Office of Lawyer Regulation v. Margaret Bach

2016 WI 95
SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP1958-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Margaret Bach, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Margaret Bach,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST BACH
OPINION FILED: November 29, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2016 WI 95
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP1958-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Margaret Bach, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant,
NOV 29, 2016
v.
Diane M. Fremgen
Clerk of Supreme Court
Margaret Bach,
Respondent.
ATTORNEY disciplinary proceeding. Attorney publicly
reprimanded.
¶1 PER CURIAM. We review the report of Referee James J.
Winiarski recommending that the court publicly reprimand
Attorney Margaret Bach for professional misconduct and order her
to pay the full costs of this disciplinary proceeding, which
total $14,765.09 as of August 26, 2016.
¶2 No appeal has been filed from the referee's report and
recommendation, so we review the matter pursuant to Supreme
No. 2015AP1958-D
Court Rule (SCR) 22.17(2).1 After considering the referee's
report and the record in this matter, we agree with the
referee's determination that the Office of Lawyer Regulation
(OLR) proved by clear, satisfactory, and convincing evidence
that Attorney Bach engaged in some, but not all, of the acts of
professional misconduct alleged in the OLR's amended complaint.
We agree that a public reprimand is appropriate and we require
Attorney Bach to pay the full costs of this proceeding.
¶3 This court is familiar with the underlying facts
giving rise to this case. It stems from Attorney Bach's efforts
to advocate on behalf of her adult son, A.B., who is disabled.
A.B. has a rare medical condition that renders him a danger to
himself and others. Since approximately 2006, when A.B. turned
18, Attorney Bach has engaged in extensive litigation regarding
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.
The referee issued his report on August 8, 2016. On
September 1, 2016, Attorney Bach filed a document entitled
"Reply Brief to Referee's Report." The rules governing the OLR
proceedings do not contemplate a "reply" to a referee's report.
However, there is no indication Attorney Bach intended this
document be construed as an appeal from the referee's report.
It is not captioned as an appeal, makes no reference to oral
argument or briefing, and would have been untimely. See SCR
22.17(1). We declined to construe it as an appeal. We will
treat the document as a post-hearing brief.
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No. 2015AP1958-D
his placement, level and quality of care, payment for that care,
and guardianship.
¶4 Initially, Attorney Bach was appointed her son's
guardian and cared for him at her home. However, in 2009,
following a series of incidents and acrimonious litigation
relating to A.B.'s level of care, the court appointed a
corporate guardian for him. In 2011, the court appointed a new
guardian, ARC of Greater Milwaukee, n/k/a Life Navigators, and
appointed Elizabeth Ruthmansdorfer as A.B.'s guardian ad litem.
Attorney Bach was aggrieved by these appointments and has
challenged them repeatedly in court.
¶5 On July 5, 2011, Attorney Bach was admitted to
practice law in Wisconsin. She continued to litigate but, as a
licensed attorney, she is subject to the Rules of Professional
Conduct for Attorneys, SCR Ch. 20.
¶6 On August 31, 2011, Attorney Bach filed a complaint in
federal court against Milwaukee County and several other
defendants, naming herself and her son as plaintiffs. Bach v.
Milwaukee County, E.D. Wis. Case No. 11-C-828. The federal
court dismissed Attorney Bach's complaint and Attorney Bach
appealed. On July 24, 2012, the Seventh Circuit Court of
Appeals dismissed Attorney Bach's appeal. Bach v. Milwaukee
County, 490 Fed. Appx. 806 (7th Cir. 2012), cert. denied (Feb.
19, 2013). The Court held that "Life Navigators and
Ruthmansdorfer are the only persons authorized to act on
[A.B.'s] behalf." (Emphasis added.)
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No. 2015AP1958-D
¶7 Meanwhile, on June 21, 2012, the Milwaukee County
circuit court judge presiding over A.B.'s guardianship case
denied Attorney Bach's request to access the confidential
guardianship court file. On July 11, 2012, the court issued a
written order confirming this ruling.
