Office of Lawyer Regulation v. David J. Winkel , 363 Wis. 2d 786 ( 2015 )

2015 WI 68
SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP1845-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against David J. Winkel, Attorney at Law:
Office of Lawyer Regulation,
Complainant-Respondent,
v.
David J. Winkel,
Respondent-Appellant.
DISCIPLINARY PROCEEDINGS AGAINST WINKEL
OPINION FILED: July 7, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 5, 2015
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED: ABRAHAMSON, J. concurs (Opinion filed).
DISSENTED: ROGGENSACK, C. J., joined by ZIEGLER, J.
dissent(Opinion filed).
GABLEMAN, J. dissents (Opinion filed).
NOT PARTICIPATING:
ATTORNEYS:
For the respondent-appellant, there were briefs by Patrick
F. Koenen and Hinshaw & Culbertson LLP, Appleton. Oral argument
by Patrick F. Koenen.
For the complainant-respondent, there was a brief by
Matthew F. Anich and Dallenbach, Anich & Wickman, S.C.,
Ashland. Oral argument by Matthew F. Anich.
2015 WI 68
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP1845-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against David J. Winkel, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant-Respondent,
JUL 7, 2015
v.
Diane M. Fremgen
Clerk of Supreme Court
David J. Winkel,
Respondent-Appellant.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. Attorney David J. Winkel appeals the
report of Reserve Judge Robert E. Kinney, referee, recommending
discipline of a four-month license suspension and the imposition
of costs. The referee found that Attorney Winkel committed all
of the five charged counts of misconduct that were tried at a
hearing before the referee. The ethical violations which the
referee determined Attorney Winkel committed include incompetent
representation, lack of diligence, failure to properly
No. 2012AP1845-D
communicate with his client, and willful failure to provide
relevant information, fully answer questions, or furnish
documents in the course of an Office of Lawyer Regulation (OLR)
investigation.
¶2 After our independent review of the record, we approve
the referee's findings of fact and conclusions of law and adopt
them. We conclude that Attorney Winkel's misconduct warrants a
four-month license suspension. We require Attorney Winkel to
pay the full costs of this disciplinary proceeding, which total
$42,634.13 as of February 25, 2015.
¶3 Attorney Winkel was licensed to practice law in
Wisconsin in 1984 and practices in Neenah. Attorney Winkel's
prior disciplinary history includes a public reprimand in 1998
for failing to adequately prepare to represent his clients and
to explain their legal matters to them, for failing to
competently represent a client in an estate matter, for
misrepresenting that he had prepared a document, for failing to
respond to successor counsel's requests for information and for
the client's file, and for failing to respond to the
disciplinary investigation. See In re Disciplinary Proceedings
Against Winkel, 217 Wis. 2d 339, 577 N.W.2d 9 (1998). Attorney
Winkel was publicly reprimanded again in 2005 for submitting a
fee request to the Social Security Administration that
misrepresented the amount of time spent by his firm in handling
a case on behalf of a client. In re Disciplinary Proceedings
Against Winkel, 2005 WI 165, 286 Wis. 2d 533, 706 N.W.2d 661.
2
No. 2012AP1845-D
¶4 In August 2012, the OLR filed a six-count complaint
against Attorney Winkel. This court appointed Reserve Judge
Kinney as referee. The referee dismissed one count of the
complaint upon stipulation of the parties. The referee held an
evidentiary hearing on the remaining five counts over three days
in October and November 2013. Both sides submitted post-hearing
briefs.
¶5 In March 2014, the referee submitted a report
containing his findings of fact, conclusions of law, and a
recommendation for discipline. The referee's findings of fact
and conclusions of law are summarized below.
¶6 All counts in this case arise out of Attorney Winkel's
representation of P.L., an inmate in the Wisconsin prison
system. P.L. hurt his leg during recreational activities in the
prison yard. A methicillin—resistant staphylococcus aureus
(MRSA) infection later developed in the leg.
¶7 P.L. was taken to the prison's Health Services Unit
(HSU). There, the nurse observed the leg, gave him some
antibiotics, and, using a marker, drew a circle around the
visible sore on his leg. She then advised P.L. to return to the
HSU if the infection progressed outside the circle.
¶8 The next morning, P.L. saw that the infection had
progressed outside the circle. At about 11:00 a.m., P.L. called
a guard and explained the situation. At about 11:30 a.m., the
guard contacted the HSU, and a nurse ("Nurse Jane Doe") told the
guard to have P.L. fill out a "blue slip." "Blue slips" are
completed by inmates to request routine health care services.
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No. 2012AP1845-D
"Blue slips" are only collected once a day at the end of the
day, and they are not intended to be used in emergency
situations.
¶9 P.L. continued to demand medical attention. At around
4:00 p.m., P.L. was taken to the HSU where he was seen by a
physician. The physician directed that P.L. be transported to a
local hospital. Within two hours of being admitted to the
hospital, surgery was performed to drain the MRSA infection in
P.L.'s leg. P.L. remained in the hospital as an in—patient for
seven days, all the while being administered intravenous
antibiotics to control the MRSA infection.
