Office of Lawyer Regulation v. Benjamin A. Hanes

2020 WI 89SUPREME COURT OF WISCONSIN
CASE NO.: 2019AP001170-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Benjamin A. Hanes, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Benjamin A. Hanes,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST HANES
OPINION FILED: December 9, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
Per Curiam.
NOT PARTICIPATING:
ATTORNEYS:
2020 WI 89NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2019AP1170-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Benjamin A. Hanes, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant, DEC 9, 2020
v. Sheila T. Reiff
Clerk of Supreme Court
Benjamin A. Hanes,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. We review the report and the
supplemental report of Referee Robert E. Kinney, recommending
that Attorney Benjamin A. Hanes be suspended for a period of two
years for professional misconduct, and that he should pay the
full costs of this proceeding, which are $7,704.67 as of March
17, 2020. The referee further recommended that we require
Attorney Hanes to fulfill certain conditions before he can seek
reinstatement.
No. 2019AP1170-D
¶2 We accept in part the referee's report, as
supplemented, and we agree with the referee that the seriousness
of Attorney Hanes' misconduct merits a severe sanction. We
suspend Attorney Hanes' license to practice law for a period of
four years. We impose modified conditions on Attorney Hanes'
future reinstatement and we impose the full costs of this
proceeding on Attorney Hanes. The Office of Lawyer Regulation
(OLR) did not seek restitution and no restitution is ordered.
¶3 Attorney Hanes was admitted to the practice of law in
Wisconsin in 2011. He worked as an assistant district attorney
or contract assistant district attorney in Waushara, Winnebago,
and Calumet counties. Attorney Hanes has not previously been
the subject of professional discipline. On October 31, 2017 his
license to practice law in Wisconsin was administratively
suspended for failure to pay state bar dues and certify trust
account information. On May 22, 2018, his license to practice
law was further administratively suspended for failure to comply
with continuing legal education requirements. Attorney Hanes'
law license remains suspended.
¶4 On June 27, 2019, the OLR filed a four-count
disciplinary complaint against Attorney Hanes based on criminal
conduct he committed in August 2016 and January 2017. The OLR's
complaint alleged that: (1) by engaging in conduct leading to a
Columbia County misdemeanor criminal conviction for fourth-
degree sexual assault, Attorney Hanes violated Supreme Court
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No. 2019AP1170-D
Rule (SCR) 20:8.4(b) (Count One);1 (2) by failing to notify the
OLR of his Columbia County misdemeanor criminal conviction,
Attorney Hanes violated SCR 21.15(5),2 enforceable via
SCR 20:8.4(f) (Count Two);3 (3) by engaging in conduct leading to
three Calumet County felony criminal convictions for second-
degree recklessly endangering safety, fleeing/eluding an
officer, and bail jumping, Attorney Hanes violated SCR 20:8.4(b)
(Count Three); and (4) by failing to notify the OLR of his
Calumet County felony criminal convictions, Attorney Hanes
violated SCR 21.15(5), enforceable via SCR 20:8.4(f). The OLR
sought a 90-day license suspension.
¶5 Referee Kinney was appointed and conducted a
scheduling conference. After that conference, the parties
1SCR 20:8.4(b) provides: "It is professional misconduct
for a lawyer to commit a criminal act that reflects adversely on
the lawyer's honesty, trustworthiness or fitness as a lawyer in
other respects."
2 SCR 21.15(5) provides:
An attorney found guilty or convicted of any
crime on or after July 1, 2002, shall notify in
writing the office of lawyer regulation and the clerk
of the Supreme Court within 5 days after the finding
or conviction, whichever first occurs. The notice
shall include the identity of the attorney, the date
of finding or conviction, the offenses, and the
jurisdiction. An attorney's failure to notify the
office of lawyer regulation and clerk of the supreme
court of being found guilty or his or her conviction
is misconduct.
3SCR 20:8.4(f) provides: "It is professional misconduct
for a lawyer to violate a statute, supreme court rule, supreme
court order or supreme court decision regulating the conduct of
lawyers."
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No. 2019AP1170-D
submitted a stipulation and no contest plea to the referee.