¶8 On October 16, 2012, the circuit court issued another
written order, this time enjoining Attorney Bach:
... from filing, without this Court's prior approval,
either on her own behalf and/or on [A.B.'s] behalf
and/or on behalf of any other person purporting to
represent [A.B.'s] interests, any complaint, petition,
motion, or other request for relief (hereinafter
'pleading') in this guardianship proceeding, or in any
other proceeding before any other state or federal
court or other tribunal (including appellate courts),
regarding [A.B.] and/or regarding any person or entity
providing care or services to [A.B.] and/or any person
or entity who serves as a legal representative to
[A.B.], except that Ms. Bach may appeal this Order to
the Wisconsin Court of Appeals.
¶9 On April 2, 2013, Attorney Bach filed another
complaint in federal court challenging the circuit court's
injunction as well as A.B.'s placement and visitation. Attorney
Bach did not name A.B. as a plaintiff, but requested the court
appoint a guardian ad litem for him. Bach v. Milwaukee County
Circuit Court, E.D. Wis. Case No. 13-CV-370. On May 31, 2013,
Attorney Bach amended her complaint, naming A.B. as a plaintiff.
¶10 In June 2013, in state court, Attorney Bach ordered
transcripts of certain proceedings in A.B.'s guardianship case
from court reporters. Later that month, the circuit court
informed Attorney Bach that the court reporters had been
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No. 2015AP1958-D
instructed to cease their work, based on the 2012 June and July
court orders.
¶11 In a June 2013 order, the Wisconsin Court of Appeals
warned Attorney Bach that "[b]eing [A.B.'s] mother does not
endow her with the right to sidestep, manipulate or disregard
the rules by which all litigants must play." Margaret B. v.
County of Milwaukee, No. 2012AP1176, unpublished slip op., ¶7
(Wis. Ct. App. Jun. 12, 2013).
¶12 On July 31, 2013, Attorney Bach appealed the circuit
court's ruling regarding transcripts in the guardianship
proceeding. The court of appeals summarily affirmed, stating:
Proceedings in guardianship cases are confidential by
statute, and this court has previously upheld
determinations that, because she is not her son's
guardian, guardian ad litem, or adversary counsel,
Bach has no standing in the guardianship case, no
right to review his confidential legal or medical
records, and no right to assert any legal claims on
his behalf.
Bach v. Life Navigators, No. 2013AP1758, unpublished order (Wis.
Ct. App. Dec. 30, 2014).
¶13 On September 11, 2013, Magistrate Judge Nancy Joseph
dismissed Attorney Bach's federal complaint regarding the state
court injunction, and A.B.'s placement and guardianship, warning
Attorney Bach of the court's authority to enter an order
limiting vexatious litigants' access to the court system.
Attorney Bach appealed.
¶14 On April 5, 2014, Attorney Bach appealed another order
in A.B.'s guardianship case. The court of appeals denied her
5
No. 2015AP1958-D
petition for a fee waiver on the grounds that Attorney Bach had
failed to present any arguably meritorious issues for review.
Bach v. Life Navigators, No. 2014AP1007, unpublished slip op.,
(Wis. Ct. App. Sep. 22, 2014).
¶15 On May 22, 2014, the Seventh Circuit Court of Appeals
affirmed Judge Joseph's decision, ruling that Attorney Bach had
"abused the judicial process by filing multiple frivolous suits,
many of which, like this one, could not succeed unless the court
were prepared to ignore the outcome of her earlier suits." The
court also noted that Attorney Bach frequently named judges and
courts as defendants, despite their absolute immunity. The
court ordered Attorney Bach to show cause within 14 days why the
court should not impose sanctions for a frivolous appeal.
¶16 On June 12, 2014, the Seventh Circuit Court of Appeals
deemed Attorney Bach's appeal frivolous and fined her $2,000.
¶17 On October 28, 2014, Attorney Bach petitioned this
court for a writ of mandamus in A.B.'s guardianship case. This
court denied her petition, ex parte. Bach v. Circuit Court for
Milwaukee County, No. 2014AP2537, unpublished order (S. Ct. Jan.
