's June 23, 2006
10
No. 2010AP2942-D
order. Because Attorney Polk did not disclose his employment
with the new Eisenberg firm, Judge Flynn's report did not
discuss the impact of Attorney Polk's work on legal matters
while suspended on his suitability for reinstatement. Judge
Flynn, however, did comment in several parts of his report on
Attorney Polk's employment history generally when discussing
Attorney Polk's claim that he lacked funds to satisfy the
judgments that had been entered against him. Specifically,
Judge Flynn stated that, given Attorney Polk's testimony at the
hearing, the jobs he had held during his suspension "had been
for low wages" and that Attorney Polk had used the money he had
earned to support his family. In addition, Judge Flynn accepted
Attorney Polk's testimony that he had not been employed or
sought employment for the last six months because he had been
waiting for his license to practice law to be reinstated.
Although the referee generally accepted Attorney Polk's
testimony regarding his employment history and the low wages he
had earned, the referee nonetheless rejected Attorney Polk's
claim that he had been financially unable either to pay the
debts in full or to work out a payment plan. The referee's
findings and comments regarding Attorney Polk's job history and
ability to make payments demonstrate that these subjects were a
relevant factor in the referee's ultimate legal conclusion that
Attorney Polk did not have a proper understanding of and
attitude toward the standards that are imposed upon Wisconsin
attorneys.
11
No. 2010AP2942-D
¶21 Ultimately, given the referee's findings, this court
denied Attorney Polk's reinstatement petition. In re
Reinstatement of Polk, 2007 WI 51, 300 Wis. 2d 280, 732 N.W.2d
419.
B. Procedural History of Current Disciplinary Proceeding Against
Attorney Riley
¶22 In the course of an investigation in 2008, the OLR
learned that Attorney Polk had been employed by the new
Eisenberg firm in 2005-06 while Attorney Riley had also worked
there. When the OLR asked Attorney Riley about that fact, he
indicated that he had not known that. Attorney Riley claims
that he then investigated whether Attorney Polk had been
employed by the new Eisenberg firm. Although he asserts that
this was the first time he learned of Attorney Polk's work at
the law firm, he never advised the OLR, Judge Flynn, or this
court at that time that Attorney Polk's testimony at the
September 6, 2006 hearing had been false or misleading because
of the omission of his employment at the new Eisenberg firm.
¶23 The OLR subsequently filed a formal complaint against
Attorney Riley regarding his actions in representing Attorney
Polk at the September 6, 2006 evidentiary hearing. Although the
complaint was framed as a single count, it alleged that Attorney
Riley's actions at the hearing and thereafter had violated three
separate Rules of Professional Conduct for Attorneys. First, it
12
No. 2010AP2942-D
alleged that Attorney Riley had violated former SCR 20:3.3(a)(4)7
by offering material evidence that he knew to be false and
failing to take reasonable remedial measures. Second, it
accused Attorney Riley of violating SCR 20:3.4(b)8 by either
falsifying evidence or counseling or assisting a witness to
testify falsely. Third, it alleged that Attorney Riley's
questioning of Attorney Polk and his failure to disclose
Attorney Polk's omission of his employment at the new Eisenberg
firm from his response regarding his employment history had
constituted conduct involving dishonesty, fraud, deceit or
misrepresentation, in violation of SCR 20:8.4(c).9
¶24 As noted above, Attorney Hannah Dugan was appointed as
referee. After the OLR took depositions of Attorney Riley and
Attorney Polk, Attorney Riley filed a motion for summary
judgment. He argued that he could not have violated the three
identified rules because he had no knowledge of Attorney Polk's
employment at the new Eisenberg firm until the OLR notified him
7
Former SCR 20:3.3(a)(4) (effective through June 30, 2007)
provided that a lawyer shall not knowingly "offer evidence that
the lawyer knows to be false. If a lawyer has offered material
evidence and comes to know of its falsity, the lawyer shall take
reasonable remedial measures."
8
SCR 20:3.4(b) states that a lawyer shall not "falsify
evidence, counsel or assist a witness to testify falsely, or
offer an inducement to a witness that is prohibited by
law; . . . ."
9
SCR 20:8.4(c) states it is professional misconduct for a
lawyer to "engage in conduct involving dishonesty, fraud, deceit
or misrepresentation; . . . ."
13
No. 2010AP2942-D
of that fact in 2008 and because Attorney Polk's testimony about
his employment was not material to the reinstatement proceeding
before Judge Flynn.
¶25 Referee Dugan denied Attorney Riley's summary judgment
motion. She concluded that there was a genuine dispute of
material fact regarding whether Attorney Riley had known about
Attorney Polk's employment at the new Eisenberg firm and had
failed to remedy Attorney Polk's false testimony. Given the
presence of a dispute of material fact, the referee indicated at
that stage in the proceeding she did not believe that whether
there was a genuine issue of material fact regarding Attorney
Polk's employment in the Polk reinstatement proceeding was
relevant to whether there was a genuine issue of material fact
in the current disciplinary proceeding against Attorney Riley.
¶26 After the summary judgment motion was denied, the
parties proceeded to a full evidentiary hearing. The primary
focus of that hearing was whether Attorney Riley had known at
the time of the September 6, 2006 hearing that Attorney Polk had
been employed by and had performed law-related work for the new
Eisenberg firm, which would have determined whether he knew of
the falsity of Attorney Polk's testimony.
¶27 Attorney Riley denied that he had been aware that
Attorney Polk had been employed by the new Eisenberg firm in
late 2005 and early 2006. He acknowledged that he had seen
Attorney Polk in the firm's offices in that timeframe, but
claimed he had believed that Attorney Polk was merely a guest
using the firm's resources either to work on his petition for
14
No. 2010AP2942-D
reinstatement or to do his own consulting work. Attorney Riley
explained that the environment at the new Eisenberg firm at that
time was "free-wheeling," with numerous people coming and going
through the firm's offices.
C. Referee's Report and Recommendation
¶28 The referee did not accept Attorney Riley's denials.
In her report the referee pointed out that multiple witnesses
had testified that during the relevant months of 2005-2006,
Attorney Polk had been at the offices of the new Eisenberg firm
for many hours each week, that he had attended regular firm
meetings of the personal injury team, that Attorney Riley had
seen him at those meetings, that Attorney Polk had met with
clients and had performed other normal law-office activities,
and that the offices of Attorney Riley and Attorney Polk at the
law firm were in close proximity. While stating that in light
of this evidence it would seem incredible for Attorney Riley not
to have known of Attorney Polk's employment and practice of law
with the new Eisenberg firm, the referee nonetheless believed
that this evidence, by itself, was not sufficient to constitute
the required clear, satisfactory, and convincing evidence the
OLR needed to meet its burden of proof that Attorney Riley knew
Attorney Polk's response at the hearing was false by omission.10
10
In an attorney disciplinary proceeding, the OLR must
prove any violation of the Rules of Professional Conduct for
Attorneys by clear, satisfactory, and convincing evidence. SCR
22.16(5).
15
No. 2010AP2942-D
¶29 The referee also found Attorney Riley's claims that he
had agreed to act only as a second chair and that he had not
prepared for the September 6, 2006 hearing were not as credible
as Attorney Polk's testimony. In particular, the referee
credited Attorney Polk's statement that prior to the September
6, 2006 hearing, he had specifically discussed with Attorney
Riley his concern that he had not disclosed his employment with
the new Eisenberg firm.11 The referee stated that Attorney Riley
had never directly refuted this statement in his testimony at
the hearing. Consequently, the referee further found that
Attorney Riley had known that Attorney Polk's failure to
disclose his employment with the new Eisenberg firm in his
answer to Attorney Riley's question at the September 6, 2006
hearing had made Attorney Polk's testimony false by omission.
¶30 The referee next addressed Attorney Riley's argument
that Attorney Polk's testimony about his employment history was
not material to the issues in Attorney Polk's reinstatement
proceeding.
¶31 The referee believed that this court's June 23, 2006
order had created a "hybrid" standard for obtaining
reinstatement after a more-than-three-year administrative
suspension. She was unsure whether Attorney Polk's employment
11
The referee included the following statement in her
report: "Brian Polk's statements that prior to the
[reinstatement] hearing that he raised with Attorney Riley
concerns about not disclosing that he was working at the [new
Eisenberg] firm are forthright, clear and convincing."
16
No. 2010AP2942-D
history would have been material under only this court's
reinstatement rules for administrative suspensions and this
"hybrid" standard.
¶32 She therefore turned to whether the information about
Attorney Polk's employment at the new Eisenberg firm had been
material to the issues identified in this court's June 23, 2006
order. The referee did not expressly conclude whether Attorney
Polk's employment history was material to the three specific
subjects set forth in that order (i.e., loitering citation,
traffic violations, and unpaid civil judgments). She concluded,
however, that his law firm employment had been material to Judge
Flynn's analysis of the "catch-all" provision in the order ("any
other matter that the referee deems helpful to this court's
decision of the reinstatement petition"). Specifically,
although the June 23, 2006 order did not expressly direct Judge
Flynn to make findings regarding Attorney Polk's employment
history during his suspension, Referee Dugan believed that
information about Attorney Polk's having engaged in law-related
work for a law firm would have been material to the referee's
determination of Attorney Polk's fitness to return to the
practice of law.
¶33 The referee also discussed that there was no dispute
that in 2008, after having been advised by the OLR that it had
learned of Attorney Polk's employment at the new Eisenberg firm,
Attorney Riley testified that he had conducted his own
investigation and clearly knew at that point that Attorney
Polk's testimony had been false by omission. The referee noted
17
No. 2010AP2942-D
that, despite being aware of this false testimony, Attorney
Riley did not attempt to remedy the prior false evidence by
advising Judge Flynn, the OLR, or this court.
