Office of Lawyer Regulation v. Wendy Alison Nora

2020 WI 70
SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP2442-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Wendy Alison Nora, Attorney at Law:
Office of Lawyer Regulation,
Complainant-Cross-Appellant-
Respondent,
v.
Wendy Alison Nora,
Respondent-Appellant-Cross-Respondent.
DISCIPLINARY PROCEEDINGS AGAINST NORA
OPINION FILED: July 14, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 28, 2019
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
Per Curiam.
NOT PARTICIPATING:
ATTORNEYS:
For the respondent-appellant-cross-respondent, there were
briefs filed by Wendy Alison Nora and Access Legal Services,
Minneapolis, Minnesota. There was an oral argument by Wendy
Alison Nora.
For the complainant-respondent-cross-appellant, there were
briefs filed by Paul W. Schwarzenbart and Office of Lawyer
Regulation, Madison. There was an oral argument by Paul W.
Schwarzenbart.
2020 WI 70
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP2442-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Wendy Alison Nora, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant-Cross-Appellant-Respondent,
JUL 14, 2020
v.
Sheila T. Reiff
Clerk of Supreme Court
Wendy Alison Nora,
Respondent-Appellant-Cross-Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. Attorney Wendy Alison Nora appeals from
various interlocutory orders and a final report issued by the
referee, Attorney James Winiarski. Attorney Nora challenges the
conduct of the proceeding by the Office of Lawyer Regulation
(OLR) and Referee Winiarski, as well as the referee's findings
of fact and his legal conclusions that she engaged in
professional misconduct as alleged in Counts 2, 3, and 5 of the
OLR's second amended complaint. She also challenges his
No. 2015AP2442-D
recommendation that this court should suspend her license to
practice law in Wisconsin for a period of two years.
¶2 The OLR has filed a cross-appeal from the referee's
legal conclusions that Counts 1 and 4 of its second amended
complaint should be dismissed on due process grounds because
those counts failed to specify which subsections of Supreme
Court Rule (SCR) 20:3.1(a) Attorney Nora's conduct had violated.
¶3 We reject Attorney Nora's arguments on appeal and
conclude that the OLR proved violations of the Rules of
Professional Conduct for Attorneys on all five counts of the
second amended complaint. We do not agree with the referee's
conclusion that Counts 1 and 4 should be dismissed on due
process grounds because we determine that Attorney Nora
forfeited any due process notice challenge by not raising it
before the referee. Had she raised the issue in a timely manner
before the referee, the OLR could have amended its complaint to
more fully specify the subsections at issue. Moreover, the
OLR's complaints did specify the particular actions by her that
constituted violations of the rule. Attorney Nora had notice of
the allegations against her.
¶4 We further conclude that the appropriate level of
discipline to impose upon Attorney Nora for her professional
misconduct is a further two-year suspension of her license to
2
No. 2015AP2442-D
practice law in this state.1 Given the nature of her misconduct
at issue in this proceeding, we do not require her to pay any
restitution. We do, however, require that if Attorney Nora
seeks the reinstatement of her license, her reinstatement
petition must allege that she has made a good faith effort to
pay all outstanding amounts that she personally owes as a result
of sanction orders imposed by any court, and she must prove that
good faith effort as one of the conditions of reinstatement.
¶5 Because the OLR has requested that we not impose the
costs of this proceeding on Attorney Nora, we do not impose any
costs.
¶6 Attorney Nora was admitted to the practice of law in
this state in June 1975. She was also licensed to practice law
in the state of Minnesota in 1985. She most recently practiced
law under the name Access Legal Services in Minneapolis,
Minnesota.
¶7 Attorney Nora has been the subject of professional
discipline in this state on two prior occasions. In 1993 this
court suspended Attorney Nora's license to practice law in
Wisconsin for 30 days, as discipline reciprocal to that imposed
by the Supreme Court of Minnesota. In re Disciplinary
1Attorney Nora's license to practice law in Wisconsin is
currently suspended as discipline for professional misconduct in
a previous disciplinary proceeding. In re Disciplinary
Proceedings Against Nora, 2018 WI 23, 380 Wis. 2d 311, 909
N.W.2d 155 (Nora II). Attorney Nora's license is also
administratively suspended due to her failure to pay mandatory
bar dues and her failure to file a trust account certification.
3
No. 2015AP2442-D
Proceedings Against Nora, 173 Wis. 2d 660, 495 N.W.2d 99 (1993)
(Nora I). The misconduct that resulted in that suspension
involved making misrepresentations concerning the reopening and
capitalization of a bank, failing to adequately investigate the
person who was to provide capital to the bank, improperly
authorizing the issuance of cashier checks by the bank, bringing
a frivolous claim against a bank, transferring assets of her
Minnesota law partnership in an attempt to insulate those assets
from collection, bringing litigation primarily as a delay
tactic, and asserting a legal theory not justified by existing
law. Nora I, 173 Wis. 2d at 660-61; see also In re Disciplinary
Action Against Nora, 450 N.W.2d 328 (Minn. 1990).
¶8 In 2018 this court suspended Attorney Nora's license
to practice law in this state for a period of one year,
effective April 30, 2018. Nora II, 380 Wis. 2d 311, ¶42. In
that case this court determined that the OLR had proven four
counts of professional misconduct arising out of her actions in
defending a foreclosure action against her own property and in
bringing three federal civil actions against the state court
judge presiding over the foreclosure action and against opposing
counsel in the foreclosure action. Specifically, this court
concluded that Attorney Nora had made a false statement of
material fact to a tribunal, in violation of SCR 20:3.3(a)(1).
Id., ¶27. We also determined that in each of the three federal
actions, Attorney Nora had knowingly advanced claims that lacked
a valid legal basis and had pursued the claims merely to harass
4
No. 2015AP2442-D
or maliciously injure another. Id., ¶¶29 and 30 (finding three
violations of SCR 20:3.1(a)).
PROCEDURAL HISTORY OF THIS PROCEEDING
¶9 Some procedural facts about this disciplinary
proceeding are necessary for an understanding of certain legal
conclusions by the referee and of certain issues on appeal.
¶10 On November 30, 2015, the OLR filed its original
complaint in this proceeding, which alleged five counts of
professional misconduct by Attorney Nora arising out of two
client representations. Counts 1-3 arose out of Attorney Nora's
actions connected to her representation of Sheila Spencer (the
Spencer matter). Count 1 alleged that Attorney Nora had
violated Supreme Court Rule (SCR) 20:3.1(a) as follows:
By removing a state court foreclosure matter to the
federal court after four years of litigation when
there was no colorable basis for federal jurisdiction,
and, by filing a frivolous motion to reconsider the
order remanding the matter back to the state court,
[Attorney] Nora violated SCR 20:3.1(a).
Count 2 alleged that by filing a frivolous appeal on behalf of
both her client and herself personally when she was not a party
to the litigation and by engaging in an ongoing pattern of
conduct to harass other parties and judicial officers and to
delay the proceedings, Attorney Nora violated SCR 20:3.2. Count
3 alleged that by engaging in an ongoing pattern of conduct to
harass other parties and judicial officers and to delay the
proceedings, Attorney Nora violated the Attorney's Oath in SCR
40.15, which is enforced via SCR 20:8.4(g).
5
No. 2015AP2442-D
¶11 Counts 4-5 arose out of Attorney Nora's actions
connected to her representation of Roger and Desa Rinaldi (the
Rinaldi matter). Count 4, like Count 1, alleged that Attorney
Nora had violated SCR 20:3.1(a) in the Rinaldi matter as
follows:
. . . by filing a motion to intervene and a motion for
relief from the Court's prior orders pursuant to
F.R.C.P.2 60(b)(2), which motions were found to be
frivolous, after the U.S. District Court had warned
[Attorney] Nora that any further frivolous submissions
would result in an award of sanctions, [Attorney] Nora
violated SCR 20:3.1(a).
Count 5 tracked Count 2 in that it alleged that by filing a
motion to intervene personally and a motion for relief from the
federal district court's prior order, both of which were found
to be frivolous, Attorney Nora violated SCR 20:3.2.
¶12 Attorney Nora filed combined motions to dismiss the
original complaint on several grounds. Before the referee
decided these motions, the OLR filed a first amended complaint,
which did not change any of the counts alleged against Attorney
Nora, but simply corrected some factual allegations in the
original complaint. The referee's subsequent scheduling order
provided that Attorney Nora's pending motions would apply to the
first amended complaint and permitted Attorney Nora to file any
additional motions regarding the first amended complaint within
20 days. Attorney Nora filed a "supplement" to her motions to
dismiss, as well as a "notice of filing" of a proposed modified
This is a citation abbreviation for "Federal Rule of Civil
2
Procedure ___."
6
No. 2015AP2442-D
amended complaint that excluded facts Attorney Nora contended
were false.
