Office of Lawyer Regulation v. Alan D. Eisenberg , 347 Wis. 2d 116 ( 2013 )

2013 WI 37SUPREME COURT OF WISCONSIN
CASE NO.: 2009AP284-D
COMPLETE TITLE:
In the Matter of Disciplinary Proceedings
Against Alan D. Eisenberg, Attorney at Law:
Office of Lawyer Regulation,
Complainant-Respondent,
v.
Alan D. Eisenberg,
Respondent-Appellant.
DISCIPLINARY PROCEEDINGS AGAINST EISENBERG
OPINION FILED: May 2, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: November 6, 2012
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the respondent-appellant, there was a brief filed by
Alan D. Eisenberg, pro se, and oral argument by Alan D.
Eisenberg.
For the Office of Lawyer Regulation, there was a brief
filed by Paul W. Schwarzenbart and oral argument by Paul W.
Schwarzenbart.
2013 WI 37NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2009AP284-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
against Alan D. Eisenberg, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant-Respondent,
MAY 2, 2013
v.
Diane M. Fremgen
Clerk of Supreme Court
Alan D. Eisenberg,
Respondent-Appellant.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. This is the sixth disciplinary
proceeding involving Attorney Alan D. Eisenberg. In this matter
Attorney Eisenberg has appealed from the report of the referee,
Attorney John R. Decker, in which the referee recommended that
the period of ineligibility for Attorney Eisenberg to petition
for reinstatement from the prior revocation of his license to
practice law be extended for a period of two years, and that
Attorney Eisenberg be ordered to pay the full costs of this
No. 2009AP284-D
disciplinary proceeding, which were $27,689.29 as of
November 19, 2012.
¶2 After fully reviewing this matter, we reject Attorney
Eisenberg's arguments on appeal. We accept the referee's
findings of fact and agree that those facts provide clear,
satisfactory, and convincing evidence that Attorney Eisenberg
committed five violations of the Rules of Professional Conduct
for Attorneys. We further agree with the referee that those
violations require the imposition of an additional two-year
suspension, which shall run consecutive to the existing five-
year period in which Attorney Eisenberg is prohibited from
petitioning for the reinstatement of his license to practice law
in Wisconsin due to the prior revocation of his license. We
also determine that Attorney Eisenberg should be required to pay
the full costs of this proceeding.
¶3 Attorney Eisenberg was admitted to the practice of law
in this state in 1966. He has been the subject of professional
discipline on five prior occasions. In 1970 this court
suspended Attorney Eisenberg's license for a period of one year
due to his unprofessional conduct. In re Disciplinary
Proceedings Against Eisenberg, 48 Wis. 2d 364, 180 N.W.2d 529(1970) (Eisenberg I). In 1988 we imposed a two-year suspension
for a lengthy list of ethical violations, including multiple
false statements. In re Disciplinary Proceedings Against
Eisenberg, 144 Wis. 2d 284, 423 N.W.2d 867 (1988) (Eisenberg
II). In 1996 Attorney Eisenberg received a public reprimand for
failing to close out a client trust account and thereby to wrap
2
No. 2009AP284-D
up his law practice during the suspension imposed in Eisenberg
II. Public Reprimand of Alan D. Eisenberg, No. 1996-3
(Eisenberg III). In 2004 we again suspended Attorney
Eisenberg's license for a period of one year for misconduct that
included, among other things, directing his staff to fabricate
billing records, which he then incorporated into an affidavit
that he personally signed, disrupting an administrative hearing
with "rude, abusive, controlling, [and] disrespectful" behavior,
and entering into a prohibited transaction with a client. In re
Disciplinary Proceedings Against Eisenberg, 2004 WI 14, ¶¶19 and
24-25, 269 Wis. 2d 43, 675 N.W.2d 747 (Eisenberg IV). Finally,
in 2010 we revoked Attorney Eisenberg's license for misconduct
in filing and maintaining a frivolous lawsuit that served merely
to harass or maliciously injure the opposing party. In re
Disciplinary Proceedings Against Eisenberg, 2010 WI 11, 322
Wis. 2d 518, 778 N.W.2d 645 (Eisenberg V). Under this court's
rules, Attorney Eisenberg will not be eligible to petition for
the reinstatement of his license until April 1, 2015. See
SCR 22.29(2) ("A petition for reinstatement of a license that is
revoked may be filed at any time commencing five years after the
effective date of revocation.").
¶4 The OLR filed its complaint in this matter in February
2009. The proceedings before the referee did not move forward
for a period of time given the pendency of the disciplinary
proceeding that resulted in the Eisenberg V decision. Attorney
Eisenberg subsequently filed two motions to dismiss this matter,
but both were denied by the referee. He also filed a motion in
3
No. 2009AP284-D
this court requesting that Referee Decker be disqualified and
that a new referee be appointed to decide the disqualification
issue. This court denied his request for the appointment of a
different referee to decide the disqualification motion and
referred the recusal/disqualification motion to Referee Decker
for a decision. The referee subsequently denied that motion.
