Office of Lawyer Regulation v. Peter James Nickitas , 352 Wis. 2d 641 ( 2014 )

2014 WI 12
SUPREME COURT OF WISCONSIN
CASE NO.: 2013AP1770-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Peter James Nickitas, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Peter James Nickitas,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST NICKITAS
OPINION FILED: March 14, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2014 WI 12
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2013AP1770-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Peter James Nickitas, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant,
MAR 14, 2014
v.
Diane M. Fremgen
Clerk of Supreme Court
Peter James Nickitas,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. The Office of Lawyer Regulation (OLR)
has filed a complaint and motion pursuant to SCR 22.221 asking
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SCR 22.22 provides: Reciprocal discipline.
(1) An attorney on whom public discipline for
misconduct or a license suspension for medical
incapacity has been imposed by another jurisdiction
shall promptly notify the director of the matter.
Failure to furnish the notice within 20 days of the
effective date of the order or judgment of the other
jurisdiction constitutes misconduct.
No. 2013AP1770-D
(2) Upon the receipt of a certified copy of a
judgment or order of another jurisdiction imposing
discipline for misconduct or a license suspension for
medical incapacity of an attorney admitted to the
practice of law or engaged in the practice of law in
this state, the director may file a complaint in the
supreme court containing all of the following:
(a) A certified copy of the judgment or order
from the other jurisdiction.
(b) A motion requesting an order directing the
attorney to inform the supreme court in writing within
20 days of any claim of the attorney predicated on the
grounds set forth in sub. (3) that the imposition of
the identical discipline or license suspension by the
supreme court would be unwarranted and the factual
basis for the claim.
(3) The supreme court shall impose the identical
discipline or license suspension unless one or more of
the following is present:
(a) The procedure in the other jurisdiction was
so lacking in notice or opportunity to be heard as to
constitute a deprivation of due process.
(b) There was such an infirmity of proof
establishing the misconduct or medical incapacity that
the supreme court could not accept as final the
conclusion in respect to the misconduct or medical
incapacity.
(c) The misconduct justifies substantially
different discipline in this state.
(4) Except as provided in sub. (3), a final
adjudication in another jurisdiction that an attorney
has engaged in misconduct or has a medical incapacity
shall be conclusive evidence of the attorney's
misconduct or medical incapacity for purposes of a
proceeding under this rule.
(5) The supreme court may refer a complaint
filed under sub. (2) to a referee for a hearing and a
report and recommendation pursuant to SCR 22.16. At
the hearing, the burden is on the party seeking the
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No. 2013AP1770-D
this court to impose reciprocal discipline against Attorney
Peter James Nickitas identical to the 30-day suspension imposed
by the Supreme Court of Minnesota.
¶2 On September 16, 2013, in response to the OLR's
motion, this court issued an order directing Attorney Nickitas
to show cause in writing by September 30, 2013, why the
imposition of discipline reciprocal to that imposed by the
Supreme Court of Minnesota would be unwarranted. On
September 19, 2013, Attorney Nickitas filed a response attaching
a copy of a letter he had previously sent to the OLR. Attorney
Nickitas does not object to the imposition of reciprocal
discipline; however, he requests that the 30-day suspension be
applied retroactively so as to run coterminous with the term of
the Minnesota suspension. On October 16, 2013, the OLR filed a
response opposing a retroactive suspension. Upon review of the
matter, we decline to make the 30-day suspension retroactive.
¶3 Attorney Nickitas was admitted to practice law in
Wisconsin in 1991. He is also admitted to practice law in
imposition of discipline or license suspension
different from that imposed in the other jurisdiction
to demonstrate that the imposition of identical
discipline or license suspension by the supreme court
is unwarranted.
(6) If the discipline or license suspension
imposed in the other jurisdiction has been stayed, any
reciprocal discipline or license suspension imposed by
the supreme court shall be held in abeyance until the
stay expires.
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No. 2013AP1770-D
Minnesota. His most recent address furnished to the State Bar
of Wisconsin is in Minneapolis, Minnesota.
