Office of Lawyer Regulation v. Gary King , 2023 WI 77 ( 2023 )

2023 WI 77SUPREME COURT OF WISCONSIN
CASE NO.: 2022AP745-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Gary King, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Gary King,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST KING
OPINION FILED: December 15, 2023
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
Per curiam.
ATTORNEYS:
2023 WI 77NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2022AP745-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Gary King, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant,
DEC 15, 2023
v.
Samuel A. Christensen
Clerk of Supreme Court
Gary King,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. We review the report of referee David A.
Piehler recommending that this court suspend Attorney Gary
King's license to practice law in Wisconsin for one year and
require him to pay the full costs of this disciplinary
proceeding, which are $5,927.83 as of September 20, 2023.
Because no appeal has been filed, we review the referee's report
and recommendation pursuant to Supreme Court Rule (SCR)
No. 2022AP745-D
22.17(2).1 Upon careful review of the matter, we agree with the
referee's recommendations in all respects.
¶2 Attorney King was admitted to practice law in
Wisconsin in 1998. He has no prior disciplinary history. The
most recent address he furnished to the State Bar of Wisconsin
is in Eau Claire, Wisconsin.
¶3 In 2012, Attorney King ran for and was elected Eau
Claire County District Attorney. He was re-elected in 2016 and
2020.
¶4 On May 5, 2022, the Office of Lawyer Regulation (OLR)
filed a complaint against Attorney King alleging two counts of
misconduct, both arising out of his conduct as the Eau Claire
County District Attorney.
¶5 Attorney King filed an answer to the complaint on May
31, 2022. Referee Piehler was appointed on July 14, 2022. On
June 27, 2023, the parties entered into a stipulation whereby
Attorney King withdrew his answer, entered a plea of no contest
to the two counts of misconduct alleged in the complaint, and
agreed that the referee could use the allegations of the
complaint as an adequate factual basis in the record for a
determination of violations of supreme court rules as to both
counts of misconduct alleged in the complaint. The parties
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. 2022AP745-D
agreed that the appropriate level of discipline for Attorney
King's misconduct was a nine-month suspension of his license to
practice law. The parties filed a supplemental stipulation on
July 28, 2023 in which Attorney King identified some potentially
mitigating factors relating to the appropriate level of
discipline. Specifically, Attorney King stated that he
attributes his misconduct to personal or emotional problems he
was experiencing at the time, and he described the two-year
period detailed in the complaint as a particularly difficult
time in his life, which included the deaths of family and
friends and the isolation of the COVID quarantine. Attorney
King stated that he has sought comprehensive treatment to deal
with those personal or emotional problems. He also noted that
he expressed remorse in his letter resigning as Eau Claire
County District Attorney, saying "To the extent that any conduct
fell short of the level expected of me, I sincerely apologize."
¶6 The referee issued his report and recommendation on
September 1, 2023. The referee found that Attorney King
committed the misconduct alleged in OLR's complaint. Rather
than the nine-month suspension advocated by the parties, the
referee concluded that a one-year suspension of Attorney King's
law license was an appropriate sanction for his misconduct.
¶7 The allegations in OLR's complaint, which Attorney
King admitted by virtue of his entry into the stipulation,
detail problems concerning his behavior at work that began in
2018. E.H., the Office Manager for the Eau Claire County
District Attorney's Office, reported to OLR that Attorney King
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No. 2022AP745-D
regularly appeared at the office in an "altered state." E.H.
said he saw Attorney King slumped and sleeping in the office
chairs of various attorneys and office staff, including during a
discussion in E.H.'s office in which Attorney King fell asleep
and remained sleeping for 10 to 15 minutes.
¶8 An Assistant District Attorney (ADA) reported that
Attorney King would frequently come into attorneys' offices and
interrupt their work, sometimes falling asleep in the attorney's
office. A former ADA wrote a letter to Wisconsin Governor Tony
Evers saying that she had witnessed Attorney King sleeping and
snoring in meetings and court proceedings. In a
contemporaneously written memo dated December 20, 2019, the
former ADA wrote that Attorney King's "speech was slurred, his
breathing labored, face red and he had a faint odor about him
that I could not determine if it was hand sanitizer or an
intoxicant." The memo went on to say that a few minutes later
the former ADA heard loud snoring and observed Attorney King
sleeping and asked two other people in the office to wake him.