After the passage of a considerable amount of time between
sessions of an evidentiary hearing, the referee issued his
report and recommendation. Attorney Eisenberg appealed, and
oral argument on his appeal was conducted in November 2012.
¶5 The OLR's complaint in this proceeding relates to two
separate representations. The referee ultimately found the
following facts regarding the underlying matters.
¶6 In the first matter, Attorney Eisenberg represented a
man, T.H., regarding the euthanization of a pet dog. Prior to
undertaking this representation, Attorney Eisenberg had
previously represented a plaintiff dog owner in a civil action
against a neighbor, an off-duty police officer who had shot the
plaintiff's dog. Attorney Eisenberg had argued on behalf of the
plaintiff in that case that the plaintiff dog owner had a legal
claim for negligent infliction of emotional distress. This
court ultimately ruled in that case that the plaintiff could not
state a claim for negligent infliction of emotional distress
because such a claim requires that the person seeking
compensation must have witnessed the death of a close relative,
and under the law of this state a pet dog is considered the
personal property of the owner and not a close relative.
4
No. 2009AP284-D
Rabideau v. City of Racine, 2001 WI 57, 243 Wis. 2d 486, 627
N.W.2d 795. From his work on the Rabideau case, Attorney
Eisenberg was aware of the legal categorization of pet dogs as
personal property.
¶7 T.H. had formerly been married to S.H., and they had
owned a Labrador retriever during their marriage. After T.H.
moved out of the family residence and while the divorce
proceeding was pending, the dog resided with S.H. and the
couple's son, but not with T.H. S.H. and T.H. entered into a
marital settlement agreement (MSA), which was ultimately
incorporated into the judgment of divorce. In the MSA, T.H.
expressly agreed that S.H. would be awarded, inter alia, all
"personal belongings and other personal property currently in
her possession at the time of the final hearing," and that T.H.
was divested of any right or legal interest in any of the
property awarded to S.H. This MSA was never modified. The dog
was therefore awarded to S.H. in the divorce judgment.
¶8 S.H. had the dog euthanized at a veterinary hospital
in August 2000. T.H. learned of this fact a short time later.
He then retained Attorney Eisenberg regarding a potential claim.
¶9 Despite his knowledge of the legal characterization of
pet animals as personal property and of the terms of the MSA and
the divorce judgment, which awarded all personal property in her
possession to S.H., Attorney Eisenberg filed a large-claim civil
action on T.H.'s behalf on the theory that T.H. was the lawful
owner of the dog. Although the referee found that the initial
belief in Attorney Eisenberg's office was that S.H. had been
5
No. 2009AP284-D
responsible, with or without her mother's assistance, for the
euthanization of the dog, Attorney Eisenberg did not name S.H.
as a defendant. Apparently for strategic reasons Attorney
Eisenberg named B.S., who was S.H.'s mother and T.H.'s former
mother-in-law, as the sole defendant.1
¶10 Attorney Eisenberg subsequently claimed that the
veterinary hospital had told him that it had been B.S. who (1)
had brought the dog to the hospital, (2) had falsely claimed
that she was the owner, and (3) had demanded that the dog be
euthanized. The referee found that this claim was "incredible
and false." Attorney Eisenberg also claimed that S.H. had
admitted to him in a later telephone conversation that her
mother had been the individual responsible for the euthanization
of the dog. The referee also found this to be a "fabrication"
by Attorney Eisenberg.
¶11 In April 2001 counsel for B.S. sought to take the
deposition of T.H., but was unable to do so because T.H. refused
to answer counsel's questions and Attorney Eisenberg refused to
instruct T.H. to answer. B.S.'s counsel attempted to resolve
the discovery dispute in a telephone call with Attorney
Eisenberg, but Attorney Eisenberg continued to refuse to
instruct his client to answer. Instead, Attorney Eisenberg
1
The referee described his view of the way in which the
lawsuit was structured as follows: "[Attorney] Eisenberg
constructed a compelling narrative for the case: vicious,
vindictive ex-mother-in-law has the perfectly healthy dog
belonging to her ex-son-in-law euthanized. The only problem
with the narrative was that it was untrue."
6
No. 2009AP284-D
questioned opposing counsel about the facts of the case and then
hung up after calling opposing counsel a liar.
¶12 B.S. was forced to bring a motion to compel discovery.
Attorney Eisenberg did not appear for the hearing on the motion.
Instead, 25 minutes after the scheduled start time for the
hearing, Attorney Eisenberg called an associate attorney in his
firm who had graduated from law school just one month earlier
and instructed her to appear in his stead. Consequently, the
court and opposing counsel were forced to wait 35 minutes before
the associate reached the courtroom. The circuit court granted
the motion to compel and ordered that Attorney Eisenberg pay the
opposing side's costs and attorney fees, including the fees for
the 35 minutes spent waiting for Attorney Eisenberg or his
associate to appear.
