Office of Lawyer Regulation v. Boyle

ANN WALSH BRADLEY, J.

¶ 59. {dissenting). The Office of Lawyer Regulation (OLR) requested a 60-day suspension of Attorney Boyle's license to practice law in Wisconsin for his misconduct in this case. Following a hearing, the referee recommended a 90-day suspension. Nevertheless, the per curiam opinion imposes only a public reprimand. Because I determine that a public reprimand is not sufficient discipline to address the gravity of the conduct, I respectfully dissent.

¶ 60. I believe the per curiam understates Attorney Boyle's misrepresentations. I consider making false statements to a circuit court a grievous matter. See SCR 20:3.3 ("A lawyer shall not knowingly [] make a false statement of fact or law to a tribunal. . . .")

¶ 61. Attorney Boyle told a circuit court judge that both the Board of Bar Examiners (BBE) director and the OLR director had signed off on his pro hac vice application. He specifically stated "... when we have the Supreme Court's Attorney Registration Director, when we have the Director of the Lawyers Regulation, okay, signing off on this . . . ." Attorney Boyle further asserted that "[t]he Office of Lawyer Regulation approved it, [and] the Office of Attorney Registration approved it. . . ."

¶ 62. He told a second circuit court judge that he had been advised by the BBE to file a pro hac vice petition, which was approved and filed by the OLR. Additionally, Attorney Boyle stated that he had begun representing L.S. only two months before the expiration of the applicable statute of limitations on August 8, 2011, when in fact it was more than four months.

¶ 63. There may be some confusion about what representatives of the BBE told Attorney Boyle. Yet, there is nothing in the record to indicate that the director of the OLR had any conversation about pro hac vice admission with Attorney Boyle. It is also uncontroverted that he began his representation of L.S. more than two months before August 8, 2011. He began representing her on or about March 23, 2011.

¶ 64. The per curiam attempts to mitigate the above misrepresentations by relying on Boyle's prior clean discipline record. However, this is only partially correct.

¶ 65. The per curiam rests its sanction determination, in part, on its finding that "this is the first time in the approximately three decades since his admission to the practice of law in Wisconsin that Attorney Boyle has been the subject of professional discipline in this state." Admittedly that is an accurate statement, but it does not reflect the whole picture.

¶ 66. Although Attorney Boyle has not previously been disciplined in this state, he has been disciplined elsewhere. This court was recently informed that the Illinois Supreme Court suspended Attorney Boyle's license in that state for 60 days, effective June 4, 2015, for conversion of settlement funds in a medical malpractice case.

¶ 67. The discipline had not been imposed at the time the OLR filed its complaint, or at the time of the hearing before the referee, but it has come to our attention during the pendency of the case before this court. The per curiam should not justify imposing a lesser sanction on its statement that no prior discipline has been imposed in this state, when it is now aware of the Illinois suspension.

¶ 68. The per curiam also fails to fully reflect the whole picture regarding Attorney Boyle's conduct in the United States District Court for the Northern District of Illinois. His conduct came to OLR's attention during its investigation in this case. Allegations related to that conduct were included in the OLR's amended complaint and considered by the referee. I believe an explanation of those allegations is necessary to understand the recommendations made by both the OLR and the referee.

¶ 69. The OLR's amended complaint alleged and the referee considered five counts arising out of Attorney Boyle's actions in a civil case in the Northern District Court, in addition to the five counts relating to L.S. The per curiam dismisses the Northern District counts, and uses the dismissal as further support for its determination that a public reprimand is appropriate. In light of the fact that those counts were considered by the OLR and the referee in making their sanction recommendations, I believe there should be more than a cursory reference to those counts.

¶ 70. Essentially, in the Northern District matter, the OLR alleged that Attorney Boyle had falsely stated in an appearance form that he held membership in the Northern District Court's trial bar, which was necessary under that court's rules for him to appear by himself on behalf of the client in a bench trial. When the federal court informed him during the bench trial, however, that he was not listed as a member of the trial bar, Attorney Boyle responded that he was not aware of that fact and that he believed he was indeed a member of the trial bar. Attorney Boyle explained that he had been appointed as lead counsel in certain Northern District Court cases following his stint as an Assistant United States Attorney and that he had also handled a four-and-a-half month trial in the Northern District Court. In subsequently arguing against an adjournment of the trial, Attorney Boyle became quite heated, refusing to accept the judge's ruling and at one point suggesting that the judge had a personal animus against him. Ultimately, the judge decided to adjourn the trial. Attorney Boyle submitted his application to the trial bar, which the judge granted a few days later.

¶ 71. In addition, the OLR alleged that when the trial reconvened, Attorney Boyle offered an exhibit that had been previously excluded from evidence under a different exhibit number without alerting the court and opposing counsel to that fact. When the OLR asked Attorney Boyle to provide a written explanation as to how this had occurred, he failed to provide a meaningful response. From these facts, the OLR brought five counts of misconduct against Attorney Boyle.

¶ 72. Although this court has jurisdiction to adjudicate disciplinary cases involving lawyers licensed to practice in this state regardless of where the alleged misconduct occurred, see SCR 20:8.5(a), the per curiam chooses not to exercise that jurisdiction in this case. The per curiam states that the alleged misconduct took place in a federal court located within the state of Illinois, but that it does not appear that either the Northern District Court nor the Illinois state regulatory authorities pursued discipline against Attorney Boyle for his apparent failure to understand that the rules regarding trial appearances in the Northern District Court had changed during the decades he had been in practice and for his improper behavior when that matter was brought to his attention. The per curiam does not believe it is necessary or advisable in this instance for this court to take upon itself the primary role of adjudicating alleged misconduct that occurred in another jurisdiction and dismisses the five counts relating to that misconduct.

¶ 73. Because I consider making false statements to a court a grievous matter and given his prior discipline imposed by the Illinois Supreme Court, I conclude that a public reprimand imposed by the per curiam is inadequate discipline for Attorney Boyle's conduct. Additionally, because the OLR and referee's recommendations were based, in part, on the five Northern District Court counts, I believe more than a cursory reference to those counts is necessary to understand their recommendations.

¶ 74. For the foregoing reasons, I respectfully dissent.

¶ 75. I am authorized to state that Justice SHIRLEY S. ABRAHAMSON joins this dissent.