Office of Lawyer Regulation v. Steven D. Johnson , 2023 WI 73 ( 2023 )

2023 WI 73SUPREME COURT OF WISCONSIN
CASE NO.: 2022AP11-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against
Steven D. Johnson, Attorney at Law:
Office of Lawyer Regulation,
Complainant-Respondent,
v.
Steven D. Johnson,
Respondent-Appellant.
DISCIPLINARY PROCEEDINGS AGAINST JOHNSON
OPINION FILED: November 2, 2023
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
Per curiam.
ATTORNEYS:
2023 WI 73NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2022AP11-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Steven D. Johnson, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant-Respondent, NOV 2, 2023
v. Samuel A. Christensen
Clerk of Supreme Court
Steven D. Johnson,
Respondent-Appellant.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. This disciplinary matter comes to the
court on Attorney Steven D. Johnson's appeal of a report and
recommendation of Referee Sue E. Bischel. After holding an
evidentiary hearing, the referee concluded that the Office of
Lawyer Regulation (OLR) had proven the five misconduct charges
asserted in its complaint; namely, one count of engaging in
offensive personality, in violation of Supreme Court Rule (SCR)
No. 2022AP11-D
20:8.4(g)1 and SCR 40.15;2 one count of failing to adequately
supervise nonlawyer staff members, in violation of SCR 20:5.3(a)3
and (b);4 two counts of violating the duty of candor toward a
tribunal, in violation of SCR 20:3.3(a)(1);5 and one count of
failing to properly communicate with his client in violation of
SCR 20:1.4(b).6 As a sanction, the referee recommended that the
court suspend Attorney Johnson's Wisconsin law license for six
months and order him to pay the full costs of this disciplinary
1 SCR 20:8.4(g) provides: "It is professional misconduct
for a lawyer to violate the attorney's oath."
2 SCR 40.15 provides, in pertinent part: "I will abstain
from all offensive personality and advance no fact prejudicial
to the honor or reputation of a party or witness, unless
required by the justice of the cause with which I am charged."
3 SCR 20:5.3(a) provides: "With respect to a nonlawyer
employed or retained by or associated with a lawyer a partner,
and a lawyer who individually or together with other lawyers
possesses comparable managerial authority in a law firm shall
make reasonable efforts to ensure that the firm has in effect
measures giving reasonable assurance that the person's conduct
is compatible with the professional obligations of the lawyer."
4 SCR 20:5.3(b) provides: "With respect to a nonlawyer
employed or retained by or associated with a lawyer a lawyer
having direct supervisory authority over the nonlawyer shall
make reasonable efforts to ensure that the person's conduct is
compatible with the professional obligations of the lawyer."
5 SCR 20:3.3(a)(1) provides: "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."
6 SCR 20:1.4(b) provides: "A lawyer shall explain a matter
to the extent reasonably necessary to permit the client to make
informed decisions regarding the representation."
2
No. 2022AP11-D
matter, which, as of June 14, 2023, total $33,001.74.
Restitution is not at issue.
¶2 Attorney Johnson has appealed the referee's report and
recommendation. In his appellate briefing, Attorney Johnson
argues that the referee made certain incorrect factual findings;
that the OLR failed to meet its burden of proof; and that a six-
month suspension of his license to practice law is an excessive
sanction.7
¶3 After reviewing this matter and considering Attorney
Johnson's appeal, we accept the referee's factual findings, and
we agree with the referee that Attorney Johnson committed the
charged violations. We further agree with the referee that
Attorney Johnson's misconduct warrants a six-month license
suspension. We impose full costs.
¶4 Attorney Johnson was admitted to practice law in
Wisconsin in July 2005 and practices in Appleton, Wisconsin. He
has a disciplinary history. In August 2008, he received a
private reprimand for being convicted of one count of
misdemeanor battery as a domestic abuse incident. Private
Reprimand No. 2008-21.8 In May 2010, he received a public
7At oral argument, Attorney Johnson modified his argument
regarding the factual accuracy of the referee's report. While
registering general disagreement with the referee's findings, he
argued that even if all of the findings are accepted, they are
insufficient to justify the recommended six-month suspension.