¶13 When the deposition of T.H. resumed, B.S.'s counsel
presented T.H. with documentation from the veterinary hospital
which showed that S.H., not his former mother-in-law, had signed
the consent form for the dog to be euthanized. T.H. indicated
that he had never seen the form before and acknowledged that it
made "everything irrelevant." T.H. also acknowledged that the
dog had bitten people in a few incidents over the years and that
he had been convicted on a municipal charge of cruelty to
animals for an incident involving the dog.
¶14 The circuit court ultimately granted B.S.'s summary
judgment motion and dismissed the case. Finding that both T.H.
and Attorney Eisenberg had no basis in law or fact to assert
that T.H. had any ownership interest in the dog at the time it
7
No. 2009AP284-D
had been euthanized, the circuit court also ruled that the
action had been frivolous and ordered Attorney Eisenberg and
T.H. to pay B.S. the sum of $3,680.70, plus costs. Ultimately,
in September 2001 this sanction order was reduced to a judgment
in the amount of $3,785.70 against Attorney Eisenberg and T.H.,
jointly and severally.
¶15 Attorney Eisenberg did not make any payments toward
the judgment for a number of years. He initially filed a motion
for reconsideration, which was denied. He then filed an appeal,
which was dismissed as untimely. Almost five years after the
judgment had been entered, Attorney Eisenberg filed a motion to
vacate and dismiss the judgment because he wanted "to do certain
things financially" and "to move on with certain things in his
life." That motion was denied, and the denial was upheld on
appeal. Finally, in January 2008, more than six years after the
entry of the sanction order and judgment, Attorney Eisenberg
tendered a check to B.S. in satisfaction of the judgment.
¶16 On the basis of these facts, the referee concluded
that by alleging that T.H. was the "owner" of the dog when T.H.
had agreed to relinquish any claim to ownership in the MSA and
the divorce judgment, Attorney Eisenberg knowingly advanced a
factual position where the basis for doing so was frivolous, in
violation of SCR 20:3.1(a)(2).2 Second, the referee determined
2
SCR 20:3.1(a)(2) states that in representing a client, a
lawyer shall not "knowingly advance a factual position unless
there is a basis for doing so that is not frivolous; . . . ."
8
No. 2009AP284-D
that Attorney Eisenberg had violated SCR 20:3.4(a) and (d)3 by
encouraging his client to make objections to legally proper
questions in his deposition, by disrupting the deposition with
deceitful and inflammatory representations about the examining
attorney, and by opposing a motion to compel discovery in bad
faith. Finally, the referee concluded that Attorney Eisenberg's
failure to comply with the court's sanction order and judgment
for a period of several years constituted a violation of
SCR 20:3.4(c).4
¶17 The second matter at issue in this disciplinary
proceeding involves Attorney Eisenberg's financial arrangement
with a nonlawyer in the representation of a claimant in a
worker's compensation proceeding. Under the applicable statutes
and the rules of the Department of Workforce Development (DWD),
3
SCR 20:3.4(a) and (d) state as follows:
A lawyer shall not:
(a) unlawfully obstruct another party's access to
evidence or unlawfully alter, destroy or conceal a
document or other material having potential
evidentiary value. A lawyer shall not counsel or
assist another person to do any such act;
. . .
(d) in pretrial procedure, make a frivolous
discovery request or fail to make reasonably diligent
effort to comply with a legally proper discovery
request by an opposing party; . . . .
4
SCR 20:3.4(c) states that a lawyer shall not "knowingly
disobey an obligation under the rules of a tribunal, except for
an open refusal based on an assertion that no valid obligation
exists; . . . ."
9
No. 2009AP284-D
nonlawyers are permitted to represent worker's compensation
claimants in negotiating settlements with insurers and to appear
before an administrative law judge (ALJ) on behalf of a claimant
if they meet certain requirements, including obtaining a license
from the DWD. Wis. Stat. § 102.17(1)(c). A nonlawyer who does
not have the necessary license or meet the requirements must
work with a licensed attorney, who represents the claimant. If
multiple attorneys have represented a claimant in succession and
they are unable to agree on how the fees are to be allocated, it
is the ALJ who allocates fees among the various attorneys. When
an attorney is involved, the DWD directs fees to be paid only to
attorneys. Thus, nonattorney individuals who are not authorized
to appear before an ALJ and who work on a worker's compensation
matter must have an affiliation with an attorney of record and
receive compensation from the attorney.