¶10 P.L., acting pro se, filed an Eighth Amendment ("cruel
and unusual punishment") civil rights case in the United States
District Court for the Western District of Wisconsin. P.L.
sought monetary damages based on his claim that, by delaying his
treatment, prison officials had been deliberately indifferent to
his serious medical need.
¶11 P.L. hired Attorney Winkel to represent him in his
Eight Amendment civil rights suit. P.L. knew Attorney Winkel
because Attorney Winkel had represented him on a number of
previous occasions.
¶12 Under a written fee agreement, P.L. agreed to pay
Attorney Winkel an hourly rate of $200 per hour in this matter,
but the hourly fee would only be charged if P.L. was entitled to
attorney fees from the defendants. If P.L. was not awarded
attorney fees, Attorney Winkel would receive 40% of any
recovery. P.L. paid Attorney Winkel an advance of $2,500 to be
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No. 2012AP1845-D
used to cover expert witness fees and discovery costs. The fee
agreement required that at the conclusion of the representation,
Attorney Winkel would return all unearned fees and costs
advanced by P.L.
¶13 Attorney Winkel formally appeared on P.L.'s behalf but
did little else of value. Attorney Winkel never identified
certain unnamed defendants, such as the identity of "Nurse Jane
Doe"——the nurse who told the guard to have P.L. submit a "blue
slip" requesting routine health care services. Attorney Winkel
also failed to timely disclose P.L.'s expert witnesses.
Instead, over two months after the expert disclosure deadline
had passed, Attorney Winkel filed a motion to extend the
deadline, along with a late-filed expert disclosure.
¶14 Defendants moved to strike Attorney Winkel's late-
filed expert disclosure. Defendants also moved for summary
judgment.
¶15 Attorney Winkel was in a poor position to respond to
the defendants' summary judgment motion. Attorney Winkel had
not conducted depositions of defendants, had not served any
discovery demands, had not served any requests for production of
documents, had not served any interrogatories, and had not
ascertained the identities of the unnamed defendants. He also
had failed to timely answer the defendants' interrogatories,
even though the defendants had granted him an extension in which
to do so.
¶16 Four days after the summary judgment response brief
was due, Attorney Winkel filed a document entitled "Objection to
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No. 2012AP1845-D
Motion for Summary Judgment." This document failed to respond
in any material way to the defendants' summary judgment motion.
¶17 The district court, in a September 29, 2009 order
written by Magistrate Judge Crocker, granted the defendants'
motion for summary judgment, denied Attorney Winkel's motion to
extend the expert disclosure deadline, denied the defendants'
motion to strike Attorney Winkel's expert witness disclosure as
moot, and directed the clerk of court to enter judgment in favor
of defendants and to close the case. In the summary judgment
order, Magistrate Judge Crocker stated:
Plaintiff's case has been doomed by his failure,
through his attorney, to meet several deadlines or to
respond properly to defendants' motion for summary
judgment. . . .
. . . . Plaintiff has never sought to amend his
complaint to include the names of the [unnamed]
defendants. It is impossible to pursue a claim
against unnamed defendants. Despite defendants having
raised this issue on summary judgment, plaintiff did
not respond to it. . . .
Further, the deadline to disclose expert
witnesses——the type of witnesses who might be critical
in an Eighth Amendment medical treatment lawsuit——
passed without plaintiff disclosing any such
witnesses. Instead of seeking an extension of the
deadline before it passed, plaintiff waited
until . . . over two months after the deadline, to
file a motion seeking to amend the briefing schedule
by extending the expert disclosure deadline.
Plaintiff's attorney's explanation for the delay is
that it was "very difficult" to find a doctor.
Perhaps this is true, but it is unpersuasive. One
might logically expect that locating a qualified
physician and obtaining a useful expert opinion would
have been at the top of plaintiff's "To Do" list,
perhaps even ahead of "File Complaint."
6
No. 2012AP1845-D
Regardless of the delay in finding and disclosing
an expert, extending the expert disclosure deadline
would not help plaintiff. The expert doctor's proposed
testimony would be irrelevant to the constitutional
issues in this civil rights lawsuit. Plaintiff's
attorney notes that plaintiff's newly found doctor
expert will testify regarding "whether there was any
negligence in [the] medical care" provided by
defendants. However, establishing a violation of a
prisoner's rights under the Eighth Amendment requires
deliberate indifference on part of the officials, and
deliberate indifference entails more than "mere
negligence." . . .
Plaintiff also failed to timely respond to
defendants' motion for summary judgment. . . . Despite
having 30 days to respond to defendants' motion,
plaintiff did not file anything regarding defendants'
motion until August 28, 2009. The document filed,
"Objection to Motion for Summary Judgment," fails to
respond in any material way to defendants' motion.
. . .
(Docket citations omitted; emphasis added by Magistrate Judge
Crocker.)
¶18 Despite the issuance of this order, P.L. remained
unaware for many weeks that the defendants had moved for summary
judgment, or that Magistrate Judge Crocker had granted the
defendants' motion for summary judgment. Several weeks after
the court had entered summary judgment against his case, P.L.
asked Attorney Winkel to try to settle the case for between
$5,000 and $10,000. A few weeks later, P.L. sent another letter
to Attorney Winkel asking what had happened to the scheduled
trial date, which had just passed. P.L. asked Attorney Winkel
whether he had settled the case or had gotten the trial
postponed without P.L.'s permission. P.L. also asked Attorney
Winkel what discovery he had obtained, and whether Attorney
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No. 2012AP1845-D
Winkel had determined which nurse had been working at the prison
on the day in question.