8Electronic copy available at
https://compendium.wicourts.gov/app/54621f3d2a71043b345c4c516a74
3019494e1732.continue?action=detail&detailOffset=13.
3
No. 2022AP11-D
reprimand for being convicted of one count of felony child abuse
(recklessly causing harm), which related to an incident
occurring at Attorney Johnson's home involving his 12-year-old
son. Public Reprimand of Steven D. Johnson, No. 2010-4.9
¶5 Attorney Johnson has been a solo practitioner at
Johnson Law Firm SC in Appleton, Wisconsin during his entire
legal career. All of Attorney Johnson's employees are
nonlawyers. His areas of practice are criminal defense, family
law, personal injury, and bankruptcy. He takes public defender
appointments in certain types of cases.
¶6 The behavior in question took place from late 2018 to
late 2020. As mentioned above, Attorney Johnson's behavior gave
rise to five counts of misconduct.
 Count One
¶7 In Count One, the OLR alleged that Attorney Johnson
engaged in offensive personality toward his staff in violation
of the Attorney's Oath in SCR 40.15, which is enforced via SCR
20:8.4(g). Several members of Attorney Johnson's staff
testified at the evidentiary hearing regarding his office
conduct. Attorney Johnson also testified regarding his office
conduct. After hearing competing testimony on the issue, the
referee chose to believe the version of events to which several
of his staff members testified. Specifically, the referee found
that, starting in late 2018 and continuing to April 2020,
Electronic
9 copy available at
https://compendium.wicourts.gov/app/280d26380115475582510c652e62
7c1c456d1251.continue?action=detail&detailOffset=1.
4
No. 2022AP11-D
Attorney Johnson repeatedly used the words "bitches," "stupid
bitches," "whores," "idiots," "retard," and "retarded" when
addressing staff. The referee further found that Attorney
Johnson yelled at staff, sometimes for an extended period of
time, and occasionally hit the counter or wall when upset. The
referee further found that Attorney Johnson yelled at three of
his staff members, "I hope you and all your fucking children
die," causing one staff member to quit immediately because she
had a young child suffering from cancer. The referee further
found that on one occasion, Attorney Johnson uttered a racial
slur that was overheard by two employees. Finally, the referee
found that at least five of Attorney Johnson's staff members
left their employment primarily because of Attorney Johnson's
behavior.
¶8 Based on these findings, the referee concluded that
Attorney Johnson failed to refrain from all offensive
personality in his interactions with his employees from late
2018 through April 2020, and therefore violated the Attorney's
Oath in SCR 40.15, which is enforced via SCR 20:8.4(g).
 Count Two
¶9 Count Two concerns Attorney Johnson's alleged failure
to review documents prepared by his staff prior to those
documents being filed with the court, and alleged failure to
adequately supervise and train his staff, in violation of SCR
20:5.3(a) and (b). Several members of Attorney Johnson's staff
testified at the evidentiary hearing regarding his supervisory
and training efforts. Attorney Johnson also testified regarding
5
No. 2022AP11-D
his supervisory and training efforts. After hearing competing
testimony on the issue, the referee chose to believe the version
of events to which several of his staff members testified.
Specifically, the referee found that in criminal matters, which
constituted the majority of Attorney Johnson's work, one or more
of Attorney Johnson's nonlawyer staff performed the following
duties without Attorney Johnson's participation and with his
permission:
 met with clients and completed fee agreements;
 drafted various motions, affixed Attorney Johnson's
signature, and filed them with the court;
 reviewed discovery materials and discussed them with
clients;
 completed preliminary hearing waiver forms and plea
questionnaires with clients, including answering
clients' questions about the process, affixing
Attorney Johnson's signature, and filing them with the
court;
 negotiated plea agreements with prosecutors using
Attorney Johnson's email;
 watched discovery videos to identify improper police
procedures or possible defenses;
 prepared materials for trial (e.g. opening statements,
witness lists, witness questions, cross-examination
questions, and voir dire questions);
 automatically prepared and filed a substitution of
judge request for one particular judge;
6
No. 2022AP11-D
 drafted, electronically signed, and filed motions for
continuance because Attorney Johnson had a conflict or
the court date was not convenient for him; and
 drafted, electronically signed, and filed motions for
modification of bond.