¶18 J.M.Z. was an unlicensed medical doctor who provided
case management and evaluation services for a number of law
firms and lawyers. Because he was not authorized to appear
before an ALJ in worker's compensation matters, he worked with
claimants in such matters in conjunction with licensed
attorneys. He apparently referred a worker's compensation
claimant, G.M., to a law firm where he worked. The lawyer with
whom J.M.Z. worked on such cases subsequently left the firm and
started his own firm. J.M.Z. also subsequently left that firm
and developed a referral relationship with the lawyer in his new
practice. One of the cases that J.M.Z. referred from the prior
firm to the lawyer's new firm was G.M.'s case. A dispute,
10
No. 2009AP284-D
however, developed between J.M.Z. and the lawyer over J.M.Z.'s
belief that the lawyer was not paying him the amounts J.M.Z.
believed he was owed on referred cases, including G.M.'s
worker's compensation case.
¶19 Ultimately, J.M.Z. ceased working with the attorney
and developed an association with Attorney Eisenberg. Although
J.M.Z. was not a lawyer, Attorney Eisenberg testified in this
disciplinary proceeding that J.M.Z. had "pulled" G.M.'s case out
of the other lawyer's firm and had brought the case along with
him to Attorney Eisenberg's firm. Attorney Eisenberg was then
substituted as counsel of record. He testified, however, that
"there was almost nothing left that needed to be done" on the
case and that "[a]ll my office did was busy work."
¶20 When G.M.'s claim was settled, the prior attorney
filed an attorney's lien against the settlement proceeds.
According to Attorney Eisenberg, J.M.Z. told Attorney Eisenberg
that he wanted to get the money he thought was owed to him. A
letter, dated September 4, 2007, which Attorney Eisenberg
described as a "letter of protection," was sent under Attorney
Eisenberg's handwritten signature to advise the ALJ of Attorney
Eisenberg's and J.M.Z.'s claim against the settlement monies
under a statutory lien for attorney fees. The September 4, 2007
letter was received by the ALJ the following day. The
September 4, 2007 letter described the history of G.M.'s case
and its travels through the various law firms. It stated that
J.M.Z. had actually done the lion's share of the work on G.M.'s
case, much of which had occurred prior to J.M.Z.'s affiliation
11
No. 2009AP284-D
with Attorney Eisenberg. Although Attorney Eisenberg has
acknowledged that his firm was required to do very little work
on the case, the final paragraph of the letter argued that his
firm should receive the overwhelming majority of the legal fees.
That paragraph also describes an agreement between Attorney
Eisenberg and J.M.Z. regarding G.M.'s case:
For the above reasons, it seems most equitable that
the Law Offices of Alan D. Eisenberg receive all but
$1,000.00 in legal fees and $250.00 in costs, or a net
amount of $23,288.29. Please note that the present
agreement between Attorney Alan D. Eisenberg and
[J.M.Z.] involves a 50/50 split between them once a
matter has been adjudicated and settled. This is
identical to the former agreement between [J.M.Z.] and
[the prior attorney].
¶21 Apparently still upset with the prior attorney, J.M.Z.
sent a copy of Attorney Eisenberg's September 4, 2007 letter to
the OLR apparently as part of his complaint about the prior
attorney. After speaking with J.M.Z. about his arrangements
with the various attorneys, an OLR investigator sent a letter to
Attorney Eisenberg regarding the investigator's contact with
J.M.Z. and Attorney Eisenberg's relationship with J.M.Z. In a
subsequent telephone conversation involving the OLR
investigator, Attorney Eisenberg and J.M.Z., Attorney Eisenberg
denied, contrary to the statement in his September 4, 2007
letter, that there was a fee-splitting agreement between himself
and J.M.Z.
¶22 Two days after this telephone conversation, Attorney
Eisenberg sent a second version of the "letter of protection"
(the September 26, 2007 letter) to the ALJ. The referee found
12
No. 2009AP284-D
that this September 26, 2007 letter was identical to the first
letter, with the sole exception that the final two sentences
referring to the 50/50 fee split between J.M.Z. and Attorney
Eisenberg and between J.M.Z. and the prior attorney had been
deleted. This letter was also received by the ALJ.
¶23 In subsequent communications with the OLR's
investigator, Attorney Eisenberg claimed that he had never
entered into any fee-splitting agreement with J.M.Z., that he
had not dictated the September 4, 2007 letter, that no rough
draft of that letter had ever been given to him for review, and
indeed that the September 4, 2007 letter had been voided and
never sent to the ALJ.
¶24 The referee explicitly and specifically found that
Attorney Eisenberg's denial of having entered into a fee-
splitting agreement with J.M.Z. and his claim that the
September 4, 2007 letter had not been sent to the ALJ were
false. The referee further found that, although there indeed
had been a fee-splitting agreement, which had been communicated
to the ALJ, there was no evidence that fees had actually been
split between Attorney Eisenberg and J.M.Z. pursuant to their
agreement after its existence had been disclosed to the OLR.