Attorney Winkel wrote back to P.L. with the following:
I see that you were unable to obtain any useful
opinions from the hospital; which is the same problem
I had. You and I talked about this. I could not get
any offers from the state because we had no
ammunition. Sometimes, a party cannot prove in court
what we know to be true. This is one of those cases.
As such, enclosed please find a check from my
trust account for the balance of your money for the
lawsuit, since we do not have adequate evidence to
make it worthwhile to pursue the matter any further,
nor can we get over Motions for Summary Judgments.
This will hopefully allow you to concentrate on
your remaining time and getting out on a good note.
(Emphasis in original.) Attorney Winkel handwrote on the bottom
of the letter a note that states: "I paid [the medical expert]
$400, and CBS 6.59 [for collect phone calls], leaving $2,093.41
for you. Sorry we couldn't get a settlement offer."
¶19 In a subsequent letter to Attorney Winkel, P.L. wrote
that he had never authorized Attorney Winkel to cease
litigation; that he wanted the case reopened; and that he wanted
copies of all discovery so that he could represent himself.
¶20 On December 21, 2009, P.L. sent a letter to United
States District Court Judge Barbara B. Crabb, stating that
Attorney Winkel had stopped litigating the case without P.L.'s
consent and that he wanted to litigate the case pro se. A pro
se case analyst from the Western District wrote back to P.L.,
explaining that the case was closed and enclosing a copy of the
docket sheet and final order.
8
No. 2012AP1845-D
¶21 P.L. ultimately filed a grievance with the OLR against
Attorney Winkel. In his response to the grievance, Attorney
Winkel told the OLR that he had personally mailed P.L. a copy of
defendants' motion for summary judgment, as well as a
handwritten note asking P.L. if he wanted Attorney Winkel to
arrange for medical testimony to rebut the defendants'
arguments. Attorney Winkel also told the OLR that he had
informed P.L. that the case was dismissed and no trial would be
held.
¶22 In August 2012, the OLR filed a complaint against
Attorney Winkel. As relevant here, the complaint charged
Attorney Winkel with the following counts of misconduct.
• Count One: By failing to properly oppose
defendants' motion for summary judgment, and by
failing to display the knowledge and skills
necessary to competently represent P.L. in the
Eighth Amendment civil rights case, Attorney Winkel
violated Supreme Court Rule (SCR) 20:1.1.1
• Count Two: By failing to oppose defendants' motion
for summary judgment by the court—ordered deadline,
by failing to file an expert witness disclosure by
the court-ordered deadline, by failing to amend
plaintiff's complaint to reflect the name of the
1
SCR 20:1.1 provides that "[a] lawyer shall provide
competent representation to a client. Competent representation
requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation."
9
No. 2012AP1845-D
"Jane Doe" defendant, and by failing to conduct any
meaningful discovery in P.L.'s case, Attorney Winkel
violated SCR 20:1.3.2
• Count Three: By failing to inform P.L. of
defendants' motion for summary judgment, by failing
to inform P.L. that the court granted defendants'
motion for summary judgment, by failing to provide
P.L. with copies of defendants' motion for summary
judgment and the order granting defendants' summary
judgment, and by failing to keep P.L. apprised of
the status of the case, Attorney Winkel violated
SCR 20:1.4(a)(3).3
• Count Five: By concealing from P.L. that defendants
made a motion for summary judgment and that the
court granted defendants' motion, leading to the
dismissal of the action, Attorney Winkel violated
SCR 20:8.4(c).4
• Count Six: Having concealed from P.L. that
defendants made a motion for summary judgment and
that the court granted defendants' motion, leading
2
SCR 20:1.3 provides that "[a] lawyer shall act with
reasonable diligence and promptness in representing a client."
3
SCR 20:1.4(a)(3) provides that a lawyer shall "keep the
client reasonably informed about the status of the matter."
4
SCR 20:8.4(c) provides that it is professional misconduct
for a lawyer to "engage in conduct involving dishonesty, fraud,
deceit or misrepresentation."
10
No. 2012AP1845-D
to the dismissal of the action, and by thereafter
representing to the OLR that he had informed P.L. of
the aforesaid events, Attorney Winkel violated
SCR 22.03(6),5 enforced under SCR 20:8.4(h).6
¶23 After a three-day hearing, the referee determined that
Attorney Winkel had committed each of the above five counts of
misconduct. The referee's reasoning may be summarized as
follows.
¶24 As to Counts One and Two (incompetent representation
and lack of diligence), the referee found that Attorney Winkel
had never before litigated a deliberate indifference claim;
that, although Attorney Winkel claimed to have performed
research, he did not copy any cases, make any notes, or bill any
time for legal research; and that he used the wrong legal
standard in his expert witness disclosure. The referee noted
that Attorney Winkel's filings with the district court——
particularly his motion to extend already-expired deadlines and
his "objection" to the defendants' summary judgment motion——gave
5
SCR 22.03(6) provides that "[i]n the course of the
investigation, the respondent's wilful failure to provide
relevant information, to answer questions fully, or to furnish
documents and the respondent's misrepresentation in a disclosure
are misconduct, regardless of the merits of the matters asserted
in the grievance."
