Supreme Court Reduces Suspension

By Attorney Gregg Herman
March 2, 2016

It’s been a while since I’ve criticized the Wisconsin Supreme Court for a wussy disciplinary case, but a case on Friday is too much to ignore.

The case is In the Matter of Disciplinary Proceedings
Against Stuart F. Roitburd.

The referee, Christine Harris,Taylor recommended that Roitburd be found in default and his license suspended for two years.  Roitburd was found to have violated three rules of ethics arising from his handling of his mother’s estate and his non-cooperation with the Office of Lawyer Regulation.  Essentially, he could not account for $43,369.74 from the estate, which remains unpaid.

Then, Roitburd failed to cooperate with the OLR investigation and a default judgment was entered against him.  He never even bothered to tender a defense by making an appearance in the disciplinary proceedings.

Then, he never appealed from the referee’s decision.  Even so, the SC reduced the recommended suspension of 2 years to 60 days.

The Court’s reasoning is, amazingly enough, that they don’t have sufficient information about Roitburd’s actions regarding the estate.  Well.  Part of the reason is that he never made an appearance!  He snubbed his nose at OLR, the referee and the Supreme Court.  So, apparently, that warrants a lesser suspension.

Oh, and just to make sure that lawyers know how lax Wisconsin’s disciplinary system has become, the SC does not accept the referee’s recommendation that the attorney pay restitution.  Not only can he get his ticket back in 60 days, but he can do so without reimbursing his victims.

Justice Abrahamson dissented (joined by Justice A.W. Bradley), writing:

¶56 Problematically, the per curiam appears to give Attorney Roitburd the benefit of the doubts created by his own non-participation. The per curiam notes, for example, that we do not know all the facts concerning Attorney Roitburd’s work as personal representative of his mother’s estate, nor do we know the details of the estate itself. The per curiam holds open the possibility that Attorney Roitburd did not engage in dishonest or bad faith behavior at all. According to the per curiam, this uncertainty justifies an over 90% reduction in the OLR’s and the referee’s recommended suspension, even though Attorney Roitburd never made an appearance to oppose that suspension. Based on this result, a lawyer facing misconduct charges could hardly be blamed for believing that the best defense is no defense—indeed, no cooperation with the disciplinary process at all.

So the two most liberal judges on the SC are, once again, the strictest on lawyer discipline, while the so-called conservatives give a dishonest lawyer a virtual pass.  Go figure.

Attorney Gregg Herman is a founding partner of Loeb & Herman S.C. in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.