¶25 Based on these facts regarding the representation of
G.M. and the resulting OLR investigation, the referee concluded
that Attorney Eisenberg had committed two violations of the
Rules of Professional Conduct for Attorneys. First, by agreeing
to serve as a conduit to share fees that he did not earn with a
nonlawyer, and by agreeing to split fees on a 50/50 basis with a
13
No. 2009AP284-D
nonlawyer, Attorney Eisenberg violated SCR 20:5.4(a),5 which is
enforced via SCR 20:8.4(a).6 Second, by falsely stating to the
OLR that he had never entered into a fee-splitting agreement
with J.M.Z. and that his September 4, 2007 letter had never been
sent to the ALJ, Attorney Eisenberg violated SCR 22.03(6),7 which
is enforced via SCR 20:8.4(h).8
5
SCR 20:5.4(a) states:
(a) A lawyer or law firm shall not share legal
fees with a nonlawyer, except that:
(1) an agreement by a lawyer with the lawyer's
firm, partner, or associate may provide for the
payment of money, over a reasonable period of time
after the lawyer's death, to the lawyer's estate or to
one or more specified persons;
(2) a lawyer who purchases the practice of a
deceased, disabled, or disappeared lawyer may,
pursuant to the provisions of SCR 20:1.17, pay to the
estate or other representative of that lawyer the
agreed-upon purchase price;
(3) a lawyer or law firm may include nonlawyer
employees in a compensation or retirement plan, even
though the plan is based in whole or in part on a
profit-sharing arrangement; and
(4) a lawyer may share court-awarded legal fees
with a nonprofit organization that employed, retained
or recommended employment of the lawyer in the matter.
6
SCR 20:8.4(a) says it is professional misconduct for a
lawyer to "violate or attempt to violate the Rules of
Professional Conduct, knowingly assist or induce another to do
so, or do so through the acts of another; . . . ."
7
SCR 22.03(6) provides:
In the course of the investigation, the
respondent's wilful failure to provide relevant
information, to answer questions fully, or to furnish
14
No. 2009AP284-D
¶26 In his report the referee also commented on Attorney
Eisenberg's conduct and demeanor during the disciplinary
proceedings before the referee. The referee noted that Attorney
Eisenberg gave multiple varying accounts of a number of events,
which often tended to minimize his own involvement and to cast
blame on others. The referee commented that Attorney Eisenberg
had on numerous occasions leveled inaccurate criticisms against
the OLR's director and the attorney representing the OLR, even
making a false accusation that the OLR's counsel had made a
false statement to the referee. The referee found that the
statement made by OLR's counsel was supported by deposition
testimony and documentary evidence. In addition, the referee
stated that Attorney Eisenberg had "attempted to engineer a
false picture of the proceedings" by making numerous false
claims on the record, including that OLR's counsel and the
referee had mocked and laughed at him during the evidentiary
hearing. The referee further found that Attorney Eisenberg had
leveled untrue and unfair attacks on B.S. in an unsuccessful
attempt to discredit her. Moreover, as in other cases, the
referee noted that Attorney Eisenberg had repeatedly complained
documents and the respondent's misrepresentation in a
disclosure are misconduct, regardless of the merits of
the matters asserted in the grievance.
8
SCR 20:8.4(h) says it is professional misconduct for a
lawyer to "fail to cooperate in the investigation of a grievance
filed with the office of lawyer regulation as required by SCR
21.15(4), SCR 22.001(9)(b), SCR 22.03(2), SCR 22.03(6), or SCR
22.04(1); . . . ."
15
No. 2009AP284-D
that he was being singled out for harsh treatment by the OLR,
going so far as to claim that the OLR was engaged in a "jihad"
against him. The referee summarized Attorney Eisenberg's
attitude and conduct throughout this disciplinary proceeding as
follows: "In sum, [Attorney] Eisenberg refused to acknowledge
any fault or wrongdoing whatsoever, and remained accusatory,
hostile, and defiant throughout."
¶27 With respect to the appropriate level of discipline,
the referee rejected Attorney Eisenberg's argument that the
claims against him were de minimis and should not result in any
discipline. The referee concluded that Attorney Eisenberg's
violations were not based on mere technicalities, but to the
contrary, were serious and substantive ethical violations. The
referee also concluded that the OLR's request for a six-month
extension of the period of ineligibility to seek reinstatement
was not sufficiently supported by authority and was insufficient
under the facts of this case.