The referee noted that it was very uncommon for Attorney Johnson
to review the documents his staff prepared in criminal cases
before they affixed his signature and e-filed them.
¶10 Regarding Attorney Johnson's personal injury caseload,
the referee found that he instructed nonlawyer staff to draft
demand letters——which he did not review——and negotiate with
insurance companies.
¶11 Describing Attorney Johnson's work habits more
generally, the referee found that he knew his staff was engaging
in all the above-referenced activities and did not tell them to
stop. He rarely drafted documents himself. He was in the
office a few times a week in 2018-2019——approximately 15% of his
work week. He was reluctant to accept phone calls from clients,
told his staff to bring their questions to him, and instructed
staff what to say to the client.
¶12 Based on these findings, the referee concluded that
Attorney Johnson's conduct violated the rules requiring his
supervision of nonlawyer assistants, SCR 20:5.3 (a) and (b).
 Count Three
¶13 Count Three concerns Attorney Johnson's lack of candor
toward a small claims court commissioner. The referee found the
following facts with regard to this count. In two small claims
7
No. 2022AP11-D
cases, Attorney Johnson had sought and received reimbursement
from his insurance company for the damages he was seeking in
small claims court. Both small claims actions were against
Attorney Johnson's former employee, F.W., and her husband; both
actions concerned money spent on an expert in a case brought by
Attorney Johnson on F.W.'s husband's behalf. F.W. had written a
$1,500 check on the law firm account to pay the expert. F.W.
claimed that Attorney Johnson had authorized her to write the
check; he claimed otherwise. F.W. agreed to reimburse Attorney
Johnson for that amount but paid only $200. Attorney Johnson
filed a small claims action against F.W. and her husband in
November 2019, shortly after F.W. quit working for him. Soon
thereafter, Attorney Johnson retained a lawyer to represent him
in this small claims matter. Attorney Johnson obtained a
default judgment against F.W. and her husband for $1,300 plus
costs.
¶14 Attorney Johnson subsequently received an invoice from
the expert for an additional $2,877.90. In February 2020,
Attorney Johnson, through Attorney C.F., filed a second small
claims action against F.W. and her husband for the additional
amount invoiced.
¶15 On May 11, 2020, Attorney Johnson filed a claim with
his insurance company, claiming that F.W. had stolen from him
all the money for the expert. On May 20, 2020, Attorney
Johnson's insurer issued a check to him for the entire amount
less his deductible. Attorney Johnson did not pay the expert's
second invoice until August 4, 2020.
8
No. 2022AP11-D
¶16 On October 6, 2020, Attorney Johnson's second small
claims action went to trial. During direct examination,
Attorney Johnson never disclosed that he had been reimbursed by
his insurer. F.W. then testified that she thought Attorney
Johnson had been reimbursed by his insurer. The court
commissioner asked Attorney Johnson if that was true, and he
ultimately confirmed it was. The court commissioner asked
Attorney Johnson's lawyer, Attorney C.F., if he was aware of the
insurance payment, and he stated he had become aware of the
payment only within the previous five minutes. The court
commissioner dismissed the case. Later, with Attorney Johnson's
consent, the court commissioner dismissed the default judgment
against F.W. and her husband that had been entered in Attorney
Johnson's first small claims case.
¶17 At the disciplinary hearing, Attorney Johnson
testified that he had told Attorney C.F. about the insurance
payment many times before the small claims trial, and that he
had mentioned the insurance payment in a text to Attorney C.F. a
few days before trial. Attorney C.F. testified that he could
not specifically recall a conversation with Attorney Johnson
about the insurance reimbursement prior to the text, and that he
did not read Attorney Johnson's entire text before the small
claims trial. The referee deemed Attorney C.F.'s testimony more
credible than that of Attorney Johnson, and determined that
Attorney Johnson knowingly omitted material facts in his
testimony at the small claims trial in violation of SCR 20:3.3
(a)(1).