Attorney Hanes agreed that the referee could use the complaint
as an adequate factual basis for a determination of the alleged
misconduct, on the understanding the referee would recommend the
level of discipline sought by the OLR director, namely, a 90-day
suspension of his law license.
¶6 The referee conducted a hearing on the proposed
stipulation on October 29, 2019. At the hearing, the referee
noted the absence of underlying information pertaining to the
criminal convictions and asked Attorney Hanes, "Do you wish to
share the documentation that's in these criminal files with me?"
Attorney Hanes declined to share the information. Attorney
Hanes attributed his misconduct, in part, to an anxiety disorder
but offered no additional evidence to substantiate that
statement.
¶7 The referee issued a report and recommendation on
January 22, 2020. The referee deemed the proposed 90-day
license suspension grossly inadequate. The referee expressed
frustration with the scant factual record before him, which did
not include the underlying criminal complaints, witness
statements, or transcripts from the underlying criminal
proceedings. After explaining how this underdeveloped record
hampered his task of making an informed recommendation, the
referee recommended a two-year license suspension, based
primarily on In re Disciplinary Proceedings Against Evenson,
2015 WI 38, 361 Wis. 2d 629, 861 N.W.2d 786.
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No. 2019AP1170-D
¶8 The OLR filed a motion to supplement the record and a
motion for reconsideration. The OLR identified no error in the
referee's report and did not ask the referee to alter his
recommendation. Rather, the OLR stated that it had failed,
inadvertently, to introduce the transcripts of the plea and
sentencing hearings from Attorney Hanes' two criminal cases. It
provided that information and also explained its recommendation
for a 90-day suspension, citing numerous prior disciplinary
cases, as support.
¶9 After receiving no objection from Attorney Hanes, the
referee granted the OLR's motion and reopened and supplemented
the record with the additional information, some of which we
recount here.
¶10 According to the record, as supplemented, on August
26, 2016, Attorney Hanes and others went out for dinner and
drinks. Afterward, the group returned to an apartment, where a
woman in the group fell asleep on a couch. While she was
sleeping, Attorney Hanes sexually assaulted her. After she woke
up, Attorney Hanes again assaulted her. The woman left and
reported the assault to police. On August 29, 2016, Attorney
Hanes was charged with one felony count of second-degree sexual
assault of an unconscious victim and one misdemeanor count of
fourth-degree sexual assault. State v. Hanes, Columbia County
Case No. 2016CF412.
¶11 On July 20, 2018, Attorney Hanes was convicted of
misdemeanor fourth-degree sexual assault; the felony count was
dismissed. He was sentenced to one-year probation and was
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No. 2019AP1170-D
assessed costs and restitution. Attorney Hanes was also
enjoined from contact with the victim.
¶12 Attorney Hanes failed to report his Columbia County
criminal conviction to the OLR.
¶13 Meanwhile, on January 4, 2017, while released on bail
in the Columbia County case, Attorney Hanes was pulled over by a
Calumet County sheriff for erratic driving. Attorney Hanes'
driver's license was revoked at the time and, during the stop,
the sheriff noticed items in the vehicle commonly associated
with drug use.
¶14 After disobeying the sheriff's command to exit his
car, Attorney Hanes drove off and a high speed chase ensued.
When law enforcement finally cornered Attorney Hanes, he tried
to flee on foot; he was ultimately subdued by a Taser. At his
sentencing hearing it was noted that Attorney Hanes:
[s]werved into oncoming traffic a number of - on a
number of occasions, blew through a red light - blew
through two red lights . . ..
[a]nd then even after the defendant's vehicle was
partially boxed in, the defendant did still try to
leave, and that's when the window was shattered, his
driver's side window was shattered ultimately stopping
the vehicle . . ..
Ultimately he was tased on the ground because of his
level of noncompliance and the inability to get him to
stop moving and stop fighting.
¶15 On January 5, 2017, Attorney Hanes was charged with
second-degree recklessly endangering safety, fleeing/eluding an
officer, and bail jumping, all felonies. He was also charged
with two misdemeanor counts: resisting/obstructing an officer
6
No. 2019AP1170-D
and operating while revoked. State v. Hanes, Calumet County
Case No. 2017CF002.