¶28 The referee conducted his own review of prior
disciplinary cases and concluded, based on those precedents,
that a two-year extension of Attorney Eisenberg's ineligibility
to seek reinstatement was a proper level of discipline in this
case. As support for this recommendation, the referee discussed
a substantial number of prior decisions, including, inter alia,
In re Disciplinary Proceedings Against Horvath, 219 Wis. 2d 334,
579 N.W.2d 240 (1998), in which an attorney who had been
disciplined on three prior occasions and whose license remained
suspended received an additional two-year suspension for
16
No. 2009AP284-D
repeatedly engaging in deceitful conduct and failing to
cooperate in a disciplinary investigation, and In re
Disciplinary Proceedings Against Ratzel, 218 Wis. 2d 423, 578
N.W.2d 194 (1998), in which an attorney who had been disciplined
on three prior occasions was suspended for two years for making
fraudulent claims in litigation and making misrepresentations to
the Board of Attorneys Professional Responsibility (BAPR) during
its investigation.
¶29 Finally, the referee recommended that Attorney
Eisenberg be ordered to pay the full costs of the disciplinary
proceeding.
¶30 Attorney Eisenberg has appealed from the referee's
report and recommendation. Our consideration of his appeal and
our review of the referee's findings of fact, conclusions of
law, and sanction recommendation are conducted according to
long-established standards. Specifically, we affirm a referee's
findings of fact unless we determine them to be clearly
erroneous, but we review 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. We establish
the appropriate level of discipline in light of the particular
facts of each case, independent of the referee's recommendation,
but benefiting from it. In re Disciplinary Proceedings Against
Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686.
¶31 Attorney Eisenberg's appellate brief in this court
frames the issue on appeal broadly as whether the referee's
recommendation of an additional two years of ineligibility to
17
No. 2009AP284-D
petition for reinstatement should be approved and adopted by
this court. He does not present any narrower subissues nor does
he organize his various contentions about this case into
discrete arguments. For the sake of organization, we will
separate his various assertions, to the extent possible, into
matters of process and matters of substance.
¶32 On the procedural side of the ledger, Attorney
Eisenberg levels several criticisms against the referee. First,
he points to a number of quotations from the referee's report,
in which the referee stated, inter alia, that many of Attorney
Eisenberg's statements in this proceeding were willfully false,
that Attorney Eisenberg had engaged in "calculated and
repetitive efforts to confuse and confound," and that the
referee in his decades as a practicing attorney and referee had
never encountered "a more evasive, inconsistent, deceitful, and
untruthful witness."
¶33 Attorney Eisenberg also complains about an incident
where the referee missed a hearing, which then had to be
rescheduled. Attorney Eisenberg asserts that this incident
required him to sit in pain unnecessarily while waiting with a
witness he had brought to the hearing. This incident was also
part of Attorney Eisenberg's prior interlocutory
disqualification motion in this court.
¶34 Although Attorney Eisenberg points to these facts in
his brief and oral argument, he never develops any legal
argument from the facts. His previous motion sought
disqualification of the referee because of the referee's alleged
18
No. 2009AP284-D
bias against Attorney Eisenberg, but he does not develop any
such argument in his appeal. He cites no legal authority of any
sort regarding the standard for disqualifying a judge or referee
due to bias. He never explains how the facts that he cites
prove that the referee was biased against him under the
applicable standard. We therefore will not address this matter
further because we will not develop Attorney Eisenberg's legal
argument for him.9
¶35 Attorney Eisenberg also criticizes the OLR and its
retained counsel in this proceeding. First, he implies that the
OLR has pursued this and other disciplinary cases against him
because of some vendetta. He contends that he has become the
"OLR's piñata." With respect to OLR's counsel, he contends that
during the evidentiary hearing opposing counsel laughed at and
mocked him.
¶36 Attorney Eisenberg also asserts that the OLR has
informed him that it is withholding nine more counts of
misconduct, which it intends to pursue in the event that he
would petition for the reinstatement of his license. Citing
9
We note, however, that the referee's comments about
Attorney Eisenberg's conduct and testimony in this proceeding
are proper subjects of a referee's report. While Attorney
Eisenberg may not like the manner in which the referee described
his credibility determinations, Attorney Eisenberg has not
presented a single instance in which the referee's comments are
inaccurate or are based on something other than the evidence and
testimony in this proceeding. Similarly, while the incident
with missing a hearing is regrettable, Attorney Eisenberg fails
to show how the referee's missing a hearing was directed
specifically at him or showed a bias against him.
19
No. 2009AP284-D
only an unpublished court of appeals opinion in a criminal case
that addressed the withholding of requested evidence, Attorney
Eisenberg contends that the OLR's failure to pursue those nine
additional charges in this proceeding violates his due process
rights.
¶37 We find no merit to any of Attorney Eisenberg's
complaints regarding the OLR and its counsel as they pertain to
this disciplinary proceeding. We see no evidence that the OLR
is pursuing disciplinary cases against Attorney Eisenberg simply
because of who he is. Each of the prior disciplinary cases
against Attorney Eisenberg brought by the OLR or its
predecessor, BAPR, resulted in findings of misconduct and the
imposition of professional discipline by this court. Pursuing a
meritorious case in this instance against Attorney Eisenberg is
not an invalid exercise of prosecutorial discretion.