9
No. 2022AP11-D
 Counts Four and Five
¶18 Counts Four and Five both concern Attorney Johnson's
representation of D.P. The referee found the following facts
regarding these counts. Attorney Johnson represented D.P. in a
felony matter in circuit court. One of Attorney Johnson's
nonlawyer staff reviewed a waiver of preliminary examination
form with D.P. D.P. signed the waiver form on October 9, 2020.
Attorney Johnson's electronic signature was affixed to the
waiver form, which attested that Attorney Johnson had personally
explained and discussed the form with D.P., answered D.P.'s
questions, and observed D.P. sign the form. In fact, Attorney
Johnson did not do any of those things before D.P. signed the
waiver form on October 9, 2020, or before the form was filed
later that day, or before the October 12, 2020 waiver hearing
before a court commissioner.
¶19 In Count Four, the OLR alleged, and the referee agreed
in a summary judgment order, that by failing to discuss the
defendant's waiver of preliminary examination form with D.P.
prior to having D.P. sign the document, Attorney Johnson failed
to explain matters to his client in violation of SCR 20:1.4(b).
¶20 In Count Five, the OLR alleged, and the referee
determined in her report, that by filing with the court a waiver
of preliminary examination form on which he falsely attested
that he had personally explained and discussed the waiver with
D.P. and answered his questions, Attorney Johnson made a false
statement to the court in violation of SCR 20:3.3(a)(1).
10
No. 2022AP11-D
¶21 The referee next addressed the issue of sanctions.
The referee considered all of Attorney Johnson's violations to
be very serious. Regarding Count One, the referee noted that
Attorney Johnson's offensive behavior and language was
persistent and directed to his entire staff; that his comment
about wishing his staff's children would die was "simply
unconscionable"; and that the only relief staff could find was
to quit. As to Count Two, the referee wrote that she was
"particularly struck with the seriousness and extent" of
Attorney Johnson's failure to adequately supervise his nonlawyer
staff. His violation of this rule was "egregious," the referee
wrote, for "[i]n many respects, [Attorney Johnson] was demanding
or encouraging all of his nonlawyer staff to essentially engage
in the practice of law. The potential consequences of that are
particularly alarming in criminal cases." Regarding Counts
Three and Five, the referee noted that Attorney Johnson's lack
of candor toward the tribunal was particularly concerning given
that he made false statements to a tribunal as both an attorney
and a witness. Regarding Count Four, the referee characterized
Attorney Johnson's failure to explain the waiver of preliminary
hearing form to his client as a very serious matter,
notwithstanding Attorney Johnson's claim that his client was not
harmed and was happy with his representation.
¶22 The referee noted there are a number of aggravating
factors that affect the level of recommended discipline.
Attorney Johnson's disciplinary history arose out of two
previous criminal matters——one concerning a domestic abuse
11
No. 2022AP11-D
incident, and another involving child abuse. His misbehavior
here included a selfish motive, in that he tried to collect
money in his small claims cases despite the fact he had been
reimbursed already by his insurer. His various forms of
misbehavior went on for some time, stretching over a two-year
period. His expressions of remorse were questionable. And he
was untruthful during his sworn disciplinary hearing testimony.
¶23 The referee found few mitigating factors in play.
Attorney Johnson was cooperative during the disciplinary
process, though this factor was diminished by what the referee
deemed to be his "false" testimony during the disciplinary
hearing. His prior reprimands, from 2008 and 2010, are remote
in time. Although Attorney Johnson claimed that stress caused
by certain personal events——particularly his ex-wife's illness
and death in 2019——should be viewed as a mitigating factor,
especially with regard to the offensive personality count, the
referee was unconvinced, finding that the primary cause of his
misbehavior in this regard was frustration over staff error and
matters not going as planned in court. The referee noted that
Attorney Johnson's claim that stress caused his poor behavior
toward staff might be more persuasive if he had admitted to even
some of the allegations of poor behavior——which he didn't,
choosing instead to deny them all outright.