¶34 Having found that Attorney Polk had given false
testimony in response to Attorney Riley's question and that
Attorney Riley was aware of the falsity, and having determined
that Attorney Polk's testimony was material to Judge Flynn's
task in Attorney Polk's reinstatement proceeding, Referee Dugan
concluded that the OLR had met its burden of proof by clear,
satisfactory, and convincing evidence on each of the three rule
violations alleged in this case. First, the referee determined
that Attorney Riley had offered false material evidence at the
reinstatement hearing and, after having learned of the falsity,
had failed to take reasonable remedial measures, in violation of
former SCR 20:3.3(a)(4). Second, the referee concluded that
Attorney Riley had violated SCR 20:3.4(b) by having assisted a
witness to testify falsely. Third, the referee determined that
Attorney Riley's involvement with Attorney Polk's false
testimony constituted conduct involving dishonesty, fraud,
deceit or misrepresentation, in violation of SCR 20:8.4(c).12
12
The referee noted that this court has held that omissions
that cause a statement to be false can constitute unethical
conduct in violation of SCR 20:8.4(c). See, e.g., In re
Disciplinary Proceedings Against Knickmeier, 2004 WI 115, 275
Wis. 2d 69, 683 N.W.2d 445, cert. denied, 544 U.S. 1041 (2005);
In re Disciplinary Proceedings Against Urban, 2002 WI 63, 253
Wis. 2d 194, 645 N.W.2d 612.
18
No. 2010AP2942-D
¶35 Having found violations of all three rules as charged
in the OLR's complaint, the referee recommended that the court
publicly reprimand Attorney Riley, as requested by the OLR.
¶36 The referee relied on several cases cited by the OLR
as support for a public reprimand. She asserted that some of
those cases involved omissions by counsel that constituted false
evidence in violation of SCR 20:3.3. See, e.g., In re
Disciplinary Proceedings Against McNeely, 2008 WI 91, 313
Wis. 2d 283, 752 N.W.2d 857 (60-day suspension imposed for three
ethical violations, including violations of SCRs 20:3.3(a)(1)
and 20:8.4(c)); In re Disciplinary Proceedings Against Lister,
2007 WI 55, 300 Wis. 2d 326, 731 N.W.2d 254 (five-month
suspension imposed for 17 proven counts of misconduct).13 The
referee also pointed to several cases in which attorneys had
been disciplined for having made false statements to tribunals,
in violation of SCRs 20:3.3 and/or 20:8.4(c). In re
Disciplinary Proceedings Against Alia, 2006 WI 12, 288
Wis. 2d 299, 709 N.W.2d 399 (90-day suspension where attorney
altered exhibit and used it to elicit false testimony at trial);
In re Disciplinary Proceedings Against Kalal, 2002 WI 45, 252
13
Although this court spoke of the fact in the Lister
opinion that Attorney Lister had not indicated to the circuit
court that he was unsure of a fact stated in an argument, that
was not really an omission case because Attorney Lister made an
affirmative representation to the circuit court that was simply
contrary to fact. His statement was not false or misleading
because of an omission of another fact. 300 Wis. 2d 326, ¶¶9,
64.
19
No. 2010AP2942-D
Wis. 2d 261, 643 N.W.2d 466 (attorney publicly reprimanded for
making false statement during appellate oral argument); Public
Reprimand of Holly L. Bunch, No. 2009-12 (consensual public
reprimand imposed on prosecutor for misrepresenting to a jury
that the defendant had never previously denied committing the
crime when prosecutor knew of police reports that referenced
such denials)(electronic copy available at
https://compendium.wicourts.gov/app/raw/002196.html).
¶37 In addition, the referee noted two aggravating factors
identified by the OLR: (1) Attorney Riley's refusal to
acknowledge the wrongful nature of his conduct, and (2) his
prior private reprimand for a lack of diligence and a failure to
explain the legal options to clients. Although the OLR had
asserted that there were no mitigating factors, the referee
concluded that Attorney Riley's full cooperation with the OLR in
the present disciplinary process should be acknowledged.
II. ANALYSIS OF ATTORNEY RILEY'S APPEAL
A. Appeal of Summary Judgment Denial
¶38 Attorney Riley appealed from both the referee's order
denying his motion for summary judgment and the referee's final
report and recommendation. He challenges a number of the
referee's findings of fact and raises a host of arguments as to
why he should not be found to have violated any of the three
ethical rules cited in the OLR's complaint.
¶39 Several of the legal issues identified by Attorney
Riley in connection with the summary judgment decision also
20
No. 2010AP2942-D
apply to the referee's final report. We will address them in
this portion of our opinion.
¶40 The first subject we address is the standard by which
we review the referee's denial of Attorney Riley's motion for
summary judgment. The parties agree that the court should use
the same methodology and standard for reviewing grants or
denials of summary judgment as are used in civil actions. See
Wis. Stat. § 802.08 (setting forth standard for granting a
summary judgment motion); see, e.g., Beidel v. Sideline
Software, Inc., 2013 WI 56, ¶33, 348 Wis. 2d 360, 842 N.W.2d 240(appellate court reviewing civil cases applies same standard and
methodology used by circuit court); Green Spring Farms v.
Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987).
¶41 The court has referenced motions for summary judgment
and referee decisions on such motions in prior disciplinary
cases and has implied that such decisions should be reviewed
using the same standard applied by circuit courts and appellate
courts in "normal" civil actions. See, e.g., In re Disciplinary
Proceedings Against Humphrey, 2012 WI 32, ¶¶60-62, 339
Wis. 2d 531, 811 N.W.2d 363 (dismissing charge for which the
referee granted the OLR summary judgment because the admitted
allegations of the complaint were an insufficient basis to find
a violation). We therefore will utilize that methodology and
standard of review in reviewing the referee's summary judgment
decision in this case.
¶42 Attorney Riley makes a number of arguments that
challenge the legal sufficiency of the OLR's claims and the
21
No. 2010AP2942-D
referee's legal analysis of those claims. Two of his arguments
are related and concern the materiality of Attorney Polk's
testimony about his employment during his administrative
suspension. Attorney Riley asserts that, regardless of whether
Attorney Polk's answer about his employment was false and
whether Attorney Riley knew of the falsity of that answer, there
can be no violation of the three ethical rules cited by the OLR
because Attorney Polk's statement was not material to the issues
before Judge Flynn in the reinstatement proceeding, and only
material falsehoods give rise to ethical violations.
¶43 Attorney Riley contends that because the rules
regarding reinstatement petitions following administrative
suspensions of more than three years do not require a
description of the petitioning attorney's business activities
during the suspension, such information was not required in
Attorney Polk's reinstatement proceeding and the information he
did provide about his employment was therefore not material or
relevant to that proceeding.
¶44 Attorney Riley acknowledges, however, that this court
in its June 23, 2006 order identified three subjects on which
the referee was to receive evidence and about which he was to
make factual findings: (1) the number and type of citations or
convictions for motor vehicle offenses, (2) the facts
surrounding the incident for which Attorney Polk received a
citation for loitering-illegal drug activity, and (3) the facts
concerning the nature and status of any outstanding civil
judgments against Attorney Polk. Attorney Riley contends these
22
No. 2010AP2942-D
were the only matters at issue during the reinstatement hearing
and that Attorney Polk's testimony regarding what jobs he had
held during his administrative suspension was not material to
any of these three subjects. He repeatedly describes Attorney
Polk's employment testimony and the question he asked that
elicited this testimony as merely "boilerplate" or "background,"
implying that it was mere context or pleasantry that had no
effect on the substantive issues that Judge Flynn was to
consider. According to Attorney Riley, since Attorney Polk's
testimony about his employment was not material to the three
subjects identified in our referral order, he had no duty under
former SCR 20:3.3(a)(4) to remediate and cannot be found to have
violated that rule.
¶45 To the extent the OLR argued before the referee that
Attorney Polk's testimony was material because it fell under the
"catch-all" language in the court's June 23, 2006 order,14
Attorney Riley contends that relying on such a catch-all
provision would have made everything Attorney Polk uttered
material. He asserts that this would make him and all other
Wisconsin attorneys liable for any false or misleading statement
made by their clients at any stage in a lawsuit. He argues that
a litigator would need to analyze every statement made by the
litigator's client or witness in order to determine whether
14
On appeal the OLR disclaimed any intention to use the
catch-all provision in the court's June 23, 2006 order as the
basis for the materiality of Attorney Polk's omission.
23
No. 2010AP2942-D
there was a potential discrepancy that needed to be remediated.
Moreover, since the duty to remediate under former
SCR 20:3.3(a)(4) did not terminate at the end of the case or
representation, the lawyer would continue to have an obligation
to explore facts and issues and potentially to notify the court
long after the lawyer no longer represented the client.
Moreover, he asserts that this ongoing duty would apply even
when the client lost in the litigation and correcting the false
or misleading statement could therefore have no potential impact
on the case. He contends that this is an impossible standard
for any litigator in this state to satisfy, and that nearly
every litigator in practice in this state would have violated
that standard at some point in his/her practice.
¶46 In a related vein, Attorney Riley criticizes Referee
Dugan for stating that Judge Flynn and this court had created a
"hybrid" reinstatement standard in the Polk reinstatement
proceeding so that she could find Attorney Polk's testimony to
24
No. 2010AP2942-D
be material to that proceeding.15 According to Attorney Riley,
if this court did, in fact, create a "hybrid" standard in its
subsequent decision denying Attorney Polk's petition, as Referee
Dugan believes, he cannot be sanctioned for being ignorant of a
materiality standard that had not been established at the time
of the September 2006 hearing before Judge Flynn.
¶47 We conclude that the omitted information regarding
Attorney Polk's employment with the new Eisenberg firm was
material to the task this court gave to Judge Flynn and to this
court's consideration of Attorney Polk's reinstatement petition.