6
SCR 20:8.4(h) provides 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)."
11
No. 2012AP1845-D
the impression that he "did not know what he was doing, that he
was over his head." The referee noted that there were many
actions that Attorney Winkel could have taken to advance P.L.'s
case (e.g., he could have filed an expert affidavit, medical
literature, and a brief explaining that MRSA infections require
immediate medical attention), but he failed to do anything of
substance. The referee wrote that while Attorney Winkel may not
have been able to defeat defendants' summary judgment motion, he
needed to do more than what he did in order to provide competent
representation.
¶25 The referee next addressed Counts Three and Five,
which involve Attorney Winkel's failure to properly communicate
with P.L. Attorney Winkel told the referee that he had sent
P.L. all of the important case documents, as proven by his
writings on a series of post-it notes directing his secretary to
send the documents to P.L. The referee rejected Attorney
Winkel's claim. The referee noted that Attorney Winkel's
secretary testified at deposition that she neither had a
recollection of sending the documents, nor could she discern
from the post-it notes whether they had been sent. The
secretary also testified at deposition and at the hearing that
she could not tell if any of thirteen different crucial
documents had been sent to P.L. The referee noted that Attorney
Winkel's post-it note "system" had only a "veneer of documentary
evidence," and was not the type of contemporaneous written
evidence on which attorneys and judges customarily rely as proof
of mailing.
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No. 2012AP1845-D
¶26 The referee also remarked that one particular letter
from Attorney Winkel showed both his dishonesty and his failure
to adequately communicate with P.L. In a letter to P.L. written
after the district court had granted summary judgment to the
defendants, Attorney Winkel stated that "we do not have adequate
evidence to make it worthwhile to pursue the matter any further,
nor can we get over Motions for Summary Judgments." The referee
reasoned that Attorney Winkel would not have written this
statement if he had previously advised P.L. of the truth of the
matter: that the case had been dismissed on summary judgment
many weeks earlier. The referee further reasoned that, given
P.L.'s litigious nature, Attorney Winkel had an incentive to
gloss over the already-dismissed status of the case in order to
avoid a legal malpractice claim.
¶27 The referee next moved to Count Six, which charged
Attorney Winkel with willfully failing to provide relevant
information, fully answer questions, or furnish documents in the
course of an OLR investigation. The referee noted that in his
answers to the OLR's requests for admission, Attorney Winkel
denied that: (1) he failed to provide P.L. with a copy of
defendants' motion for summary judgment; (2) he failed to inform
P.L. that the district court had granted defendants' motion for
summary judgment; and (3) he failed to provide P.L. with a copy
of the order granting defendants' motion for summary judgment.
The referee held that Attorney Winkel's denials amounted to
misrepresentation and a willful failure to provide relevant
information to the OLR.
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No. 2012AP1845-D
¶28 With that, the referee concluded that Attorney Winkel
engaged in professional misconduct as set forth in Counts One,
Two, Three, Five, and Six.
¶29 The referee next addressed the issue of sanctions.
The referee found the following aggravating factors to be
present: the existence of a prior disciplinary record; a
pattern of misconduct; the presence of multiple offenses; an
intentional failure to comply with disciplinary rules or orders;
the submission of false evidence, statements, or other deceptive
practices during the disciplinary process; a refusal to
acknowledge the wrongful nature of conduct; substantial
experience in law practice at the time in question; and harm to
a client. Of these aggravating factors, the one that most
concerned the referee was Attorney Winkel's tendency to
misrepresent the truth. This tendency was noticeable in
Attorney Winkel's previous two disciplinary matters, the referee
noted. See Winkel, 2005 WI 165; Winkel, 217 Wis. 2d 339.
¶30 On the mitigating side, the referee found only one
factor: the remoteness in time of Attorney Winkel's prior
offenses.
¶31 The referee noted the range of sanctions imposed in
previous, arguably similar cases: In re Disciplinary
Proceedings Against Harris, 2013 WI 8, 345 Wis. 2d 239, 825 N.W.
2d 285 (five-month suspension for failing to inform client of
dismissal of matter and misrepresenting status of matter that
had been dismissed); and In re Disciplinary Proceedings Against
Hammis, 2011 WI 3, 331 Wis. 2d 19, 793 N.W.2d 884 (four-month
14
No. 2012AP1845-D
suspension for billing the State Public Defender for work the
lawyer did not actually perform, continuing to practice law
after receiving notice of administrative suspension, willingly
misleading a sitting judge about whether or not he had a valid
law license, failing to refund unearned fees, and failing to
respond to the OLR); and In re Disciplinary Proceedings Against
Lister, 2010 WI 108, 329 Wis. 2d 289, 787 N.W.2d 820 (60-day
suspension for failing to pursue client's federal civil rights
action, failing to inform client that court had dismissed
lawsuit, failing to promptly respond to numerous requests from
successor counsel to forward client's case file, failing to
refund to client unused balance of retainer fee, and failing to
return messages left by the OLR).