¶9 T.G., the Eau Claire County Criminal Justice Director,
told OLR about a meeting on October 21, 2019 with
representatives of the Chicago Police Department in which
Attorney King fell asleep for most of the meeting. Current and
former District Attorney's Office employees told OLR that,
around this time, Attorney King's temperament changed, with his
temper becoming explosive and his behavior erratic and abusive.
These individuals told OLR of instances in which Attorney King
4
No. 2022AP745-D
yelled, swore, and shouted at his staff, leaving them feeling
intimidated and afraid they would be fired.
¶10 On January 11, 2021, Attorney King missed a status
conference. E.H. was contacted by a court staff member saying
the court was waiting for Attorney King to appear. E.H.
discovered Attorney King "slumped in his office chair at his
computer, snoring and obviously asleep." E.H. was unable to
awaken Attorney King, so he found an ADA to cover for Attorney
King's failure to appear for the proceeding.
¶11 On February 16, 2021, Attorney King appeared in court.
According to Deputy M.S., Attorney King could barely walk down
the hall and had to brace against the wall to get to court. In
her report to the Eau Claire County Sheriff, Deputy M.S.
reported that Attorney King was not wearing a mask, which was
unusual given that he had imposed strict mask policies for his
staff. J.B., the Coordinator of the Office of Victim Services,
was monitoring the hearing on Zoom and told OLR that Attorney
King could not even say the word "Wisconsin" as he was
"completely intoxicated."
¶12 Attorney King went to J.B.'s office after the hearing.
J.P. told OLR that Attorney King "was slouched in his chair,"
with only "one eye open and his speech was heavily slurred."
Attorney King stood up from his chair and was "unstable and ran
into [J.B.'s] open door."
¶13 Sheriff Ron Cramer was advised about Attorney King's
condition. Sheriff Cramer met with Attorney King and confronted
him about his behavior and his appearing in court under the
5
No. 2022AP745-D
influence of an intoxicant. Attorney King started to cry, rant,
yell and scream, at which point J.B. and other office employees
were evacuated to a safe location and sent home for the
remainder of the day. Sheriff Cramer asked Attorney King to
submit to a Preliminary Breath Test (PBT). Attorney King
refused.
¶14 On June 1, 2021, Attorney King came to work appearing
to be under the influence of an intoxicant. In a grievance
filed with OLR, Judge Michael Schumacher said he observed
Attorney King "nod off, jerk his head, and lose his balance for
the next forty minutes." Judge Schumacher reported that
Attorney King "appeared to be either suffering a serious medical
incident or was severely intoxicated." Two Sheriff's Department
personnel went to Attorney King's office on June 1, 2021 to
perform a welfare check. They also asked Attorney King to
submit to a PBT. He refused.
¶15 Judge Sarah Harless, apprised by Judge Schumacher that
Attorney King appeared to be either ill or intoxicated, met with
Attorney King prior to a sentencing hearing. Judge Harless
asked Attorney King to submit to a PBT. An officer performed
the PBT and obtained a "weak breath sample." The test showed a
reading of .047. Judge Harless adjourned the sentencing hearing
and filed a grievance with OLR. In the grievance, Judge Harless
reported that "[Attorney] King's eyes were red and bloodshot and
I also observed a faint odor of intoxicants."
¶16 OLR's complaint alleged the following count of
misconduct with respect to Attorney King's behavior at work:
6
No. 2022AP745-D
 Count One: By sleeping through a January 2021 court
hearing, appearing in a February 2021 court hearing
while under the influence of intoxicants or otherwise
impaired, and appearing in a June 2021 court hearing
while under the influence of intoxicants or otherwise
impaired, Attorney King violated SCR 20:1.1.2
¶17 The complaint also detailed incidents of sexual
harassment by Attorney King directed toward J.B. The Office of
Victim Services is a special unit within the Eau Claire County
District Attorney's Office that is designed to provide
information, support, and advocacy to all crime victims,
witnesses, and family members of adult and juvenile offenders.
J.B. is the Coordinator of the Office of Victim Services and
supervises the department, which includes five employees. J.B.
was also part of Attorney King's management team. She reported
directly to the Office Manager, E.H., as well as Attorney King.
¶18 From the time J.B. began employment at the District
Attorney's Office in 2013 until July 2019, J.B.'s interactions
with Attorney King, although limited, were cordial and
professional.