15
Referee Dugan believed that there was a gap in this
court's rules regarding what standard to apply to a
reinstatement petition following an administrative suspension of
more than three years. She indicated that it was not initially
clear in the Polk reinstatement matter whether to apply the
standards that govern reinstatement petitions following a
disciplinary suspension of more than six months, see SCRs 22.29-
22.33, or the standards that govern reinstatement petitions
following an administrative suspension of less than three years,
see, e.g., SCR 31.11(1). In a formal reinstatement proceeding
following a disciplinary suspension of more than six months, the
lawyer's employment during his/her suspension is explicitly a
matter of concern. See SCR 22.29(4)(k) (petition for
reinstatement shall contain "[a] full description of all the
petitioner's business activities during the period of suspension
or revocation"). A description of the petitioner's business
activities, however, is not explicitly mentioned in the rules
that relate to reinstatement from an administrative suspension,
whether the suspension is less than or more than three years in
duration. She believes that since this court ultimately
indicated that an attorney seeking reinstatement from an
administrative suspension of more than three years must
demonstrate good moral character and fitness to practice law,
this court created a "hybrid" standard, which made evidence
regarding his employment activities during the period of
suspension material to his fitness to resume the practice of
law.
25
No. 2010AP2942-D
We do not, however, base this determination on a belief that
every subject was material under the catch-all provision in our
June 23, 2006 order. We agree with Attorney Riley that the
rules of professional conduct do not make an attorney a
guarantor of the accuracy of each statement in a client's
testimony, nor do we believe that the rules require an attorney
to interrupt depositions or court hearings repeatedly if the
attorney thinks there might be some trivial discrepancy between
what a witness said under oath and what the attorney understood
to be the truth. We also do not find this omitted information
to be material only because Attorney Polk subsequently admitted
years later that he had practiced law at the new Eisenberg firm.
In other words, it is not necessary that Attorney Riley knew
that Attorney Polk was practicing law (as opposed to simply
working) at the new Eisenberg firm, in order for Attorney Riley
to have violated former SCR 20:3.3(a)(4).
¶48 Our determination that the omitted information was
material rests on the language of the order we issued to Judge
Flynn. One of the topics on which Judge Flynn was to receive
testimony and for which he was to make recommendations to this
court was Attorney Polk's nonpayment of a number of civil
judgments. Judge Flynn was to determine the status of those
judgments. This obviously included why a number of those
judgments had not been satisfied and were still outstanding.
¶49 Attorney Polk's defense on this issue was that the
judgments had not been paid due to his lack of financial
resources. Whether he had been employed and what types of jobs
26
No. 2010AP2942-D
he had held during the period of his administrative suspension
(whether minimum-wage, menial positions or higher-wage,
professional positions) were therefore matters of central
importance to the task given to Judge Flynn. If Attorney Polk
had been able to obtain only minimum wage or part-time jobs,
that fact would have bolstered his argument that he had been
financially unable to pay his legal debts. On the other hand,
if he had held a position with a law firm, even a non-attorney
position, that would have implied that he was earning a somewhat
higher wage and could have made at least some payments of some
amount toward his past debts. A deliberate choice not to pay
one's legal obligations reflects far differently on one's
respect for the law and the legal system than a financial
inability to pay one's debts.
¶50 Attorney Riley's own questioning of Attorney Polk at
the September 2006 hearing and his closing argument at the end
of that hearing demonstrate the materiality of Attorney Polk's
employment to one of the subjects that Judge Flynn was to
consider.
¶51 First, to the extent that Attorney Riley characterizes
Attorney Polk's testimony regarding the jobs he held as merely
"background" information in response to a "boilerplate"
question, the transcript of the reinstatement hearing undercuts
this characterization. As described above, Attorney Riley did
not begin his direct examination of Attorney Polk by asking a
series of general background questions regarding Attorney Polk's
address, education, employment history, etc. Rather, he
27
No. 2010AP2942-D
immediately proceeded to a series of substantive questions
regarding the circumstances surrounding Attorney Polk's receipt
of the citation for loitering-illegal drug activity and his
multiple violations of the traffic laws. Only after exhausting
his questioning on those two substantive topics, which take up
approximately 22 pages of transcript, did Attorney Riley ask a
series of questions that were clearly designed to allow Attorney
Polk to testify that he could not have paid the several civil
judgments that remained outstanding because the types of non-
legal jobs he had taken during his suspension had provided
insufficient income to cover his family's living expenses. The
question from Attorney Riley that elicited Attorney Polk's false
response was a part of that series of questions regarding the
reasons why the judgments had remained unsatisfied. Moreover,
it was not even the first question in that series. The question
therefore was clearly not a boilerplate question that lawyers
often ask merely to make a witness comfortable and to provide
some general background at the start of a witness's testimony.
It was a substantive part of an intentionally crafted
presentation to explain Attorney Polk's nonpayment of the
multiple civil judgments against him.
¶52 Further, asking this question was not the only time
that Attorney Riley brought Attorney Polk's employment history
to the referee's attention. Indeed, in his closing argument at
the hearing, Attorney Riley argued that Attorney Polk had always
intended to pay off all of the outstanding judgments, but that
28
No. 2010AP2942-D
he had been unable to do so because of the type of jobs he had
been able to find.16
¶53 Because we determine that the omission of any mention
of having worked for the new Eisenberg firm in Attorney Polk's
testimony regarding his employment was material to his ability
to pay the civil judgments that were outstanding against him, we
need not address whether there is a difference under the rules
of professional conduct regarding the scope of permissible work
for an attorney subject to a disciplinary suspension versus an
attorney subject only to an administrative suspension. We also
do not need to address the referee's contention that the court
created a "hybrid" standard for obtaining reinstatement after
lengthy administrative suspensions or Attorney Riley's criticism
of the idea of a hybrid standard. Contrary to Attorney Riley's
claim, Attorney Polk's false testimony did not become material
only because of this court's subsequent decision denying
Attorney Polk's reinstatement petition; it was material from the
beginning.
16
Attorney Riley's closing argument included the following
explicit reference to Attorney Polk's inability to pay the
judgments because of the low-paying jobs he had taken during his
suspension:
It has been his intent, even from the Ford
satisfaction, to get these judgments paid off. He has
the mindset that he wants to work out payment
arrangements with them. But so far, it's just been
difficult for him because of his employment type
situation.
29
No. 2010AP2942-D
¶54 Moreover, the fact that this court ultimately denied
Attorney Polk's petition does not erase the materiality of the
testimony. A false statement made to influence a tribunal does
not become less false or less harmful to the adjudicative
process because the tribunal ultimately decides against the
person giving the false testimony on other grounds. See Douglas
R. Richmond, Brian S. Faughnan, and Michael L. Matula,
Professional Responsibility in Litigation 523 (2011) ("A lawyer
may be found to have violated either rule [current ABA Model
Rule 3.3 or 3.4(b)] even where the false testimony did not
affect the outcome of the proceedings."). It is not acceptable
to lie to a court or to a referee if your lie does not cause you
to win.
¶55 Attorney Riley makes another legal argument about the
scope of former SCR 20:3.3(a)(4), although he frames it as a
factual argument. Specifically, he asserts that he did not
"offer" false evidence to the referee because he simply asked
what he calls "an open-ended question about [Attorney Polk's]
employment," to which Attorney Polk gave a "narrative"
description of his jobs. Attorney Riley implies that there can
be a violation of former SCR 20:3.3(a)(4) only if an attorney
actively elicits false testimony, for example, by asking a
witness leading questions designed to lead the witness to
present the false statement. He offers no legal authority for
this position, other than that the rule speaks in terms of
"offering" false evidence.
30
No. 2010AP2942-D
¶56 We acknowledge that the term "offer" in former
SCR 20:3.3(a)(4) has not been interpreted in prior Wisconsin
disciplinary decisions. Indeed, it does not appear that the
term "offer" in the 1983 version of the American Bar
Association's (ABA) Model Rules of Professional Responsibility,
on which former SCR 20:3.3(a)(4) was based, has been the
explicit focus of a disciplinary decision in other
jurisdictions.
¶57 It is equally true, however, that the comments to the
rule and court decisions from other states have provided notice
that a lawyer has a duty to remediate false testimony given by a
client, regardless of the manner in which the false testimony
was given. The ABA comment to 1983 Model Rule 3.3 states that a
lawyer must take remedial measures "[w]hen false evidence is
offered by the client." ABA Model Rules of Prof'l Conduct R. 33
cmt. (1983).
¶58 We conclude that under the facts of this case,
Attorney Riley "offered" false material testimony for which he
had a duty to take reasonable remedial measures under former
SCR 20:3.3(a)(4) when his client omitted an important fact from
his answers on a subject that was clearly material to the
hearing conducted by Judge Flynn.
¶59 We note that the current version of the Wisconsin
rule, which has been renumbered as SCR 20:3.3(a)(3), makes clear
that a lawyer has a duty to take remedial measures whenever (1)
false testimony or evidence is presented (i.e., "offered") by
the lawyer, the lawyer's client, or a witness called by the
31
No. 2010AP2942-D
lawyer, (2) the false testimony is material to the proceeding in
which it is presented, and (3) the lawyer knows of the falsity.17
The duty to take remedial measures does not arise only when the
lawyer has affirmatively elicited the false testimony through
pointed questions.
¶60 Attorney Riley also argues that he should have been
granted summary judgment because there was insufficient evidence
to create a genuine issue regarding his knowledge of Attorney
Polk's employment at the new Eisenberg firm and thus, of the
falsity of Attorney Polk's answers at the reinstatement hearing.
¶61 The first question that must be answered here is what
level or type of knowledge is required. Was the OLR obligated
to provide evidence that Attorney Riley should have known of the
omission in Attorney Polk's answer or was it required to provide
evidence and reasonable inferences that Attorney Riley actually
knew of Attorney Polk's employment at the new Eisenberg firm and
17
The current version of SCR 20:3.3(a)(3) provides as
follows:
A lawyer shall not knowingly:
. . .
(3) offer evidence that the lawyer knows to be
false. If a lawyer, the lawyer's client, or a witness
called by the lawyer, has offered material evidence
and the lawyer comes to know of its falsity, the
lawyer shall take reasonable remedial measures,
including, if necessary, disclosure to the tribunal.
