Office of Lawyer Regulation v. Arik J. Guenther , 358 Wis. 2d 505 ( 2014 )


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    2014 WI 120
    SUPREME COURT            OF   WISCONSIN
    CASE NO.:               2012AP967-D
    COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
    Against
    Arik J. Guenther, Attorney at Law:
    Office of Lawyer Regulation,
    Complainant,
    v.
    Arik J. Guenther,
    Respondent.
    DISCIPLINARY PROCEEDINGS AGAINST GUENTHER
    OPINION FILED:          November 7, 2014
    SUBMITTED ON BRIEFS:
    ORAL ARGUMENT:
    SOURCE OF APPEAL:
    COURT:
    COUNTY:
    JUDGE:
    JUSTICES:
    CONCURRED:
    DISSENTED:
    NOT PARTICIPATING:
    ATTORNEYS:
    
    2014 WI 120
                                                                              NOTICE
    This opinion is subject to further
    editing and modification.   The final
    version will appear in the bound
    volume of the official reports.
    No.     2012AP967-D
    STATE OF WISCONSIN                                    :            IN SUPREME COURT
    In the Matter of Disciplinary Proceedings
    Against Arik J. Guenther, Attorney at Law:
    Office of Lawyer Regulation,                                                 FILED
    Complainant,
    NOV 7, 2014
    v.
    Diane M. Fremgen
    Clerk of Supreme Court
    Arik J. Guenther,
    Respondent.
    ATTORNEY      disciplinary           proceeding.         Attorney's           license
    suspended.
    ¶1    PER     CURIAM.         This     is      the        ninth       disciplinary
    proceeding against Attorney Arik J. Guenther and the fifth to
    result in a full disciplinary opinion and order from this court.
    In    this   proceeding,        we   review     the       report     of     the    referee,
    Attorney Christine Harris Taylor, finding that Attorney Guenther
    committed professional misconduct as alleged in the 18 counts of
    the complaint filed by the Office of Lawyer Regulation (OLR) and
    recommending       that   (1)    the    court      suspend       Attorney         Guenther's
    No.       2012AP967-D
    license to practice law in Wisconsin for a period of one year
    and (2) the court impose the full costs of this disciplinary
    proceeding on Attorney Guenther.
    ¶2         Because no appeal has been filed from the referee's
    report    and    recommendation,          we    review     the     matter     pursuant     to
    Supreme     Court     Rule    (SCR) 22.17(2).1              After      considering        the
    referee's report and the record in this matter, we adopt the
    referee's      findings      of    fact   and      agree    that      Attorney      Guenther
    committed the acts of professional misconduct alleged in the 18
    counts    of    the    complaint.          Due      in     large      part    to    Attorney
    Guenther's      disciplinary           history     and     the     seriousness       of   his
    misconduct, we further agree with the referee that the proper
    level of discipline to be imposed is a one-year suspension of
    Attorney    Guenther's        license      to      practice      law    in    this    state,
    effective the date of this opinion and order.                           Finally, we see
    no reason to depart in this case from our general practice of
    imposing    full      costs       on   attorneys     found       to    have    engaged     in
    misconduct, and we require Attorney Guenther to pay the full
    costs of this disciplinary proceeding, which were $2,070.35 as
    of September 18, 2013.
    1
    SCR 22.17(2) states:
    If no appeal is filed timely, the supreme court
    shall review the referee's report; adopt, reject or
    modify the referee's findings and conclusions or
    remand the matter to the referee for additional
    findings;   and   determine  and   impose  appropriate
    discipline.   The court, on its own motion, may order
    the parties to file briefs in the matter.
    2
    No.      2012AP967-D
    ¶3       Attorney Guenther was admitted to the practice of law
    in   Wisconsin      in    September      1981.        His      license      was   initially
    suspended for disciplinary reasons in August 2005.                                 Attorney
    Guenther filed petitions for reinstatement in 2006, 2008, and
    2010,   but     all      of   those   petitions           were    dismissed       before   a
    reinstatement hearing was held.                     His license therefore remains
    suspended as of the date of this opinion.
    ¶4       Attorney       Guenther        has     a     lengthy      and      troubling
    disciplinary history, with three consensual private reprimands,
    one consensual public reprimand, and four previous suspensions.
    It can be summarized as follows:
       Private Reprimand No. 1989-13 (imposed with consent in
    May 1989);
       Private Reprimand No. 2001-04 (imposed with consent in
    June 2001);
       Private Reprimand No. 2002-05 (imposed with consent in
    February 2002);
       In   re    Disciplinary            Proceedings       Against       Guenther,
    