¶16 On December 12, 2017, Attorney Hanes was convicted of
three felonies: second-degree recklessly endangering safety,
fleeing/eluding an officer, and bail jumping. The two
misdemeanor counts were dismissed but read in. Attorney Hanes
was sentenced to one year in jail with six months of that time
stayed, and three years of probation. He was ordered to pay
costs and cooperate with the OLR.
¶17 Attorney Hanes failed to report his Calumet County
criminal convictions to the OLR.
¶18 In February 2020, after receiving the factual
background information recounted above, the referee issued a
supplemental report and recommendation. Clearly, the referee
was not mollified by the OLR's motion to supplement the record.
The referee criticized the OLR's method of trying to "average"
sanctions imposed in prior cases and expressed skepticism about
the OLR's claim that it typically files underlying documentation
when a complaint is predicated on a criminal conviction. The
referee maintained his earlier determination that the Evenson
case, which imposed a 30-month suspension, was the most
instructive precedent.
¶19 In Evenson, the lawyer approached an obviously
intoxicated young woman outside a bar one night. She agreed to
leave with the lawyer and he provided her "Molly" (commonly,
known as "ecstasy") and they had sexual intercourse at his law
office. Attorney Evenson then took her to his home where they
7
No. 2019AP1170-D
had more alcohol and again engaged in sexual intercourse. The
next day, the woman awoke bruised, and had difficulty recalling
what had happened. She notified police.
¶20 Attorney Evenson eventually pled guilty to one count
of felony delivery of a schedule I drug and two counts of
fourth-degree sexual assault. His sentence was stayed, and he
was placed on probation for three years, with a condition of
nine months in the county jail. A disciplinary proceeding
followed; this court accepted a stipulation and imposed a 30-
month license suspension.
¶21 The referee acknowledged factual distinctions between
this case and Evenson, but wrote that it was difficult to
reconcile "the OLR's recommendation for a three-month suspension
here with its recommendation for a 30-month suspension in
Evenson." The referee reaffirmed his recommendation for a two-
year license suspension and the imposition of full costs. Given
evidence of Attorney Hanes' substance abuse, the referee further
recommended that "upon the filing of a petition for
reinstatement, Attorney Hanes should be required to show that he
has successfully completed an AODA treatment program and has
maintained complete sobriety for at least the previous one year
prior to filing his petition."4
During his sentencing hearing in the Calumet County case,
4
Attorney Hanes acknowledged that he had been required to attend
an intensive outpatient treatment but did not complete the
program.
8
No. 2019AP1170-D
¶22 No appeal was filed, so we consider the referee's
report and supplemental report under SCR 22.17(2). This court
will adopt a referee's findings of fact unless they are clearly
erroneous. Conclusions of law are reviewed de novo. See In re
Disciplinary Proceedings Against Eisenberg, 2004 WI 14, ¶5, 269
Wis. 2d 43, 675 N.W.2d 747. The court may impose whatever
sanction it sees fit, regardless of the referee's
recommendation. See In re Disciplinary Proceedings Against
Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686.
¶23 By order dated June 19, 2020, this court issued an
order directing the parties to show cause why this court should
not suspend Attorney Hanes' law license for at least two years
and impose the full costs of this proceeding upon Attorney
Hanes. The OLR filed a response on July 2, 2020, standing by
its initial recommendation for a 90-day license suspension.
Attorney Hanes did not respond.
¶24 There is no showing that the referee's findings of
fact are clearly erroneous and we adopt them. We turn to the
referee's conclusion that Attorney Hanes violated the Supreme
Court Rules set forth above. The referee explicitly found that
the allegations contained in the OLR's complaint constitute an
adequate factual basis for the four counts of attorney
misconduct.
¶25 A criminal conviction is not per se evidence of
misconduct. In re Disciplinary Proceedings Against Johns, 2014
WI 32, 353 Wis. 2d 746, 847 N.W.2d 179 (holding that lawyer's
conduct did not violate SCR 20:8.4(b) in light of the record
9
No. 2019AP1170-D
evidence indicating, among other things, the exceedingly
anomalous nature of the lawyer's conduct). We consider
independently whether each of the criminal acts committed by
Attorney Hanes reflects adversely on his honesty,
trustworthiness, or his "fitness as a lawyer in other respects."