A lawyer may refuse to offer evidence, other than the
testimony of a defendant in a criminal matter that the
lawyer reasonably believes is false.
32
No. 2010AP2942-D
of the omission of that information from Attorney Polk's answer?
Attorney Riley argues that the OLR was required to show his
"actual knowledge" of the falsity of Attorney Polk's response.
The OLR agrees that "actual knowledge" is the appropriate
standard under former SCR 20:3.3(a)(4), although it notes that
such actual knowledge can be inferred from the surrounding
circumstances. We concur that the applicable standard under
former SCR 20:3.3(a)(4) is actual knowledge by the attorney.
The ABA's preamble to the 1983 Model Rules, upon which former
SCR 20:3.3(a)(4) was based, states that the various forms of the
word "know" usually denote actual knowledge of the fact in
question.18 ABA Model Rules of Prof'l Conduct, pmbl. (1983).
There is no reason to use a different standard of knowledge in
this context. The OLR is also correct, however, that knowledge
can be inferred from the circumstances. Moreover, since we are
addressing this in the context of a summary judgment motion, the
OLR correctly points out that the evidence presented and the
inferences to be drawn from that evidence were to be viewed most
favorably to the OLR as the non-moving party. See, e.g.,
Affeldt v. Green Lake Cnty., 2011 WI 56, ¶59, 335 Wis. 2d 104,
803 N.W.2d 56.
¶62 We turn now to Attorney Riley's claim that the
evidence presented at the summary judgment stage was
18
In the current version of the Wisconsin Rules of
Professional Conduct for Attorneys, this definition is now
codified in a specific rule, SCR 20:1.0(g).
33
No. 2010AP2942-D
insufficient under former SCR 20:3.3(a)(4) to show his actual
knowledge of Attorney Polk's employment at the new Eisenberg
firm. Attorney Riley asserts that the OLR presented only
Attorney Polk's speculation as to what Attorney Riley actually
knew and that any opinions offered by Attorney Polk on this
issue were inadmissible as lay opinions.
¶63 We conclude that there was a genuine issue of material
fact on the issue of Attorney Riley's knowledge, and his summary
judgment motion was therefore properly denied. Attorney Polk
gave the opinion in his deposition testimony that Attorney Riley
knew that he was employed by the new Eisenberg firm. Attorney
Polk was competent to give such a lay opinion because he
explained that it was based on his personal perceptions of the
daily activities at the firm. He said that during the relevant
time period, he was at the firm 50-60 hours per week, working in
an office assigned to him, walking around with client intake
packets, making telephone calls, and going back and forth to and
from the copier. Moreover, he specifically testified that
Attorney Riley "absolutely" saw him doing all of these things.
Attorney Polk's personal observations of Attorney Riley seeing
him do all of these tasks that correspond with working in a law
firm provided Attorney Polk with a proper basis for opining that
Attorney Riley knew he was working for the firm in at least some
capacity. Indeed, Attorney Polk's daily experiences in the firm
during the period of his employment led to him to state that it
was common knowledge among all individuals connected with the
firm at that time that Attorney Polk was employed by the firm
34
No. 2010AP2942-D
and indeed was representing himself as an attorney to people
outside the firm.
¶64 In addition, although Attorney Riley attempts to
attack Attorney Polk's credibility, Attorney Polk did explicitly
testify at his deposition that he had at least one discussion
with Attorney Riley prior to the reinstatement hearing regarding
his concern about having held himself out as an attorney while
he had been employed by the new Eisenberg firm. Contrary to
Attorney Riley's arguments, the referee was not free to ignore
or discount this statement when determining whether there was a
genuine dispute of material fact in the summary judgment
context.
¶65 These statements by Attorney Polk and the reasonable
inferences that could be drawn from them were sufficient to
establish clearly and convincingly that Attorney Riley knew
before the September 6, 2006 reinstatement hearing that Attorney
Polk had been employed by the new Eisenberg firm during the
period of his administrative suspension.
¶66 Attorney Riley also argues that he should have been
granted summary judgment with respect to the OLR's claim that he
had violated SCR 20:3.4(b), which provides that a lawyer "shall
not falsify evidence, counsel or assist a witness to testify
falsely, or offer an inducement to a witness that is prohibited
by law." SCR 20:3.4(b). In this case, there is no evidence
that Attorney Riley personally falsified any evidence or offered
a prohibited inducement to Attorney Polk for his testimony at
the reinstatement hearing. The question in this instance is
35
No. 2010AP2942-D
whether Attorney Riley's conduct at the reinstatement hearing
constitutes counseling or assisting a witness to testify
falsely.
¶67 Attorney Riley asserts that the Wisconsin disciplinary
decisions that have found a violation of SCR 20:3.4(b) have
involved situations where the lawyer either actively instructed
or coached a witness to lie or personally falsified evidence.
See, e.g., Alia, 288 Wis. 2d 299 (altering expert report without
expert's permission); In re Disciplinary Proceedings Against
Arthur, 2005 WI 40, 279 Wis. 2d 583, 694 N.W.2d 910 (instructing
client to lie); In re Disciplinary Proceedings Against Salmen,
187 Wis. 2d 318, 522 N.W.2d 779 (1994) (attorney testifying that
letter he back-dated was genuine). Attorney Riley contends that
the court's previous application of the rule to these situations
means that the rule is limited to such instances. Because there
is no evidence that he instructed Attorney Polk to omit any
mention of his employment at the reinstatement hearing, Attorney
Riley argues that this charge should have been dismissed.
¶68 We acknowledge that this court has not previously
decided whether SCR 20:3.4(b) applies to situations where a
lawyer's client testifies falsely, but there is no evidence of
prior coaching by the lawyer or other assistance by the lawyer
to permit the false testimony.
¶69 We agree with Attorney Riley that the language of the
rule ("counsel or assist a witness") indicates that some action
by the lawyer prior to or at the time of the witness's false
testimony is required. In our view, failing to take action in
36
No. 2010AP2942-D
the face of another's decision to give false testimony is
different from "assisting" another person to give false
testimony. If SCR 20:3.4(b) is interpreted broadly to cover all
situations where a witness has testified falsely and the lawyer
fails to take remedial measures, then it would appear to cover
the same ground as former SCR 20:3.3(a)(4), and there would be
no need to have two separate rules.
¶70 We believe that SCR 20:3.4(b) should not be
interpreted to reach the conduct that is shown on this record.
There was no evidence in the summary judgment materials (or even
in the evidence presented at the subsequent disciplinary
hearing) that Attorney Riley advised Attorney Polk not to
mention his work at the new Eisenberg firm, planned a way in
which Attorney Polk could omit that information in his testimony
at the reinstatement hearing, or even knew that Attorney Polk
intended to provide a list of his employers during his
suspension that would omit the new Eisenberg firm. Attorney
Polk stated that although he did at some point prior to his
reinstatement hearing discuss with Attorney Riley his concern
about having represented himself as an attorney employed by the
new Eisenberg firm, there is no indication in the summary
judgment record here that the two of them took the step of
discussing how Attorney Polk should address that concern in his
reinstatement hearing testimony. Indeed, Attorney Polk
testified that he and Attorney Riley never had a preparation
session to discuss his upcoming testimony at the reinstatement
hearing. The most the record in this disciplinary proceeding
37
No. 2010AP2942-D
discloses is that Attorney Polk gave false testimony at the
reinstatement hearing and that Attorney Riley knew of the
omission. While Attorney Riley's knowledge of the falsity of
Attorney Polk's answer at the time the answer was given was
sufficient to require him to take reasonable steps to remediate
the false testimony and to support a violation of former
SCR 20:3.3(a)(4) for not doing so, we do not believe that
Attorney Riley's knowledge, by itself, constitutes counseling or
assisting Attorney Polk's false testimony in violation of
SCR 20:3.4(b). Consequently, we conclude that the OLR's charge
of a violation of SCR 20:3.4(b) must be dismissed.
¶71 Attorney Riley's final argument regarding summary
judgment is comprised of merely four sentences claiming that
there was simply no evidence of dishonesty, fraud, deceit, or
misrepresentation, such that he could not have violated
SCR 20:8.4(c). As an initial matter, this claim is not
sufficiently developed and could be rejected on just that basis
alone.
¶72 Even reaching the merits, we conclude that there was
sufficient evidence of a violation of this rule to warrant an
evidentiary hearing. The language of SCR 20:8.4(c) is broad,
covering "conduct involving dishonesty, fraud, deceit or
misrepresentation." SCR 20:8.4(c) (emphasis added). In
addition, it should be noted that, like former SCR 20:3.3(a)(4),
this rule covers not only affirmative misrepresentations, but
also deceitful omissions. See Knickmeier, 275 Wis. 2d 69, ¶93.
While in this case the primary deceitful words came out of the
38
No. 2010AP2942-D
mouth of Attorney Polk and not the mouth of Attorney Riley, as
discussed above in connection with the evidence to support a
prima facie case of a violation of former SCR 20:3.3(a)(4),
there was evidence at the summary judgment stage that Attorney
Riley knew of the deceitful omissions but did nothing to remedy
the falsehood. To the contrary, the transcript shows that he
pushed on with the reinstatement hearing and even argued in
closing argument to Judge Flynn that Attorney Polk had always
intended to pay off the outstanding judgments, but had been
unable to do so because of the types of jobs he had been able to
find during his administrative suspension, thereby taking
advantage of the omission in Attorney Polk's testimony. In our
view, that evidence is sufficient to qualify as engaging in
conduct involving deceit or misrepresentation.
B. Appeal of Referee's Final Report and Recommendation
¶73 Attorney Riley also raises several challenges to the
referee's final report. When the court reviews a referee's
final report, it affirms a referee's findings of fact unless
they are found to be clearly erroneous, but it reviews 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. Although a referee makes a
recommendation regarding an appropriate sanction, which the
court takes into account, it is this court which ultimately
makes an independent determination of the appropriate level of
discipline given the particular facts of each case. Alia, 288
39
No. 2010AP2942-D
Wis. 2d 299, ¶88; In re Disciplinary Proceedings Against Widule,
2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686.