¶13 Attorney Nora's motions did not assert that either the
original complaint or the first amended complaint violated her
due process rights because Counts 1 and 4 of those complaints
failed to specify the subsection of SCR 20:3.1(a) that Attorney
Nora had violated.
¶14 On April 16, 2016, the referee denied Attorney Nora's
motions to dismiss the original and first amended complaint. He
gave Attorney Nora 20 days in which to file an answer to the
first amended complaint.
¶15 On May 20, 2016, Attorney Nora filed a "Corrected
Motion to Dismiss and Answer."3 Attorney Nora asserts on appeal
that in a subpart of this document responding to Count 4 of the
first amended complaint (paragraph 90), she alleged that
paragraph 90 of the first amended complaint failed to specify
which subsection of SCR 20:3.1(a) she had violated in the
Rinaldi matter. She does not assert on appeal that she ever
made a similar allegation regarding Count 1. Further, her
reference to paragraph 90 in this document never alleged that
the OLR's failure to specify the subsection of SCR 20:3.1(a)
constituted a due process violation.
A few days before filing this motion and answer, Attorney
3
Nora filed two other motions: (1) a motion for damages pursuant
to Wis. Stat. § 894.044 and (2) a motion to disqualify Attorney
Paul Schwarzenbart from representing the OLR in this proceeding
(allegedly due to his conflict of interest as a material witness
to crimes supposedly committed in Nora II).
7
No. 2015AP2442-D
¶16 On June 3, 2016, the OLR filed a motion seeking leave
to file a second amended complaint. The purpose of the second
amended complaint was to correct two minor errors in the amended
complaint, including the listing of the wrong circuit court case
number for the foreclosure action against Sheila Spencer.
¶17 On August 1, 2016, the referee issued another order
that denied Attorney Nora's pending motions and granted the
OLR's motion to file a second amended complaint. The OLR
subsequently filed a second amended complaint, as permitted.
The second amended complaint did not change the nature of the
counts alleged against Attorney Nora, nor the specific actions
by her that allegedly violated the specified Rules of
Professional Conduct for Attorneys.
¶18 Ultimately, after some further proceedings in the
case, Attorney Nora filed a "notice of filing" of four different
versions of a revised answer to the second amended complaint.
Attorney Nora did not allege that the lack of specified
subsections in Counts 1 and 4 violated her due process right to
notice of the charges against her.
¶19 After the referee granted a series of motions by
Attorney Nora and her co-counsel to adjourn the evidentiary
hearing, the referee conducted the disciplinary hearing in this
matter over four days in March 2017. The referee issued a post-
hearing order directing the OLR to file a post-hearing brief
within 45 days from the filing of the hearing transcript and
Attorney Nora to file her post-hearing brief within 45 days
after the OLR filed its brief. After the referee granted
8
No. 2015AP2442-D
another series of extension motions, the post-hearing briefing
was completed in February 2018. Attorney Nora's post-hearing
brief did not allege that the reference to SCR 20:3.1(a) rather
than to one or more subsections of that rule violated her due
process rights.
¶20 While working on his report, the referee became
concerned with whether the lack of specification in Counts 1 and
4 of the applicable subsection(s) of SCR 20:3.1(a) violated
Attorney Nora's due process rights. He ordered the parties to
submit supplemental post-hearing briefs on this issue, which
they did.
FINDINGS OF FACT AND CONCLUSIONS OF LAW CONCERNING COUNTS 1-3
¶21 The following facts were found by the referee in his
report.
¶22 In April 2009, FNMC filed a foreclosure action in the
Wood County circuit court against Sheila Spencer. FNMC v.
Spencer, Wood County Case No. 2009CV283 (the Spencer Wood County
Case). Ms. Spencer was initially represented by another
attorney. That attorney was allowed to withdraw in April 2012,
and Attorney Nora filed a notice of appearance on behalf of Ms.
Spencer in May 2012. Attorney Nora initially appeared at a May
23, 2012 hearing that had been scheduled as a summary judgment
hearing, and asked for a postponement of the hearing. Judge
Gregory Potter, who was presiding over the case, granted
Attorney Nora's requested postponement and directed her to file
a list of issues that she believed needed to be resolved by June
29, 2012.
9
No. 2015AP2442-D
¶23 Attorney Nora did not file the list of issues as
ordered. On June 23, 2012, she filed a "Notice of Continuing
Objection to Further Proceedings." She filed an amended
"Continuing Notice" on June 25, 2012. In these "Continuing
Notices," she alleged that Gray and Associates, S.C. (the Gray
Firm) had made multiple fraudulent filings in the Spencer Wood
County Case. She also alleged that she had not been served with
a copy of a proposed order that Judge Potter had signed on June
12, 2012. She claimed that the lack of service of the draft
order was part of "an actual pattern and practice by Judge
Potter and [the Gray Firm], acting in concert, to effectuate a
fraudulent foreclosure against Sheila M. Spencer and her home."
Attorney Nora claimed that Judge Potter's signing of the
allegedly improper ex parte order meant that the "entire record
of the proceedings must be reviewed in light of the apparent
collaboration between Judge Potter and [the Gray Firm]."
Attorney Nora further accused Judge Potter of "manipulat[ing]"
both the record and the foreclosure action generally to assist
the Gray Firm in depriving Ms. Spencer of a chance to defend
against the foreclosure:
The manipulation of the Transcript to remove some of
the most damning evidence of bias . . . discloses a
whole new issue: that Judge Potter is complicit in
the manipulation of the proceedings and of the record.
(Emphasis added.)
¶24 On June 27, 2012, Attorney Nora filed an extension
motion and an "Affidavit of Nonreceipt of Motion for Proposed
Order and Final Order." In the affidavit, Attorney Nora claimed
10
No. 2015AP2442-D
that she had not received the order dated June 12, 2012, and
that she had been shocked to find that the court had entered an
order resulting from the May 23rd hearing without a motion for
entry of such an order being served on her. The affidavit
further stated that the court's clerk had told Attorney Nora
that someone from the Gray Firm had sent a letter and a proposed
order to Judge Potter. Attorney Nora did not contact the Gray
Firm to obtain a copy of the letter to see if she had been
copied on it; instead, she alleged in her affidavit that the
letter and enclosed draft order had been an "ex parte
communication with the Court."
¶25 The very next day (June 28, 2012) Attorney Nora filed
a motion to disqualify Judge Potter for "repeatedly engaging in
or facilitating ex parte communications and entering ex parte
orders." In the motion Attorney Nora described the Spencer Wood
County Case as a "mockery of justice" and as "misbegotten
proceedings." Attorney Nora acknowledged that she had received
a copy of the Gray Firm's letter and draft order from her
client. The letter showed that a carbon copy had been sent to
Attorney Nora. The referee found that Attorney Nora could not
explain how Judge Potter would have known that she did not
receive a copy of the letter and draft order when she was shown
on the letter as receiving a carbon copy.
¶26 Attorney Nora did not stop with accusing Judge Potter
of engaging in ex parte communications in this one instance; she
alleged that Judge Potter and the Gray Firm had engaged in
multiple instances of ex parte communications and ex parte
11
No. 2015AP2442-D
orders prior to her appearance in the case,4 although Attorney
Nora had no firsthand knowledge of the other instances she
alleged. Attorney Nora went so far as to assert that "[a]
reasonable inference arises from these facts that Judge Gregory
J. Potter has colluded with GRAY & ASSOCIATES, LLP to circumvent
proper practice and procedure by engaging in and facilitating ex
parte communications by which orders have been entered by the
court." (Emphasis added.) Attorney Nora demanded that Judge
Potter recuse himself immediately.
¶27 At a hearing on August 8, 2012, Judge Potter denied
Attorney Nora's recusal motion. On August 13, 2012, Attorney
Nora finally filed the list of issues that she had been ordered
to file by June 29, 2012. Her list of issues again repeated her
allegation that Judge Potter and the Gray Firm had engaged in
improper ex parte communications.
¶28 On October 3, 2012, Attorney James Carrig first
appeared for the plaintiff, which caused Attorney Nora to file a
motion to strike his appearance. Judge Potter held a hearing on
Attorney Nora's motion and on whether PNC Bank should be
substituted as the plaintiff in the action. Following the
hearing, Attorney Carrig filed a formal motion to "ratify the
An affidavit by an employee of the Gray Firm that was
4
filed in this proceeding stated that on the date of one such
alleged ex parte communication, Ms. Spencer had been served with
a copy of the notice of motion and motion. The court record
shows that on the other occasions of alleged ex parte
communications, the letters and enclosed documents were copied
to Ms. Spencer.
12
No. 2015AP2442-D
action or substitute PNC Bank as the party plaintiff."
Ultimately, the circuit court granted the motion to substitute
PNC Bank and set a hearing date of March 18, 2013, for the
hearing on the plaintiff's summary judgment motion (which had
been pending since before Attorney Nora had joined the case).
¶29 Attorney Nora responded to this development by filing
a notice of removal of the action to the United States District
Court for the Western District of Wisconsin on January 10, 2013.