¶32 Ultimately, the referee recommended the imposition of
a four-month suspension——two months longer than what the OLR had
proposed in its complaint. The referee wrote that the
"aggravating factor which is most concerning to me is [Attorney
Winkel's] submission of false evidence, false statements or
other deceptive practices during the disciplinary hearing. This
factor would be very serious even if [Attorney Winkel] had no
prior disciplinary history. Unfortunately, however, his prior
disciplinary history involves this very same type of
misconduct." The referee continued:
I observed [Attorney Winkel's] testimony over
most of three (3) days. In the opinion of this
referee, he did not help himself. While his answers
were generally carefully worded, they were oftentimes
non-responsive. Simple questions were met with
circumlocution and prevarication. [Attorney Winkel's]
15
No. 2012AP1845-D
own attorney asked him at his deposition whether two
particular documents had been mailed to [P.L.]
[Attorney Winkel's] answer, that he did not know, and
he had no contemporaneous evidence on the subject, is
buried in layers of obfuscation.
Most disturbingly . . . there are major
contradictions between [Attorney Winkel's] deposition
testimony and his hearing testimony. It is as if the
time between the deposition and the hearing was used
to shore up and correct perceived shortcomings in his
deposition testimony.
The OLR's recommendation of a 60-day suspension
may have been appropriate before the hearing started;
by the time it ended it was definitely not sufficient.
Were I to recommend a 60-day suspension here I would
be undercutting the values of truthfulness and honesty
which are at the very heart of the legal system.
(Footnotes and citations omitted.)
¶33 Attorney Winkel appeals. In conducting our review, we
will affirm the referee's findings of fact unless they are found
to be clearly erroneous, but we will review the referee's
conclusions of law on a de novo basis. See In re Disciplinary
Proceedings Against Inglimo, 2007 WI 126, ¶5, 305 Wis. 2d 71,
740 N.W.2d 125. 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.
¶34 On appeal, Attorney Winkel does not challenge any of
the factual findings that underlie the counts of misconduct or
the legal conclusions of misconduct. Attorney Winkel challenges
only whether the referee's recommended sanction of a four-month
suspension is appropriate.
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No. 2012AP1845-D
¶35 Attorney Winkel maintains that his conduct warrants
only a public reprimand. In support of this claim, Attorney
Winkel levies a number of broad-based attacks on the OLR's
disciplinary hearing process. Attorney Winkel argues, first,
that his disciplinary proceeding should have been bifurcated to
decide the merits issue separate from the determination of
sanctions; otherwise, he says, it was impossible for him to
effectively contest guilt and introduce mitigating evidence at
the same hearing. Attorney Winkel argues, second, that the
referee should not have learned of his disciplinary history
before deciding the merits of a disciplinary case; he theorizes
that the referee's knowledge of his disciplinary history
possibly tainted the referee's fact-finding. Attorney Winkel
argues, third, that the referee erred by increasing his sanction
recommendation based on a finding that Attorney Winkel provided
unreliable testimony during the disciplinary hearing; he argues
that any suspicion of untruthfulness on his part could only be
considered in the context of a brand-new disciplinary
proceeding.
¶36 In addition to these systemic challenges to the OLR's
disciplinary process, Attorney Winkel levels various criticisms
at the referee's performance. Attorney Winkel argues that the
referee failed to give him credit for returning to P.L. the
unused portion of the advance fee payment; failed to appreciate
that he has acknowledged his deficiencies in handling P.L.'s
case; and failed to note that he did not personally benefit from
his misconduct. He posits, as a mitigating factor, that his
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No. 2012AP1845-D
misconduct did no harm given that——as Attorney Winkel's counsel
stated in appellate briefing and at oral argument——there was "no
merit" to P.L.'s Eighth Amendment civil rights case. Finally,
Attorney Winkel argues that the referee failed to appreciate
that he has already been admonished by the district court in its
summary judgment order; that he has had to incur significant
legal bills in his defense in this disciplinary matter; and that
a suspension will hurt him, his clients, and his staff.
¶37 We reject all of Attorney Winkel's arguments, starting
first with his systemic challenges to the OLR disciplinary
process. Attorney Winkel has forfeited any argument that the
disciplinary hearing should have been bifurcated to decide the
merits issue separate from the determination of sanctions. If
Attorney Winkel truly believed that the referee——an experienced
judge and referee——was incapable of differentiating mitigating
evidence from admissions of misconduct, he should have asked the
referee to hold a bifurcated hearing. He did not; he points to
nowhere in the record where such a request was preserved. It is
too late to complain about it now. See In re Disciplinary
Proceedings Against Netzer, 2014 WI 7, ¶45, 352 Wis. 2d 310, 841
N.W.2d 820; see also United States v. Boyd, 86 F.3d 719, 722
(7th Cir. 1996) (defendant cannot "plant an error and grow a
risk-free trial").
¶38 We are also unpersuaded by Attorney Winkel's argument
that it was improper for the referee to learn of Attorney
Winkel's disciplinary history before deciding the merits of this
case. Attorney Winkel speculates that perhaps the referee, in
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No. 2012AP1845-D
evaluating the merits of this case, improperly assumed that it
was more likely that Attorney Winkel committed the charged
misconduct simply because he had previously committed
misconduct——akin to the forbidden inference of criminal
propensity that a jury might draw from prior bad act evidence.