    2005 WI 133
    ,      
    285 Wis. 2d 587
    ,              
    700 N.W.2d 260
           (eight-
    month suspension imposed, effective August 30, 2005)
    ("Guenther I");
       Public     Reprimand      of    Arik       J.     Guenther,     No.   2007-3
    (imposed with consent in April 2007);
       In   re    Disciplinary            Proceedings       Against       Guenther,
    
    2009 WI 25
    , 
    316 Wis. 2d 34
    , 
    762 N.W.2d 371
    (nine-month
    suspension       imposed,          effective         March      24,    2009)
    ("Guenther II");
    3
    No.        2012AP967-D
        In    re     Disciplinary          Proceedings      Against          Guenther,
    
    2012 WI 10
    ,       
    338 Wis. 2d 542
    ,           
    808 N.W.2d 921
               (90-day
    suspension       imposed,       effective       February        10,      2012)
    ("Guenther III"); and
        In    re     Disciplinary          Proceedings      Against          Guenther,
    
    2012 WI 116
    ,       
    344 Wis. 2d 528
    ,          
    823 N.W.2d 266
               (60-day
    suspension       imposed,       effective       November        21,      2012)
    ("Guenther IV")
    ¶5        The        Guenther III        matter        merits       some         further
    discussion, as several of Attorney Guenther's actions at issue
    there      are       relevant    to     the     facts       underlying         the     current
    disciplinary          proceeding       and    the    level    of    discipline          to   be
    imposed.         Several of the counts of misconduct in Guenther III
    related to Attorney Guenther's improper conduct toward his now-
    former wife, R.G., and to his improper ingestion or abuse of
    alcohol.             Specifically,        Attorney      Guenther         was     ultimately
    convicted of disorderly conduct, with a domestic abuse modifier,
    for   an       altercation      that   he     had    with    R.G.   in    their       home   on
    February 24, 2007.              
    338 Wis. 2d 524
    , ¶¶11, 19, & 29.                         While
    subject to a bond that required no violent contact with R.G., on
    February 20, 2009, Attorney Guenther forcibly broke into R.G.'s
    residence, stole her laptop computer, and left a threatening
    4
    No.      2012AP967-D
    written        note.2     This      conduct         resulted    in    a     conviction        for
    misdemeanor bail jumping.               
    Id., ¶¶12, 25.
    ¶6       Several     other      counts       of    misconduct      in    Guenther III
    related to Attorney Guenther's improper ingestion of alcohol.
    In    addition       to   violating       the       no-contact       term      of    his    bond,
    Attorney Guenther also violated the absolute sobriety term of
    the bond in March 2009 when he was found to have a blood alcohol
    concentration           (BAC)     of    0.128        grams      of    alcohol         per     100
    milliliters of blood (g/ml).                This resulted in a conviction for
    felony bail jumping.             
    Id., ¶¶16, 21.
    ¶7       In   October      2009,     while         his   driver's        license       was
    suspended, Attorney Guenther was again stopped by the police and
    found to have a BAC of 0.213 g/ml.                        Attorney Guenther initially
    pled guilty to and was convicted of operating a motor vehicle
    with       a   prohibited       alcohol    concentration         (PAC),         as   a     second
    offense.        
    Id., ¶¶23, 24.
               He failed to notify the OLR of this
    conviction.          He subsequently was allowed to withdraw his guilty
    plea, which reinstated all of the charges against him.                                   Despite
    the    withdrawal         of      his     plea,          this   court       determined         in
    Guenther III that his operation of a motor vehicle with a PAC
    constituted engaging in a criminal act that reflected adversely
    on his honesty, trustworthiness, or fitness as a lawyer in other
    2
    The note contained the following message:  "It's nice to
    see all the things that you and your little friend can afford
    while you pay no bills. That['s] all over for you. All you had
    to do was be my wife but you couldn't and you will now have []
    to pay." Guenther III, 
    338 Wis. 2d 524
    , ¶12.
    5
    No.     2012AP967-D
    respects, in violation of SCR 20:8.4(b).                  
    Id., ¶¶37, 45.
            Since
    his ingestion of alcohol at the time of his October 2009 arrest
    had violated the absolute sobriety term of his bond, we also
    concluded that he had knowingly disobeyed an obligation under
    the rules of a tribunal, in violation of SCR 20:3.4(c).                            
    Id., ¶¶38, 45.