Attorney Nora alleged that the removal was proper under 28
U.S.C. §§ 1331, 1332, 1334, and 1349 (i.e., both diversity and
federal question jurisdiction). PNC Bank filed a motion for
remand, which the district court, Judge Barbara Crabb presiding,
granted. Judge Crabb also granted an award of attorney fees and
costs to PNC Bank (apparently against Ms. Spencer, but not
Attorney Nora).
¶30 On April 8, 2013, Attorney Nora filed a motion for
reconsideration of Judge Crabb's remand order. Attorney Nora
claimed in this disciplinary proceeding that she had not sought
reconsideration of the remand order, but only of the award of
attorney fees and costs. The referee found, however, that the
reconsideration motion was not limited to addressing the award
of costs and fees, noting that 41 of the 43 paragraphs in
Attorney Nora's reconsideration motion asserted that Judge Crabb
had erred in remanding the case back to state court. Indeed,
the prayer for relief in the reconsideration motion "request[ed]
that the court reconsider the Order remanding this case to state
court entered on March 25, 2013 for its clear errors of law in
13
No. 2015AP2442-D
failing to acknowledge and exercise its original jurisdiction .
. . ."
¶31 Judge Crabb ultimately denied the motion for
reconsideration, holding that the district court lacked
jurisdiction to reconsider its remand order. Judge Crabb also
held that because Spencer had not had "an objectively reasonable
argument supporting federal jurisdiction," it was appropriate to
award PNC Bank the fees it had incurred in moving to remand the
case. In other words, Judge Crabb found the removal to be
frivolous. Attorney Nora filed a second motion for
reconsideration, which rehashed the same arguments and included
a statement that the federal district court "is wrong." The
second reconsideration motion was also denied. Judge Crabb
awarded PNC Bank its costs and fees in opposing the two
reconsideration motions. Although the referee's findings do not
say so explicitly, it appears that the district court entered
judgment for the fees and costs against Ms. Spencer, not against
Attorney Nora. The total of the cost judgment was $4,928.47 in
favor of PNC Bank.
¶32 Attorney Nora filed a notice of appeal from Judge
Crabb's orders granting remand and denying her two
reconsideration motions. In the notice of appeal and in an
amended notice, Attorney Nora identified herself as a defendant-
appellant "individually and in her capacity as counsel for
Sheila M. Spencer." The referee found that Attorney Nora had
not filed any document seeking to be made a party to the case
before she filed her initial and amended notices of appeal. He
14
No. 2015AP2442-D
also explicitly found that "[Attorney] Nora knew that remand
orders were not appealable under Title 28 of the United States
Code."
¶33 The United States Court of Appeals for the Seventh
Circuit issued an order directing Attorney Nora and her client
to file a memorandum explaining why the appeal should not be
dismissed for lack of jurisdiction. In her memorandum, Attorney
Nora claimed that she had "the right and indeed the obligation
to appear in her individual name and capacity as an aggrieved
party" because she was the "target" of the sanctions imposed by
the district court and she was "ethically obligated to indemnify
Spencer for the cost and fee judgment." Nora also included a
statement that "Judge Crabb has engaged in a campaign of libel
against Nora which will be addressed in the appropriate fora."
(Emphasis added.)
¶34 Before the Seventh Circuit could rule, however,
Attorney Nora filed a bankruptcy petition on behalf of Ms.
Spencer, which delayed briefing on the Spencer appeal for a
little less than five months. Ultimately, on August 13, 2014,
the Seventh Circuit issued a decision dismissing the appeal
filed by Attorney Nora, concluding that there had been "no
objectively reasonable basis for federal jurisdiction or
removal" and that the appeal had been frivolous.5 The Seventh
5The Seventh Circuit ultimately awarded PNC Bank over
$25,000 in attorney fees and costs in responding to the
frivolous appeal.
15
No. 2015AP2442-D
Circuit ordered Attorney Nora to show cause why she should not
be sanctioned for pursuing a frivolous appeal.
¶35 Attorney Nora filed an initial response to the Seventh
Circuit's order to show cause just two days later. In her
initial response, she claimed that the Seventh Circuit's
decision contained "numerous factual findings for which there is
no evidence in the record, for which judicial notice was not
properly taken and which are offered to be proved to be clearly
erroneous." Attorney Nora also rehashed her arguments regarding
removal and repeated her claim that Judge Crabb had libeled her
by removing the seal from her medical records in a completely
unrelated case. Indeed, Attorney Nora claimed that Judge Crabb
was in contempt of a Seventh Circuit order by removing the seal.6
¶36 The Seventh Circuit ordered Attorney Nora to file "one
proper response" to four questions listed in the order. Instead
of complying with the Seventh Circuit's order, Attorney Nora
filed a petition for rehearing en banc, in which she again
repeated all of the removal/remand arguments she had made
before. The Seventh Circuit denied the petition. Attorney Nora
then moved for a stay so she could file a certiorari petition in
the U.S. Supreme Court, but she never actually filed the
certiorari petition.
6The referee found from a copy of Judge Crabb's decision in
the other case, which was admitted into evidence in this
proceeding, that the basis for the ruling was that Attorney Nora
had failed to file the documents under seal pursuant to an
existing protective order and had not moved to seal them.
16
No. 2015AP2442-D
¶37 Despite the Seventh Circuit's directive to file "one
response," on September 14, 2014, Attorney Nora filed a document
entitled "Partial Response to Order to Show Cause." In that
document, she denied that she had accused Judge Potter and his
court reporter of "fraudulently manipulating transcripts." She
also included a number of accusations against the Seventh
Circuit and lower courts in the circuit. Specifically, she
stated, "The bias of this panel and many of the judges in this
circuit against homeowners' rights to be heard and defend their
homes is apparent in every disputed sentence of the 'findings'
in the panel's decision." (Emphasis added.) She also asserted
that a number of the statements in the Seventh Circuit's
decision were "false," including that she had accused Judge
Potter, opposing counsel, and the court clerk of colluding to
conceal the contents of an order, that she had accused the court
reporter of intentionally manipulating a hearing transcript at
Judge Potter's direction, and that she had demanded that Judge
Potter recuse himself. On October 17, 2014, Attorney Nora filed
a motion for a continuance of the show cause hearing allegedly
due to medical reasons. The Seventh Circuit denied Attorney
Nora's motion for a continuance, but it allowed her to appear
for the hearing by speakerphone. Although she had asserted an
inability to appear due to medical reasons, Attorney Nora
appeared in person for the October 28, 2014 show cause hearing.
Ultimately, the Seventh Circuit imposed a $2,500 sanction on
Attorney Nora for frivolous and needlessly antagonistic filings.
In its sanction order, the Seventh Circuit stated that Attorney
17
No. 2015AP2442-D
Nora had failed to comply with its order to limit herself to
"one proper response" to the court's order to show cause. It
also described Attorney Nora's petition for rehearing en banc as
"rehashing her frivolous appellate arguments." It stated that
Attorney Nora had engaged in "conduct unbecoming a member of the
court's bar." It explained the basis for its sanction as
follows:
Nora has repeatedly acted with needless antagonism
toward opposing counsel and judicial officers. In her
responses to our order to show cause, she has refused
to back down from her accusations of libel against
Judge Crabb and "actionable civil fraud and
racketeering" against opposing counsel. She denies
accusing the state court judge of altering
transcripts, but the record belies her denial; she not
only made the accusation but moved for substitution of
the judge on that basis. She also now derides "this
panel and many of the judges in this circuit" as being
biased "against homeowners' rights to be heard and
defend their homes." This bandying about of serious
accusations without basis in law or fact is
unacceptable and warrants sanctions.
¶38 On March 10, 2014, when the Spencer foreclosure action
was again pending in the Wood County circuit court, Attorney
Nora filed a second motion to disqualify Judge Potter, which he
again denied. Judge Potter subsequently granted PNC Bank's
summary judgment motion, entered a judgment of foreclosure, and
dismissed Spencer's counterclaim. The circuit court confirmed
the sheriff's sale of the foreclosed property. Attorney Nora
filed appeals from both the judgment of foreclosure and from the
order confirming the sale. In May 2016 the court of appeals
affirmed the judgment of foreclosure and the confirmation order.
18
No. 2015AP2442-D
¶39 The OLR alleged three counts of professional
misconduct arising out of Attorney Nora's actions in
representing Ms. Spencer, most of which addressed Attorney
Nora's conduct in federal court. In Count 1 the OLR alleged
that Attorney Nora had violated SCR 20:3.1(a) by taking two
actions: (1) removing the foreclosure action to federal court
without a colorable basis for federal jurisdiction, and (2)
filing a frivolous motion to reconsider Judge Crabb's remand
order.7 The referee concluded that this count should be
dismissed because Attorney Nora was deprived of due process when
the OLR's complaints failed to give her adequate notice of the
misconduct with which she was charged by failing to specify the
subsection of SCR 20:3.1(a) that she had violated.8
¶40 With respect to Count 2, the referee concluded that
the OLR had proven that Attorney Nora had violated SCR 20:3.29 by
filing a frivolous appeal on behalf of her client and herself
when she was not a party to the litigation and by engaging in an
ongoing pattern of conduct to harass other parties and judicial
officers and to delay the proceedings.