See Wis. Stat. § 904.04(2). But this argument does not square
with the fact that Attorney Winkel challenges none of the
referee's factual findings or legal conclusions of misconduct;
his sole challenge in this appeal is to the amount of discipline
that the referee recommended. We also find absolutely no
evidence to support what Attorney Winkel seems to imply: that
the referee prejudged him and denied him a fair opportunity to
defend against the misconduct charges.
¶39 Attorney Winkel is also mistaken in arguing that, in
making a sanctions recommendation, neither the referee nor this
court may consider the referee's finding that some of Attorney
Winkel's hearing testimony was unreliable. There is no dispute
that Attorney Winkel's testimony during the disciplinary hearing
would not permit a separate, new misconduct finding in this
proceeding; due process considerations dictate that attorneys
receive fair notice of misconduct charges against them and an
opportunity to respond. In re Ruffalo, 390 U.S. 544, 550-51
(1968). Neither can it be disputed, however, that this court is
charged with the responsibility of protecting the public from
attorneys who are not fully truthful.
¶40 Thus, this court will not simply ignore the referee's
uncontested findings that Attorney Winkel's hearing testimony
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No. 2012AP1845-D
was plagued with "non-responsive" answers, "circumlocution and
prevarication," "layers of obfuscation," and conflicts with
deposition testimony. Just as in criminal cases, where a trial
court may not add an additional term for perjury to a convicted
defendant's sentence but may consider a defendant's veracity at
trial as part of the exercise of sentencing discretion, so too
is it entirely appropriate for this court to consider Attorney
Winkel's attitude toward the truth in formulating its
disciplinary sanction. See Lange v. State, 54 Wis. 2d 569, 575,
196 N.W.2d 680 (1972); see also American Bar Association
Standards for Imposing Lawyer Sanctions, § 9.22(f) (listing as
an aggravating factor the "submission of false evidence, false
statements, or other deceptive practices during the disciplinary
process"); see also In re Disciplinary Proceedings Against
Eisenberg, 2013 WI 37, ¶34 n.9, 347 Wis. 2d 116, 833 N.W.2d 46
(referee's comments about the respondent attorney's "conduct and
testimony in this proceeding are proper subjects of a referee's
report").
¶41 We also are unpersuaded by Attorney Winkel's numerous
criticisms of the referee's performance. To begin, the referee
did not err in declining to credit Attorney Winkel for his
return to P.L. of the unused portion of the advance fee payment.
Attorney Winkel was obligated to return those funds by the
terms of his fee agreement.
¶42 The referee similarly did not err in declining to
credit Attorney Winkel for his supposed regret over the way he
handled P.L.'s case. The referee was clearly troubled by
20
No. 2012AP1845-D
Attorney Winkel's demeanor during the disciplinary hearing: the
referee described portions of his hearing testimony as
displaying a sense of "exaggerated indignation" that was both
"specious and misplaced"; as containing "major contradictions
between [his] deposition testimony and his hearing testimony";
and as marked by "circumlocution," "prevarication," and "layers
of obfuscation." Given the facts as they unfolded before the
referee, we do not question the referee's determination that
Attorney Winkel has not shown that he fully appreciates the
wrongful nature of his conduct.
¶43 The referee also did not err in declining to view as a
mitigating factor Attorney Winkel's lack of personal benefit
from his misconduct. Attorney Winkel argues in his appellate
brief that he "did not stand to gain anything personally by
making untimely filings or letting the case get dismissed."
While this statement may be literally true, we do not find it
particularly comforting, especially given our duty to protect
the public from attorney misconduct. See Preamble to
SCR Chapter 21.
¶44 We are similarly unpersuaded by Attorney Winkel's
argument that the meritless nature of P.L.'s civil rights
lawsuit counteracts his own blameworthiness. Attorney Winkel
states explicitly in his briefs, and also stated at oral
argument, that P.L.'s lawsuit had "no merit." It would be an
odd disciplinary system if maintaining a meritless lawsuit
counted as a mitigating circumstance, especially since
21
No. 2012AP1845-D
maintaining a meritless lawsuit is itself a sanctionable
offense. See SCR 20:3.1.
¶45 Finally, while we acknowledge that a suspension of
Attorney Winkel's law license may very well hurt his law
practice, we have previously made clear that such an effect is
not an appropriate factor in establishing a level of discipline.
See In re Disciplinary Proceedings Against Lamb, 2011 WI 101,
¶31, 338 Wis. 2d 1, 806 N.W.2d 439 ("Any suspension of an
attorney's license to practice law is likely to have a
detrimental impact on the attorney's livelihood.").
¶46 In the end, it appears that in this disciplinary
proceeding, Attorney Winkel chose a litigation strategy he now
regrets: an "all or nothing" strategy of going for an outright
exoneration. The strategy failed, leaving him with a record
that contains little mitigating evidence, an admonishment from a
federal magistrate judge, and a referee's report bristling with
factual findings and credibility determinations adverse to him.
