Office of Lawyer Regulation v. Michael D. Petersen ( 2017 )

2017 WI 102
SUPREME COURT OF WISCONSIN
CASE NO.: 2016AP563-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Michael D. Petersen, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Michael D. Petersen,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST PETERSEN
OPINION FILED: December 15, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED: A.W. BRADLEY, J. dissents, joined by ABRAHAMSON,
J. (opinion filed).
NOT PARTICIPATING:
ATTORNEYS:
2017 WI 102
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2016AP563-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Michael D. Petersen, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant,
DEC 15, 2017
v.
Diane M. Fremgen
Clerk of Supreme Court
Michael D. Petersen,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. We review a report and recommendation of
Referee William Eich approving a stipulation filed by the Office
of Lawyer Regulation (OLR) and Attorney Michael D. Petersen. In
the stipulation, Attorney Petersen stipulated to the facts
underlying the nine counts of misconduct alleged in the OLR's
complaint and joined the OLR in jointly recommending a one-year
suspension of Attorney Petersen's license to practice law in
No. 2016AP563-D
Wisconsin. The referee agreed that a one-year suspension was an
appropriate sanction for Attorney Petersen's misconduct.
¶2 Upon careful review of the matter, we uphold the
referee's findings of fact and conclusions of law and agree that
a one-year suspension is an appropriate sanction. As is our
normal practice, we also find it appropriate to impose the full
costs of this disciplinary proceeding, which are $2,110.29 as of
May 24, 2017, on Attorney Petersen. Since Attorney Petersen has
already made restitution to his client, the OLR does not seek a
restitution order.
¶3 Attorney Petersen was admitted to practice law in
Wisconsin in 2008. He practices in Appleton. He has no prior
disciplinary history.
¶4 On March 21, 2016, the OLR filed a complaint against
Attorney Petersen alleging nine counts of misconduct. Attorney
Petersen filed an answer on May 19, 2016. The referee was
appointed on June 6, 2016. The parties' stipulation was filed
on October 21, 2016.
¶5 As part of the stipulation, Attorney Petersen admitted
the facts alleged in the OLR's complaint. All nine counts of
misconduct arose out of Attorney Petersen's representation of
K.F. In November 2012, K.F. retained Attorney Petersen to
represent him in two legal matters. K.F.'s father, R.F., hired
and paid Attorney Petersen and assisted K.F. in communicating
with Attorney Petersen throughout the representation.
¶6 In May 2014, Attorney Petersen reached a plea
agreement with Outagamie County Assistant District Attorney
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No. 2016AP563-D
(ADA) Andrew Maier whereby K.F. would plead to a Class C felony
– attempted armed robbery – and two misdemeanor charges would be
dismissed. Attorney Petersen failed to truthfully inform K.F.
about the terms of the state's plea offer.
¶7 K.F. decided he was willing to enter a plea to a Class
H felony – theft from a person. The plea hearing was held on
May 23, 2015. Attorney Petersen misled K.F. by telling him to
plead no contest to the Class C felony and that the charge would
be amended after the hearing to a reduced charge of the Class H
felony. K.F. believed he was entering a plea to the Class H
felony.
¶8 Immediately after the plea hearing, when K.F. reviewed
the paperwork provided to him in court, K.F. called R.F., who
was then with Attorney Petersen, to inform them that the charges
and paperwork were incorrect. Attorney Petersen assured K.F.
and R.F. that the charge would be amended within two weeks.
¶9 Despite knowing that the charge would not be amended,
Attorney Petersen repeatedly misrepresented to K.F. and R.F. in
the following months that he was working with ADA Maier and the
judge to obtain the paperwork to get the charge amended.
¶10 On June 4, 2014, Attorney Petersen told R.F. that the
clerk of court had amended the felony charge. This
representation was untrue. The following day, R.F. emailed
Attorney Petersen asking for an update on the amended charge.
Attorney Petersen responded by email informing R.F. that he had
called ADA Maier and ADA Maier was going to check on the status
of the amendment because that was something only the district
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attorney could file. Attorney Petersen's representation was
untrue as he had never called ADA Maier.
¶11 Attorney Petersen falsely represented to R.F. that ADA
Maier had agreed in writing to amend the charge. He claimed he
had received an email from ADA Maier and had forwarded it R.F.
R.F. never received any such email.