         Finally, by not notifying the OLR and the clerk of
    this court of his conviction (even though it was subsequently
    vacated    and       charges      were     reinstated),    we   determined         that
    Attorney      Guenther           had     violated   SCR 21.15(5),          which     is
    enforceable via SCR 20:8.4(f).               
    Id., ¶¶39, 45.
    ¶8        In     the    current       disciplinary    proceeding,         Attorney
    Guenther's         answer   initially       admitted     many   of     the     factual
    allegations of the OLR's complaint, but denied the legal claims
    that his actions had constituted professional misconduct.                           The
    OLR subsequently filed two motions for partial summary judgment,
    which together addressed all 18 counts alleged in the complaint.
    After   the    filing       of    each    summary   judgment    motion,       Attorney
    Guenther advised the referee that he either did not deny or was
    unable to contest the allegations in the motions.                      Accordingly,
    the referee found that there were no genuine issues of material
    fact and granted the OLR's summary judgment motions.                         The facts
    as found by the referee and the legal conclusions resulting from
    those facts are summarized in the following paragraphs.
    ¶9        Count Five of the present complaint relates to the PAC
    (second offense) charge against Attorney Guenther arising out of
    the traffic stop that occurred in October 2009.                  As was noted in
    Guenther III, after initially pleading guilty to the PAC charge,
    6
    No.    2012AP967-D
    Attorney Guenther was allowed to withdraw his guilty plea, and
    the conviction based on that plea was vacated in December 2010.
    The original charges were then reinstated.                  In August 2011,
    Attorney Guenther again pled guilty and was convicted of the PAC
    charge, as a second offense.        As had been the case on the first
    conviction that had subsequently been vacated, Attorney Guenther
    again did not send a timely written notice of the conviction to
    the OLR and the clerk of this court.            On October 21, 2011, more
    than two months after the conviction, the OLR received a letter
    from    Attorney    Guenther    notifying      them    of   the      conviction,
    although the letter did not identify the jurisdiction in which
    the convictions had occurred.        No such notification was sent to
    the clerk of this court.
    ¶10   The   referee   determined   on   Count    Five   that     Attorney
    Guenther's failure to notify the OLR of the conviction and the
    jurisdiction in which it had occurred within the required five-
    7
    No.      2012AP967-D
    day period constituted a violation of SCR 21.15(5),3 which is
    enforceable via SCR 20:8.4(f).4
    ¶11    Counts One through Four of the complaint relate to a
    subsequent drunken driving incident.                 On September 17, 2010,
    Attorney Guenther was stopped while he was driving by an officer
    of the Jackson Police Department, and his blood was tested for
    alcohol    at   a    local   hospital.       The    test   revealed      a    BAC   of
    0.232 g/ml.         At the time of the arrest, Attorney Guenther was
    subject    to   a    bond    condition   that      required   him   to       maintain
    absolute sobriety and not to commit any new crimes.
    ¶12    Attorney Guenther ultimately pled guilty to and was
    convicted of one count of operating a motor vehicle with a PAC
    (third offense) and misdemeanor bail jumping.                 This occurred on
    the same date that his guilty plea and conviction were entered
    for the PAC (second offense).            He again failed to notify the OLR
    3
    SCR 21.15(5) states:
    An attorney found guilty or convicted of any
    crime on or after July 1, 2002, shall notify in
    writing the office of lawyer regulation and the clerk
    of the Supreme Court within 5 days after the finding
    or conviction, whichever first occurs.     The notice
    shall include the identity of the attorney, the date
    of finding or conviction, the offenses, and the
    jurisdiction.   An attorney’s failure to notify the
    office of lawyer regulation and clerk of the supreme
    court of being found guilty or his or her conviction
    is misconduct.
    4
    SCR 20:8.4(f) states that it is professional misconduct
    for a lawyer to "violate a statute, supreme court rule, supreme
    court order or supreme court decision regulating the conduct of
    lawyers."
    8
    No.    2012AP967-D
    and the clerk of this court within the required five-day period.
    He finally notified the OLR of the conviction via the letter it
    received on October 21, 2010, although that letter failed to
    identify the jurisdiction in which the conviction had occurred.