The operative
7 language of Count 1 is set forth in
paragraph 10 above.
The referee acknowledged that if this court concluded that
8
there was no due process violation, the OLR had proven by clear,
satisfactory and convincing evidence that the conduct described
in Count 1 had violated all three subsections of SCR 20:3.1(a).
Indeed, the referee said that the evidence of violations of all
three subsections was "overwhelming."
SCR 20:3.2 provides that "[a] lawyer shall make reasonable
9
efforts to expedite litigation consistent with the interests of
the client."
19
No. 2015AP2442-D
¶41 The referee also determined that the OLR had proven a
violation of the Attorney's Oath in SCR 40.15, which is
enforceable via SCR 20:8.4(g).10
¶42 The referee found that Attorney Nora had used
accusations of misconduct against others as merely a standard
part of the defense of a foreclosure action, specifically to
delay the action so that the client could remain in the home for
as long as possible. He noted that in its sanction decision,
the Seventh Circuit had found that Attorney Nora had made
arguments with no reasonable expectation of success and merely
for the purposes of delay, harassment, and "sheer obstinacy."
The referee similarly concluded that in the Spencer
representation, "[i]t is clear from the very beginning of her
entrance into that case her goal was to delay a judgment of
foreclosure as long as possible." The referee found that
Attorney Nora knew that her attacks against Judge Potter and
court personnel would "buy her more time" because the court
would have to resolve her allegations of misconduct before it
could return to the merits of the case.
FINDINGS OF FACT AND CONCLUSIONS OF LAW CONCERNING COUNTS 4-5
¶43 Counts 4-5 relate to Attorney Nora's representation of
the Rinaldis. They had been the defendants in a foreclosure
action brought by HSBC Bank (HSBC) in the Kenosha County circuit
court (Case No. 2009CV353 or the foreclosure action). Attorney
SCR 20:8.4(g) provides that "[i]t is professional
10
misconduct to: . . . (g) violate the attorney's oath; . . . ."
20
No. 2015AP2442-D
Nora was not involved in that foreclosure action. HSBC was able
to obtain a judgment of foreclosure and a dismissal of the
Rinaldis' counterclaims. Ultimately, however, HSBC agreed to a
vacation of the judgment and dismissal of the case when the
Rinaldis entered into a loan modification agreement.
¶44 In June 2011, after the dismissal of the foreclosure
action, the Rinaldis filed a civil action against, inter alia,
Wells Fargo Bank, N.A., and the Gray Firm. (Kenosha County Case
No. 2011CV1477) The defendants filed motions to dismiss in
response to the complaint. Attorney Nora appeared in Case No.
2011CV1477 at the end of August 2011. Approximately one week
after filing her notice of appearance, Attorney Nora filed a
motion to dismiss Case No. 2011CV1477 without prejudice.
¶45 The circuit court, however, did not have a chance to
rule on the pending motion to dismiss because on October 14,
2011, Attorney Nora filed a bankruptcy petition on behalf of the
Rinaldis in the United States Bankruptcy Court for the Eastern
District of Wisconsin. HSBC filed a notice of claim regarding
the note and mortgage (and presumably the loan modification
agreement) signed by the Rinaldis. Attorney Nora filed an
objection to the bank's proof of claim and then filed an
adversary action against, inter alia, HSBC, Wells Fargo, the
Gray Firm (and certain of its lawyers), and the Litchfield Cavo
law firm (and one of its lawyers who had appeared for Wells
Fargo in Case No. 2011CV1477). In the objection, Attorney Nora
alleged that the note lacked consideration, that two assignments
of the mortgage were null and void, that a third assignment of
21
No. 2015AP2442-D
the mortgage was a forgery, and that HSBC was not the owner or
holder of the note. In the adversary action, Attorney Nora
alleged claims of common law fraud, abuse of legal process,
violations of the federal Fair Debt Collection Practices Act,
violations of the federal Racketeering and Corrupt Practices
Act, breach of contract, and tortious interference with
prospective economic opportunity.
¶46 United States Bankruptcy Judge Susan Kelley rejected
the Rinaldis' objection to HSBC's proof of claim, including
Attorney Nora's claim that the bank had produced a forged
endorsement of the note and mortgage. Judge Kelley also
recommended that the district court dismiss the claims alleged
in the adversary action. Judge Kelley characterized some of the
claims asserted by Attorney Nora in both the objection and the
adversary proceeding as "frivolous" and "preposterous."
¶47 Attorney Nora filed (1) an appeal from Judge Kelley's
decision rejecting the objection to HSBC's proof of claim and
(2) an objection to Judge Kelley's recommendation to the
district court to dismiss the adversary proceeding. The appeal
and objection were consolidated before United States District
Court Judge J.P. Stadtmueller.
¶48 Judge Stadtmueller issued a decision on October 31,
2013, in which he affirmed Judge Kelley's dismissal of the
objection to HSBC's proof of claim and adopted Judge Kelley's
proposed findings and conclusions regarding the dismissal of the
adversary proceeding. Judge Stadtmueller further held that
Attorney Nora had failed to comply with the Federal Rules of
22
No. 2015AP2442-D
Bankruptcy Procedure regarding appeals. He stated that the
Rinaldis had "failed to provide a cogent statement of the issues
on appeal" and had provided briefs "that are largely
unintelligible" and that were "an unfocused, stream-of-
consciousness-style recitation of general grievances the debtors
have asserted in various forms since the origination of this
litigation in state court." He further held that any issues
regarding the assignment of the mortgage did not affect HSBC's
rights as holder of the Rinaldis' note. He described the claims
in the adversary proceeding as "generally meritless" and
expressed concern that the Rinaldis were simply attempting to
stay the foreclosure of their home, meaning that their claim of
abuse of process would apply more to them than to the lender and
the other defendants. Finally, Judge Stadtmueller warned the
Rinaldis (and Attorney Nora) "that they will find themselves in
very deep trouble if additional meritless filings find their way
to this Court (seeing as this Court has already had the
responsibility of dealing with their all-but-frivolous filings
in Case No. 12-CV-1065) and may very well result in significant
sanctions."
¶49 Attorney Nora filed a motion to amend the findings of
fact, conclusions of law, and judgment entered by Judge
Stadtmueller. Her motion alleged the same kind of arguments
that she had previously made in her filings to both the
bankruptcy court and the district court, including that the
mortgage had been fraudulently assigned by Wells Fargo. On
December 13, 2013, Judge Stadtmueller issued an order denying
23
No. 2015AP2442-D
the motion, which stated that the Rinaldis had failed to
identify any manifest error of law or fact that would entitle
them to relief under Fed. R. Civ. Proc. 59(e) and which
explicitly warned them (and Attorney Nora) that "any further
frivolous submissions will result in an award of appropriate
sanctions against the Rinaldis' attorney."
¶50 On December 23, 2013, Attorney Nora filed a notice of
appeal from the orders issued by Judge Stadtmueller. On
February 11, 2014, she filed a motion to withdraw as the
Rinaldis' counsel in all three of the applicable federal courts
(bankruptcy court, district court, and court of appeals). Judge
Kelley heard the motion to withdraw on March 4, 2014, along with
a motion by the U.S. Trustee to dismiss the bankruptcy
proceeding due to the Rinaldis' failure to make payments. Judge
Kelley dismissed the bankruptcy proceeding, but retained
jurisdiction over the sanction motion filed by the defendants in
the adversary proceeding. Judge Kelley also denied Attorney
Nora's motion for reconsideration of her opinion that dismissal
of the bankruptcy proceeding would moot the appeal Attorney Nora
had filed on behalf of the Rinaldis. In that motion for
reconsideration, Attorney Nora essentially sought to dismiss the
adversary proceeding.
¶51 On April 2, 2014, Attorney Nora filed a motion to
intervene personally in the Rinaldi case before Judge
Stadtmueller. On that same date, Attorney Nora filed a joint
motion on behalf of herself and the Rinaldis for relief under
Fed. R. Civ. Proc. 60(b) from Judge Stadtmueller's prior orders.
24
No. 2015AP2442-D
The motion to intervene and the motion for relief under Rule
60(b) repeated the same arguments Attorney Nora had been making
in her prior filings on behalf of the Rinaldis. The
intervention motion also asserted that Attorney Nora had a right
to intervene personally to defend against the sanction motion
filed by the defendants in the adversary proceeding.