Having lost the battle on the facts, he hopes to win the war on
appeal by attacking the fairness of the OLR disciplinary process
and the referee. We reject Attorney Winkel's efforts.7
7
To the extent we have not addressed each and every one of
the many arguments presented by Attorney Winkel during appellate
briefing and oral argument, such arguments are deemed denied.
See Libertarian Party of Wis. v. State, 199 Wis. 2d 790, 801,
546 N.W.2d 424 (1996) (appellate court need not discuss
arguments unless they have "sufficient merit to warrant
individual attention").
22
No. 2012AP1845-D
¶47 Turning specifically to the level of discipline
required, we disagree with Attorney Winkel's argument that a
public reprimand will suffice. We must impose the discipline
needed to protect the public, the courts, and the legal system
from Attorney Winkel's repetition of misconduct, to impress upon
him the seriousness of his misconduct, and to deter other
attorneys from engaging in similar misconduct. See In re
Disciplinary Proceedings Against Arthur, 2005 WI 40, ¶78, 279
Wis. 2d 583, 694 N.W.2d 910. We also must bear in mind that
discipline is generally progressive in nature. See, e.g., In re
Disciplinary Proceedings Against Nussberger, 2006 WI 111, ¶27,
296 Wis. 2d 47, 719 N.W.2d 501. Considering these factors, we
conclude that more than a public reprimand is required. This is
the third time the court has had occasion to discipline Attorney
Winkel for professional misconduct. Clearly, his two previous
public reprimands have not sufficiently impressed upon him the
need to scrupulously adhere to the rules of professional conduct
for attorneys. His course of conduct requires a license
suspension.
¶48 We further conclude that a suspension greater than the
60-day minimum suspension is in order. In re Disciplinary
Proceedings Against Grady, 188 Wis. 2d 98, 108–09, 523 N.W.2d
564 (1994) (explaining that generally the minimum length of a
license suspension is 60 days). We are particularly concerned
with the pattern of misconduct Attorney Winkel has displayed:
in both this case and in his previous two disciplinary matters,
Attorney Winkel has shown a willingness to bend the truth to
23
No. 2012AP1845-D
help himself. We agree with the referee's statement that a 60-
day minimum suspension would "undercut[] the values of
truthfulness and honesty which are at the very heart of the
legal system." We therefore conclude, as did the referee, that
a four-month suspension is an appropriate response, justified by
our precedent. See, e.g., Harris, 345 Wis. 2d 239 (five-month
suspension for lawyer with disciplinary history who failed to
inform client of dismissal of matter, misrepresented the status
of the matter that had been dismissed, and failed to cooperate
with the OLR investigation).
¶49 Finally, we turn to the issue of costs. The OLR has
requested costs in the total sum of $42,634.13. This amount
consists of $37,002.13 in pre-appeal costs, and $5,632.00 in
appellate costs. Attorney Winkel does not challenge the pre-
appeal costs. He does, however, challenge the appellate costs,
claiming that they amount to "piling on." Attorney Winkel also
claims that the OLR's appellate costs were needlessly inflated
by a change in its position regarding the appropriate length of
suspension: at oral argument, the OLR asked the court to impose
the 60-day suspension that it had requested in its complaint,
whereas in its appellate brief-in-chief, the OLR asked the court
to approve the referee's recommendation of a four-month
suspension. Attorney Winkel argues that the OLR probably
performed some appellate work that was "wasteful" in that it was
not consistent with the OLR's ultimate position.
¶50 We deny Attorney Winkel's objection. Our rules
require that a respondent who objects to a statement of costs
24
No. 2012AP1845-D
"must state what he or she considers to be a reasonable amount
of costs." SCR 22.24(2). Attorney Winkel did not do so. He
apparently believes that a "reasonable amount" of costs for the
OLR to have incurred on appeal is zero, as he asks this court to
deny the OLR's appellate costs in their entirety. We decline to
do so. As shown by the discussion above, Attorney Winkel has
vigorously advocated on appeal for the imposition of only a
public reprimand. He has advanced a wide variety of substantive
and procedural challenges to the referee's report and
recommendation, all of which the OLR has responded to in
briefing and at oral argument. The OLR's requested appellate
costs of $5,632.00 do not strike us as unreasonable or
unnecessary, nor do we have any reason to believe that they were
materially driven up by the OLR's arguments as to the
appropriate suspension length.
¶51 IT IS ORDERED that the license of David J. Winkel to
practice law in Wisconsin is suspended for a period of four
months, effective August 6, 2015.
¶52 IT IS FURTHER ORDERED that within 60 days of the date
of this order, David J. Winkel shall pay to the Office of Lawyer
Regulation the costs of this proceeding.
¶53 IT IS FURTHER ORDERED that David J. Winkel 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.
25
No. 2012AP1845-D
¶54 IT IS FURTHER ORDERED that compliance with all
conditions of this order is required for reinstatement. See
SCR 22.28(2).
26
No. 2012AP1845-D.ssa
¶55 SHIRLEY S. ABRAHAMSON, J. (concurring). I join the
per curiam. I write separately to point out that Attorney
Winkel's comments about bifurcating the hearing to determine the
merits of the violation apart from determining sanctions might
be a subject of study for the Lawyer Regulation Committee that I
am proposing.