¶19 In July 2019, J.B. and her husband attended the
wedding of an office employee. J.B. told OLR that Attorney King
also attended the wedding and that he was intoxicated. Attorney
SCR 20:1.1 provides:
2 "A lawyer shall provide competent
representation to a client. Competent representation requires
the legal knowledge, skill, thoroughness and preparation
reasonably necessary for the representation."
7
No. 2022AP745-D
King made a number of statements to J.B.'s husband complimenting
J.B. J.B. found the comments odd since she did not often
interact with Attorney King.
¶20 After the July 2019 wedding, Attorney King began
paying extra attention to J.B. He would frequent her office,
whereas in the past he would communicate with her and other
staff members mostly through email. He would comment on J.B.'s
hair and clothes and express opinions on how her hair was styled
or how she dressed. On one occasion, Attorney King told J.B.
she could not wear a particular dress because it was "too
distracting." J.B. said Attorney King then "looked me up and
down." J.B. was confused by the interaction and asked a
colleague if the comment was sexual or simply "joking." Neither
J.B. nor her colleague believed J.B.'s dress was inappropriate
for work or revealing. Attorney King's comments about J.B.'s
appearance continued, and at some point before the end of 2019,
J.B. told her supervisor and the Deputy District Attorney that
the comments were making her uncomfortable.
¶21 As time passed, Attorney King's comments to J.B.
became more sexual. In March 2020, Attorney King took J.B. to
breakfast and talked "dirty" with her. He joked that they
should stop by a local hotel, take a picture outside the hotel
or inside a room and send it to E.H. J.B. consulted with E.H.
since she felt the conduct was inappropriate and more than just
"joking."
¶22 In other incidents during 2020, Attorney King told
J.B. repeatedly that she was appearing in his dreams and that
8
No. 2022AP745-D
she "needed to stay out of his dreams." On another occasion,
Attorney King hugged J.B. twice, then pulled out her ponytail
and began playing with her hair. Attorney King mentioned to
J.B. the possibility of having a "threesome" with someone who
lived near the District Attorney's Office.
¶23 In another incident, Attorney King suggested to a
female administrative specialist that they "make out" in her
office, a comment that stunned her. This comment echoed a
similar comment Attorney King had made to J.B. after another
wedding event that J.B. did not attend. Attorney King said J.B.
"was supposed to be there because he and [J.B.] were going to
sit in the corner and make out so everybody could start talking
about us."
¶24 On another occasion, Attorney King approached J.B. in
her office, took off her shoes, and began rubbing her feet. By
this time, office employees had initiated an informal safety
plan because Attorney King was regularly coming into J.B.'s
office and closing the door. The plan involved employees coming
to J.B.'s office and interrupting Attorney King's interactions
with her.
¶25 In January 2021, Attorney King appeared in J.B.'s
office and started to cry. He pulled J.B. from behind and made
her sit in his lap, prevented her from leaving, and patted her.
When J.B. got up and returned to her desk, Attorney King told
her that he loved her. He then approached her while she was
sitting in her chair, hugged her from behind, took off her mask,
9
No. 2022AP745-D
and tried to kiss her on the lips. J.B. immediately told E.H.
about the interaction.
¶26 Attorney King's attentions to J.B. continued in
February 2021. He asked J.B. about her sex life with her
husband and said "if you came to me in a vulnerable state, I
could not say no to you." Attorney King told J.B. that he "used
to think she was the kind of girl he could take to the Super 8
but now knows he has to take her somewhere fancier like the
Lismore." He told her he wanted "to be with you in your
lifestyle." He suggested that he send an email to staff
suggesting that the two of them, both married, were "together."
¶27 On another occasion, Attorney King commented on
another female employee's shirt and touched her and the shirt in
a lingering, inappropriate manner. Attorney King told the woman
that she looked "really saucy" and ran his eyes up and down her
body.
¶28 On February 10, 2021, J.B. contacted human resources
to report that Attorney King was sexually harassing her. Eau
Claire County commenced an investigation into J.B.'s complaint.
After interviewing multiple witnesses, Attorney Mindy Dale wrote
a report to the Eau Claire County Human Resources Director
concluding that Attorney King "did make inappropriate comments
to women, most notably [J.B.], which made them uncomfortable.
Further, he should not have kissed [J.B.] on the cheek or pulled
her on to [his] lap, regardless of the emotions he was feeling
at the time." Attorney Dale recommended that a copy of her
10
No. 2022AP745-D
letter and related reports be forwarded to the Department of
Administration for "further consideration and disposition."