¶52 On April 9, 2014, Judge Stadtmueller issued an order
granting Attorney Nora's motion to withdraw and denying the
motions to intervene and for relief under Rule 60(b). Judge
Stadtmueller also sanctioned Attorney Nora for filing the latter
two motions:
Last, as to Ms. Nora's motion to intervene and for
Rule 60(b) relief, the Court notes that it has no
choice but to impose sanctions against Ms. Nora. In
the Court's last order, it noted that "[w]ith this
order, the Court hereby makes clear that any further
frivolous submissions will result in an award of
appropriate sanctions against the Rinaldis' attorney."
(Docket #37 at 3 (emphasis in original)). Despite
that extremely clear warning, Ms. Nora filed the
frivolous motions in question. Therefore, the Court
will enter a sanctions award against her, using its
inherent authority to do so under Chambers v. Nasco,
Inc., 501 U.S. 32 (1991). The Court will direct that
Ms. Nora pay to the Clerk of the Court $1,000.00 for
deposit into the Eastern District of Wisconsin Pro
Bono fund. And let the Court be clear: any further
frivolous filings will result in even higher sanctions
against Ms. Nora.
¶53 The Seventh Circuit affirmed Judge Stadtmueller's
orders. It stated that to the extent the adversary claims were
not moot, it affirmed the orders dismissing the adversary
proceeding for the reasons stated by the district court. It
also relied on an exception to the mootness doctrine that
25
No. 2015AP2442-D
mootness should not be allowed where the losing party causes an
appeal to become moot in order to avoid the preclusive effect of
an unfavorable ruling. It characterized Attorney Nora's attempt
to dismiss as a "type of gamesmanship" intended to deprive the
sound decisions of the bankruptcy court and the district court
of preclusive effect. Finally, the Seventh Circuit affirmed the
sanction award against Attorney Nora, stating that her
obligations to her clients did not excuse her disregard of the
district court's clear and repeated warnings against continued
submission of frivolous and needlessly argumentative filings.
¶54 Like Count 1, Count 4 alleged that certain actions
taken by Attorney Nora (specifically the filing of frivolous
motions to intervene personally and for relief from prior court
orders under Fed. R. Civ. Proc. 60(b)(2)) in the Rinaldi matter
had violated SCR 20:3.1(a). As with Count 1, the referee
recommended that this court dismiss Count 4 on the ground that
the lack of specification of the particular subsection of SCR
20:3.1(a) in the second amended complaint violated Attorney
Nora's due process rights.
¶55 With respect to Count 5, the referee concluded that
the OLR had sufficiently proven that Attorney Nora had violated
SCR 20:3.2 by filing a frivolous motion to intervene and a
frivolous motion for relief under Rule 60(b) in the district
court, after that court had warned her that further frivolous
submissions would result in an award of sanctions.
REFEREE'S RECOMMENDATION REGARDING DISCIPLINE
26
No. 2015AP2442-D
¶56 The OLR sought a one-year suspension of Attorney
Nora's license to practice law in Wisconsin, comparing her
misconduct to the misconduct found to have been committed by
Attorney Joseph Sommers. See In re Disciplinary Proceedings
Against Sommers, 2012 WI 33, 339 Wis. 2d 580, 811 N.W.2d 387
(Sommers I); In re Disciplinary Proceedings Against Sommers,
2014 WI 103, 358 Wis. 2d 248, 851 N.W.2d 458 (Sommers II). The
referee found this comparison to be unhelpful because
"[Attorney] Nora's misconduct in this case is on a level all of
its own." Unlike in the Sommers cases, Attorney Nora's
misconduct was not limited to one particular case, court, or
judge. The referee said that "[i]t is clear that [Attorney]
Nora generally practices law in a highly offensive and
disrespectful fashion" and that she intentionally acts in an
offensive, disrespectful, and difficult manner in order to delay
the foreclosure proceedings against her clients, which she views
as doing her job for them.
¶57 The referee stated that Attorney Nora had shown no
remorse for her conduct. To the contrary, she believes that her
tactics are appropriate in defending against foreclosures at all
costs. The referee twice stated that Attorney Nora sees herself
as a hero for actions in defending against foreclosures, which
the courts fail to appreciate. She does not understand the
difference between a vigorous and zealous defense and
professional misconduct. As an example, the referee pointed to
the "many false accusations" that Attorney Nora made against
Judge Potter, which she had failed to substantiate. The referee
27
No. 2015AP2442-D
further stated that, based on his observation of Attorney Nora
during this disciplinary proceeding, he believed that, if given
the chance, Attorney Nora would continue to engage in the type
of misconduct at issue in this proceeding. He noted that the
misconduct in the prior disciplinary cases against her was
similar to the misconduct found in this proceeding. In sum, the
referee concluded that Attorney Nora "represents a serious and
ongoing threat to the public, the judges before which she
appears, opposing counsel, and the legal profession." He
therefore recommended that the court suspend Attorney Nora's
license for a period of two years. He also recommended that the
reinstatement of her license be conditioned "on good faith
efforts by her to pay the tremendous costs incurred by the OLR
and the lawyers of Wisconsin in this disciplinary proceeding."
ATTORNEY NORA'S APPEAL
¶58 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.
¶59 Attorney Nora's opening brief on her appeal lists 18
separate issues (some with multiple subparts) that she would
28
No. 2015AP2442-D
like this court to address.11 A number of those issues or sub-
issues, however, are not sufficiently developed in Attorney
Nora's brief, and we will not address them in this decision.
Parsons v. Associated Banc-Corp., 2017 WI 37, ¶39 n.8, 374 Wis.
2d 513, 893 N.W.2d 212.
¶60 The first group of arguments on appeal by Attorney
Nora allege due process violations. She objects initially to
the fact that the OLR included 174 proposed findings of fact
with citations to the record in its post-hearing brief, arguing
that these statements were "new factual allegations" and that
the inclusion of them deprived her of due process before the
referee.
¶61 Attorney Nora contends that these "new factual
allegations" were improper because the OLR did not obtain a
11 With each of her three appellate briefs, Attorney Nora
filed a set of requests asking this court to take judicial
notice of certain documents under Wis. Stat. § 901.01(4) and
901.02(2)(b). The documents at issue, copies of which Attorney
Nora appended to her requests, appear to be, for the most part,
filings from various underlying court proceedings. The OLR did
not object to this court taking judicial notice of the existence
and contents of the documents. Accordingly, we take judicial
notice of the existence and of the contents of the requested
documents. We do not take judicial notice of the truth of any
statements included in those documents. In addition, we do not
take judicial notice of the Rinaldis' Chapter 13 Plan in their
bankruptcy proceeding because no such document was found as
Exhibit F to Attorney Nora's April 2, 2019 second set of
requests for judicial notice in support of her reply brief. We
also do not take judicial notice of the List of Nonpriority
Unsecured Claims from Attorney Nora's personal bankruptcy
proceeding that was attached as Exhibit G to her April 2, 2019
second set of requests for judicial notice. That document is
not relevant to Attorney Nora's reply brief.
29
No. 2015AP2442-D
"cause-to-proceed" determination as to most of those facts from
a panel of the preliminary review committee (the PRC) under SCR
22.11(2) before the evidentiary hearing in this proceeding.
Attorney Nora apparently relies on the language in that rule
which states that "[t]he complaint shall set forth only those
facts and misconduct allegations for which the preliminary
review panel determined there was cause to proceed . . . ."
Attorney Nora reads this clause literally to mean that each
allegation of fact in a disciplinary complaint must be
specifically approved by the PRC. She then attempts to extend
the language to require PRC approval of proposed findings of
fact in a post-hearing submission. She does not offer any case
law support for such an interpretation, nor does she analyze how
this language from SCR 22.11(2) fits within the structure of the
disciplinary process described in SCR ch. 22.
¶62 Attorney Nora's argument is misplaced. The procedural
provisions in SCR ch. 22 regarding the presentation of a matter
to a panel of the PRC do not require or even contemplate that
the PRC will make any factual determinations about the
information submitted by the OLR's director. The director is
required to submit to the PRC panel the OLR's "investigative
reports, including all relevant exculpatory and inculpatory
information obtained and appendices and exhibits, if any." SCR
22.06(1). The PRC panel does not make credibility
determinations or decide what the specific facts regarding the
matter are. What it does do is determine, given the inculpatory
and exculpatory information presented to it, whether there is
30
No. 2015AP2442-D
sufficient plausible evidence for the OLR to proceed with a
formal disciplinary claim against the respondent attorney. The
PRC panel does not review a proposed complaint and approve or
disapprove specific factual allegations in a complaint.
¶63 Indeed, a finding of cause to proceed by a PRC panel
does not automatically lead to the filing of a disciplinary
complaint. A finding of cause to proceed merely authorizes the
OLR director to "decide on the appropriate discipline or other
disposition to seek in the matter." SCR 22.08(2). In some
cases the director will determine that the appropriate next step
is to file a formal complaint in this court asking it to impose
discipline against the respondent attorney. SCR 22.08(2)(c).
