Office of Lawyer Regulation v. Mark M. Ditter , 2021 WI 21 ( 2021 )

2021 WI 21SUPREME COURT OF WISCONSIN
CASE NO.: 2020AP148-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Mark M. Ditter, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Mark M. Ditter,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST DITTER
OPINION FILED: March 9, 2021
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
Per Curiam.
NOT PARTICIPATING:
ATTORNEYS:
2021 WI 21NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2020AP148-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Mark M. Ditter, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant, MAR 9, 2021
v. Sheila T. Reiff
Clerk of Supreme Court
Mark M. Ditter,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. We review the report and recommendation
of Referee Sue E. Bischel. Based on a stipulation by the
parties, Referee Bischel determined that Attorney Mark M. Ditter
committed four counts of professional misconduct. The referee,
however, concluded that the level of discipline jointly
requested by the parties, a 60-day suspension, was insufficient
under the circumstances. Referee Bischel recommended that this
court impose a 120-day suspension. She also recommended that
the court require Attorney Ditter to pay the full costs of this
No. 2020AP148-D
disciplinary proceeding, which are $3,896.68 as of August 26,
2020.
¶2 As neither party has appealed the referee's report and
recommendation, we review this matter pursuant to Supreme Court
Rule (SCR) 22.17(2).1 We agree with the referee's conclusion
that Attorney Ditter committed the four counts of professional
misconduct alleged in the complaint filed by the Office of
Lawyer Regulation (OLR). We conclude that Attorney Ditter's
conduct in this matter requires a 90-day suspension of his
license to practice law in this state. Because the Office of
the State Public Defender (SPD) has already recouped the funds
that Attorney Ditter failed to forward to a third party, we do
not impose any restitution award in this matter. Finally,
because Attorney Ditter did not enter into a stipulation until
after both the OLR and the referee had expended time and money
in proceeding with this matter, we require Attorney Ditter to
pay the full costs of this disciplinary proceeding.
¶3 The referee found the facts set forth below. In
addition to the facts to which Attorney Ditter stipulated, the
referee made factual findings regarding Attorney Ditter's
1 SCR 22.17(2) provides:
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.
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No. 2020AP148-D
interactions with the OLR during its investigation and events
that occurred during this disciplinary proceeding. The referee
gave Attorney Ditter the opportunity to object to any of her
proposed factual findings, but he did not object.
¶4 We will begin with the stipulated facts regarding
Attorney Ditter's underlying conduct and his response to the
OLR's investigation. Then we will set forth the pertinent facts
regarding Attorney Ditter's conduct during this disciplinary
proceeding.
¶5 Attorney Ditter was initially admitted to the practice
of law in this state in May 1983. He most recently operated a
small law practice in Kaukauna.
¶6 Attorney Ditter has been the subject of professional
discipline on two previous occasions, both of which were quite
some time ago. In 1994 Attorney Ditter's law license was
suspended for 60 days for engaging in the practice of law while
his license had been administratively suspended for failure to
comply with continuing legal education requirements. In re
Disciplinary Proceedings Against Ditter, 187 Wis. 2d 337, 523
Wis. 2d 105 (1994). In 1996 Attorney Ditter consented to the
imposition of a private reprimand for failing to act with
reasonable diligence and for failing to communicate with a
client. Private Reprimand No. 1996-17 (electronic copy
available at https://compendium.wicourts.gov/app/raw/
000179.html).
¶7 Attorney Ditter's license is currently suspended for
multiple reasons. First, this court temporarily suspended his
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No. 2020AP148-D
license as of May 14, 2019, due to his willful failure to
cooperate with the OLR's investigation of his conduct that is
the subject of this disciplinary proceeding. Second, Attorney
Ditter's license is also administratively suspended due to his
non-payment of bar dues, his failure to file a trust account
certification, and his noncompliance with continuing legal
education requirements. See SCRs 10.03(6), 20:1.15(i)(4), and
31.02.
¶8 The facts underlying the counts of misconduct in this
matter relate to Attorney Ditter's handling of funds in two
cases in which he was appointed to represent indigent criminal
defendants in the Outagamie County circuit court by the SPD. In
both cases Attorney Ditter hired an investigator to prepare
alternative pre-sentence reports. The investigator completed
his work, and the alternative reports were filed with the
circuit court in those two cases.
