Gregg's Blog

Sorry if this is getting repetitive, but the Supreme Court today issued yet another weak discipline decision.

Atty. Walter Stern had been the subject of four (count 'em - 4!) prior disciplinary proceedings.

In the one resulting in today's decision, In the Matter of Disciplinary Proceedings Against Walter W. Stern Case No.: 2013AP149-D, Attorney Stern was disciplined for conduct which had resulted in his being convicted of a federal crime for money laundering.

OLR sought and the referee recommended a sanction of a 2 year suspension.

My question:  If five separate discipline actions including a conviction for a serious felony does not result in a license revocation, what would?

Oh, and OLR did not even seek costs due to Attorney Stern's cooperation.  So, the rest of us lawyers get to pay for the so-called prosecution.

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Another example today of Wisconsin's non-discipline system:

In the Matter of Disciplinary Proceedings Against William F. Mross, Case No.  2012AP406-, the Supreme Court suspended Attorney Mross for 60 days.

This was his fifth - count 'em, 5th - violation.

According the decision:

He has been subject to professional discipline on four prior occasions.  In 2003, his license was suspended for 90 days for violating SCR 20:8.4(b)[2] by delivering cigarettes to inmates at the Racine County jail, in violation of Wis. Stat. § 302.095(2).  In re Disciplinary Proceedings Against Mross, 2003 WI 4, 259 Wis. 2d 8, 657 N.W.2d 342.  In 2004, he was privately reprimanded for failing to competently represent, communicate with, and keep informed clients in the defense of a foreclosure matter.  Private Reprimand, No. 2004-11.  In 2006, he was publicly reprimanded for failing to diligently represent, communicate with, and keep clients informed in foreclosure matters; and accepting compensation for representing those clients from a non-attorney offering debt relief, without the clients' consent.  Public Reprimand of William F. Mross, No. 2006-10.  In 2010, he was publicly reprimanded for practicing law while administratively suspended for noncompliance with continuing legal education (CLE) requirements and failing to disclose to the Board of Bar Examiners (BBE) or the Office of Lawyer Regulation (OLR) his practice activities while suspended, and for providing improper financial assistance to clients when he made a bankruptcy plan payment for them out of his own funds.  Public Reprimand of William F. Mross, No. 2010-5.

One "concept" of our system is "progressive discipline" - in other words, the discipline gets more severe for each violation.  That's no different that a drunk driver getting a more severe sentence for each violation.  Or any criminal defendant for that matter.

It would not be difficult for our SC to impose progressive discipline as it is so light to begin with.  But, here is a case where his first disciplinary violation results in a 90 days suspension, but for his 5th violation, he gets only 60 days.

And, in any event, how does he get to have five disciplinary proceedings (some of which involved multiple violations) and still get to keep his license?

Just as I start to think our system could not get any more lenient, the Supreme Court proves me wrong.

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This morning, the Wisconsin Supreme Court issued its decision in Johnson v. Masters.  The court reversed the decision of the court of appeals which denied Patricia Johnson's motion for a QDRO because her action was barred by Wis. Stat. § 893.40, a statute of repose, which states that "action upon a judgment or decree . . . shall be commenced within 20 years after the judgment or decree is entered or be barred."

The Supreme Court found that while Wis. Stat. § 893.40 does apply to family law actions, "[I]t would be absurd and unreasonable to construe the statute of repose in such a way that it would begin to run at the time of a judgment with regard to a provision that assigned Masters' interest contrary to existing law, which was and continued for the next nine years to be that WRS pension interests were not assignable."

In my analysis of the case when the SC accepted review, I questioned why the court, with so many important family law issues which could use guidance, accepted a case with such limited applicability.  In just a quick scan of the 56 pages of opinions (there are three concurring opinions and one dissenting opinion) it appears my concern was justified.

I'll be writing a full analysis of this case in my column in the Wisconsin Law Journal and will link to it here when it's published.

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