12, 2015).
OLR Complaint
¶18 In September 2015, the OLR filed a disciplinary
complaint against Attorney Bach, alleging six counts of
professional misconduct all related to litigation she conducted
relating to A.B. The OLR amended its complaint in March 2016,
this time, alleging five counts of misconduct. The OLR sought a
public reprimand and imposition of costs.
6
No. 2015AP1958-D
¶19 The court appointed Referee James J. Winiarski and,
following briefing, Attorney Bach's submission of extensive
documentation, and the referee's denial of Bach's request for
additional time to conduct additional discovery, the referee
conducted an evidentiary hearing on May 9, 2016. The referee
rendered his report and recommendation on August 8, 2016.
¶20 Supreme Court Rule 22.17(1) provides that within 20
days after the filing of the referee's report, the director or
the respondent may file with the supreme court an appeal from
the referee's report. As noted, Attorney Bach filed a "reply
brief" but neither party filed a timely appeal. Accordingly, we
review this matter pursuant to SCR 22.17(2).
¶21 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 given the particular facts of each case,
independent of the referee's recommendation, but benefitting
from it. In re Disciplinary Proceedings Against Widule, 2003 WI
34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686.
¶22 The referee made detailed factual findings. There is
no persuasive showing that any of the referee's findings of fact
are erroneous.2 Accordingly, we adopt them.
2
We are unpersuaded by the arguments in Attorney Bach's
September 1, 2016, "reply brief."
7
No. 2015AP1958-D
¶23 The amended complaint alleged that Attorney Bach
committed five counts of professional misconduct, alleging
violations of SCRs 20:3.1 and 20:3.4. Supreme Court Rule 20:3.1
is entitled "meritorious claims and contentions." Supreme Court
Rule 20:3.1(a)(1) provides that in representing a client, a
lawyer shall not knowingly advance a claim or defense that is
unwarranted under existing law, except that the lawyer may
advance such claim or defense if it can be supported by good
faith argument for an extension, modification or reversal of
existing law. Supreme Court Rule 20:3.1(a)(2) provides that a
lawyer shall not knowingly advance a factual position unless
there is a basis for doing so that is not frivolous. A
Committee Comment published with the rule notes that Wisconsin
Supreme Court Rules 20:3.1(a)(1) and (2) differ from the ABA
Model Rules in expressly establishing a subjective test for an
ethical violation. See also In re Disciplinary Proceedings
Against Osicka, 2009 WI 38, ¶42, 317 Wis. 2d 135, 765
N.W.2d 775. Supreme Court Rule 20:3.4(c) provides that a lawyer
shall not knowingly disobey an obligation under the rules of a
tribunal, except for an open refusal based on an assertion that
no valid obligation exists.
Counts One, Two, and Three
¶24 To demonstrate that Attorney Bach committed the
misconduct alleged in counts one and two of the amended
complaint, the OLR was required to show that Attorney Bach "in
fact, knew the claim or factual position [s]he was advancing was
unwarranted." See also In re Disciplinary Proceedings Against
8
No. 2015AP1958-D
Katerinos, 2010 WI 28, 324 Wis. 2d 12, 782 N.W.2d 398. A
lawyer's knowledge can be inferred under certain circumstances.
See SCR 20:1.0(g).3
¶25 In Count one of the amended complaint, the OLR alleged
that "[b]y continuing to make filings in state and federal court
stating claims that had already been ruled to be without merit
and from which she had been enjoined, Attorney Bach knowingly
advanced unwarranted claims." Similarly, in Count two, the OLR
alleged that "[b]y continuing to make filings in state and
federal court, including an appeal to the Seventh Circuit Court
of Appeals that was described by the court as "frivolous,"
Attorney Bach knowingly advanced frivolous factual positions."
¶26 The OLR contends that "Attorney Bach was warned
several times by judges that her claims were not warranted yet
she proceeded with federal lawsuits, as well as with state
actions in defiance of an injunction. She knew the claims she
was advancing were unwarranted . . . [and her] knowledge can be
inferred from the circumstances, SCR 20:1.0(g)." See OLR's Pre-
Hearing Brief, pp. 10-11, (2016).