¶24 Ultimately, the referee determined that Attorney
Johnson's conduct merited a six-month suspension, as the OLR had
requested.
12
No. 2022AP11-D
¶25 Attorney Johnson 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.
¶26 As to Count One (offensive personality), Attorney
Johnson claims that the referee seemed to place the burden of
proof on him, requiring him to disprove the testimony of
individuals who had mischaracterized his conduct due to their
own agendas and hostility toward him. He admits he used swear
words in the office and uttered a racial slur when greeting a
friend, but he insists that his poor language choices,
considered contextually and in light of the stress he was under,
should not constitute offensive personality. He specifically
denies using the more vulgar language that employees attributed
to him. As to his former employees' claim that he stated he
wished their children would die, he insists their testimony on
this point was inconsistent and should not be believed over his
testimony denying making that comment.
¶27 As to Count Two (failure to supervise nonlawyer
staff), Attorney Johnson claims he did not violate SCR 20:5.3(a)
and (b) because these provisions do not require him to
personally perform training, nor do they prohibit him from
13
No. 2022AP11-D
delegating these functions. The rule only requires that an
attorney ensure his or her employees are properly trained.
Attorney Johnson insists he made sure his staff was properly
trained——by him, by more experienced employees, and by use of a
detailed employee handbook. He claims that he "had many
different active forms of communication and document review"
that he and his staff used daily, and the fact that the system
wasn't perfect doesn't render the system nonexistent. After
all, Attorney Johnson says, SCR 20:5.3(a) and (b) requires
"reasonable efforts," not perfection.
¶28 As for Count Three (lack of candor toward the
tribunal), Attorney Johnson takes issue with the referee's
factual findings. He insists that in advance of the small
claims trial, he told his lawyer, Attorney C.F., about the
reimbursement he had received from his insurer, and he left it
up to Attorney C.F. to decide what to do with this information.
The referee's determination that Attorney C.F. was not aware of
the insurance reimbursement until Attorney Johnson admitted to
the reimbursement during the disciplinary hearing is incorrect.
And in any event, Attorney Johnson argues, to the extent he
knowingly omitted a material fact from his representations to
the court, any such error was fleeting: he truthfully testified
at the small claims trial, after he was asked, that he had
received an insurance reimbursement.
¶29 As to Count Four, concerning his failure to discuss
with D.P. the waiver of preliminary examination form in
violation of SCR 20:1.4(b), Attorney Johnson insists that he did
14
No. 2022AP11-D
not violate the rule because D.P. did not testify in this
disciplinary matter. Thus, it is unknown what D.P. understood,
or didn't understand, at the time of the hearing in question, or
whether he truly had enough information to make an informed
decision regarding the preliminary examination waiver. And
there is no evidence that D.P. was harmed or otherwise unhappy
with Attorney Johnson's representation.
¶30 Finally, as to Count Five, Attorney Johnson claims
that the OLR did not prove by clear, satisfactory, and
convincing evidence that he knowingly made a false statement on
D.P.'s waiver of preliminary hearing form. Attorney Johnson
insists that his paralegal completed the form, and because he
did not review it, he was not aware of the incorrect statement
it contained. This was sloppy work, he concedes, but not
unethical work. Thus, the report's conclusion as to this count
should be rejected.
¶31 As to the appropriate length of suspension——the topic
to which Attorney Johnson devoted most of his oral argument
time——he submits that a suspension short of six months is
merited. He suggests a 90-day suspension would be most
appropriate. In recommending a longer suspension, Attorney
Johnson insists the referee gave insufficient weight to the
difficulties that he was experiencing in his personal life at
the relevant time, including his ex-wife's sickness and death,
the impact these events had on their child, and the stress of
the COVID-19 pandemic. He says that lesser discipline has been
imposed for what he deems to be far more egregious behavior.
15
No. 2022AP11-D
See, e.g., In re Disciplinary Proceedings Against Kratz, 2014 WI
31, 353 Wis. 2d 696, 851 N.W.2d 219 (four-month suspension for
sending unsolicited, sexually suggestive text messages to a
domestic abuse crime victim, as well as for making sexually
suggestive statements to two social workers before or during
court proceedings); In re Disciplinary Proceedings Against
Blask, 216 Wis. 2d 129, 573 N.W.2d 835 (1998) (public reprimand
following two physical altercations and the provision of false
information to the police regarding one of the altercations).