¶38 We further note that in response to Attorney
Eisenberg's claim that OLR's counsel had laughed at him and
mocked him, the referee indicated that he had not observed any
such conduct and that Attorney Eisenberg's claim was false. The
referee cited this claim as one example of Attorney Eisenberg's
attempt to "engineer a false picture of the proceedings."
¶39 With respect to the alleged additional counts that the
OLR is purportedly withholding until Attorney Eisenberg files a
petition for reinstatement, we note that Attorney Eisenberg has
not provided factual support for his claim. Even if his
contention is accurate, any due process claim regarding the
timeliness of prosecuting those claims would relate only to
20
No. 2009AP284-D
those claims, if they were ever pursued. Attorney Eisenberg
never explains how any delay in prosecuting those other nine
claims, which are not before this court, affects his due process
rights with respect to the five counts of misconduct that the
OLR has pursued and that are before the court in this
proceeding. There simply can be no due process violation in
this case due to the timeliness of other charges of professional
misconduct that have not been alleged in this case.10
¶40 Attorney Eisenberg's arguments regarding the substance
of the referee's report are similarly without merit. He pursues
essentially two substantive arguments in his brief. First, he
merely repeats his version of the facts. For example, he again
claims that he was unaware of the language in the September 4,
2007 "letter of protection," that he signed the letter in haste,
and that he withdrew the letter three weeks later. He therefore
implies that he never actually had a fee-splitting agreement
with J.M.Z., as the letter states. His factual claims, however,
including his assertions regarding the fee-splitting letter of
protection, were expressly rejected by the referee. Attorney
10
Indeed, it is interesting to note that Attorney Eisenberg
also criticizes the OLR for continuing this disciplinary
proceeding after his license was revoked in Eisenberg V. In re
Disciplinary Proceedings Against Eisenberg, 2010 WI 11, 322
Wis. 2d 518, 778 N.W.2d 645. He implies that there was no valid
reason for continuing this disciplinary proceeding and that the
only reasons for the OLR to move forward with this case were to
harass him and to increase the amount of costs he will have to
pay. Given these concerns, it is an irreconcilable conflict
also to claim that the OLR is violating his rights by choosing
not to prosecute additional misconduct charges against him in
this proceeding.
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No. 2009AP284-D
Eisenberg is obligated to demonstrate how the referee's factual
findings were clearly erroneous. He has not even attempted to
do so. Simply repeating his version of the facts in the face of
the referee's clear and unambiguous adverse findings of fact has
no appellate worth.
¶41 After conducting our review, we find no basis to
conclude that the referee's findings of fact are clearly
erroneous, with one minor exception that has no bearing on
whether Attorney Eisenberg engaged in professional misconduct.
The referee expressly found that the September 4, 2007 and
September 26, 2007 letters signed by Attorney Eisenberg were
identical, except for the deletion of the final two sentences,
which set forth the fee-splitting agreements between J.M.Z. and
Attorney Eisenberg and between J.M.Z. and the previous attorney.
While much of the earlier parts of the two letters are the same,
there are some other differences, although those differences are
not relevant to the fee-splitting charge at issue in this
disciplinary case. Thus, with the exception of the finding that
the two letters were identical but for the deletion of the last
two sentences, we accept and adopt the referee's findings of
fact.
¶42 The other substantive argument that can be gleaned
from Attorney Eisenberg's brief and oral argument is that any
violations in these two representations were de minimis, and
therefore should not be treated as violations. First, whether
the violations were insubstantial would bear on the level of
discipline that should be imposed, not on whether the findings
22
No. 2009AP284-D
of fact demonstrate that Attorney Eisenberg committed the rule
violations. Second, we disagree that the violations charged in
this proceeding are de minimis. Alleging and pursuing a
frivolous claim and then engaging in bad faith tactics designed
to frustrate the opponent's discovery and defense of that claim
are serious ethical violations. Moreover, while Attorney
Eisenberg did ultimately satisfy the cost judgment imposed on
him for the frivolous claim against B.S. in an amount that was
substantially greater than the original judgment, his refusal to
pay that cost judgment for years signified a cavalier disregard
for the circuit court's orders. Finally, agreeing to split fees
with a nonlawyer and then lying to investigators about that
agreement is clearly more than a technical violation.
¶43 We note that while Attorney Eisenberg attempts to
downplay the seriousness of his misconduct, he has not
explicitly argued that the facts as found by the referee do not
satisfy the elements of the charges against him. Our review of
the matter leads us to agree with the referee that the facts of
this case clearly and convincingly support a conclusion of
misconduct on each of the five counts at issue.
¶44 We turn now to the question of the proper level of
discipline. Of great importance to this issue is the fact that
this is the sixth time that Attorney Eisenberg has been the
subject of professional discipline due to misconduct. Moreover,
there is a recurring pattern of behavior and disregard for the
rules that govern the privilege of practicing law in this state.