In re Disciplinary Proceedings Against Horsch, 2020 WI 10, 390
Wis. 2d 99, 937 N.W.2d 925.
¶26 This is a fact-dependent inquiry. The ABA Comment [2]
to SCR 20:8.4 provides some guidance as to what crimes reflect
adversely on fitness as a lawyer. It states, inter alia:
Although a lawyer is personally answerable to the
entire criminal law, a lawyer should be professionally
answerable only for offenses that indicate [a] lack of
those characteristics relevant to law practice.
Offenses involving violence, dishonesty, breach of
trust, or serious interference with the administration
of justice are in that category. A pattern of
repeated offenses, even ones of minor significance
when considered separately, can indicate indifference
to legal obligation.
¶27 We have no difficulty concluding that Attorney Hanes'
criminal acts, which involved sexual contact without consent and
behavior that "endangered the public and law officers," reflect
adversely on Attorney Hanes' fitness as a lawyer. We affirm the
10
No. 2019AP1170-D
referee's conclusion that Attorney Hanes committed the
professional misconduct as alleged in the complaint.5
5 The referee raised certain concerns in his reports. It is
clear that the parties expected to conclude this matter swiftly,
by stipulation. This goal was hampered by a skeletal complaint,
a sparse record, and a disciplinary recommendation that the
referee deemed seriously inadequate. The referee's irritation
with this case is palpable. In the 26 pages that comprise his
report and supplemental report he describes at length his
frustration with crafting a sanction with what he considered
insufficient information. The referee suggests that the OLR
should be required to "file copies of the entire criminal
proceedings, including transcripts of sentencing hearings, in
all cases where the allegations of professional misconduct are
based on criminal convictions." (Emphasis in original). He
suggests that our rules fail to provide guidance for considering
comprehensive stipulations, stating that "it is unclear what the
job of the referee is." He raises a litany of questions, such
as "If the parties agree to everything, as here, may the hearing
be dispensed with altogether?"; and "But what, then, is the
proper role of the referee in this situation?"; and "But how is
this [review] to be accomplished if no hearing has been held, or
a hearing has been held but only very limited?"; and "Was the
referee too cautious?"; and "Could and should the referee have
called the custodian of the criminal files in Columbia and
Calumet Counties?" He suggests possible amendments to the
Supreme Court Rules, see, e.g., Supp. Referee Report at 8, fn. 5
("the easiest solution would be to amend SCR 22.12 . . . ").
The terms of a stipulation may guide the manner in which a
referee conducts a proceeding but the referee's role remains the
same: to make factual findings, independent conclusions of law
regarding alleged misconduct, and an independent recommendation
as to discipline which may include conditions or restitution, as
appropriate. See, e.g., SCR 21.08(3); In re Disciplinary
Proceedings Against Stern, 2013 WI 46, 347 Wis. 2d 552, 830
N.W.2d 674; Referee Handbook 2.N.(2). If a record before the
referee is inadequate to permit the referee to fulfill all or
part of this charge, a referee may reject a stipulation, order
additional briefing, or advise the parties that an evidentiary
hearing or evidentiary submissions will be required.
11
No. 2019AP1170-D
¶28 We turn to the recommended sanction. We firmly agree
with the referee that the proposed 90-day suspension was too
low; indeed, we are surprised that the OLR continues to defend
its recommendation. A suspension of such brevity would unduly
depreciate the seriousness of Attorney Hanes' misconduct, namely
convictions for sexual assault and recklessly endangering
safety, which caused harm to the victim and put the lives of law
enforcement personnel and the public at risk. We also agree
with the referee's assessment of the aggravating and mitigating
factors, including the referee's determination that Attorney
Hanes' anxiety is not a mitigating factor in this case, given
the absence of evidence sufficient to find a causal connection
between any medical condition and the misconduct.6 In re
Disciplinary Proceedings Against Morse, 2019 WI 53, 386
Wis. 2d 654, 927 N.W.2d 543. On consideration of the record,
the report, and the OLR's response to our order to show cause,
we have determined that a four-year suspension is appropriate.