¶74 Attorney Riley's initial argument regarding the
referee's final report is that the referee's credibility finding
regarding Attorney Polk's testimony was clearly erroneous,
particularly the referee's acceptance of Attorney Polk's
testimony that he and Attorney Riley had spoken before his
reinstatement hearing about Attorney Polk's concern over having
represented himself as an attorney during his employment with
the new Eisenberg firm. Attorney Riley characterizes Attorney
Polk's testimony as "all over the place" and contends that there
was a discrepancy between Attorney Polk's deposition testimony
and his testimony at the disciplinary hearing. Attorney Riley
contrasts Attorney Polk's testimony with his own testimony,
which he characterizes as consistent as well as "firm and
forthright."
¶75 We find no legal basis to overturn the referee's
credibility determinations with respect to either Attorney Polk
or Attorney Riley. While all factual findings are subject to
the clearly erroneous standard, credibility assessments are
among the most difficult for a party to overturn because, where
there is conflicting testimony, the referee is the ultimate
arbiter of witness credibility. In re Disciplinary Proceedings
Against Riordan, 2012 WI 125, ¶28, 345 Wis. 2d 42, 824
N.W.2d 441; In re Disciplinary Proceedings Against Pump, 120
Wis. 2d 422, 426, 355 N.W.2d 248 (1984). Although Attorney
Riley points to what he perceives as discrepancies in Attorney
40
No. 2010AP2942-D
Polk's testimony, Attorney Polk explained at the disciplinary
hearing that he was confused to some extent by the manner in
which the time period had been framed in certain questions.
While Attorney Polk in his hearing testimony indicated that he
did not recall discussing with Attorney Riley his law firm
employment and his resulting concerns during the time he was
actually employed by the new Eisenberg firm, at two separate
junctures in his hearing testimony in this proceeding he clearly
and unequivocally testified that he did have such discussions
with Attorney Riley prior to his reinstatement hearing.
Moreover, as the referee pointed out, Attorney Polk's testimony
was against his own interest because he had to admit that he had
lied at the reinstatement hearing after having thought about the
issue and after having discussed his concerns with another
attorney, all of which is detrimental to any future attempt at
reinstatement by Attorney Polk. The referee was entitled to
accept Attorney Polk's testimony on this point and to reject
Attorney Riley's claims to the contrary. The applicable
standard of review requires that we accept those credibility
findings.
¶76 Based in large part on Attorney Polk's testimony, the
referee therefore found that Attorney Riley had discussed
Attorney Polk's law firm employment with him prior to the
September 2006 reinstatement hearing. Because this rests on a
credibility determination that the referee was entitled to make,
this finding is not clearly erroneous. This finding also
supports the further finding that Attorney Riley knew of
41
No. 2010AP2942-D
Attorney Polk's employment with the new Eisenberg firm at the
time of the 2006 reinstatement hearing, at which Attorney Polk
gave a misleading answer to a question posed by Attorney Riley,
as well as multiple cross-examination questions posed by counsel
for the OLR. Attorney Riley does not claim that he ever
attempted to persuade Attorney Polk to disclose his law firm
employment to Judge Flynn or to take any other measures to
remediate Attorney Polk's misleading testimony. We conclude
that none of the referee's factual findings on these matters are
clearly erroneous, and we therefore rely on them for our legal
analysis.
¶77 Attorney Riley also criticizes the referee's
conclusions of law and her discussion of how she analyzed the
evidence presented to her in light of the charged rule
violations. We need not dwell on the referee's extended
discussion of the complicating factors present in this case or
the interplay between the standards for reinstatements from
disciplinary and administrative suspensions. The bottom line in
our view is that the facts as found by the referee demonstrate
clearly and convincingly that Attorney Riley violated former SCR
20:3.3(a)(4) by offering material testimony from Attorney Polk
regarding his employment history that Attorney Riley knew to be
false by omission at the time it was given and then failing to
42
No. 2010AP2942-D
take reasonable measures to remediate that false testimony.19 We
therefore agree with the referee's conclusion that Attorney
Riley violated former SCR 20:3.3(a)(4).
¶78 Attorney Riley also makes a brief argument that the
referee's conclusion and discussion of a violation of SCR
20:8.4(c) lack factual and legal support. Like his argument
regarding the referee's summary judgment ruling on this charge,
his argument regarding the referee's ultimate conclusion of a
violation of SCR 20:8.4(c) is not well developed. For the
reasons set forth above in connection with the referee's summary
judgment decision, we conclude that the facts as found by the
referee regarding Attorney Riley's knowledge of Attorney Polk's
misleading testimony and Attorney Riley's continuing to advocate
for Attorney Polk's reinstatement also support a legal
19
One of Attorney Riley's criticisms is directed toward the
referee's observation that after the OLR in 2008 told Attorney
Riley that it had learned of Attorney Polk's employment with the
new Eisenberg firm, Attorney Riley did not take remedial
measures at that time by notifying Judge Flynn, this court, or
the OLR that Attorney Polk's 2006 testimony had been false by
omission. Attorney Riley argues that he had no duty to take
remedial measures at that point because this court had by that
time already denied Attorney Polk's reinstatement petition and
the OLR already knew the relevant facts. Again, we need not
address whether the rule required additional action by Attorney
Riley in 2008. It is clear from the facts found by the referee
that Attorney Riley knew of the falsity in Attorney Polk's
testimony at the time it was given. He had a duty to take
remedial measures at that time. His failure to take proper
actions at that time is sufficient to support a conclusion of a
violation of former SCR 20:3.3(a)(4).
43
No. 2010AP2942-D
conclusion that Attorney Riley engaged in conduct involving
deceit and misrepresentation, in violation of SCR 20:8.4(c).
¶79 Finally, Attorney Riley attacks the OLR's process for
investigating and litigating this case, arguing that he never
should have been charged with ethical violations in the first
place because the OLR's investigation was flawed and there was
no cause to proceed. We need not address these claims in any
detail. Many of Attorney Riley's claims in this regard, such as
a lack of materiality of Attorney Polk's false testimony, have
already been considered and rejected above. To the extent
Attorney Riley challenges the Preliminary Review Committee's
finding of cause to proceed, we believe it is sufficient to note
that the subsequent complaint filed by the OLR survived summary
judgment and is ultimately resulting in a conclusion by a
majority of the court that Attorney Riley committed two
violations of the Rules of Professional Conduct for Attorneys.
C. Level of Discipline
¶80 We now turn to the matter of the proper level of
discipline that we believe should be imposed for the two ethical
violations we have found. The referee has recommended that
Attorney Riley be publicly reprimanded for his professional
misconduct. In addition to considering prior disciplinary
decisions cited by the OLR, the referee also noted three
aggravating factors and one mitigating factor. The three
aggravating factors were Attorney Riley's prior private
reprimand, his refusal to acknowledge the wrongful nature of his
conduct, and the harm to the judicial system caused by his
44
No. 2010AP2942-D
misconduct.20 Although the OLR alleged that there were no
mitigating factors, the referee found that Attorney Riley had
fully cooperated with the OLR's investigation and the litigation
of the disciplinary case, which should be acknowledged.
¶81 Attorney Riley does not challenge the referee's
recommendation regarding the appropriate level of discipline,
other than to argue that he committed no misconduct. Whether or
not a respondent attorney specifically challenges a discipline
recommendation, however, the court is obligated to conduct its
own analysis of the proper level of discipline.
¶82 In our view, a public reprimand is an appropriate
sanction for Attorney Riley's professional misconduct. We
believe that a public sanction is necessary to impress upon
Attorney Riley the wrongfulness of his conduct, as well as to
deter both him and other attorneys from engaging in similar
conduct in the future. Allowing false evidence to be presented
to a tribunal when the attorney knows it is false is a serious
20
Specifically, the referee asserted that Attorney Riley
had "misused the justice system" by participating in the
offering of false evidence in an optional reinstatement
proceeding that needlessly resulted in review and the
preparation of a split decision by this court. Attorney Riley
objects to this assertion, stating that this court's rules
required it to review and issue a decision on Attorney Polk's
reinstatement petition regardless of whether Attorney Polk made
a false statement at the reinstatement hearing. Attorney Riley
is correct regarding this court's review, but his failure to
take remedial measures harmed the judicial process of reviewing
the petition because this court was forced to review a false
account of the facts.
45
No. 2010AP2942-D
ethical violation that undermines the truth-seeking function of
the entire judicial system and contradicts the ideal of an
attorney being an officer of the court as well as an advocate
for a particular client.
¶83 We consider a consensual public reprimand accepted by
an assistant district attorney for similar conduct. Public
Reprimand of Holly L. Bunch, No. 2009-12 )(electronic copy
available at
https://compendium.wicourts.gov/app/raw/002196.html). Although
Attorney Bunch was aware of two police reports stating that a
defendant had expressly denied committing the charged crimes,
she made multiple false statements to the jury that the
defendant had never denied committing the crime until he had
been on the witness stand at trial because those reports had not
been entered into evidence.
¶84 Although Attorney Riley's misconduct is clearly
serious because it undermined a tribunal's ability to decide a
pending matter based on true and complete information, it is not
more serious than the misconduct committed by Attorney Bunch.
There is no evidence in this record that he conspired with
Attorney Polk prior to the reinstatement hearing to omit any
reference to Attorney Polk's employment with the new Eisenberg
firm or that he even knew prior to the reinstatement hearing
that Attorney Polk was planning to omit that information from
his testimony. Attorney Riley's misconduct here was failing to
take any reasonable measures to remediate the false testimony
given by Attorney Polk, his client. Consequently, we conclude
46
No. 2010AP2942-D
that a public reprimand is the most appropriate disciplinary
sanction, given the particular facts of this case.