¶12 At a meeting on or about June 11, 2014, R.F. asked
Attorney Petersen for a copy of the email that Attorney Petersen
claimed he had received from ADA Maier saying that ADA Maier had
agreed to amend the charges. Attorney Petersen provided R.F.
with a copy of an email he claimed he received on June 6, 2014,
in which ADA Maier purportedly wrote, "After we talked this
morning and I reviewed the defendant's file, the charge was
amended down from a (sic) Armed Robbery to theft from a Person
as PTAC." ADA Maier did not author this email, nor had he
agreed to amend K.F.'s conviction. Attorney Petersen falsified
the ADA Maier email, which he provided to R.F.
¶13 On June 23, 2014, R.F. emailed Attorney Petersen
requesting an update on the amended charges. In response,
Attorney Petersen spoke with R.F. and told him not to be
concerned about the amendment of the charge. He said the
district attorney had processed the paperwork and it was with
the judge for processing. These representations were untrue.
¶14 On June 24, 2014, Attorney Petersen filed a motion for
sentence credit. On July 10, 2014, the court signed an order
granting K.F.'s sentence credit.
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No. 2016AP563-D
¶15 On July 18, 2014, Attorney Petersen sent R.F. an email
saying he had talked directly with the judge that morning and
the judge had assured Attorney Petersen that the paperwork would
be completed by the next Friday. The email also said that ADA
Maier was available and that both Attorney Petersen and ADA
Maier had explained the situation and lack of objections to
amending the charge to the judge. These representations were
untrue.
¶16 On more than one occasion in August 2014, R.F. sent
Attorney Petersen emails inquiring about the status of the
amended charge. Attorney Petersen did not respond until August
22, 2104, when he emailed R.F. saying he was waiting to hear
from the court about the amendment. Attorney Petersen claimed,
"the judge refuses to talk to me about this case unless ADA
Andrew Maier is present, and he has been out of town recently
and returns tomorrow." These representations were untrue.
¶17 On September 5, 2014, R.F. and Attorney Petersen
exchanged emails about filing an appeal. R.F. asked Attorney
Petersen to call him because he had numerous questions and was
not sure if an appeal should be filed if the amended charges
would soon be recorded. Attorney Petersen spoke with R.F. and
mentioned writing a letter to the judge or the district attorney
about the delay.
¶18 On September 22, 2014, R.F. emailed Attorney Petersen
about the continued delays and said he was considering
contacting the Attorney General, the State Bar, or the judge
directly. On September 26, 2014, Attorney Petersen caused the
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No. 2016AP563-D
clerk to schedule a motion hearing on the court's calendar for
October 7, 2014, although no corresponding motion was filed.
Attorney Petersen told R.F. that the purpose for the hearing was
to amend K.F.'s conviction. Attorney Petersen later cancelled
the hearing and told R.F. that the matter could be handled over
the phone and that the amended charge would soon appear in the
online court record. These representations about the hearing
were untrue.
¶19 On October 24, 2014, Attorney Petersen sent R.F., via
email, a document entitled Order Amending Conviction and
Sentence. R.F. was not able to open the email attachment.
Attorney Petersen sent the email from his personal account
rather than his law office account. Attorney Petersen later
told R.F. he had a signed copy of the order amending the
charges. On October 31, 2014, R.F. went to Attorney Petersen's
office and picked up a document entitled Order Amending
Conviction and Sentence. He took the document to the Outagamie
County courthouse to confirm it had in fact been entered in
K.F.'s case. The clerk's office pointed out the order was not
filed stamped by the court. The clerk's office spoke with the
judge's judicial assistant, who verified the purported order was
not in K.F.'s court file. After speaking to the judge, the
judicial assistant called Attorney Petersen to inquire about the
order. Attorney Petersen went to the courthouse and examined
the order but did not admit he had created it.
¶20 On October 31, 2014, Attorney Petersen called R.F.
R.F. told Attorney Petersen it was odd that the order had not
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No. 2016AP563-D
been filed stamped by the court. Attorney Petersen claimed the
order copied for R.F. had been in his mailbox at the courthouse
on October 24, 2014, and that the order had not gone through and
that Stanley Correctional Institution had rejected the order
because it contained the word "modified" rather than "amended."
¶21 On November 3, 2014, Attorney Petersen wrote to the
court to explain the origins of the order. Attorney Petersen
was not truthful and did not admit he had falsified the order.
Instead, Attorney Petersen claimed he had copied both an
unsigned version of the order and the court's prior signed order
for sentence credit to give to R.F. and suggested that the
signature from the signed order had somehow been transposed in
the copying process. Attorney Petersen said, " . . . it is
possible that I inadvertently created the order. I do not
believe anything criminal was done by my client's father."
¶22 On November 4, 2014, the court contacted the Appleton
Police Department to report a possible forgery. Sergeant Neal
Rabas was assigned to investigate the matter.