¶27 Count three of the amended complaint alleged that
Attorney Bach violated SCR 20:3.1(a)(3), which provides that a
lawyer shall not file a suit, assert a position, conduct a
defense, delay a trial or take other action on behalf of the
3
SCR 20:1.0(g) provides: "Knowingly," "known," or "knows"
denotes actual knowledge of the fact in question. A person's
knowledge may be inferred from circumstances.
9
No. 2015AP1958-D
client when the lawyer knows or when it is obvious that such an
action would serve merely to harass or maliciously injure
another. Violations of SCR 20:3.1(a)(3) are subject to an
objective standard.
¶28 The referee expressed frustration with the OLR's
amended complaint, noting that "OLR wants me to 'infer' Attorney
Bach's knowledge (of frivolousness, unwarranted claims, and
intent to harass adverse parties)." However, while the OLR's
pre-hearing brief argues that "she knew the claims she was
advancing were unwarranted" there is no such factual allegation
in the amended complaint. Merely alleging that Attorney Bach
filed the various actions is not sufficient. The OLR failed to
allege further that she, subjectively, knew that these actions
were filed in a frivolous manner, were without merit, that
Attorney Bach was trying to advance an unwarranted claim, or
that she sought to harass or maliciously injure another. The
referee states: "The amended complaint refers to many cases and
appeals and it is not my job to guess at what particular conduct
OLR claims violates a particular Supreme Court rule." The
referee continued:
By alleging multiple fact situations that occurred in both
state and federal courts and then alleging such collective
conduct violated three separate Supreme Court rules (Counts
1-3), some subject to an objective standard and others a
subjective standard, I am at a loss to determine what
precise alleged misconduct OLR claims violated which rules.
I cannot apply an objective or subjective test without
knowing the precise conduct OLR alleges violated which
particular Supreme Court rule.
10
No. 2015AP1958-D
¶29 Moreover, the referee did not agree with the OLR's
assessment of Attorney Bach's intent. The referee characterized
Attorney Bach as a new and very inexperienced lawyer with
overzealous goals, who plunged herself, unprepared, into filing
federal court actions and subsequent appeals. Her filings were
not competent; indeed they are often frustratingly inept, but
the referee correctly notes that the OLR did not allege that she
violated ethical rules requiring competence. However misguided
her filings were, the referee concluded that the evidence did
not support a finding that Attorney Bach filed the various
actions with the intent of being frivolous or to harass the
defendants. Accordingly, the referee concluded that the OLR
failed to prove by clear, satisfactory, and convincing evidence
that Attorney Bach committed the misconduct alleged in counts
one through three.
¶30 We accept the referee's analysis and we dismiss counts
one, two, and three of the OLR's amended complaint.
Counts Four and Five
¶31 In Count four of the amended complaint, the OLR
alleged that by continuing to file lawsuits relating to her son
and continuing to communicate with her son's health care
providers in contravention of the injunction issued by the
Milwaukee County Circuit Court on October 16, 2012, Attorney
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No. 2015AP1958-D
Bach knowingly disobeyed a court order, violating SCR 20:3.4(c).4
In Count five, the OLR alleged that by ordering confidential
transcripts of guardianship court hearings in contravention of a
Milwaukee County Circuit Court order, Attorney Bach knowingly
disobeyed a court order, violating SCR 20:3.4(c).
¶32 The referee agreed that Attorney Bach knowingly
disobeyed a court order in violation of SCR 20:3.4(c). The
record evidence supports the referee's findings.