¶85 Finally, we address the issue of costs. Attorney
Riley did not object to the OLR's statement of costs. We see no
reason in this case to depart from the court's general practice
of imposing full costs against an attorney who is found to have
committed professional misconduct. See SCR 22.24(1m). Because
two concurring justices also agree with this conclusion,
Attorney Riley will be obligated to pay the full costs of this
proceeding.
¶86 In summary, we conclude that Attorney Riley "offered"
false testimony to the reinstatement referee under former SCR
20:3.3(a)(4) when his client gave false and misleading answers
to a question that he posed and to questions posed by opposing
counsel. We further conclude, based on the referee's factual
findings, that Attorney Riley knew this testimony was false at
the time it was given. Attorney Polk's false testimony was
material to the reinstatement proceeding in which it was given
because it related to his claimed inability to pay the
outstanding civil judgments against him, which was one of the
topics expressly identified in our order referring the
reinstatement matter to the referee. Because Attorney Riley did
not take any reasonable measures to remediate the false
testimony given by Attorney Polk and therefore offered by
Attorney Riley, he violated former SCR 20:3.3(a)(4). Given his
failure to take remedial measures and his continuing to argue in
the reinstatement proceeding that the jobs Attorney Polk had
47
No. 2010AP2942-D
held during his administrative suspension did not provide enough
income for him to have made payments toward the outstanding
civil judgments, Attorney Riley also violated SCR 20:8.4(c).
¶87 While two of our colleagues who concur in the mandate
of the court are not willing to sign on to this opinion, the
outcome of this case should still serve as a reminder to
attorneys in this state that under the current version of the
rule, SCR 20:3.3(a)(3), they have a duty to take reasonable
remedial measures whenever they have actual knowledge that
material testimony given by a client or another witness called
by the attorney is false, either because of an affirmatively
untrue statement or an omission that makes the statement false,
regardless of whether the attorney asked the question that led
to the false testimony. That standard was met by the particular
facts of this case with respect to false testimony given by
Attorney Riley's client. This rule, in either its former or
current form, however, does not make an attorney the guarantor
of the factual accuracy of everything that is said by a client
or other witness called by the attorney. The attorney's
obligation arises only when the attorney has actual knowledge of
the falsity and only when the false testimony is material to the
proceeding. When those conditions are present, however, the
lawyer may not just sit silently and allow the false testimony
to mislead the opposing party and the tribunal. The lawyer is
not just a zealous advocate on behalf of a client, but also an
officer of the court, who bears obligations to assist the court
in its search for the truth.
48
No. 2010AP2942-D
¶88 IT IS ORDERED that John Kenyatta Riley is publicly
reprimanded for his professional misconduct.
¶89 IT IS FURTHER ORDERED that within 60 days of the date
of this order, John Kenyatta Riley shall pay to the Office of
Lawyer Regulation the costs of this proceeding.
¶90 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.
¶91 REBECCA G. BRADLEY, J., did not participate.
49
No. 2010AP2942-D.ssa
¶92 SHIRLEY S. ABRAHAMSON, J. (concurring). I agree
that a public reprimand and full costs should be imposed. I do
not, however, join the opinion of three justices of this court.
The opinion of the three justices is not a majority opinion. It
is, in the terminology of the court, a "lead opinion."
¶93 The phrase "lead opinion" is not, as far as I am
aware, defined in our Internal Operating Procedures or elsewhere
in the case law. Our Internal Operating Procedures (IOP) refer
to "lead opinions," but only in stating that if, during the
process of circulating and revising opinions, "the opinion
originally circulated as the majority opinion does not garner
the vote of a majority of the court, it shall be referred to in
separate writings as the 'lead opinion.'" Wis. S. Ct. IOP
II.G.4.1
¶94 I would describe a lead opinion as one that states
(and agrees with) the mandate of a majority of the justices, but
represents the reasoning of less than a majority of the
participating justices. So, for example, in a case with six
justices participating, if three justices join one opinion, two
justices join the same mandate only or join a different opinion
reaching the same mandate, and one justice dissents, there is a
single mandate, but no majority opinion. See Hoffer Props. LLC
v. DOT, 2016 WI 5, 366 Wis. 2d 372, 874 N.W.2d 533. Rather, one
1
Our internal operating procedures are contained in volume
6 of the Wisconsin Statutes.
1
No. 2010AP2942-D.ssa
of the opinions agreeing with the mandate will be designated the
lead opinion.
¶95 The use of the term "lead opinion" without an agreed-
upon definition has the potential to cause confusion among the
bench, the bar, and the public. Also, the precedential effect
(or lack thereof) of a "lead opinion" is uncertain. Are lead
opinions in this court comparable to plurality opinions in the
United States Supreme Court?2 Apparently, the court of appeals
considers a plurality decision of this court persuasive but does
not always consider it binding. See, e.g., State v. King, 205
Wis. 2d 81, 88-89, 555 N.W.2d 189 (Ct. App. 1996) (citing State
v. Dowe, 120 Wis. 2d 192, 194, 352 N.W.2d 660 (1984)).
¶96 I write separately to express several concerns.
I
¶97 The lead opinion is overly lengthy, and gratuitously
addresses too many issues that have not been fully briefed or
carefully studied. The issues are difficult and of the utmost
2
See Marks v. United States, 430 U.S. 188, 193 (1977)
("When a fragmented Court decides a case and no single rationale
explaining the result enjoys the assent of five Justices, 'the
holding of the Court may be viewed as that position taken by
those Members who concurred in the judgment on the narrowest
grounds . . . .'") (quoting Gregg v. Georgia, 428 U.S. 153, 169
n.15 (1976) (opinion of Stewart, Powell, and Stevens, JJ.)).
For discussions by this court of the precedential effect of
plurality opinions in the United States Supreme Court, see, for
example, State v. Griep, 2015 WI 40, ¶36, 361 Wis. 2d 657, 863
N.W.2d 567; State v. Deadwiller, 2013 WI 75, ¶30, 350
Wis. 2d 138, 834 N.W.2d 362.
2
No. 2010AP2942-D.ssa
importance to attorneys and disciplinary proceedings. The
issues need more consideration.
¶98 The issues might be better left for future study by a
committee this court should create to review the entire Rules of
Professional Conduct for Attorneys, as I proposed in Rule
Petition 15-01. Instead, the court dismissed the petition. The
ruse for dismissal was that the creation of a committee is not a
proper subject for a rule petition. For a discussion of the
need for a committee, see my dissent to the order dismissing
Rule Petitions 15-01, available at
https://www.wicourts.gov/sc/rulhear/DisplayDocument.pdf?content=
pdf&seqNo=158416; In re Disciplinary Proceedings Against
Templin, 2016 WI 18, ¶¶55-60, 367 Wis. 2d 351, 877 N.W.2d 107(Abrahamson, J., concurring); In the Petition for Reinstatement
of Attorney Jeffrey P. Neterval, unpublished order, ¶¶2-9 (Mar.
22, 2016) (Abrahamson, J., concurring); In the matter of the
Reactivation of David W. Klaudt's License to Practice Law in
Wisconsin, unpublished order, ¶¶3-11 (Mar. 22, 2016)
(Abrahamson, J., concurring).
II
¶99 This is a landmark case in attorney discipline, as
Justice Prosser has pronounced. But its landmark status, from
my perspective, is the length of time the instant case has
lingered in this court. I think it wins the prize for taking
longer to decide than any other OLR proceeding I can remember or
find. It is a prime example of significant, unnecessary delays
in completing a disciplinary matter. Delay appears to exist at
3
No. 2010AP2942-D.ssa
every level of the disciplinary proceedings, but the final delay
at this court in releasing the lead opinion is outrageous.
¶100 The attorney's conduct that is the subject of this
proceeding dates back to 2006. The OLR complaint was filed on
December 1, 2010. The referee held hearings in February 2012
and issued her report on April 18, 2012.
¶101 On October 23, 2012, this court held oral argument in
the instant case. More than 10 months elapsed before staff
circulated a draft per curiam opinion. Justice David T. Prosser
circulated the first draft of his dissent to the court on July
31, 2015, almost three years after oral argument and almost two
years after the per curiam was circulated. The first draft of
my concurrence was circulated on September 14, 2015, almost two
months after the dissent was circulated. The writings have been
subject to discussion and revision, and this opinion is being
released almost four years after oral argument, almost six years
after the complaint was filed, and almost 10 years after the
conduct at issue.
¶102 I favor the court's spending the time needed for each
matter and giving utmost care to each matter. Opinions and
orders in cases, rule matters, and disciplinary proceedings are
important to the people directly involved in each case and to
the public.
¶103 I strongly support the court's longstanding practice
of honoring a justice's hold and giving a justice time to study
and write separately, but I disfavor the court's inconsistent
treatment of requests to hold. Consistency in the court's
4
No. 2010AP2942-D.ssa
practice of allowing, disallowing, and limiting holds is
important for collegiality and fairness to the litigants and
public. For a discussions of the court's failure to follow
procedures it adopts, see State v. Finley, No. 2014AP2488-CR,
unpublished order (Jan. 11, 2016) (Abrahamson, J., concurring in
part and dissenting in part); Wis. Carry, Inc. v. City of
Madison, No. 2015AP146, unpublished order (Jan. 11, 2016)
(Abrahamson, J., concurring in part and dissenting in part);
Regency West Apartments LLC v. City of Racine, No. 2014AP2947,
unpublished order (Jan. 11, 2016) (Abrahamson, J., concurring in
part and dissenting in part).
¶104 Although I favor the practice of permitting holds, I
also strongly favor giving litigants and the public prompt
decisions. Thus I again urge the court to create uniform time
limits for court staff and for justices to study the matter and
write. For my repeated requests, see, for example, my
concurrences in State ex rel. Nelson v. Wis. Supreme Court, No.
2013AP153-W, unpublished order (Aug. 19, 2015), and Koll v.
Department of Justice, No. 2008AP2027, unpublished order (Oct.
14, 2011).
¶105 Neither the public, the respondent lawyer, the
component parts of the disciplinary proceedings, nor the other
lawyers of the state are well served by the long delay in the
instant case and in too many other cases.