¶29 Attorney King resigned as Eau Claire County District
Attorney in August 2021.
¶30 OLR's complaint alleged the following count of
misconduct with respect to Attorney King's sexual harassment of
female employees at work:
 Count Two: By making multiple inappropriate sexual
comments to female employees in his office, and
engaging in unwanted sexual contact with J.B.,
Attorney King violated SCRs 20:8.4(g),3 20:8.4(i),4 and
40.15.5
¶31 The referee found the factual statements contained in
the complaint, the comprehensive stipulation, and the
supplemental stipulation to be true. The referee also found,
based on the facts in the record, that Attorney King violated
the Supreme Court Rules as alleged in the complaint. The
referee noted that in determining the appropriate sanction for
3SCR 20:8.4(g) provides: "It is professional misconduct
for a lawyer to violate the attorney's oath."
4SCR 20:8.4(i) provides: "It is professional misconduct
for a lawyer to harass a person on the basis of sex, race, age,
creed, religion, color, national origin, disability, sexual
preference or marital status in connection with the lawyer's
professional activities. Legitimate advocacy respecting the
foregoing factors does not violate par. (i)."
5SCR 40.15 states, 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."
11
No. 2022AP745-D
Attorney King's misconduct he must consider the seriousness,
nature and extent of the misconduct; the level of discipline
needed to protect the public; the need to impress on the
attorney the seriousness of the misconduct; and the need to
deter other attorneys from similar misconduct. In concluding
that a one-year suspension, rather than the nine months proposed
by the parties, was the appropriate level of discipline for
Attorney King's transgressions, the referee said:
The aggravating factors of selfish motive, pattern of
misconduct, substantial experience in the law, and
vulnerable victim carry far more weight . . . than the
mitigating factors of absence of prior discipline,
personal or emotional problems, other consequences,
and expression of remorse. This is particularly so
where the respondent was the District Attorney,
responsible for overseeing law enforcement in his
county. As such, he should have upheld the highest
standards of behavior, of which he fell short in his
treatment of his staff. In addition, when he was
incapacitated (apparently due to his own choices), he
was possessed of a staff to whom he could delegate
duties which he could not personally carry out, yet
did not do so.
Turning to the factors relevant to assessing
discipline, the seriousness, nature, and extent of
misconduct and the level of discipline required to
protect the public both militate for significant
discipline. Although the respondent's behavior never
crossed the line into the realm of criminal activity,
it was nonetheless substantial and prolonged.
Further, the respondent's job was to competently
represent the public, a task where he fell short. . .
. I believe the need to impress on the respondent the
seriousness of his misconduct is of lesser concern
here. His resignation from office made this point
already. The need for deterrence is, however, an
important consideration. Attorneys must understand
that sexual misconduct, whether directed toward
clients, employees, or the public, will not be
12
No. 2022AP745-D
tolerated. It undermines the mission of the bar to be
an instrument of justice, it degrades the profession,
and it harms its victims.
Considering the entirety of the facts of this matter,
I deem a 9-month suspension inadequate and believe a
one-year suspension is appropriate.
¶32 We will affirm a referee's findings of fact unless
they are clearly erroneous. See In re Disciplinary Proceedings
Against Eisenberg, 2004 WI 14, ¶5, 269 Wis. 2d 43, 675 N.W.2d
747. 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. 45, 660 N.W.2d 686. There is no showing that any of the
referee's findings of fact are clearly erroneous, and we adopt
them. We are also in accord with the referee's legal
conclusions that Attorney King violated the Supreme Court Rules
noted above.
¶33 As to the appropriate level of discipline, after
careful consideration we agree with the referee that a one-year
suspension of Attorney King's license to practice law in
Wisconsin is appropriate.
¶34 Although we often say that no two disciplinary matters
are identical, we strive to identify cases that are somewhat
analogous and impose a similar level of discipline. As the
referee aptly points out, it is particularly difficult to
compare cases involving sexual misbehavior by attorneys,
especially since this court has recently stated that it is
"applying increasing scrutiny to attorneys' sexual misconduct."