    ¶13    The   referee       determined          that    these   facts      supported
    conclusions of misconduct on four counts of the OLR's complaint.
    First, the referee concluded that Attorney Guenther's conviction
    for   operation      of    a    motor   vehicle       with    a   PAC,    as    a     repeat
    offender, violated SCR 20:8.4(b).5                    Second, his consumption of
    alcohol and commission of a crime, contrary to the terms of his
    bond,     constituted      a    violation       of   SCR 20:8.4(b).            Third,    his
    disobedience of the court's order in his bond not to consume
    alcohol or commit any new crimes also constituted a violation of
    SCR 20:3.4(c).6         Fourth, his failure to provide timely notice of
    his conviction and his failure to provide all of the required
    information when he finally did notify the OLR constituted a
    violation of SCR 21.15(5), enforceable via SCR 20:8.4(f).
    ¶14    After        the     OLR    received           notification         of      the
    convictions,       it     sent     a    letter        to     Attorney     Guenther        on
    November 17, 2011, notifying him that it was investigating the
    5
    SCR 20:8.4(b) states that 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."
    6
    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.   2012AP967-D
    convictions          and    their    underlying        facts,      and    asking    him    to
    provide    a    written        response    by       December     12,     2011.     Attorney
    Guenther       did    not     respond.         The   OLR    sent    another      letter    in
    January 2012, but Attorney Guenther again did not respond.                                 On
    Count Six of the complaint, the referee determined that Attorney
    Guenther's       failure        to     respond       to    the   OLR's      requests      for
    information as part of its investigation constituted a violation
    of SCR 22.03(2)7 and SCR 20:8.4(h).8
    ¶15       The remaining counts in the present complaint (Counts
    Seven     through          Eighteen)     all    relate      to     Attorney      Guenther's
    contacts with his now ex-wife, R.G., and the resulting court
    proceedings.          In March 2009 the Fond du Lac County circuit court
    issued     an        injunction        prohibiting         Attorney       Guenther        from
    7
    SCR 22.03(2) states:
    Upon commencing an investigation, the director
    shall notify the respondent of the matter being
    investigated unless in the opinion of the director the
    investigation of the matter requires otherwise.     The
    respondent shall fully and fairly disclose all facts
    and circumstances pertaining to the alleged misconduct
    within 20 days after being served by ordinary mail a
    request for a written response.      The director may
    allow additional time to respond.     Following receipt
    of the response, the director may conduct further
    investigation and may compel the respondent to answer
    questions,   furnish   documents,   and   present   any
    information deemed relevant to the investigation.
    8
    SCR 20:8.4(h) states that 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)."
    10
    No.    2012AP967-D
    "contacting or causing any person other than a party's attorney
    or law enforcement officer" to contact R.G., unless she had
    previously consented in writing.                   The injunction specified that
    "contacting" included communicating in writing.                           The injunction
    stated that it would remain in effect until March 2013.
    ¶16    Attorney Guenther petitioned for divorce from R.G. in
    April 2009, and a judgment of divorce was issued in November
    2009.     Throughout the divorce proceedings, R.G. was represented
    by counsel.        Attorney Guenther represented himself.
    ¶17    On    October     1,    2010,    Attorney         Guenther    mailed       legal
    documents related to the divorce directly to R.G., as well as to
    the     Winnebago     County        circuit        court.          The    cover        letter
    accompanying the documents contained the following explanation
    as to why Attorney Guenther was mailing the documents directly
    to R.G.:      "I am unable to have [R.G.] served at her place of
    employment as they will not allow it and her former lawyer told
    me that he was no longer willing to accept anything on her
    behalf,     therefore    I     am        forced    to    attempt     service      in    this
    fashion."     R.G. had not consented to receiving documents in the
    mail directly from Attorney Guenther.                     In addition, her divorce
    lawyer had not told Attorney Guenther that he would no longer
    accept documents on her behalf.