¶33 Indeed, Attorney Bach acknowledged at the hearing
that she intentionally violated the injunction. She testified
that she followed her parents' vehicle when she knew they were
going to see her son, and, upon discovering her son's location,
she had further contact with her son and his health care
providers in violation of the injunction. Similarly, despite
circuit court's orders denying her access to her son's
confidential court files, Attorney Bach ordered transcripts of
certain proceedings without prior court approval. The record
supports the referee's finding, that after the injunction and
without prior court approval, Attorney Bach communicated with
her son's health care providers and aides; surreptitiously
followed her parents' vehicle to determine her son's location;
visited her son in an unauthorized manner; communicated with her
son's attendants and aides; had unauthorized visitation with her
4
SCR 20:3.4(c) provides: "A lawyer shall not: . . . .
knowingly disobey an obligation under the rules of a tribunal,
except for an open refusal based on an assertion that no valid
obligation exists."
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No. 2015AP1958-D
son, and filed documents in court, all in violation of a court
order. We accept the referee's conclusion that Attorney Bach
knowingly disobeyed a court order in violation of SCR 20:3.4(c),
as alleged in counts four and five of the amended complaint.
¶34 We next consider the appropriate discipline for
Attorney Bach's misconduct. The referee properly considered
relevant factors, including, (1) the seriousness, nature and
extent of the misconduct; (2) the level of discipline needed to
protect the public, the courts and the legal system from
repetition of the attorney's misconduct; (3) the need to impress
upon the attorney the seriousness of the misconduct; and (4) the
need to deter other attorneys from committing similar
misconduct, In re Disciplinary Proceedings Against Hammis, 2011
WI 3, ¶39, 331 Wis. 2d 19, 793 N.W.2d 884; see also In re
Disciplinary Proceedings Against Grogan, 2011 WI 7, ¶15, 331
Wis. 2d 341, 795 N.W.2d 745 (recognizing the ABA Standards as a
guidepost).
¶35 The referee remained mindful that Attorney Bach's
misconduct all relates to her efforts on behalf of her child.
Indeed, the referee deemed Attorney Bach's "actions as the
biological and loving mother" a mitigating factor in assessing
appropriate discipline.
¶36 The referee did not condone Attorney Bach's conduct.
Nor do we. Attorney Bach's deliberate violation of court orders
is serious professional misconduct that requires a public
reprimand. Indeed, we take this opportunity to caution Attorney
Bach. Although, we affirm the referee's conclusion that the OLR
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No. 2015AP1958-D
failed to prove she violated SCR 20:3.1(a)(1), (2), and (3) as
alleged in counts one, two, and three of the amended complaint,
this conclusion reflects a failure in the pleadings, rather than
an exoneration of her conduct. We are very familiar with
Attorney Bach's filings. We recognize that her fervent advocacy
stems from concern for her child. However, we must caution
Attorney Bach that this court's tolerance for her persistent
refusal to respect and follow rules of court procedure is
wearing thin.
¶37 The referee explicitly recommends that we impose all
of the costs of this disciplinary proceeding, noting that the
"counts for which I have recommended dismissal do not justify
reduction in her responsibility for full costs." In re
Disciplinary Proceedings Against Polich, 2005 WI 36, ¶¶29-30,
279 Wis. 2d 266, 694 N.W.2d 367 (holding that even when a
respondent prevails on a number of counts, it is still the
court's policy to assess full costs). We agree with the
referee: nothing about this case warrants deviating from our
general policy of imposing all costs upon the respondent. See
SCR 22.12. Attorney Bach is ordered to pay the full costs of
the proceeding.
¶38 Consistent with the referee's recommendation and as is
standard procedure, Attorney Bach may contact the OLR to request
a payment plan that will enable Attorney Bach to pay the costs
of this proceeding in a manner consistent with her financial
ability. We accept the OLR's statement that restitution is not
warranted in this matter.
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No. 2015AP1958-D
¶39 IT IS ORDERED that counts one, two, and three of the
amended complaint are dismissed.
¶40 IT IS FURTHER ORDERED that Margaret Bach is publicly
reprimanded for her professional misconduct.
¶41 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Margaret Bach shall pay to the Office of Lawyer
Regulation the costs of this proceeding, which are $14,765.09.
¶42 IT IS FURTHER ORDERED that the director of the Office
of Lawyer Regulation shall advise the court if there has not
been full compliance with all conditions of this order.
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No. 2015AP1958-D
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