In other words, the formal complaint can be drafted and filed
after the PRC panel has completed its work. In other cases,
however, the director is authorized to obtain the respondent
attorney's agreement to a consensual reprimand or to divert the
matter to an alternative to discipline program. SCR
22.08(2)(a)-(b).
¶64 That the OLR is not bound to obtain approval of every
factual allegation in a complaint or every proposed finding of
fact in a post-hearing brief is demonstrated by the fact that
SCR 22.11(5) authorizes the OLR to amend a complaint "as
provided in the rules of civil procedure." If Attorney Nora's
view were correct, that subsection would also need to state that
a complaint may be amended only if a PRC panel first approves
the amended allegations. The rule does not, however, contain
any such requirement.
31
No. 2015AP2442-D
¶65 In any event, in this case a PRC panel made a cause-
to-proceed determination as to the five misconduct claims that
appear in all three versions of the OLR's complaint. The
amendments in both the first amended complaint and the second
amended complaint did not add entirely new instances of conduct
or new misconduct claims; they simply corrected some mistakes in
the factual allegations. Such amendments are clearly permitted
under SCR 22.11(5) and do not require a second (or third)
approval by a PRC panel under SCR 22.11(2). Similarly, once a
PRC panel has found cause to proceed on claims that are
subsequently included in a formal complaint, there is no
requirement in SCR 22.11 that the OLR obtain further approval of
any particular summary of facts from the evidence introduced in
the case or in any particular set of proposed findings of fact.
To the extent that the OLR was able to flesh out the factual
allegations of its second amended complaint by presenting
evidence at the evidentiary hearing, that is entirely consistent
with due process. Indeed, that is the normal course of
proceedings in all civil and criminal cases. Accordingly, the
OLR's inclusion of proposed findings of fact in its post-hearing
brief did not violate SCR 22.11(2).
¶66 Attorney Nora also argues that the inclusion of the
174 allegedly "new" factual allegations in the OLR's post-
hearing brief violated her due process rights under In re
Ruffalo, 390 U.S. 544, 551 (1968). In that matter, however, the
U.S. Supreme Court held that it was a violation of due process
for the Ohio disciplinary authorities (the local bar
32
No. 2015AP2442-D
association) to amend their disciplinary complaint during the
disciplinary hearing and after the respondent attorney had
testified in order to allege an entirely new claim of
misconduct.12 Id. at 550-51. That holding has no bearing on
this proceeding because the OLR never attempted to allege an
entirely new claim of misconduct in its amended complaints or in
its post-hearing brief. The five counts in the OLR's original
complaint identified what conduct by Attorney Nora violated
which rules of professional conduct. Those five claims remained
the same in each of the OLR's amended complaints. The referee's
conclusions of law likewise determine that the same conduct by
Attorney Nora violated the same rules that the OLR identified in
its complaints. There is no due process violation under Ruffalo
in this proceeding.
¶67 Similarly, Attorney Nora alleges that the 174 "new
factual allegations" in the OLR's post-hearing brief constituted
a due process violation under this court's decision in State v.
Hersh, 73 Wis. 2d 390, 243 N.W.2d 178 (1976). In that case,
this court found no due process violation where, under a
previous attorney disciplinary regime, the Board of State Bar
Commissioners was allowed to amend a complaint against a
respondent attorney to conform the complaint to the evidence
upon approval by a sufficient number of members of the board and
The appeal in Ruffalo actually arose out of a decision by
12
the Sixth Circuit to disbar Attorney Ruffalo from practicing in
that court, but the Sixth Circuit essentially relied on the Ohio
state disciplinary proceeding in reaching its decision. In re
Ruffalo, 390 U.S. 544, 545, 547 (1968).
33
No. 2015AP2442-D
an adjournment of the disciplinary hearing occurred. Attorney
Nora points to a statement in that decision that a respondent
attorney's due process rights in a disciplinary proceeding
"encompasses only [the attorney's] right to prior notice of
charges, [the attorney's] right to prepare to defend these
charges, and [the attorney's] right to a full hearing on these
charges." Id. at 398. We find no violation of these rights
arising out of the OLR's submission of proposed findings of fact
in a post-hearing brief. Attorney Nora fails to demonstrate
that those proposed findings of fact materially changed the
nature of the allegations against her or the ethical rules which
she was alleged to have violated. The five counts in each of
the OLR's three complaints, which remained consistent,
adequately advised Attorney Nora which of her actions had
violated which rules of professional conduct. She had
sufficient notice of the charges to be able to prepare to defend
against those claims. She was accorded a four-day hearing at
which to question the OLR's witnesses and to present her own
testimony and exhibits. Her due process rights were duly
protected.
¶68 Attorney Nora briefly alleges that her due process
right to prepare and present a defense was also violated by
various rulings by the referee. These allegations are not
sufficiently developed to warrant specific responses. Even if
we were to address them on the merits, we see no due process
violations as a result of the referee's orders. Attorney Nora
had a sufficient opportunity to conduct discovery, to name
34
No. 2015AP2442-D
witnesses, and to prepare and present a defense. Her failure to
avail herself of some of those opportunities does not mean that
her due process rights were violated.
¶69 The second group of arguments in Attorney Nora's
appeal is styled as a broad challenge to the referee's factual
findings. Her arguments, however, challenge the referee's legal
conclusions that she violated SCR 20:3.2 in Counts 2 and 5 as
much as she challenges any particular factual findings. She
argues that under SCR 20:3.2, the referee erred in concluding
that she had improperly delayed both the Spencer matter and the
Rinaldi matter. She contends that a lawyer can violate that
rule only if the lawyer's actions had no substantial purpose
other than to delay. Since she alleges that she acted in good
faith in taking the actions she took, there could be no
conclusion of improper delay. Moreover, she argues that her
conduct did not actually result in delay of either the Spencer
matter or the Rinaldi matter.
¶70 Attorney Nora points to an American Bar Association
comment to Model Rule 3.2 that the question under this rule is
whether a competent lawyer acting in good faith would regard the
course of action at issue as having some substantial purpose
other than delay. What Attorney Nora misses is that this
comment demonstrates that the pertinent question under the rule
is one of the lawyer's purpose or intent in pursuing the
action(s) at issue. Determining a person's intent requires a
referee to make an inference from the lawyer's actions and
statements under the circumstances. See Welytok v. Ziolkowski,
35
No. 2015AP2442-D
2008 WI App 67, ¶26, 312 Wis. 2d 435, 752 N.W.2d 359 (quoting
Pfeifer v. World Serv. Life Ins. Co., 121 Wis. 2d 567, 569, 360
N.W.2d 65 (Ct. App. 1984)). Here, the referee drew factual
inferences from the facts presented that Attorney Nora's purpose
in taking a number of specified actions was to delay the Spencer
matter and the Rinaldi matter. To the extent that she
challenges these factual inferences on appeal, Attorney Nora
must show that the referee's inferences were clearly erroneous
(i.e., that each inference was against the great weight and
clear preponderance of the evidence). Phelps v. Physicians Ins.
Co. of Wisconsin, 2009 WI 74, ¶39, 319 Wis. 2d 1, 768 N.W.2d
615.
¶71 Attorney Nora does not meet that high burden. There
was ample evidence with respect to both the Spencer matter and
the Rinaldi matter to support the referee's determination that
Attorney Nora's purpose was to place whatever road blocks she
could construct in the path of concluding the various pieces of
litigation.
¶72 In the Spencer matter, Attorney Nora made a host of
accusations against Judge Potter, claiming that he and his court
staff had engaged in multiple ex parte communications with
opposing counsel, that he had conducted "secret proceedings,"
and that he had been "collaborating" with opposing counsel and
had been "complicit in the manipulation of the proceedings and
of the record." United States District Court Judge Crabb
determined that Attorney Nora's subsequent attempt to remove the
case to federal court was not objectively reasonable. Instead
36
No. 2015AP2442-D
of accepting the district court's ruling, Attorney Nora twice
moved for reconsideration of Judge Crabb's remand order,
resulting in Judge Crabb finding that her reconsideration
requests were without basis and awarding costs and fees to the
opposing party. Attorney Nora then prolonged the federal
proceedings by filing an appeal that the Seventh Circuit found
to be frivolous, ultimately resulting in an award of sanctions
against her.
¶73 In the Rinaldi matter, Attorney Nora attempted to drag
out the matter by raising objections and arguments that the
federal bankruptcy judge characterized as frivolous. She then
attempted to intervene personally and to move for relief under
Fed. R. Civ. Proc. 60(b). The federal district court again
determined that Attorney Nora's motions had been frivolous and
imposed sanctions. On appeal the Seventh Circuit characterized
Attorney Nora's actions as "gamesmanship" that it would not
permit, and it affirmed the imposition of sanctions due to
Attorney Nora's frivolous filings. The referee's inferences of
a purpose of delay by Attorney Nora in both matters were not
clearly erroneous.