See In re Disciplinary Proceedings Against DeLadurantey, 2023 WI
13No. 2022AP745-D
17, ¶ 53, 406 Wis. 2d 62, 985 N.W.2d 788; In re Disciplinary
Proceedings Against Ritland, 2021 WI 36, ¶¶ 37, 39, 396 Wis. 2d
509, 957 N.W.2d 540. As a result, as the referee notes, and as
OLR also recognized in its memorandum in support of the parties'
comprehensive stipulation, if disciplinary decisions involving
sexual misbehavior issued in years past were to come before the
court today, the sanctions would likely be greater than the ones
imposed. See, e.g., In re Disciplinary Proceedings Against
Kratz, 2014 WI 31, 353 Wis. 2d 696, 851 N.W.2d 219. (District
Attorney's law license suspended for four months for six counts
of misconduct that included sending sexually suggestive text
messages to a domestic abuse crime victim and making sexually
suggestive comments to social workers.)
¶35 This court described then-District Attorney Kratz's
conduct as "appalling," "exploitive," "crass," and "sanctionably
sophomoric." Id. at ¶ 47. It discounted Attorney Kratz's claim
that his misconduct resulted from various addictions. Id, ¶ 48.
Here, the referee noted that this court used the Kratz case as a
measuring stick when deciding the appropriate sanction to impose
in In re Disciplinary Proceedings Against Baratki, 2017 WI 89,
378 Wis. 2d 1, 902 N.W.2d 250. Attorney Baratki faced nine
counts of misconduct, including sending a client flirtatious,
sexual text messages and, during a meeting, lifting the client's
shirt and kissing her abdominal area. This court suspended
Attorney Baratki's license for six months, saying, "Given his
course of conduct, we deem it imperative that, to resume the
practice of law in Wisconsin, Attorney Baratki show this court
14
No. 2022AP745-D
that he has taken steps to avoid similar misdeeds in the
future." Id., ¶ 34.
¶36 In DeLadurantey, we made clear that, going forward, we
would be more critically evaluating the appropriate sanction to
impose in cases involving attorneys' sexual misconduct. We
explained:
We do so because sexual harassment comes at a heavy
price for victims who can suffer significant
psychological effects as well as job-related costs,
including job loss, reputational harm, impairment of
professional opportunities, and irreparable damage to
interpersonal relationships at work. Attorneys should
be on notice that sexual misconduct by attorneys,
whether directed toward fellow lawyers, clients, or
others, is not taken lightly.
Id. ¶ 53.
¶37 While he was serving as District Attorney, Attorney
King harassed multiple women over whom he had supervisory
authority. His misconduct included not only verbal harassment
but also unwelcome physical contact. His harassment in the
workplace created a hostile working environment that persisted
over the course of two years. Attorney King's behavior warrants
a significant sanction.
¶38 In addition to the sexual misbehavior, Attorney King,
while serving as District Attorney, appeared in the office, as
well as in court, while either intoxicated or otherwise
impaired. His coworkers reported that he was erratic and
abusive. Two judges reported Attorney King's erratic behavior.
On one occasion the Sheriff was advised of the situation and
confronted Attorney King. That confrontation led to Attorney
15
No. 2022AP745-D
King becoming so upset and unbalanced that employees had to be
evacuated to a safe location and sent home for the rest of that
work day. As OLR noted in its memorandum in support of the
comprehensive stipulation:
The fact that [Attorney] King was the top law
enforcement official in the county heightens the
concern that he was showing up in court and at work
incapacitated——his constituents and his coworkers
deserved more. These allegations buttress OLR's
conclusion that [Attorney] King's misconduct merits
significant discipline.
¶39 After careful review of this matter, we conclude that
Attorney King's misconduct warrants a more severe sanction than
was imposed in Kratz and Baratki. We agree with the referee
that a one-year suspension of Attorney King's license to
practice law is an appropriate sanction for his misconduct.
¶40 We now turn to the issue of costs. Our general
practice is to impose the full costs of a disciplinary
proceeding on attorneys who are found to have committed
misconduct. See SCR 22.24(1m). There is no reason to depart
from that general practice here. We therefore impose full
costs.
¶41 IT IS ORDERED that the license of Gary King to
practice law in Wisconsin is suspended for a period of one year,
effective January 19, 2024.
¶42 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Gary King shall pay to the Office of Lawyer
Regulation the costs of this proceeding, which are $5,927.83.
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No. 2022AP745-D
¶43 IT IS FURTHER ORDERED that Gary King shall comply with
the provisions of SCR 22.26 concerning the duties of an attorney
whose license to practice law has been suspended.
¶44 IT IS FURTHER ORDERED that compliance with all
conditions of this order is required for reinstatement. See SCR
22.29(4)(c).
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No. 2022AP745-D
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