    ¶18    On     October         4,     2010,        Attorney       Guenther        mailed
    additional     legal    documents           directly      to    R.G.       She    had    not
    consented to receiving those documents from Attorney Guenther.
    ¶19    The     state     filed        two    criminal        complaints      against
    Attorney Guenther.           State v. Guenther, Winnebago County Case No.
    11
    No.    2012AP967-D
    2010CM1666 (for the October 1, 2010 mailing); State v. Guenther,
    Winnebago County Case No. 2010CM1667 (for the October 4, 2010
    mailing).        Each complaint charged a single count of knowingly
    violating        a     domestic      abuse        order,       contrary       to    Wis. Stat.
    § 813.12(8), as an act of domestic abuse.                                On June 2, 2011,
    Attorney      Guenther        appeared       by    telephone        at    a    joint    motion
    hearing.      In response to the prosecutor's statement that he did
    not think Attorney Guenther had received permission to appear by
    telephone,       Attorney         Guenther        told        the   court     that     he    had
    requested at a prior hearing to appear by telephone and that he
    was appearing by telephone with the permission of the court.
    The   court      had    not      granted   any      such      permission      to    appear    by
    telephone.       The court found that Attorney Guenther had failed to
    appear      in       person        for     the      hearing         and       had     made     a
    misrepresentation           to    the    court.          It    therefore      found    him    in
    contempt and ordered him to pay $100 as a contempt sanction
    within seven days.            It further informed him that he did not have
    permission to appear by telephone and directed him to be present
    at the next proceeding, which was a status conference scheduled
    for July 11, 2011.
    ¶20     When Attorney Guenther did not pay the $100 sanction
    within the required seven-day period, the court held a show
    cause    hearing       on   June     30,   2011.         Attorney        Guenther      did   not
    appear at that hearing.                  He also did not appear at the status
    conference, which had been rescheduled for July 13, 2011.
    ¶21     The OLR sent letters to Attorney Guenther in July and
    August 2011 directing him to file responses to the grievances it
    12
    No.    2012AP967-D
    had received.         Attorney Guenther did not respond.                After the OLR
    learned      that    Attorney   Guenther          had   been   incarcerated     in   the
    Washington County Jail, it sent another letter to him at that
    location, again asking for a response.                     Attorney Guenther still
    did not respond.
    ¶22    In January 2012 Attorney Guenther pled no contest and
    guilty in the two pending Winnebago County cases to reduced
    misdemeanor charges of disorderly conduct, with a domestic abuse
    surcharge.          He did not timely report his convictions in these
    two cases to the OLR or the clerk of this court.
    ¶23    The     referee      concluded        that   these      facts    properly
    supported legal conclusions that Attorney Guenther had engaged
    in 12 counts of professional misconduct.                    With respect to Counts
    Seven and Eight, the referee determined that Attorney Guenther's
    written contact with R.G. on October 1, 2010 (Count Seven), and
    on October 4, 2010 (Count Eight), without her consent and in
    violation      of    the   terms    of   a    domestic     abuse   injunction,       had
    violated SCR 20:8.4(b).            The referee further found on Count Nine
    that Attorney Guenther had engaged in misrepresentation when he
    had falsely stated to the circuit court that R.G.'s allegedly
    former lawyer had said he was unwilling to accept legal papers
    on R.G.'s behalf and that Attorney Guenther had been forced to
    mail    legal       documents      directly        to    R.G.,   in    violation      of
    13
    No.   2012AP967-D
    SCR 20:3.3(a)(1)9 and SCR 20:8.4(c).10               On Count Ten, the referee
    found that Attorney Guenther's knowingly false representation to
    the circuit court at the June 2, 2011 motion hearing that it had
    previously      granted      permission   to   him    to    appear    by   telephone
    violated SCR 20:3.3(a)(1) and SCR 20:8.4(c).                   The referee found
    on Count Eleven that Attorney Guenther's action in contempt of
    court at the June 2, 2011 hearing had violated his attorney's
    oath,     as   set   forth    in   SCR 40:15,11   and      SCR 20:8.4(g).12       The
    9
    SCR 20:3.3(a)(1) states that a lawyer shall not knowingly
    "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 lawyer."