¶74 Although it too falls within the portion of her
argument regarding a lack of evidence to support the referee's
factual findings, Attorney Nora's argument regarding Count 3
(violation of the attorney's oath) is also more legal in nature
than an allegation that the referee's factual findings were
clearly erroneous. She contends that her actions on behalf of
Ms. Spencer arose from her constitutionally protected obligation
37
No. 2015AP2442-D
as a lawyer to seek redress from the courts on behalf of her
client. As this court already explained in Nora II, however, a
lawyer's fight for a client's cause, however noble the lawyer
might believe it to be, must be conducted within the ethical
rules. Nora, 380 Wis. 2d 311, ¶41. Attorney Nora has not
demonstrated any error in the referee's factual findings about
Attorney Nora's specific actions in the Spencer matter or in the
referee's determination that her actions constituted an ongoing
pattern of conduct to harass other parties and judicial officers
and to delay the proceedings. The Seventh Circuit's description
of her conduct, quoted in paragraph 37 above, supports the
referee's findings in this regard. The referee's factual
findings and his inference that Attorney Nora's actions were
intended to harass and to delay are not clearly erroneous. A
determination that Attorney Nora exceeded the bounds of ethical
advocacy by her conduct does not violate her or her clients'
constitutional rights to petition the judicial branch of
government for redress.
¶75 Attorney Nora includes a number of other general
allegations that the referee erred in his evidentiary rulings,
misapplied burdens of proof, and made unsupported findings in
the discussion section of his report. These allegations are
insufficiently developed, and we need not address them here.
¶76 Having concluded that Attorney Nora's appellate
arguments are without merit, we accept the referee's factual
findings and agree with his legal conclusions that the OLR
38
No. 2015AP2442-D
proved the ethical violations alleged in Counts 2, 3, and 5 of
its second amended complaint.
OLR'S CROSS-APPEAL
¶77 We now turn to the OLR's cross-appeal of the dismissal
of Counts 1 and 4 on the ground that the versions of the OLR's
complaint failed to provide adequate notice as to which
subsection of SCR 20:3.1(a) her conduct had violated. First, we
start from the observation that from its original complaint
through to its second amended complaint, the OLR identified the
specific actions by Attorney Nora that it alleged violated SCR
20:3.1(a). In the Spencer matter, the alleged misconduct was
removing the foreclosure action against Ms. Spencer to the
federal court with no colorable basis for federal jurisdiction
and then filing frivolous motions for reconsideration of the
federal district court's remand order. In the Rinaldi matter,
the alleged misconduct was filing in the federal district court
a frivolous motion to intervene personally and a frivolous
motion for relief from prior orders under Fed. R. Civ. Proc.
60(b).
¶78 Attorney Nora therefore knew the basis for those
counts from the very beginning of the proceeding. She litigated
against those counts before the referee for more than two years,
through motions to dismiss, through pretrial motions, through a
four-day evidentiary hearing, and through the filing of a post-
hearing brief. While in one early filing she did note that
Count 4 of the complaint (specifically, paragraph 90) did not
identify the subsections of SCR 20:3.1(a), she never alleged
39
No. 2015AP2442-D
that the failure to identify the subsections of SCR 20:3.1(a)
constituted a violation of her due process right to notice of
the misconduct charges against her. Through the filing of her
post-hearing brief, she never alleged that she was unable to
defend against Count 1 and 4 because the OLR's complaints had
not specified which subsection of SCR 20:3.1(a) her actions had
violated. Had the referee not raised the issue sua sponte after
the parties had concluded their post-hearing briefs, the
litigation of the case before the referee would have concluded
with no such claim having been made.
¶79 Under these facts, we conclude that Attorney Nora
forfeited any argument that Counts 1 and 4 of the OLR's
complaints violated her due process rights. The issue raised by
the referee is a question of notice in pleading. A respondent
party cannot ignore an alleged defect in pleading all the way
through the final evidentiary hearing (or trial) of a case and
through post-hearing briefing, and then allege that the
complainant's claim must be dismissed because it failed to
provide adequate notice of the claim against the respondent.
Permitting respondents to obtain dismissal of claims under those
circumstances would endorse "gotcha" tactics and would undermine
the orderly conduct of a disciplinary proceeding or any other
civil action. The prejudice of such a ruling is evident here.
Because the alleged error by the OLR was one of pleading, it
could have been easily remedied through the filing of an amended
complaint if Attorney Nora had alleged a due process violation
at any point during the actual litigation of the case. By
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litigating the case through the evidentiary hearing, she
prevented the OLR from having an opportunity to remedy any
alleged deficiency in its complaint. Moreover, the fact that
she actually defended against Counts 1 and 4 at the evidentiary
hearing undercuts an assertion that she lacked sufficient notice
to prepare a defense on those counts.
¶80 In addition, the fact that the referee ultimately
raised the issue does not affect this analysis. Attorney Nora's
failure to raise the issue through the evidentiary hearing and
post-hearing briefing still meant that her conduct in litigating
the case through the evidentiary hearing prevented the OLR from
amending those counts and obtaining a decision on their merits,
whether or not the referee subsequently raised the issue. The
referee's raising of the issue after the evidentiary hearing was
complete still prevented the OLR from correcting an alleged
pleading deficiency. Accordingly, we conclude that under these
circumstances Counts 1 and 4 should not be dismissed based on a
claimed due process violation that was clearly forfeited by
Attorney Nora.
¶81 The referee concluded that, if this court rejected his
recommended dismissal of Counts 1 and 4 on due process grounds,
the OLR did prove in each of those two counts that Attorney Nora
had violated SCR 20:3.1(a) by clear, satisfactory and convincing
evidence. We agree with those conclusions.
APPROPRIATE LEVEL OF DISCIPLINE
¶82 Having determined that Attorney Nora engaged in
professional misconduct as alleged in all five counts of the
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amended complaint, we turn to the issue of the appropriate level
of discipline. In assessing what is the proper level of
discipline to impose, we consider various 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 Carroll, 2001 WI 130, ¶40, 248
Wis. 2d 662, 636 N.W.2d 718.
¶83 It cannot reasonably be disputed that Attorney Nora's
misconduct is serious. Although she criticizes as
"inflammatory" the referee's description of the tactics she
used, we view them as fair comments on Attorney Nora's actions.
Quite simply, she has repeatedly abused the legal system to
pursue her agenda of delaying foreclosure actions by any means
possible.
¶84 This is not an isolated incident of a lawyer allowing
the lawyer's zeal in the heat of battle to overcome the lawyer's
better judgment. This is now the third time that Attorney Nora
is being disciplined for similar conduct. In just Nora II and
this case, she has been found to have filed frivolous claims or
taken frivolous positions in five separate actions. Clearly,
there is a lengthy pattern of similar misconduct. She has been
sanctioned multiple times in multiple courts for her frivolous
filings.
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¶85 Her misconduct does pose a real threat to the
administration of justice. Not only has she improperly used the
tools of the legal system to delay the completion of civil
actions, she has repeatedly attacked the other participants in
those actions (judges, lawyers, and litigants) with claims of
unethical or even criminal conduct. She alleged that Judge
Potter had abandoned his role as a neutral magistrate to
manipulate the record and to collude with opposing counsel to
reach a corrupt result. She accused Judge Crabb of engaging in
a personal campaign of libel against her. She accused the
judges of the Seventh Circuit of being biased against the rights
of homeowners. Not only was she unwilling to accept the rulings
of these judicial officers and therefore repeatedly challenged
their rulings after the fact, she labeled those judges who did
not accede to her tactics as being biased and unethical.
Lawyers do not have to agree with a judge's rulings, but the
legal system cannot function properly and maintain the necessary
respect in the eyes of the public if lawyers baselessly attack
the integrity of the individuals who preside in our courts.
¶86 The referee found that Attorney Nora had not expressed
any real remorse for her conduct throughout the proceedings
before him. Rather, her conduct in litigating this case
demonstrated that she continued to believe her win-at-all-costs
approach in foreclosure cases was justified. He found that if
she again held a valid license to practice law, she would not
hesitate to use the same improper tactics. In part, he reached
this conclusion because he believed that there was little chance
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that Attorney Nora will ever understand why her actions were
wrong and what damage her misconduct had caused. Further, his
belief was supported by the fact that during this disciplinary
proceeding, Attorney Nora had reached into the same playbook,
accusing the investigators and attorneys acting on behalf of the
OLR of being biased and having engaged in serious professional
misconduct, even in criminal activities.
¶87 During oral argument before this court, Attorney Nora
did acknowledge, to a limited degree, that she had crossed an
ethical line. She admitted that she had been overzealous at
times and had shown an offensive personality in some of her
filings, but she indicated that her fault had been in the
incorrect manner in which she had articulated her positions.
Attorney Nora did not show that she accepted and admitted that
the actual positions and actions she took were improper, even
though multiple courts had found multiple filings submitted by
her to be frivolous and had imposed sanctions on her.