¶4 Attorney Nickitas' professional disciplinary history
in Wisconsin consists of a 90-day suspension imposed in 2006,
reciprocal to a similar suspension in Minnesota. Attorney
Nickitas' misconduct in that case involved a consensual sexual
relationship with a client; entering into multiple business
transactions with a client without written disclosure of the
potential conflicts and without providing for fair and
reasonable terms for his client; failing to timely appeal a
final judgment and subsequently filing motions previously
decided by the unappealed judgment; and failing to notify the
OLR of the Minnesota suspension. In re Disciplinary Proceedings
Against Nickitas, 2006 WI 20, 289 Wis. 2d 18, 710 N.W.2d 464.
¶5 On May 7, 2013, the Supreme Court of Minnesota
suspended Attorney Nickitas' Minnesota law license for 30 days
for undertaking representation despite a conflict of interest;
engaging in inappropriate conduct toward opposing counsel; and
bringing a claim in bad faith and for an improper purpose. The
Supreme Court of Minnesota found that these actions violated
Rules 1.7(a)(2), 3.1, 4.4(a), and 8.4(d) of the Minnesota Rules
of Professional Conduct. Attorney Nickitas admitted
substantially all allegations and agreed that a 30-day
suspension was appropriate.
¶6 Supreme Court Rule 22.22(3) provides that this court
"shall impose the identical discipline or license suspension
unless . . . the procedure in the other jurisdiction was so
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No. 2013AP1770-D
lacking in notice or opportunity to be heard as to constitute a
deprivation of due process"; "there was such an infirmity of
proof establishing the misconduct . . . that the supreme court
could not accept as final the conclusion in respect to the
misconduct . . ."; or "the misconduct justifies substantially
different discipline in this state."
¶7 Attorney Nickitas has not alleged that any of the
three exceptions exist and, as noted, he does not oppose the
imposition of reciprocal discipline. His only argument is that
the 30-day suspension in Wisconsin should be made retroactive to
the term of the Minnesota suspension. In support of this
argument Attorney Nickitas says that the United States District
Court for the Western District of Wisconsin reciprocally
suspended him from May 24, 2013 through June 30, 2013, and
reinstated him upon the conditional reinstatement by the Supreme
Court of Minnesota which occurred on June 20, 2013. He says at
the time of the Minnesota suspension he had one case pending in
Wisconsin circuit court and found substitute counsel to handle
that case for him during the term of the Minnesota and Western
District suspensions. Attorney Nickitas argues that to suspend
him once again in Wisconsin, after he had already served a
suspension in the Western District and voluntarily withdrew from
all pending Wisconsin state cases for more than 30 days as if he
were suspended would be unfair and would also prejudice a client
he is currently representing in both a Wisconsin circuit court
and federal court.
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No. 2013AP1770-D
¶8 The OLR opposes a retroactive suspension, saying a
lawyer's voluntary cessation of practice does not result in the
court backdating the suspension. See, e.g., In re Disciplinary
Proceedings Against Frank, 206 Wis. 2d 233, 241, 556 N.W.2d 717
(1996). The OLR argues that in the event the suspension were
not made retroactive, this court would not be effectively
doubling the discipline since Attorney Nickitas had the ability
to continue to practice in Wisconsin during the term of his
Minnesota suspension. The OLR says Attorney Nickitas' purported
voluntary cessation of practice in Wisconsin during the term of
the Minnesota suspension does not warrant retroactive
application of the suspension imposed by this court. We agree
with the OLR's reasoning. Suspensions are generally not imposed
retroactively. There are no special circumstances in this case
that would warrant a retroactive suspension.
¶9 IT IS ORDERED that the license of Peter James Nickitas
to practice law in Wisconsin is suspended for a period of 30
days, effective April 18, 2014.
¶10 IT IS FURTHER ORDERED that Peter James Nickitas 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.
¶11 IT IS FURTHER ORDERED that compliance with all
conditions of this order is required for reinstatement. See
SCR 22.28(2).
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No. 2013AP1770-D
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