¶23 On November 10, 2014, Attorney Petersen met with R.F.
at his office. Unbeknownst to Attorney Petersen, R.F. recorded
the meeting. R.F. questioned Attorney Petersen about the order
given to him and why it had still not been processed. Attorney
Petersen continued to lie, telling R.F. there had been an error
in the order, which he had corrected. Attorney Petersen claimed
that he had submitted the corrected order to ADA Maier for
approval the previous week and that he expected to find out from
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No. 2016AP563-D
ADA Maier that day whether it was approved and, if so, Attorney
Petersen would take it to the judge for his signature.
¶24 On November 26, 2014, Attorney Petersen was
interviewed by police. Attorney Petersen denied that he had
copied the judge's signature onto the October 24, 2014 order.
Attorney Petersen told Sergeant Rabas that he had given R.F. an
unsigned Order to Amend Conviction and Sentence and a copy of
the Order for Sentence Credit. When Sergeant Rabas asked
Attorney Petersen if he thought R.F. had put the judge's
signature on the order, Attorney Petersen replied he did not
know and could not answer that.
¶25 During the interview with Sergeant Rabas, Attorney
Petersen said there was no agreement with ADA Maier to amend
K.F.'s conviction and that it had become a moot point. Sergeant
Rabas questioned Attorney Petersen about the email purportedly
sent by ADA Maier in June suggesting that the charge was
amended. Attorney Petersen claimed he had received the email
from ADA Maier but it only meant the charge would be amended if
K.F. was not able to obtain the programming he needed in prison.
Attorney Petersen did not admit that he had fabricated ADA
Maier's email.
¶26 Sergeant Rabas revealed to Attorney Petersen that his
November 10, 2014 meeting was recorded and asked him to explain
why he was now saying there was no agreement to amend the charge
when he had repeatedly told R.F. the charge would be amended.
Attorney Petersen ended the interview soon thereafter and said
he wanted to speak to an attorney.
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No. 2016AP563-D
¶27 On December 20, 2014, Sergeant Rabas received a
handwritten letter from Attorney Petersen saying, "I phonied a
document to get Mr. F. off my back." The judge and his judicial
assistant received similar letters from Attorney Petersen.
¶28 On August 11, 2015, for his conduct in K.F.'s matter,
Attorney Petersen was charged with one misdemeanor count of
violating Wis. Stat. § 785.04(2)(a) – contempt of court. On
November 19, 2015, Attorney Petersen pled no contest to the
charge and was convicted. See State v. Petersen, Outagamie
County circuit court case no. 2015CM878.
¶29 The OLR's complaint alleged the following counts of
misconduct:
Count One: By failing to abide by K.F.'s decision as
to the terms of a plea agreement he was willing to
accept in resolution of the charges against him, and
accepting a plea agreement that was not in accordance
with K.F.'s decision, Attorney Petersen violated
SCR 20:1.2(a).1
Count Two: By failing to truthfully inform K.F. about
the terms of the State's plea agreement offer,
Attorney Petersen violated SCR 20:l.4(b).2
Count Three: By misleading K.F. that the charge
against him would be amended after his conviction,
Attorney Petersen violated SCR 20:8.4(c).3
1
SCR 20:1.2(a) provides: " . . . In a criminal case or any
proceeding that could result in deprivation of liberty, the
lawyer shall abide by the client's decision, after consultation
with the lawyer, as to a plea to be entered."
2
SCR 20:1.4(b) provides: "A lawyer shall explain a matter
to the extent reasonably necessary to permit the client to make
informed decisions regarding the representation."
9
No. 2016AP563-D
Count Four: By making numerous false statements in
emails and oral conversations to R.F. over the course
of five months, Attorney Petersen violated
SCR 20:8.4(c).
Count Five: By falsifying an email in order to
mislead R.F. to believe that ADA Maier had
acknowledged an agreement to amend K.F.'s conviction,
Attorney Petersen violated SCR 20:8.4(c).
Count Six: By fabricating the Order To Amend
Conviction and Sentence designed to mislead R.F. and
K.F. to believe that the court had amended K.F.'s
conviction, Attorney Petersen violated SCR 20:8.4(c).
Count Seven: By knowingly making a false statement of
material fact to Judge Des Jardins in the November 3,
2014 letter in which he told Judge Des Jardins that he
had provided R.F. with an unsigned copy of the Order
Amending Conviction and Sentence and offering a false
explanation that the appearance of the judge's
signature on the Order may have resulted from a copy
machine error, Attorney Petersen violated
SCR 20:3.3(a)(l).4
Count Eight: By engaging in conduct involving
dishonesty, fraud, deceit or misrepresentation when he
made false statements to the Appleton Police
Department in the course of its investigation of the
forged Order, Attorney Petersen violated
SCR 20:8.4(c).