¶88 Clearly, given her arguments to this court, Attorney
Nora retains the same zeal for her cause of fighting against
residential property lenders and mortgage holders. While we
recognize that she has now made some show of acknowledging a
limited responsibility for her conduct, we share the referee's
concern that Attorney Nora has not grasped or accepted the
extent of her misconduct and that, at this point, she would be
highly likely to repeat that misconduct if she held a valid
license to practice law. We therefore conclude that a
substantial period of suspension is necessary to impress upon
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her the seriousness of her misconduct and to protect the public,
the courts, and the legal system from a repetition of that
misconduct.
¶89 The referee commented that Attorney Nora's
professional misconduct "is at a level all of its own, not
previously seen in any Wisconsin disciplinary cases." That
observation seems, in our view, to be somewhat of an
overstatement. For example, we revoked the license of Attorney
Alan Eisenberg when he not only commenced and continued a
frivolous claim to harass an opposing party, but repeatedly made
misrepresentations to damage the reputation of an opposing party
and to gain leverage in a pending divorce action. In re
Disciplinary Proceedings Against Eisenberg, 2010 WI 11, 322 Wis.
2d 518, 778 N.W.2d 645. While Attorney Nora's misconduct does
share some similar traits with Attorney Eisenberg's misconduct,
his prior disciplinary history and the culpability of his
actions exceed those of Attorney Nora. We therefore do not
believe that a revocation of her license is necessary or
appropriate.
¶90 On the other hand, we agree with the referee that the
OLR's initial analogy to the suspensions imposed on Attorney
John Widule and Attorney Joseph Sommers is inadequate. The
Sommers I case, in which we imposed a 30-day suspension involved
unusual mitigating factors and is particularly inapt, both
factually and legally. The Widule case,13 in which we imposed a
In re Disciplinary Proceedings Against Widule, 2003 WI
13
34, 261 Wis. 2d 45, 660 N.W.2d 686.
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No. 2015AP2442-D
six-month suspension did involve similar conduct in commencing
and continuing a frivolous action, but that matter is also
factually distinguishable. Attorney Widule's misconduct was
limited to one client representation and he had no prior record
of receiving public discipline. This is now the third
disciplinary proceeding against Attorney Nora, and it involves
the fourth and fifth actions in which Attorney Nora took
frivolous positions. Attorney Nora's professional misconduct
warrants a significantly higher level of discipline than the
six-month suspension we imposed on Attorney Widule.
¶91 In addition, this court has generally followed a
practice of imposing progressive discipline. In re Disciplinary
Proceedings Against Netzer, 2014 WI 7, ¶49, 352 Wis. 2d 310, 841
N.W.2d 820 ("This court has long adhered to the concept of
progressive discipline in attorney regulatory cases."); In re
Disciplinary Proceedings Against Nussberger, 2006 WI 111, ¶27,
296 Wis. 2d 47, 719 N.W.2d 501 (". . . we have frequently
followed the concept of progressive discipline, especially in
cases involving a pattern of similar misconduct."). The
misconduct in this case is similar in nature to the misconduct
found in Nora II, where we imposed a one-year suspension. A
longer suspension is appropriate here.
¶92 Having considered all of the factors discussed above,
we conclude that a two-year suspension of Attorney Nora's
license to practice law in Wisconsin is necessary to impress
upon her the seriousness of her misconduct and to protect the
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No. 2015AP2442-D
courts and the legal system from a repetition of that
misconduct.
¶93 In his report the referee commented that he
recommended a two-year suspension, "consecutive to any current
suspensions." His report, however, was issued while Attorney
Nora was serving the one-year suspension imposed in Nora II. If
this case had concluded while that one-year suspension remained
in effect, it would have been logical to begin the current
suspension following the completion of the prior suspension.
¶94 Generally, disciplinary suspensions imposed by this
court are prospective—i.e., they commence at the time that the
suspension is imposed or within a few weeks thereafter.
Commencing the two-year suspension imposed in this proceeding as
of April 30, 2019, when the one-year suspension from Nora II
expired, would make the current suspension retroactive.
"Generally, a retroactive suspension is disfavored in the
absence of some compelling circumstance." In re Disciplinary
Proceedings Against Woods, 2011 WI 46, ¶2, 334 Wis. 2d 324, 800
N.W.2d 875 (citation omitted). We find no compelling
circumstance here that would warrant beginning the current two-
year suspension more than one year ago.
¶95 We do, however, recognize that the COVID-19 pandemic
and the attendant matters that have consumed the court over the
last several months have impacted the timing of this decision.
We therefore conclude that it is appropriate to make the two-
year suspension effective as of April 1, 2020.
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¶96 The referee also recommended that this court condition
the reinstatement of Attorney Nora's license on "good faith
efforts by her to pay the tremendous costs incurred by the OLR
and the lawyers of Wisconsin in this disciplinary proceeding."
We do not impose this condition. First, such a condition would
ordinarily be unnecessary because a lawyer's reinstatement
petition from a suspension of six months or more must show that
the lawyer has fully complied with the terms of the suspension
order, which would ordinarily include a requirement that the
lawyer pay the costs of the disciplinary proceeding. See SCR
22.29(4)(c). Further, the condition is not necessary in this
case because, as discussed below, we are not ordering Attorney
Nora to pay the costs of this proceeding pursuant to the OLR's
request.
¶97 We do, however, determine that it is necessary and
appropriate to impose a different condition on any reinstatement
proceeding that Attorney Nora may initiate. A number of courts
have imposed monetary sanctions on her individually as a result
of her filing frivolous documents. Paying those monetary
sanctions is an appropriate way for Attorney Nora to demonstrate
that she has accepted responsibility for her actions.
Consequently, we require as a condition of reinstatement that
any reinstatement petition filed by Attorney Nora (1) identify
each monetary sanction amount that has been imposed on her by
any court and that is outstanding as of the date of this
decision and (2) allege that she has made a good faith effort to
pay all such sanction amounts. She must then prove during the
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No. 2015AP2442-D
reinstatement proceedings before the referee that she has made a
good faith effort to pay all of the sanction amounts identified
in her petition. The failure of Attorney Nora to meet these
conditions will be sufficient grounds for the dismissal of her
reinstatement petition.
¶98 The OLR does not request any restitution award.
Attorney Nora's misconduct at issue did not involve her
retaining funds that should be delivered to others.
Consequently, we do not include restitution in our order.
¶99 Finally, we turn to the issue of costs. Attorney Nora
filed an objection to the OLR's statement of costs and to the
referee's recommendation regarding costs, based in part on the
fact that the OLR did not provide an itemization initially with
its statement of costs and the referee submitted his cost
recommendation before Attorney Nora filed her objection. After
oral argument, we issued an order that directed the OLR to file
a supplemental statement of appellate costs with an attached
full itemization of costs and that permitted Attorney Nora to
file a new, comprehensive objection.
¶100 One of Attorney Nora's objections to a cost award was
that she has been pursuing a personal bankruptcy proceeding in
the United States Bankruptcy Court for the District of Minnesota
(the Minnesota bankruptcy court). On June 15, 2020, the OLR
filed a Revised Recommendation Regarding Costs. It noted that
the Minnesota bankruptcy court had recently issued a discharge
in bankruptcy to Attorney Nora. It requested that the court not
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No. 2015AP2442-D
order Attorney Nora to pay the costs of this disciplinary
proceeding.
¶101 Under the particular circumstances of this matter and
in light of the OLR's request, we will not require Attorney Nora
to pay the costs of this disciplinary proceeding.14
¶102 IT IS ORDERED that the license of Wendy Alison Nora to
practice law in Wisconsin is suspended for a period of two
years, effective April 1, 2020.
¶103 IT IS FURTHER ORDERED, that as a condition of
reinstatement, any petition seeking reinstatement from the
license suspension imposed in this proceeding must (1) identify
each monetary sanction amount that has been imposed on her
individually by any court and that is outstanding as of the date
of this decision and (2) allege that she has made a good faith
effort to pay all such sanction amounts. In addition, Attorney
Nora must prove during the reinstatement proceedings before the
referee that she has made a good faith effort to pay all of the
sanction amounts identified in her petition.
¶104 IT IS FURTHER ORDERED that no costs shall be imposed
upon Wendy Alison Nora in this proceeding.
¶105 IT IS FURTHER ORDERED that the administrative
suspension of Wendy Alison Nora's license to practice law in
Wisconsin, due to her failure to pay mandatory bar dues and her
failure to file a trust account certification, will remain in
The OLR's supplemental statement of costs indicated that
14
the costs of this proceeding were $94,997.97.
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No. 2015AP2442-D
effect until each reason for the administrative suspension has
been rectified pursuant to SCR 22.28(1).
¶106 IT IS FURTHER ORDERED that Wendy Alison Nora 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.
¶107 IT IS FURTHER ORDERED that compliance with all
conditions of this order is required for reinstatement from the
suspension imposed herein. See SCR 22.28(3).
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No. 2015AP2442-D
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