    10
    SCR 20:8.4(c) states that it is professional misconduct
    for a lawyer to "engage in conduct involving dishonesty, fraud,
    deceit or misrepresentation."
    11
    Attorney Guenther's failure to appear demonstrated a lack
    of respect for the court and his false statements about having
    received prior permission to appear by telephone constituted an
    attempt to mislead the judge.       SCR 40:15 (Attorney's oath)
    states, in pertinent part:
    The oath or affirmation to be taken to qualify
    for admission to the practice of law shall be in
    substantially the following form:
    . . . .
    I will maintain the respect                   due   to   courts    of
    justice and judicial officers;
    . . . .
    I will employ, for the purpose of maintaining the
    causes confided to me, such means only as are
    consistent with truth and honor, and will never seek
    to mislead the judge or jury by any artifice or false
    statement of fact or law; . . . .
    14
    No.      2012AP967-D
    referee further determined that Attorney Guenther's mailing of
    legal       documents      directly      to    R.G.       on    October          1,   2010     (Count
    Twelve) and on October 4, 2010 (Count Thirteen), contrary to the
    circuit court's "no contact" provision in the domestic abuse
    injunction,         had    violated       SCR 20:3.4(c).                  Attorney         Guenther's
    failure to pay the $100 contempt sanction (Count Fourteen), his
    failure to appear at the June 30, 2011 hearing to explain his
    failure to appear (Count Fifteen), and his failure to appear at
    the     July    13,       2011       status   conference             (Count       Sixteen)         also
    constituted violations of SCR 20:3.4(c).                                  The referee further
    concluded on Count Seventeen that Attorney Guenther's failure to
    give    timely       notice      of    his    convictions            in    the    two      Winnebago
    County criminal cases had violated SCR 21.15(5), enforceable via
    SCR 20:8.4(f).            Finally, with respect to Count Eighteen, the
    referee determined that Attorney Guenther's failure to answer
    the    OLR's    repeated          requests     for    a        written       response         to    its
    grievance investigation had violated SCR 22.03(2), enforceable
    via SCR 20:8.4(h).
    ¶24     The    referee         directed      the    parties          to    submit      briefs
    regarding the appropriate sanction to be imposed in this matter.
    The    OLR     submitted         a    sanction   brief,             asking    the       referee      to
    recommend       a    six-month        suspension.              In    addition         to    noting    a
    number of aggravating factors, including a lengthy disciplinary
    history, multiple offenses, a pattern of misconduct, substantial
    12
    SCR 20:8.4(g) states that it is professional misconduct
    for a lawyer to "violate the attorney's oath."
    15
    No.    2012AP967-D
    practice      experience,      and   an      intentional          failure     to     cooperate
    with a disciplinary agency's investigations, the OLR relied on
    this court's imposition of a six-month suspension for multiple
    instances of criminal conduct and for failure to cooperate with
    disciplinary investigations.                 See In re Disciplinary Proceedings
    Against Soldon, 
    2010 WI 27
    , 
    324 Wis. 2d 4
    , 
    782 N.W.2d 81
    .                                      It
    also pointed to our decision in Guenther III, where we imposed a
    90-day suspension for a series of criminal acts, failure                                       to
    provide      timely    notice      of     his       convictions,        and        failure    to
    cooperate with grievance investigations.                       Attorney Guenther did
    not file any sanction brief.
    ¶25    Although the referee agreed with much of the OLR's
    sanction analysis, she concluded that this court's practice of
    imposing      progressive      discipline           required      a   longer        suspension
    than the OLR sought.               She believed that Attorney Guenther's
    criminal      acts    of   driving      with    a    PAC    were      more    serious        than
    Attorney      Soldon's     series       of    retail       thefts.       Given        Attorney
    Guenther's lengthy disciplinary history, the referee recommended
    that    his    repeated      disobedience            of    court      orders,        including
    absolute      sobriety       and     no-contact            orders,      and        his   false
    statements to a court warranted a suspension of one year.                                    She
    further recommended that Attorney Guenther should be required to