¶9 In the first case the SPD approved payment to Attorney
Ditter and issued a check to Attorney Ditter in the amount of
$2,463.70 on June 29, 2018. That amount included $1,200 for the
work performed by the investigator, which Attorney Ditter was
obligated to forward to him.
¶10 In the second case the SPD also approved payment to
Attorney Ditter and issued a check to Attorney Ditter in the
amount of $3,227.62 on July 20, 2018. That amount again
included $1,200 for the work performed by the investigator,
which Attorney Ditter was obligated to forward to him.
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No. 2020AP148-D
¶11 Attorney Ditter did not deliver to the investigator
the $2,400 that he had received from the SPD and that he owed to
the investigator. The investigator and the SPD made repeated
requests for payment to Attorney Ditter by email, letter, and
telephone calls. Attorney Ditter, however, did not respond.
Ultimately, the investigator filed a grievance with the OLR
regarding Attorney Ditter's failure to forward the funds he had
received from the SPD.
¶12 Members of the OLR's intake department attempted to
contact Attorney Ditter regarding the grievance. On December 7,
2018, Attorney Ditter sent an email to an OLR intake
representative, in which he made the following statement: "I am
working to get [the investigator] paid quickly. I sent him a
payment this week towards one of the two outstanding bills, and
expect to be able to take care of the rest very soon." Attorney
Ditter's claim that he had sent a payment to the investigator
was a false statement. He did not ever send a payment to the
investigator for his work on the two cases. He converted to his
own use the funds due to the investigator.
¶13 The OLR opened a formal investigation of the grievance
against Attorney Ditter. On December 19, 2018, the OLR Trust
Account Program Administrator, Travis Stieren, sent a letter to
Attorney Ditter via first class mail advising him of the formal
investigation and giving him a deadline of January 14, 2019, to
provide a written response to the grievance against him.
Attorney Ditter did not respond.
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No. 2020AP148-D
¶14 On January 29, 2019, Mr. Stieren sent a second letter,
via both first class and certified mail, seeking a written
response to the grievance by February 8, 2019. The January 29,
2019 letter also advised Attorney Ditter that in the event he
failed to respond, the OLR Director was authorized to file a
motion seeking the temporary suspension of his license for a
willful failure to cooperate. The certified letter was returned
to the OLR unclaimed. The letter sent via first class mail was
not returned. Attorney Ditter again did not respond.
¶15 On February 15, 2019, Mr. Stieren sent an email to
Attorney Ditter. He attached copies of his prior letters and
requested a written response to the grievance by February 22,
2019. Attorney Ditter still did not respond.
¶16 Attorney Ditter finally spoke with Mr. Stieren via
telephone on February 22, 2019. During that call, Attorney
Ditter confirmed that he had received at least one of the OLR's
letters. He stated that he would prepare and submit to the OLR
a written response to the grievance by the following week.
Later that same day, Attorney Ditter sent an email to
Mr. Stieren, in which he stated, "Pursuant to our phone
conversation this AM, I have prepared a response and have mailed
it." Attorney Ditter's representation was false, as the OLR
never received any written response to the grievance against
him.
¶17 On March 12, 2019, the OLR filed a motion seeking the
temporary suspension of Attorney Ditter's license to practice
law in Wisconsin due to his willful failure to cooperate with
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No. 2020AP148-D
its investigation. This court subsequently issued an order
directing Attorney Ditter to show cause in writing by April 3,
2019, why the OLR's motion should not be granted. Attorney
Ditter did not respond to the court's order to show cause.
Accordingly, on May 14, 2019, this court issued an order
temporarily suspending Attorney Ditter's license to practice law
in Wisconsin.
¶18 On March 27, 2019, due to Attorney Ditter's conversion
of the funds, the SPD sent $2,400 directly to the investigator
to pay him for the work he had performed on the two matters. In
order to recoup the $2,400 owed to the investigator that
Attorney Ditter had wrongfully converted, the SPD withheld that
sum from subsequent payments made to Attorney Ditter on other
cases.
¶19 The OLR filed a formal complaint against Attorney
Ditter in this court on January 23, 2020. The referee's report
contains additional factual findings regarding events that
occurred during the disciplinary proceeding.
¶20 Attorney Ditter was personally served with the
complaint and the order to answer on February 20, 2020. The
order to answer required him to file an answer to the complaint
within 20 days. Attorney Ditter did not file an answer or
otherwise respond to the complaint.