¶106 The court is considering (in closed conference rather
than in open conference) appointing a committee to review the
procedures of the component parts of the OLR and to make
5
No. 2010AP2942-D.ssa
recommendations for change. See Rule Order 15-01, available at
https://www.wicourts.gov/sc/rulhear/DisplayDocument.pdf?content=
pdf&seqNo=158416 (stating that dismissal of petition does not
preclude the court from appointing a committee to study the
Office of Lawyer Regulation or the Wisconsin Judicial Code).
Although no committee has been formed as of this date, exploring
ways to avoid unnecessary delay and accelerate the process of
attorney discipline will be an important aspect of any study.
III
¶107 To foster transparency and fairness, as well as to
encourage promptness and uniformity in the court's decisions in
discipline cases, I renew my request that the court require the
Clerk of the Supreme Court to make available on the court's
website information about the dates of the relevant steps in
each disciplinary matter, from the filing of the complaint, to
its passage through the component parts of the lawyer regulatory
proceeding, assignment to a court commissioner, assignment for
oral argument or on-brief consideration, and the court's
ultimate decision.
¶108 The United States Supreme Court has similar helpful
information available on its website for litigants and
interested persons about the progress of petitions for
certiorari in the Supreme Court.3 See my concurrence in State ex
3
I have also suggested that similar information be provided
online for petitions for review, petitions for bypass, and
original actions filed in this court.
6
No. 2010AP2942-D.ssa
rel. Nelson v. Wis. Supreme Court, No. 2013AP153-W, unpublished
order (Aug. 19, 2015).
¶109 For the reasons set forth, I do not join the opinion
of the three justices and write separately to set forth my
concerns.
¶110 I am authorized to state that Justice ANN WALSH
BRADLEY joins Part I of this opinion.
7
No. 2010AP2942-D.awb
¶111 ANN WALSH BRADLEY, J. (concurring). Although I
agree with the imposition of a public reprimand and full costs,
I do not join the lead opinion. Instead, I join Part I of the
above concurrence.
1
No. 2010AP2942-D.dtp
¶112 DAVID T. PROSSER, J. (dissenting). This is a
landmark case in attorney discipline. It addresses the issue of
an attorney's ethical responsibilities when the attorney's
client——or a witness called by the attorney——provides false
testimony that the attorney knows is false at the time of the
testimony or learns is false sometime after the testimony.
¶113 It is hard for a judge not to sound the trumpet and
wave the flag for "the truth, the whole truth, and nothing but
the truth" in judicial proceedings. No one in the judiciary is
"for" false testimony. Yet the court's lead opinion, which
emphatically embraces the necessity for "truth" in judicial
proceedings, leaves me quite uncomfortable for a number of
reasons.
¶114 First, this notable case will be associated with an
attorney who was caught in the middle of a mess he did not
create, whereas the two attorneys who are responsible for the
mess have been able to walk away with inadequate discipline or
no discipline.
¶115 Second, I do not perceive that the respondent attorney
set out to misrepresent critical facts to a referee. This is a
case in which the attorney was "directed" by his senior partner
to represent another attorney, without pay. When the attorney
asked the "client" attorney questions on direct examination, the
"client" attorney omitted important information from his
answers, and when the "client" attorney answered questions on
cross examination, he lied. This court determines that the
1
No. 2010AP2942-D.dtp
respondent attorney assigned to represent the "client" attorney
had an obligation "to take reasonable remedial measures" to
correct his client's false testimony——even if the attorney did
not learn of the falsity until sometime after the testimony was
given——and that all attorneys have such a duty. However, the
opinion does not say much about how this duty should be
discharged.
¶116 Third, the lead opinion is a little light in
discussion about the serious tension between privileged
information, confidentiality, and loyalty to a client, on the
one hand, and an attorney's obligation to the court, on the
other.
¶117 Finally, the lead opinion is almost 50 pages in length
because the court finds it necessary to resolve several close
questions against the respondent attorney, but it reads as
though the respondent attorney should have resolved all these
subtle questions the same way the lead opinion has resolved
them . . . without much difficulty. We ought to ask: Has the
court provided sufficient guidance for the Wisconsin bar to
avoid in the future the same pitfalls that the attorney faced in
this case?
I
¶118 The background facts in this case are complicated and
murky. Several important facts are omitted from the lead
opinion in an effort to eliminate uncertainty by simply ignoring
it.
¶119 At one point, about 2000, Attorneys Alvin Eisenberg,
Brian K. Polk, and the respondent, John Kenyatta Riley, all
2
No. 2010AP2942-D.dtp
worked at the firm of Eisenberg, Weigel, Carlson, Blau, Reitz &
Clemens, S.C. in Milwaukee.
¶120 Attorney Polk left the firm in June 2000 and permitted
his license to be suspended in 2001 because of noncompliance
with CLE.
¶121 Attorney Riley left the firm sometime in 2000-2001 to
join another firm. He started his own law firm in Milwaukee in
2003.
¶122 In 1990 six attorneys acquired shares in the firm that
Attorney Eisenberg had founded in 1958. In 1999 Joseph Weigel
became president of that firm and engineered the redemption of
all stock owned by Eisenberg. Thereafter:
In January 2005 the Firm, without giving prior notice
to Attorney Eisenberg, moved its law office to a new
location. A letter was left for Attorney Eisenberg
saying there was no office space for him at the new
location, that he should go home, and that his
paychecks would be sent to him.
In re Disciplinary Proceedings Against Weigel, 2012 WI 71, ¶¶8,
9, 12, 342 Wis. 2d 129, 817 N.W.2d 835.
¶123 Ugly litigation followed Attorney Eisenberg's
departure from his old law firm, and soon, he started a new
firm. He brought Brian Polk into the new firm no later than
October 10, 2005, even though Polk's law license was suspended.
¶124 Eisenberg also brought Attorney Riley into the new
firm sometime in 2005. The referee found as fact that,
"[b]etween October 2005 and September of 2006, Attorney Riley
was an associate at the Eisenberg law firm. Attorney Riley
maintained his solo practice offices on Water Street for a short
3
No. 2010AP2942-D.dtp
while after re-joining Attorney Eisenberg in practice. His work
time was spent between both offices."
¶125 The referee also found that, "[Riley] practiced solo
until early 2006 when he joined Eisenberg Law Office, which
later came to be Eisenberg & Riley then Eisenberg, Riley &
Muwonge, and in 2011 was Eisenberg, Riley & Zimmerman."
(Emphasis added.)
¶126 Attorney Riley was not part of the new Eisenberg
firm's personal injury group in which Polk worked. Rather, he
had a general practice, which included bankruptcy, criminal, and
real estate law. He often was in court when the personal injury
group met.
¶127 These facts suggest that it is not entirely clear
whether Attorney Riley knew the full story about Polk's role at
the new Eisenberg firm. What is undisputed is that Polk filed a
pro se petition for readmission to the bar on February 22, 2006;
and because of opposition to reinstatement by the Office of
Lawyer Regulation (OLR), this court appointed a referee, who
conducted a hearing on September 6, 2006.
¶128 Attorney Eisenberg "directed" Attorney Riley to
represent Polk at that hearing. The referee in this case found
that "[t]he reinstatement hearing [in 2006] was pending at the
same time law firm disputes and other practice concerns were in
play." The referee in this case also found:
The attorney-client relationship between Attorney
Riley and Brian Polk was limited to Attorney Riley
appearing at the reinstatement trial in a "second-
chair" capacity. The representation did not include
Attorney Riley's preparation of the witnesses,
drafting of the petition, prior review of the record,
4
No. 2010AP2942-D.dtp
strategy sessions or consultation, solicitation of
testimony based on this reinstatement trial's court-
ordered standards, attention to or analysis of answers
to questions. [Attorney Riley] had not previously
represented any clients in Reinstatement [and]
disciplinary proceedings were not within Attorney
Riley's usual area of practice.
(Citations omitted.)
¶129 The critical question is when Attorney Riley actually
knew that Polk was improperly employed by the Eisenberg law
firm. Did he know it on September 6, 2006, or did he learn it
later?
¶130 The referee found that "Attorney Riley and Brian Polk
spoke about his law firm employment during 2006 when he was
serving as counsel for Brian Polk."
¶131 Attorney Riley disputes this finding. The lead
opinion asserts that it was "not necessary that Attorney Riley
knew that Attorney Polk was practicing law (as opposed to simply
working) at the new Eisenberg firm, in order for Attorney Riley
to have violated former SCR 20:3.3(a)(4)," lead op., ¶47
(emphasis omitted), because "a lawyer has a duty to remediate
false testimony given by a client, regardless of the manner in
which the false testimony was given," id., ¶57. The lead
opinion states that a lawyer had a duty to take reasonable
remedial measures under former SCR 20:3.3(a)(4) when his client
omitted an "important fact" from his answers on a subject that
was "material." Id., ¶58.
¶132 What should be evident to everyone is that Alvin
Eisenberg is the person responsible for employing Brian Polk, an
attorney with a deeply troubled past, including a felony
conviction and a citation for loitering-illegal drug activity,
5
No. 2010AP2942-D.dtp
while Polk was suspended from the practice of law. Eisenberg
tried hard to hide Polk's role in the firm. Eisenberg was
purportedly paranoid that his rivals at the Weigel law firm
would discover and disclose Polk's employment, discrediting
Eisenberg and discrediting the firm. Eisenberg "directed"
Attorney Riley to assist Polk at the reinstatement hearing. He
knew he could not do it himself.
¶133 Eisenberg eventually was disciplined by OLR with a
public reprimand. Public Reprimand of Alvin H. Eisenberg,
2012-8. However, his "public reprimand" is not published in the
Wisconsin Reports, and it takes a little detective work even to
find it online. Moreover, the reprimand reads in part:
In a May 10, 2008 response to this matter,
Eisenberg stated that, in March of 2006, he discovered
Mr. X's license to practice law was suspended, causing
Eisenberg to terminate Mr. X and tell him he could not
return until his license was reinstated. Eisenberg
further stated that, "[Mr. X] has not returned to this
date."