This is not the first time that Attorney Eisenberg has been
23
No. 2009AP284-D
found to have commenced sham or frivolous litigation. It is
also not the first time that he has provided false statements to
the regulatory authorities investigating his conduct. Indeed,
even during the course of this disciplinary proceeding, the
referee found that Attorney Eisenberg had repeatedly changed his
story on several issues in an apparent attempt to avoid
discipline for his misconduct. The referee found that his
claims were nothing more than fabrications. Further, as we
noted above, the misconduct we have found in this case is
serious and represents a flagrant misuse of the law and the
position of attorney for self-serving ends. Finally, Attorney
Eisenberg has not demonstrated an acceptance of responsibility
or remorse for his misconduct. To the contrary, as the referee
pointed out, he has attempted to place blame on everyone else,
including the OLR's counsel and the referee, and to minimize the
seriousness of his misconduct. We therefore agree with the
referee that our prior precedents and the particular facts of
this case warrant imposing a two-year suspension, which shall
run consecutive to the period of ineligibility required by the
prior revocation of Attorney Eisenberg's license to practice law
in this state.11
11
We have on prior occasions extended the ineligibility of
a previously revoked or suspended attorney to petition for
reinstatement upon a finding that an additional period of
suspension is warranted by the attorney's further misconduct.
See, e.g., In re Disciplinary Proceedings Against Weber, 219
Wis. 2d 342, 345, 579 N.W.2d 229 (1998) (imposing additional
six-month period of ineligibility on attorney whose license had
been previously revoked); see also In re Disciplinary
Proceedings Against Edgar, 2003 WI 49, ¶13, 261 Wis. 2d 413, 661
24
No. 2009AP284-D
¶45 Finally, we address the issue of the costs of this
proceeding. Attorney Eisenberg submitted two letters in
response to the OLR's initial statement of costs, in which he
made unsupported claims regarding the OLR's attorney fees and
the referee's fees. He asked for mediation or arbitration
regarding the OLR's fees or for an evaluation of the OLR's and
the referee's fee invoices by a third party. A portion of
Attorney Eisenberg's brief in this court and a significant part
of his oral argument was also directed to arguing that he should
not have to pay any costs. However, when the OLR filed its
supplemental statement of costs after oral argument, Attorney
Eisenberg did not lodge any objection.
¶46 In addition to claiming that the referee's and the
OLR's fees were inflated, Attorney Eisenberg also contends that
there was no need for much of the OLR's and the referee's work
because the OLR claimed that his defenses to the charges in this
proceeding were frivolous. He claims that he offered to
voluntarily refrain from ever seeking the reinstatement of his
license, which would have eliminated the need for any further
fees, but the OLR refused his offer. He further states that he
has no financial resources to pay any cost award.
¶47 The general policy of this court, absent extraordinary
circumstances, is to impose the full costs of a disciplinary
proceeding on the attorney whose misconduct necessitated the
N.W.2d 817 (imposing one-year suspension to run consecutive to
the end of a prior two-year suspension).
25
No. 2009AP284-D
proceeding. SCR 22.24(1m). An attorney who objects to a
statement of costs filed by the OLR must state, with
specificity, the bases for the objection and must also provide
an amount that he/she believes to be reasonable under the
circumstances. SCR 22.24(2). Attorney Eisenberg has not
complied with either requirement. He makes only broad,
unsupported assertions and never indicates what he believes to
be a reasonable amount of costs. Moreover, to the extent that
Attorney Eisenberg contends that some expenses incurred by the
OLR's counsel or the referee were unnecessary because the OLR
claimed his defenses were without merit, we note that Attorney
Eisenberg continued to litigate this matter aggressively, cross-
examining the OLR's witnesses, calling his own witnesses and
appealing the referee's report and recommendation to this court.
One cannot litigate aggressively and then criticize the opposing
party for doing the same. We therefore find no extraordinary
circumstances that would warrant deviating from our general
policy. To the extent that Attorney Eisenberg contends that he
is financially unable to pay the costs of this proceeding, he
has provided no proof of his financial situation. He may
provide financial information to the OLR and negotiate a payment
plan with that agency.
¶48 IT IS ORDERED that the license of Alan D. Eisenberg to
practice law in Wisconsin is suspended for a period of two
years, effective April 1, 2015.
26
No. 2009AP284-D
¶49 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Alan D. Eisenberg shall pay to the Office of
Lawyer Regulation the costs of this proceeding.
¶50 IT IS FURTHER ORDERED that, to the extent he has not
already done so, Alan D. Eisenberg 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 or
revoked.
¶51 IT IS FURTHER ORDERED that compliance with all
conditions of this order is required for reinstatement. See
SCR 22.28(3).
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No. 2009AP284-D
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