¶21 After Referee Bischel was appointed, she sent an email
to the parties on April 14, 2020, advising them of a telephonic
scheduling conference to take place on April 22, 2020. Attorney
Ditter did not respond to the referee's email, nor did he appear
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No. 2020AP148-D
for the telephonic scheduling conference. At that conference,
the OLR's counsel advised the referee that he had made multiple
attempts to contact Attorney Ditter, but had received no
response.
¶22 Although Attorney Ditter's time for filing an answer
had expired, the referee issued a scheduling order that granted
him a period of additional eight days to file an answer.
Attorney Ditter never filed an answer. Accordingly, the OLR
filed a motion for a default.
¶23 The referee's scheduling order set a second scheduling
conference for May 8, 2020. After difficulties reaching
Attorney Ditter on both May 7, 2020, and May 8, 2020, the OLR's
counsel did reach Attorney Ditter, and the parties then informed
the referee that they wished to enter into a comprehensive
stipulation. The referee issued an order directing the parties
to file such a stipulation by June 1, 2020.
¶24 The referee did not receive a stipulation by the
deadline. On June 2, 2020, the referee sent an email to the
parties stating that unless they advised her that a stipulation
was being filed, she would proceed with deciding the motion for
a default. The OLR's counsel responded that he had sent the
proposed stipulation to Attorney Ditter on May 11, 2020, with a
request for a quick response, but that he had not received any
response. Later that afternoon, Attorney Ditter sent a reply
email to the referee, which stated, "My apologies. It's on the
way by mail."
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No. 2020AP148-D
¶25 The next morning the referee sent Attorney Ditter an
email asking him to advise to whom, from where, and on what date
he had mailed the stipulation. Attorney Ditter responded, but
did not provide the information requested by the referee.
Attorney Ditter stated that he had signed the stipulation over
the weekend, which the referee understood to mean the previous
weekend (May 30-31), and had then mailed it (presumably to the
OLR). The OLR's counsel, however, advised the referee that he
had not received the original in the mail from Attorney Ditter
as of June 4, 2020, when counsel sent a scanned version of the
stipulation to the referee. The scanned version indicated that
Attorney Ditter had signed the stipulation as of May 26, 2020,
which was actually the preceding Tuesday (not the previous
weekend). Ultimately, the OLR's counsel filed a printout of the
scanned version of the stipulation with the clerk of this court
on June 12, 2020. The cover letter accompanying that scanned
version indicated that the OLR had still not received the
original signed stipulation from Attorney Ditter so it was
filing a printout of the scanned version.
¶26 The referee did not make a specific finding that
Attorney Ditter had intentionally misrepresented to her when he
had signed and mailed the original stipulation to the OLR. She
includes the facts regarding Attorney Ditter's representation
and his conduct regarding the stipulation because she had
concerns about Attorney Ditter's veracity and his continued lack
of cooperation with the disciplinary process during the formal
disciplinary proceeding.
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No. 2020AP148-D
¶27 The stipulation provides that Attorney Ditter pleads
no contest to the four counts of professional misconduct alleged
in the OLR's complaint and that the referee may use the
allegations in the complaint as an adequate factual basis for a
determination of misconduct as to each count of the complaint.
Further, Attorney Ditter agrees with the OLR's director that the
appropriate level of discipline in this matter would be a 60-day
suspension of Attorney Ditter's license to practice law in
Wisconsin. The stipulation states that it is not the result of
plea bargaining. In addition, in the stipulation Attorney
Ditter verifies that he fully understands the misconduct
allegations which he is admitting; that he fully understands his
right to contest the allegations of the complaint; that he fully
understands the ramifications of his entry into the stipulation;
that he fully understands his right to consult counsel about
entering into the stipulation; and that his entry into the
stipulation is knowing and voluntary.