Finally, Attorney Johnson notes that, given the time involved in
the reinstatement process, a six-month suspension would
effectively stretch into a much longer period, which is "a
professional death sentence" for a solo practitioner like
himself.
¶32 The OLR disputes Attorney Johnson's claims. The OLR
notes, regarding Count One, that all conflicts in the testimony
as to the facts necessary to determine whether Attorney Johnson
engaged in offensive personality have been resolved by the
referee and are supported by the evidence. The referee is the
ultimate arbiter of credibility, and the referee determined that
the testimony of several of Attorney Johnson's former staff
members was more credible than Attorney Johnson's testimony.
This credibility determination should not be disturbed.
Attorney Johnson's proven, chronic, ill-tempered conduct toward
his staff plainly violates the offensive personality rule.
¶33 As to Count Two, the OLR submits that the facts, as
found by the referee, speak for themselves. The referee found
16
No. 2022AP11-D
that Attorney Johnson did very minimal training of his nonlawyer
staff regardless of their education and experience. The referee
further found that Attorney Johnson permitted his staff to
perform a number of legal duties that he should have been
performing himself——again, with nearly nonexistent supervision
by him. Finally, the OLR notes, the referee did not merely
conclude that Attorney Johnson's conduct violated SCR 20:5.3 (a)
and (b); she concluded that Attorney Johnson's violations of the
rule were "rampant." There is no reason to question the
referee's determinations regarding this count.
¶34 As to Count Three, the OLR again submits that the
facts speak for themselves. Attorney Johnson's primary argument
is that Attorney C.F. was well aware of the insurance payment
prior to the small claims trial and was responsible for what to
do with that information. The referee found otherwise,
believing Attorney C.F.'s testimony that he did not fully read
Attorney Johnson's text that mentioned the insurance
reimbursement, and that he first became aware of the insurance
reimbursement during the small claims trial. The referee
disbelieved Attorney Johnson's testimony that he told Attorney
C.F. many times about the insurance reimbursement. As the
ultimate arbiter of credibility, the referee's determinations
should not be disturbed.
¶35 Regarding Count Four, the OLR once again submits that
the facts speak for themselves. The plain language of SCR
20:1.4(b) states that a lawyer "shall explain a matter" to the
client, and the referee specifically found that there was no
17
No. 2022AP11-D
evidence that Attorney Johnson explained anything at all to D.P.
about the waiver of preliminary examination form prior to having
D.P. sign the form. Attorney Johnson's failure to produce any
evidence that he explained anything to D.P. makes it clear that
the OLR was entitled to summary judgment on this count.
¶36 Regarding Count Five, the OLR again relies on the
facts found by the referee. The referee found that one of
Attorney Johnson's nonlawyer employees reviewed a waiver of
preliminary examination form with D.P., who then signed the
form. The referee further found that Attorney Johnson's
nonlawyer employee electronically signed Attorney Johnson's name
on the waiver form and e-filed it, just as staff had done on a
regular basis with other documents. The waiver form falsely
stated that Attorney Johnson had personally explained and
discussed the form with D.P. and had personally observed D.P.
sign the form. And, the referee found, Attorney Johnson knew
about all of these things. In light of these non-clearly-
erroneous factual findings, the OLR says, Attorney Johnson's
denials about his intent and knowledge merit little or no
weight.
¶37 Regarding the referee's recommended six-month
suspension, the OLR says that this suspension length is
supported by the evidence and is commensurate with the degree,
extent, and nature of Attorney Johnson's misconduct.