    pay the full costs of this disciplinary proceeding.
    ¶26    Our     review    of      the        referee's       findings         of   fact,
    conclusions of law, and sanction recommendation follows long-
    established      standards.          Specifically,           we    affirm      a     referee's
    findings of fact unless they are found to be clearly erroneous,
    16
    No.     2012AP967-D
    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 determine
    the appropriate level of discipline given 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
    .
    ¶27     As    noted       above,        Attorney            Guenther    has       not     appealed
    from the referee's report and recommendation.                                   After conducting
    our own review of the record, we do not find that any of the
    substantive       factual        findings             of        the    referee         are     clearly
    erroneous, and we adopt them.                        We further agree that those facts
    provide     clear,       satisfactory,                and       convincing        evidence         that
    Attorney Guenther committed the professional misconduct alleged
    in the 18 counts of the OLR's complaint.
    ¶28     Turning       to    the     appropriate               level    of    discipline,         we
    agree     with    the     referee       that              the    seriousness           of     Attorney
    Guenther's misconduct and our practice of imposing progressively
    stronger    sanctions         require        a       one-year         suspension       of     Attorney
    Guenther's license to practice law in this state.                                          Unlike the
    disciplinary proceeding involving Attorney Soldon, this is the
    fifth    time     that    Attorney          Guenther             has    committed           misconduct
    serious    enough        to    warrant           a        suspension.           He     was     already
    disciplined       for     very        similar              misconduct       in        Guenther III.
    Specifically,        although          he        had        been       disciplined           in    that
    proceeding for criminal convictions that arose out of improper
    actions toward his then-wife, he subsequently chose to violate a
    17
    No.     2012AP967-D
    domestic     abuse   injunction       by   sending         legal    documents      to     her
    directly.       Further,       although         he    had    been     disciplined            in
    Guenther III for his second offense of operating a motor vehicle
    with a PAC, he engaged in the conduct again, leading to a third
    PAC    conviction.          This   repetition         of    misconduct          makes    the
    violations     in    this    matter    more       troubling        and    worthy        of   a
    lengthier suspension, which hopefully will impress upon him the
    seriousness     of   his     misconduct         and   the    need    to    conform       his
    conduct to both the criminal laws of this state and the Rules of
    Professional Conduct for Attorneys.
    ¶29   We do not include any restitution award in our order.
    There are no monetary losses that arose from the misconduct at
    issue in this proceeding.
    ¶30   Finally, we conclude that Attorney Guenther should pay
    the full costs of this disciplinary proceeding.                                Our general
    practice is to impose full costs on attorneys who are found to
    have    committed     misconduct.           See       SCR 22.24(1m).              Attorney
    Guenther has not claimed that there are reasons to depart from
    that practice in this matter, and we have not found any reason
    to do so.
    ¶31   IT IS ORDERED that the license of Arik J. Guenther to
    practice law in Wisconsin is suspended for a period of one year,
    effective the date of this order.
    ¶32   IT IS FURTHER ORDERED that within 60 days of the date
    of this order, Arik J. Guenther shall pay to the Office of
    Lawyer Regulation the costs of this proceeding.
    18
    No.   2012AP967-D
    ¶33   IT   IS    FURTHER       ORDERED    that   Arik    J.   Guenther     shall
    continue compliance with the provisions of SCR 22.26 concerning
    the   duties     of    a    person    whose     license   to    practice    law    in
    Wisconsin has been suspended.
    ¶34   IT    IS       FURTHER    ORDERED     that    compliance      with    all
    conditions of this order is required for reinstatement.                            See
    SCR 22.29(4)(c).
    19
    No.   2012AP967-D
    1
    

Document Info

Docket Number: 2012AP000967-D

Citation Numbers: 358 Wis. 2d 505, 2014 WI 120, 855 N.W.2d 414, 2014 Wisc. LEXIS 734

Judges: Per Curiam

Filed Date: 11/7/2014

Precedential Status: Precedential

Modified Date: 11/16/2024