Count Nine: By committing a criminal act that
reflects adversely on his honesty, trustworthiness,
and fitness as a lawyer during the course of his
representation of K.F. that resulted in his conviction
for Contempt of Court in violation of Wis. Stat.
3
SCR 20:8.4(c) provides: "It is professional misconduct for
a lawyer to engage in conduct involving dishonesty, fraud,
deceit or misrepresentation."
4
SCR 20:3.3(a)(1) provides: "A lawyer shall not knowingly
make a false statement of fact or law to a tribunal or fail to
correct false statement of material fact or law previously made
to the tribunal by the lawyer."
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No. 2016AP563-D
§ 785.04(2)(a), Attorney Petersen violated
SCR 20:8.4(b).5
¶30 In the stipulation, Attorney Petersen stated that he
fully understands the misconduct allegations; fully understands
the ramifications should the court impose the stipulated level
of discipline; understands that he has the right to consult with
counsel; and states that his entry into the stipulation is made
knowingly and voluntarily; and represents his admission of all
misconduct recited in the complaint and his assent to the level
and type of discipline sought by the OLR Director.
¶31 As previously noted, the parties agreed that an
appropriate level of discipline for Attorney Petersen's
misconduct is a one-year suspension of his license to practice
law in Wisconsin. The referee agreed.
¶32 The referee's May 8, 2017 report and recommendation
found that the OLR met its burden of proof with respect to all
nine counts of misconduct set forth above. In discussing the
appropriate level of discipline, the referee noted a number of
aggravating factors. The referee said Attorney Petersen did not
engage in a single lie to his client but instead told multiple
lies and fabricated documents to conceal those lies. The
referee also noted the nature of the misconduct and Attorney
Petersen's attempt to shift the blame to R.F., his client's
5
SCR 20:8.4(b) provides: "It is professional misconduct
for a lawyer to commit a criminal act that reflects adversely on
the lawyer's honesty, trustworthiness or fitness as a lawyer in
other respects."
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No. 2016AP563-D
father. In addition, the referee pointed out that K.F. was
incarcerated and had placed his trust in Attorney Petersen, who
repeatedly told him that the felony charges would be amended.
The referee also pointed out that Attorney Petersen was
criminally charged and convicted of the misdemeanor offense of
contempt of court.
¶33 With respect to mitigating factors, the referee
pointed out that Attorney Petersen has no prior disciplinary
record. The referee noted that at the sentencing hearing in the
misdemeanor case, Attorney Petersen's counsel indicated that
Attorney Petersen had a difficult childhood as the child of
alcoholic parents, with a resulting psychological or psychiatric
factor at play. While Attorney Petersen sought psychological
treatment after the police became involved in the matter, the
referee noted there is no proof in the disciplinary case that a
medical condition was causal of the misconduct.
¶34 The referee said that a final mitigating factor to be
considered is the imposition of other sanctions or penalties.
Attorney Petersen was sentenced to one year of probation
conditioned on 30 days in jail with Huber privileges, with 25 of
those days stayed. Attorney Petersen was also ordered to refund
the $5,000 fee to R.F., and Attorney Petersen was required to
provide a copy of the criminal complaint to every client he
dealt with in the next year, along with a letter stating:
I am a crook. I am a cheat. I am a thief. I am a
liar. I was convicted of a crime on November 9th,
2015. My conviction resulted from my intentional
choice to sell my own clients down the river and then
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No. 2016AP563-D
trying to cover it up. You may not hire me or have me
legally represent you in any fashion until you read
the Criminal Complaint and Judgment of Conviction in
my Outagamie County Wisconsin Case no. 15-CM878. This
disclosure is required as one of the conditions of my
probation.
¶35 The referee discussed a number of prior disciplinary
cases that support the imposition of a one-year suspension.
Those cases include In re Disciplinary Proceedings Against
Siderits, 2013 WI 2, 345 Wis. 2d 89, 824 N.W.2d 812; In re
Disciplinary Proceedings Against Donovan, 211 Wis. 2d 451, 564
N.W.2d 772 (1997); and In re Disciplinary Proceedings Against
Spangler, 2016 WI 61, 370 Wis. 2d 369, 881 N.W.2d 35. Attorney
Siderits was suspended for one year for five counts of
misconduct, which included falsifying billable time records in
order to qualify for bonus compensation. Attorney Donovan
received a six-month suspension. While serving as an assistant
district attorney, Attorney Donovan forged documents submitted
in two cases in order to assist the defendants in those cases.