¶56 On February 6, 2015, I filed rule petition 15-01 to
create supreme court rules providing for a Lawyer Regulation
Committee to review the Rules of Professional Conduct for
Attorneys (chapters 20 and 22 of the supreme court rules) and
the organization, operation, and procedures of the lawyer
discipline system, including the OLR, District Committees,
Preliminary Review Committee, Referees, and Board of
Administrative Oversight, and to create a Lawyer Regulation
Review Committee. The court unanimously agreed to conduct a
public hearing on this proposal in the fall of 2015. The
subject of bifurcation can be a subject of study for the Lawyer
Regulation Committee, if my rule petition is adopted.
1
No. 2012AP1845-D.pdr
¶57 PATIENCE DRAKE ROGGENSACK, C.J. (dissenting). The
Office of Lawyer Regulation (OLR) initially requested that we
impose 60 days suspension for the six counts of misconduct that
it alleged.1 The referee recommended four months suspension for
the five counts that OLR proved and for the referee's conclusion
that David J. Winkel was not honest in his testimony. At oral
argument, which was held subsequent to the parties receiving the
referee's findings and recommendation, OLR again requested that
we impose 60 days suspension for the five counts of misconduct.
¶58 I respectfully dissent because by imposing the
referee's recommended four month suspension, which is double
what OLR sought, the majority appears to have adopted the
referee's conclusion that Attorney Winkel was not honest in his
testimony at the hearing the referee conducted. However, Winkel
was not charged with giving untruthful testimony to the referee.
Therefore, to increase his punishment based on the referee's
conclusion that he was untruthful denies Winkel due process of
law.
¶59 To explain further, the referee recommended a 100%
increase in the 60-day suspension that the OLR requested because
the referee believed that Winkel was not honest in his testimony
at the referee's hearing. In that regard the referee said,
OLR's recommendation of a 60-day suspension may have
been appropriate before the hearing started; by the
time it ended it was definitely not sufficient. Were
I to recommend a 60-day suspension here I would be
1
OLR dismissed Count 4 prior to the hearing before the
referee.
1
No. 2012AP1845-D.pdr
undercutting the values of truthfulness and honesty
which are at the very heart of the legal system.2
¶60 While the referee's comments about Winkel's
truthfulness may be a basis for a new disciplinary charge, to
discipline Winkel for a count of misconduct without notice or an
opportunity to be heard violates Winkel's right to due process.
As we have held, an attorney has a constitutional due process
right in a disciplinary proceeding to "prior notice of the
charges, the right to prepare and defend against the charges,
and the right to a full hearing" thereon. In re Disciplinary
Proceedings Against Gamino, 2005 WI 168, ¶48, 286 Wis. 2d 558,
707 N.W.2d 132. Winkel had no notice of a charge that he gave
untruthful testimony, nor the right to defend against it, nor a
hearing on whether the referee's conclusion was correct.
Because due process is foundational to our disciplinary process,
and because Winkel was not accorded due process, I respectfully
dissent.
¶61 I also write because I have an additional concern
about what is permitted when OLR proceeds on an ethical
allegation. My concern is that by providing proof of past
disciplinary history of an attorney as he or she attempts to
defend against current charges, it is possible that a referee's
opinion of an attorney's alleged misconduct may be prejudiced.
¶62 Here, the referee commented about Winkel's veracity
after his review of Winkel's prior disciplinary history. The
2
Referee's report, p. 60.
2
No. 2012AP1845-D.pdr
last disciplinary matter arose from 2003 conduct, 12 years ago.3
However, the referee drew from those two cases as a foundation
for his conclusion in this case. He also reviewed the
underlying reports of the referees on those two cases, even
though the reports were not in the record of this case.4 As he
was drawing his conclusions, the referee said, "his prior
disciplinary history involves this very same type of misconduct.
In this regard, a review of not only the two prior decisions of
this Court, but also the underlying referees' reports, is
instructive."5
¶63 Winkel's counsel noted the effect of those prior
proceedings on the referee's consideration of Winkel's defense.
He suggested that, as with a jury, a fact-finding referee should
not be able to employ a defendant's past disciplinary history as
proof of present conduct. I agree with Winkel's counsel that
past disciplinary history should not be part of prosecution for
a new charge, although it is relevant in deciding on the
sanction if charges are proved. I urge my colleagues on the
court to consider whether we need to amend our SCR ch. 20 and
ch. 22 to address this concern.
3
In re Disciplinary Proceedings Against Winkel, 2005 WI
165, ¶2, 286 Wis. 2d 533, 706 N.W.2d 661 (public reprimand); and
In re Disciplinary Proceedings Against Winkel, 217 Wis. 2d 339,
340, 577 N.W.2d 9 (1998) (public reprimand).
4
Referee's report pp. 52-54.
5
Id., p. 52.
3
No. 2012AP1845-D.pdr
¶64 I am authorized to state that Justice ANNETTE
KINGSLAND ZIEGLER joins this dissent.
4
No. 2012AP1845-D.mjg
¶65 MICHAEL J. GABLEMAN, J. (dissenting). I dissent
from the Court's opinion. I agree with Chief Justice Roggensack
that a 60 day suspension is appropriate.
1
No. 2012AP1845-D.mjg
1