¶28 Based on these facts, the referee concluded that the
OLR had sufficiently proven that Attorney Ditter had engaged in
four counts of professional misconduct. First, by failing to
deliver funds he received from the SPD to the investigator to
pay for his services on behalf of Attorney Ditter's clients,
Attorney Ditter violated SCR 20:1.15(e)(1).2 Second, by
2 SCR 20:1.15(e)(1) provides:
Upon receiving funds or other property in which a
client has an interest, or in which the lawyer has
received notice that a 3rd party has an interest
identified by a lien, court order, judgment, or
10
No. 2020AP148-D
converting to his own purposes those funds that he was required
to hold in trust, Attorney Ditter violated SCR 20:8.4(c).3 Next,
by misrepresenting to the OLR's representative that he had sent
a partial payment to the investigator when he had not done so,
Attorney Ditter again violated SCR 20:8.4(c). Finally, by
willfully failing to cooperate with the OLR's investigation when
he failed to respond to the OLR's multiple written requests for
information, Attorney Ditter violated SCR 22.03(2)4 and
contract, the lawyer shall promptly notify the client
or 3rd party in writing. Except as stated in this
rule or otherwise permitted by law or by agreement
with the client, the lawyer shall promptly deliver to
the client or 3rd party any funds or other property
that the client or 3rd party is entitled to receive.
3 SCR 20:8.4(c) provides: "It is professional misconduct
for a lawyer to engage in conduct involving dishonesty, fraud,
deceit or misrepresentation."
4 SCR 22.03(2) provides:
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.
11
No. 2020AP148-D
SCR 22.03(6),5 which also constitutes a violation of
SCR 20:8.4(h).6
¶29 The referee invited the parties to submit memoranda to
her regarding the appropriate sanction in this matter. The OLR
filed such a memorandum, in which it asked the referee to
recommend a 60-day suspension. Attorney Ditter did not file a
sanction memorandum.
¶30 Concluding that the 60-day suspension requested by the
OLR was not sufficient, the referee ultimately recommended a
120-day suspension of Attorney Ditter's license to practice law
in Wisconsin. She pointed to a number of factors that supported
her recommendation. She found Attorney Ditter's misconduct,
which involved converting funds belonging to an investigator, as
well as failing to cooperate with and lying to the OLR, to be
serious and to involve more than a single instance of
misconduct. She emphasized that Attorney Ditter's conduct in
lying to the OLR and generally failing to cooperate with the
OLR's investigation and this disciplinary proceeding indicated
that he did not understand the seriousness of his misconduct or
5SCR 22.03(6) provides: "In the course of the
investigation, the respondent's willful 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."
6SCR 20:8.4(h) provides: "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)."
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No. 2020AP148-D
its impact on the judicial system and the public.7 Moreover,
Attorney Ditter's previous misconduct involved continuing to
engage in the practice of law for nearly 11 months after his
license had been administratively suspended and a failure to
cooperate with the ensuing disciplinary investigation, which
demonstrated a cavalier attitude toward his obligation to comply
with this court's rules of conduct. His conduct in this matter
demonstrated a similar attitude. As one of the prior
disciplinary proceedings involved the imposition of a 60-day
suspension, the referee indicated that the principle of
progressive discipline required a longer suspension in this
matter. The referee considered the disciplinary decisions cited
by the OLR, but concluded that they did not match the
circumstances and extent of Attorney Ditter's misconduct.
¶31 Because the SPD had paid the investigator the amounts
due and had then deducted those amounts from other funds due to
Attorney Ditter, the OLR did not request and the referee did not
recommend that the court order Attorney Ditter to pay any
restitution.
¶32 The referee recommended that Attorney Ditter be
required to pay the full costs of this disciplinary proceeding.
7 The referee noted that in her prior experience as a
circuit court judge, sentencing judges rely heavily on alternate
presentence investigation reports prepared by individuals hired
by defendants, as occurred here with the investigator. If such
individuals cannot trust that they will be paid for their work,
it may discourage them from preparing such reports, which would
harm not only the defendants but the sentencing judges, who will
have less information on which to base their sentences.
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No. 2020AP148-D
Although Attorney Ditter did ultimately enter into a
comprehensive stipulation, the referee emphasized that Attorney
Ditter's ongoing failure to cooperate with the OLR or to respond
in a timely manner in this disciplinary proceeding had required
the OLR to incur costs and had necessitated the appointment of a
referee.
¶33 As Attorney Ditter has not appealed the referee's
report or recommendation, our review of this matter proceeds
pursuant to SCR 22.17(2). When we review a referee's report, we
will affirm a referee's findings of fact unless they are found
to be clearly erroneous, but we review the referee's conclusions
of law on a de novo basis. In re Disciplinary Proceedings
Against Inglimo, 2007 WI 126, ¶5, 305 Wis. 2d 71,
740 N.W.2d 125. We determine the appropriate level of
discipline to impose 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.