This matter was referred to a district committee
for investigation. Eisenberg denied to committee
investigators that Mr. X had returned to work at the
firm after being terminated in March of 2006 and
denied that Mr. X used an assumed name. Eisenberg
could give no explanation for letters that were
produced that had been signed using the assumed name,
and he denied authorizing or having knowledge of
anyone in the firm using that name.
In response to the committee report Eisenberg
stated that, after reviewing records, he found that
Mr. X worked for the firm for six days in July and
August 2006. Eisenberg admitted that the firm's
receptionist "keeps a detailed daily record of the
employees' attendance as employees come and go from
the office." Eisenberg should have consulted these
records before responding negatively to previous
questions about whether Mr. X returned to work at the
firm after he was terminated in March 2006.
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No. 2010AP2942-D.dtp
See https://compendium.wicourts.gov/app/raw/002479.html.
¶134 These three bland paragraphs should be compared to the
extensive negative discussion of Attorney Riley in the lead
opinion.
¶135 As for Brian Polk (a/k/a "Mr. X"), he was not
readmitted to the bar. He did not appeal the referee's ruling
not to reinstate him and——to the best of my knowledge——he has
not reapplied. But OLR never went after Polk for practicing law
without a license or lying to a referee. Consequently, there is
no OLR "discipline" on his record.
II
¶136 Attorney Riley was charged with violating three
Supreme Court rules: former SCR 20:3.3(a)(4); current SCR
20:3.4(b); and current SCR 20:8.4(c). The text of the rules is
significant.
¶137 In 2006 SCR 20:3.3(a)(4) read:
A lawyer shall not knowingly:
. . . .
(4) offer evidence that the lawyer knows to be
false. If a lawyer has offered material evidence and
comes to know of its falsity, the lawyer shall take
reasonable remedial measures.
(Emphasis added.)
¶138 SCR 20:3.4(b) reads:
A lawyer shall not:
. . . .
(b) falsify evidence, counsel or assist a
witness to testify falsely or offer an inducement to a
witness that is prohibited by law.
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No. 2010AP2942-D.dtp
¶139 SCR 20:8.4(c) reads:
It is professional misconduct for a lawyer to:
. . . .
(c) engage in conduct involving dishonesty,
fraud, deceit or misrepresentation.
¶140 OLR's complaint asserted:
By eliciting and allowing Polk's testimony at
Polk's reinstatement hearing regarding Polk's work
history during the suspension of Polk's license that
omitted Polk's employment at Riley's law firm,
Eisenberg & Riley, S.C., when Riley knew of that
employment at the time he elicited and allowed that
testimony, and his failure to remedy that omission at
any time thereafter, Riley violated former SCR
20:3.3(a)(4), SCR 20:3.4(b), and SCR 20:8.4(c).
¶141 Attorney Riley was put in a very difficult situation.
He either knew the full story about Polk's employment at the
time Polk testified, or he didn't. In either event, if he
"offered" the information and if the information was "material"
at the reinstatement hearing, the lead opinion asserts that he
had a duty to take "reasonable remedial measures." Arguably, if
he did not "offer" the information or if the information was not
"material," he did not have a duty to take "reasonable remedial
measures."
¶142 Assuming the existence of a duty, reasonable remedial
measures could be interpreted to mean informing the referee that
Polk's testimony was false, which would have had consequences.
First, it would have destroyed any chance that Polk would win
readmission to the bar. Second, it would almost certainly lead
to OLR prosecution of Riley's boss, Alvin Eisenberg. Third, it
could seriously affect Riley's relationship with Eisenberg and
the law firm, leading to Riley's possible resignation or
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No. 2010AP2942-D.dtp
termination.1 Fourth, it could damage the law firm. Fifth, it
could lead to a suit that Attorney Riley had breached the
attorney-client privilege to Polk's detriment. If Attorney
Riley knew all the facts about Polk's employment, he may have
calculated that he would inform the referee if the referee
decided in favor of reinstatement. Of course, the referee
decided against reinstatement. The lead opinion has no room for
"no harm, no foul."
¶143 It may well be that the legal profession must set high
standards of candor and integrity, regardless of the cost to an
individual attorney. But shouldn't the court at least
acknowledge the heavy stakes in this case and the potential
heavy stakes in future cases that will be affected by this
decision?
¶144 To illustrate, the rules cited do not exempt attorneys
who practice criminal law. What are the practical effects of
this case on criminal defense attorneys? What are "reasonable
remedial" steps for a criminal defense attorney who knows or
learns after his client has testified that his client has lied?
I do not sense that the court's decision permits attorneys to
look the other way when they know their client has testified
falsely or omitted "important facts," even in a criminal case.
Clearly, the court does not believe it was enough for Attorney
Riley to withdraw as counsel after the hearing, as he did.
1
OLR's reference to "Riley's law firm" is a bit of an
exaggeration.
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No. 2010AP2942-D.dtp
¶145 Inasmuch as the referee found that Attorney Riley knew
about Polk's employment with Eisenberg at the time of the
reinstatement hearing, it may seem unnecessary to discuss what
should have happened if he didn't know until later. Notably,
however, the court dismisses the alleged violation of SCR
20:3.4(b) of having assisted a witness to testify falsely: A
lawyer "shall not . . . counsel or assist a witness to testify
falsely . . . ."
¶146 The court says:
We agree with Attorney Riley that the language of
the rule ("counsel or assist a witness") indicates
that some action by the lawyer prior to or at the time
of the witness's false testimony is required. . . . We
believe that SCR 20:3.4(b) should not be interpreted
to reach the conduct that is shown on this record.
There was no evidence in the summary judgment
[record] . . . that Attorney Riley advised Attorney
Polk not to mention his work at the new Eisenberg
firm, planned a way in which Attorney Polk could omit
that information in his testimony . . . , or even knew
that Attorney Polk intended to provide a list of his
employers during his suspension that would omit the
new Eisenberg firm. . . . [T]here is no
indication . . . that the two of them took the step of
discussing how Attorney Polk should address that
concern in his reinstatement hearing testimony.
Indeed, Attorney Polk testified that he and Attorney
Riley never had a preparation session to discuss his
upcoming testimony at the reinstatement hearing.
Lead op., ¶¶69-70.
¶147 Nonetheless, the referee found that "Attorney Riley
and Brian Polk spoke about [Polk's] law firm employment during
2006 when [Riley] was serving as counsel for Brian Polk."
¶148 Asking questions at the hearing about Polk's
employment history could be viewed as "assisting" a witness to
testify falsely. The court declines to take that position. On
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No. 2010AP2942-D.dtp
the other hand, the referee insisted that Attorney Riley
knowingly "offered" evidence that he knew to be false. The
distinction between knowingly "offering" evidence but not
"assisting" is not clear to me in this case.
¶149 If Attorney Riley reasonably believed he did not
assist Polk in giving false testimony, it is difficult to
understand why he could not reasonably believe that he did not
knowingly offer false evidence at the hearing.
¶150 Ethics scholars might wish to compare the word "offer"
in former SCR 20:3.3(a)(4) with the word "offer" in SCR
20:3.4(b). How does an attorney "offer an inducement to a
witness" if he never mentions an inducement?
¶151 There is another problem inherent in the former rule.
It reads in essence that a lawyer shall not knowingly "offer
evidence" that the lawyer knows to be false. But then, in the
second sentence, the rule provides, "If a lawyer has offered
material evidence and comes to know of its falsity, the lawyer
shall take reasonable remedial measures." (Emphasis added.)
The second sentence establishes a duty to remediate any
"material evidence" that is false, irrespective of prior
knowledge, but it does not appear to require remediation of
false evidence if the false evidence is not "material."
¶152 "Knowingly offer" and "material evidence" thus are
terms that raise serious issues for an attorney in ambiguous
situations.
¶153 These concerns go beyond the question of how to
discharge an attorney's clear duty to the more fundamental
question of whether this attorney had a duty.
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No. 2010AP2942-D.dtp
III
¶154 My other concern relates to the tension between an
attorney's duties to his client and his duties to the court.
¶155 Wisconsin Stat. § 905.03(2), entitled "GENERAL RULE OF
PRIVILEGE," reads:
A client has a privilege to refuse to disclose
and to prevent any other person from disclosing
confidential communications made for the purpose of
facilitating the rendition of professional legal
services to the client: between the client or the
client's representative and the client's lawyer or the
lawyer's representative; or between the client's
lawyer and the lawyer's representative; or by the
client or the client's lawyer to a lawyer representing
another in a matter of common interest; or between
representatives of the client or between the client
and a representative of the client; or between lawyers
representing the client.
¶156 There are exceptions to this statute in subsection
(4). It would have been useful for the court to discuss the
applicable exceptions, if any, in this case.
¶157 The same is true with respect to SCR 20:1.6 related to
confidentiality: "(a) A lawyer shall not reveal information
relating to the representation of a client unless the client
gives informed consent, except for disclosures that are
impliedly authorized in order to carry out the representation,
and except as stated in paras. (b) and (c)." (Emphasis added.)
What are the applicable exceptions to this rule for Attorney
Riley?
¶158 SCR 20:3.3, Candor toward the tribunal, reads in part:
"A lawyer shall not knowingly: (1) make a false statement of
fact or law to a tribunal or fail to correct a false statement
of material fact or law previously made to the tribunal by the
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No. 2010AP2942-D.dtp
lawyer." This rule about false statements "by the lawyer"
strikes me as much clearer and much easier to apply than former
SCR 20:3.3(a)(4).
IV
¶159 To me the lead opinion raises sufficient questions
about its impact on the law and its fairness to the respondent
that I feel bound to respectfully dissent. It should be noted
that the court has not been able to muster a majority of
justices for the lead opinion. It should also be noted that the
rule of lenity seems to be missing from the Rules of
Professional Conduct for Attorneys.
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