¶38 As we view it, the OLR has the better of the two sets
of arguments. Most of Attorney Johnson's arguments rely on
challenges to the referee's factual determinations. These are
18
No. 2022AP11-D
long-shot arguments, as this court defers to the referee's
determination of historical facts and assessments of witness
credibility. See In re Disciplinary Proc. Against Boyle, 2013
WI 103, ¶ 40, 351 Wis. 2d 713, 840 N.W.2d 694; In re
Disciplinary Proceedings Against Polich, 2005 WI 36, ¶ 25, 279
Wis. 2d 266, 694 N.W.2d 367. The referee heard two days of
testimony, saw the witnesses, gauged their credibility, and
wrote a lengthy report discussing her findings in detail.
Attorney Johnson offers nothing that would cause this court to
second-guess the referee's well-explained factual findings or
the legal conclusions that follow from them.
¶39 As for Attorney Johnson's argument that the
recommended six-month suspension is excessive, we disagree.
Attorney Johnson's first category of misconduct——his pervasive
verbal abuse of his staff members, compelling many of them to
quit——alone justifies a not-inconsequential suspension. In
Kratz, this court imposed a four-month suspension on a
prosecutor——who, unlike Attorney Johnson, had no previous
disciplinary history——for sending inappropriate text messages to
a domestic abuse crime victim, and for making inappropriate
verbal statements to two social workers before or during court
proceedings. A four-month suspension might be a reasonable
suspension length for Attorney Johnson's long course of highly
inappropriate verbal behavior toward his staff members if this
were the only category of his misconduct.
¶40 But there are several additional categories of
misconduct to consider. First, the court must consider Attorney
19
No. 2022AP11-D
Johnson's "rampant," "egregious," and "appalling" (in the
referee's words) violation of his duty to supervise nonlawyer
staff, in which he demanded or encouraged his nonlawyer staff to
essentially engage in the practice of law without any
supervision by him. Second, the court must consider Attorney
Johnson's lack of candor with tribunals——both as a lawyer and a
litigant. And third, the court must consider Attorney Johnson's
failure to explain anything at all to his client about the
waiver of his right of preliminary examination.10 To these
categories of misconduct, the court must also add to its
consideration the various aggravating factors presented here;
i.e., Attorney Johnson's disciplinary history, the referee's
determination that he was untruthful during portions of his
disciplinary hearing testimony, his questionable ability to
acknowledge the wrongful nature of his conduct, the selfish
nature of certain of his acts, and the length of time his
misconduct spanned.
¶41 Considering all of these factors, the recommended six-
month suspension is merited. Although we are not unsympathetic
to the personal difficulties Attorney Johnson has faced in
recent years, these circumstances cannot serve as carte blanche
for him to disregard his professional obligations in the manner
proven here. His misconduct is blatant; his two prior
reprimands clearly failed to have their intended effect. We
Given this constellation of misconduct, it is not
10
surprising there is no precedent that is precisely on all fours
with this case.
20
No. 2022AP11-D
agree with the referee that a more severe sanction is warranted
this time around. And the fact that a six-month suspension will
require him to go through a formal reinstatement proceeding is a
plus, not a minus. See SCR 22.28(3). For the benefit of the
public and the bar, it is important that Attorney Johnson be
fully vetted before being allowed to practice law again.
¶42 We turn now to the issue of costs. They are
considerable ($33,001.74 as of June 14, 2023), but Attorney
Johnson does not dispute them, and we see no reason on this
record to shift them away from Attorney Johnson and towards
other members of the bar. We impose them in full. See SCR
22.24(1m).
¶43 Finally, we note that the OLR does not seek
restitution. None is ordered.
¶44 IT IS ORDERED that the license of Steven D. Johnson is
suspended for a period of six months, beginning December 7,
2023.
¶45 IT IS FURTHER ORDERED that, within 60 days of the date
of this order, Steven D. Johnson must pay to the Office of
Lawyer Regulation the amount of this proceeding totaling
$33,001.74.
¶46 IT IS FURTHER ORDERED that Steven D. Johnson shall
comply with the requirements of SCR 22.26 pertaining to the
duties of a person whose license to practice law in Wisconsin
has been suspended.
21
No. 2022AP11-D
¶47 IT IS FURTHER ORDERED that compliance with all
conditions with this order is required for reinstatement. See
SCR 22.29(4)(c).
22
No. 2022AP11-D
1