¶34 In this case Attorney Ditter has stipulated to the
facts and acknowledges that those facts support conclusions of
law that he committed the four counts of professional misconduct
alleged in the OLR's complaint. There is no dispute about
Attorney Ditter's underlying misconduct. In addition, to the
extent that the referee's preliminary and final report contain
factual findings about events that occurred during the
disciplinary proceeding before the referee, Attorney Ditter also
has not contested those facts. We therefore adopt the referee's
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No. 2020AP148-D
factual findings, and we agree that he committed the four counts
of misconduct alleged by the OLR.
¶35 The issue that this court must decide in this matter
is the appropriate level of discipline to impose. We agree with
the referee that the 60-day suspension jointly requested by the
parties would be insufficient under all of the circumstances of
this case.8 The operative question is whether the suspension
here should be for 90 days or 120 days.
¶36 In its sanction memorandum to the referee, the OLR
cited four prior cases that it considered analogous to the
present case and that supported its request for a 60-day
suspension. We again agree with the referee that the most
analogous of those four cases is In re Disciplinary Proceedings
Against Alfredson, 2019 WI 17, 385 Wis. 2d 565, 923 N.W.2d 869(Alfredson II). In that case Attorney Alfredson failed to hold
in trust and then converted funds that she had received from her
client and that were to be held in trust and ultimately paid to
8 A stipulation by the OLR and a respondent attorney as to a
particular level of discipline is a joint request to this court
for the imposition of that sanction. The agreement of the
parties as to the sanction binds neither the referee nor this
court. The determination of the appropriate level of discipline
is a matter committed to this court, which is the entity
responsible under the Wisconsin Constitution for the regulation
of the practice of law. Wis. Const. art. VII, § 2 (judicial
power of this state is vested in uniform court system, of which
the supreme court is the head); Wis. Const. art. VII, § 3
(supreme court has superintending and administrative authority
over all courts in state); In re Disciplinary Proceedings
Against Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686(supreme court independently determines appropriate level of
discipline).
15
No. 2020AP148-D
her client's ex-spouse. She also failed to respond to multiple
requests for information from the OLR, responding only when the
OLR threatened to move for a temporary suspension of her
license. When Attorney Alfredson did finally respond to one OLR
request, her response was misleading because she failed to
include the fact there was an outstanding issue with her alleged
payment of the remaining trust funds. In a second client
matter, Attorney Alfredson failed to communicate with her client
and then failed for three months to provide her client's file to
successor counsel.
¶37 The referee, however, believed that Attorney Ditter's
misconduct merited a longer suspension than the 90-day
suspension imposed on Attorney Alfredson in Alfredson II. She
pointed to the fact that Attorney Ditter's case included a count
of lying to the OLR during its investigation about whether he
had sent a payment to the investigator, which was not present in
Alfredson II. Indeed, the factual findings indicated that
Attorney Ditter had also made a second misrepresentation to the
OLR when he said he had mailed a written response to the
investigator's grievance. Most importantly, the referee
believed that Attorney Ditter's ongoing lack of cooperation with
the OLR's investigation and the disciplinary proceeding merited
a longer suspension.
¶38 Although we agree that Attorney Ditter's lack of
cooperation with the investigation and disciplinary proceeding
is troubling, we do not think that the facts of Attorney
Alfredson's case are so different that Attorney Ditter should be
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No. 2020AP148-D
treated differently. Like Attorney Ditter, Attorney Alfredson
repeatedly failed to respond to the OLR's requests for
information during its investigation. She responded to the OLR
only when it threatened to seek a temporary suspension of her
license. When the OLR sought additional information, she again
did not respond until the OLR threatened once more to seek a
temporary suspension. Like Attorney Ditter, Attorney Alfredson
did not enter into a stipulation until after the disciplinary
proceeding had begun and a referee had been appointed. Attorney
Ditter did not file an answer to the OLR's complaint, leading
the OLR to file a motion for a default, but Attorney Ditter,
like Attorney Alfredson, did ultimately stipulate to the facts
and acknowledge his misconduct. The fact that Attorney
Alfredson filed an answer before entering into a stipulation is
not a significant difference in the level of cooperation.