She also pled no contest to two misdemeanor counts of forgery.
Attorney Spangler received a six-month suspension for creating
fake documents in two cases to mislead his clients into
believing they had lawsuits pending when one lawsuit had been
dismissed and the other had never been filed.
¶36 The referee said Attorney Petersen's conduct was
potentially worse than that of Attorney Siderits because
Attorney Petersen lied to multiple people and was convicted of
illegal conduct directly related to his practice of law.
However, the referee noted Attorney Petersen incurred the
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No. 2016AP563-D
additional penalty of having to notify prospective clients of
his criminal conviction and having to provide them with a
written statement designed to discourage clients from hiring
him, effectively preventing him or at least severely curtailing
him from practicing law. The referee thus concluded that a one-
year suspension was an appropriate level of discipline. The
referee also recommends that Attorney Petersen bear the full
costs of the proceeding.
¶37 This court will adopt a referee findings of fact,
unless they are clearly erroneous. Conclusions of law are
reviewed de novo. See In re Disciplinary Proceedings Against
Eisenberg, 2004 WI 14, ¶5, 269 Wis. 2d 43, 675 N.W.2d 747. The
court may impose whatever sanction it sees fit, regardless of
the referee's recommendation. See In re Disciplinary
Proceedings Against Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660
N.W.2d 686.
¶38 We adopt the referee's findings of fact and
conclusions of law that Attorney Petersen violated the supreme
court rules as alleged in the nine counts set forth above. We
also agree with the referee that a one-year suspension of
Attorney Petersen's license to practice law in Wisconsin is an
appropriate level of discipline for the misconduct.
¶39 Since no two cases are precisely identical, there is
no standard sanction for any particular misconduct. We agree
with the referee that Attorney Petersen's misconduct is somewhat
analogous to that in Siderits, where a one-year suspension was
also imposed. In addition, we also find that the misconduct is
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No. 2016AP563-D
somewhat similar to that at issue in our recent decision in
Spangler. Like Attorney Spangler, Attorney Petersen created a
series of false documents to mislead his client about the status
of his case. Like Attorney Spangler, Attorney Petersen's
deception and lies to K.F. and R.F. were a betrayal of the trust
that the F.s had placed in him. In addition, Attorney Petersen
tried to blame R.F. for at least one of the forged documents.
Moreover, unlike Attorney Spangler, Attorney Petersen's conduct
also resulted in a criminal conviction for contempt of court.
Accordingly, Attorney Petersen's conduct warrants a suspension
in excess of the six-month suspension imposed in Spangler.
Thus, we agree with the referee that a one-year suspension of
Attorney Petersen's license to practice law in Wisconsin is
necessary to protect the public, the courts, and the legal
system from Attorney Petersen's repetition of misconduct, to
impress upon him the seriousness of his misconduct, and to deter
other attorneys from engaging in similar misconduct. We also
deem it appropriate, as is our usual custom, to impose the full
costs of this disciplinary proceeding on Attorney Petersen.
Since Attorney Petersen has made restitution to R.F., the OLR
does not seek a restitution award and we do not impose such an
award.
¶40 IT IS ORDERED that the license of Michael D. Petersen
to practice law in Wisconsin is suspended for a period of one
year, effective January 26, 2018.
¶41 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Michael D. Petersen shall pay to the Office of
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No. 2016AP563-D
Lawyer Regulation the costs of this proceeding which are
$2,110.29 as of May 24, 2017.
¶42 IT IS FURTHER ORDERED that Michael D. Petersen shall
comply with the provisions of SCR 22.26 concerning the duties of
a person whose license to practice law in Wisconsin has been
suspended.
¶43 IT IS FURTHER ORDERED that compliance with all
conditions with this order is required for reinstatement. See
SCR 22.28(3).
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¶44 ANN WALSH BRADLEY, J. (dissenting). Attorney
Petersen's misconduct was egregious. He repeatedly lied to his
client about the terms of the State's plea offer. He told his
client that certain charges would be amended when Attorney
Petersen knew this was untrue. He then falsified an email
purportedly written by an Assistant District Attorney in
furtherance of the lies and falsely reported that the judge
agreed with the amended charges.
¶45 It gets worse. Attorney Petersen apparently forged a
judge's signature on a fabricated court order, lied to the court
and to the police, all the while continuing the lies to his
client.
¶46 Given the nature and extent of Attorney Petersen's
misconduct, I conclude that the one-year suspension imposed by
the per curiam opinion is too light.
¶47 Accordingly, I respectfully dissent.
¶48 I am authorized to state that Justice SHIRLEY S.
ABRAHAMSON joins this dissent.
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