¶39 It is also true that the OLR charged Attorney Ditter
with a count of making a false statement to it while there was
no such count alleged against Attorney Alfredson. Our decision
in the Alfredson II case, however, shows that she also was not
truthful to the OLR. When she finally did provide a response to
the grievance against her, she failed to disclose the fact that
successor counsel had not received the check she claimed to have
sent and that the client's money was still in her possession
(and not in her client trust account). In addition, although it
did not include a specific charge of making a false statement,
the OLR advised the referee that Attorney Alfredson had "engaged
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No. 2020AP148-D
in a pattern of neglect, dishonesty, and failure to cooperate."9
Alfredson II, 388 Wis. 2d 565, ¶25 (emphasis added).
¶40 We certainly do not condone Attorney Ditter's failure
to cooperate or his false statements to the OLR.10 His response
to the OLR's investigation and this disciplinary proceeding
should factor into the sanction determination. Nevertheless,
although each case must be decided based on its unique facts, we
endeavor to impose similar discipline in similar cases. We
conclude that it is appropriate here to impose a 90-day
suspension on Attorney Ditter for his professional misconduct,
as we did with respect to Attorney Alfredson. Imposing a 90-day
suspension in this case will still comport with our general
policy of imposing progressive discipline for subsequent
misconduct. See, e.g., In re Disciplinary Proceedings Against
Nora, 2020 WI 70, ¶91, 393 Wis. 2d 359, 945 N.W.2d 559; In re
Disciplinary Proceedings Against Netzer, 2014 WI 7, ¶49, 352
9We also note that both Attorney Ditter and Attorney
Alfredson previously received a 60-day suspension. Attorney
Ditter did also previously receive a consensual private
reprimand. However, both of Attorney Ditter's instances of
previous discipline were fairly remote in time, dating back to
the mid-1990s. Thus, he practiced for two decades without being
subject to professional discipline. Attorney Alfredson, on the
other hand, had received her 60-day suspension just two years
prior to receiving the 90-day suspension.
The referee expressed concern about Attorney Ditter's
10
truthfulness in telling the referee that he had mailed the
original stipulation to the OLR's counsel. The referee,
however, expressly did not make a factual finding that Attorney
Ditter had made a misrepresentation in this regard.
Consequently, we do not think that it would be appropriate to
base a longer suspension on that instance.
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No. 2020AP148-D
Wis. 2d 310, 841 N.W.2d 820; In re Disciplinary Proceedings
Against Nussberger, 2006 WI 111, ¶27, 296 Wis. 2d 47, 719
N.W.2d 501.
¶41 Although Attorney Ditter did ultimately enter into a
comprehensive stipulation, we agree that he should be required
to pay the full costs of this disciplinary hearing. His failure
to cooperate with the disciplinary process required the OLR to
file a complaint and a motion for a default, and it required the
court to appoint a referee. The costs of this proceeding are
therefore appropriately the responsibility of Attorney Ditter.
¶42 We do not impose a restitution obligation on Attorney
Ditter. The SPD already recouped the $2,400 that it was
required to pay directly to the investigator by deducting that
amount from the fees owed to Attorney Ditter in other cases.
¶43 IT IS ORDERED that, as discipline for his professional
misconduct, the license of Mark M. Ditter to practice law in
Wisconsin is suspended for a period of 90 days, effective as of
the date of this order.
¶44 IT IS FURTHER ORDERED that the May 14, 2019 temporary
suspension in Case No. 2019XX428-D of Mark M. Ditter's license
to practice law in Wisconsin, due to his willful failure to
cooperate with the grievance investigation in this matter by the
Office of Lawyer Regulation, is lifted.
¶45 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Mark M. Ditter shall pay to the Office of Lawyer
Regulation the costs of this proceeding, which are $3,896.68 as
of August 26, 2020.
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No. 2020AP148-D
¶46 IT IS FURTHER ORDERED that, to the extent he has not
done so, Mark M. Ditter 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.
¶47 IT IS FURTHER ORDERED that the administrative
suspension of Mark M. Ditter's license to practice law in
Wisconsin, due to his failure to pay mandatory bar dues, his
failure to file Office of Lawyer Regulation trust account
certification, and his noncompliance with continuing legal
education requirements, will remain in effect until each reason
for the administrative suspension has been rectified pursuant to
SCR 22.28(1).
¶48 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. 2020AP148-D
1