¶29 The Evenson case, imposing a 30-month suspension,
provides the most instructive precedent. Attorney Evenson's
misconduct stemmed from his conviction for, inter alia, fourth-
degree sexual assault of a vulnerable individual who was not his
client. Other caselaw confirms that severe sanctions are
appropriate when attorneys engage in predatory sexual misconduct
6 We agree, further, that the evidence of substance abuse
merits the imposition on certain conditions should Attorney
Hanes seek reinstatement of his law license. We have modified
the proposed conditions to include the involvement of the
Wisconsin Lawyers Assistance Program.
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No. 2019AP1170-D
against a vulnerable individual. In In re Disciplinary
Proceedings Against Voss, 2011 WI 2, 331 Wis. 2d 1, 795
N.W.2d 415, the OLR filed a disciplinary complaint against an
attorney accused of engaging in sexual relations with a female
client who had an extensive and severe history of various
psychiatric disorders and alcohol dependency; she was the
subject of a series of emergency detentions and chapter 51
commitments. The client eventually told her case worker that
Attorney Voss had sexually assaulted her. When the matter was
reported, Attorney Voss sought to persuade his client, her
family, and two circuit court judges not to pursue criminal
charges, disclosing embarrassing personal information about the
client. Ultimately, no criminal charges were filed but the
referee concluded Attorney Voss had committed five counts of
professional misconduct and recommended a one-year license
suspension.
¶30 We suspended Attorney Voss for four years and eight
months, imposed a no contact order, and ordered the entire file
and record in this matter remain confidential and sealed. We
said: "Although we ultimately chose not to revoke his license
to practice law, a lengthy suspension is required to effectuate
the purposes of Wisconsin's attorney regulatory system. A
lesser sanction would unduly depreciate the seriousness of
Attorney Voss's misconduct." Id., ¶¶33-34, 39 (citing In re
Disciplinary Proceedings Against Woodmansee, 147 Wis. 2d 837,
434 N.W.2d 94 (1989) (imposing three-year suspension upon lawyer
who engaged in coercive sexual behavior with a vulnerable
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No. 2019AP1170-D
client, resulting in conviction for fourth-degree sexual
assault).
¶31 The cases cited by the OLR do not persuade us that a
lesser sanction is merited. We note that aside from Evenson,
few of those cases involved sexual assault, and In re
Disciplinary Proceedings Against Strigenz, 185 Wis. 2d 370, 517
N.W.2d 190 (1994) (imposing one-year suspension for non-
consensual sexual contact with a vulnerable victim, resulting in
a conviction for fourth-degree sexual assault) dates from 1994.
As the New Jersey Supreme Court observed when rendering a
disciplinary decision against an attorney who committed sexual
misconduct:
We have traveled a far way from tolerance of sexual
misconduct in the workplace and in our profession. We
recognize the psychological damage that can be
inflicted on the victims of sexual abuse, who silently
suffer and do not complain because they feel powerless
to do so. The sexual abuse of a client is
unacceptable in any profession and in any business
setting, and cannot be tolerated in our profession,
which holds as sacred the dignity of the individual.
. . .
Attorneys who commit sexual crimes against their
clients take from their victims something more
profound than money or goods; they take from their
victims their dignity and psychological well-being.
Such conduct is grossly incompatible with the
standards of professionalism expected of attorneys.
In Re Gallo, 178 N.J. 115 (2003) (imposing three-year suspension
on attorney found guilty of various sexual crimes with four
different client-victims). We acknowledge that the individual
Attorney Hanes sexually assaulted was not his client, a
14
No. 2019AP1170-D
distinction that is relevant because a lawyer-client
relationship implicates additional ethical concerns.
Nonetheless, his conduct – which included not only sexual
assault but a separate incident of criminally reckless conduct
that jeopardized the lives of law enforcement officers and the
public - is "grossly incompatible with the standards of
professionalism expected of attorneys." Id. The seriousness of
Attorney Hanes' misconduct merits a four-year suspension.
¶32 Finally, we consider whether we should impose the full
costs of this proceeding on Attorney Hanes. We have considered
the matter and have determined that it is appropriate to impose
the full costs of this proceeding on Attorney Hanes.
¶33 IT IS ORDERED that the license of Benjamin A. Hanes to
practice law in Wisconsin is suspended for a period of four
years, effective the date of this order.
¶34 IT IS FURTHER ORDERED that Benjamin A. Hanes'
administrative suspensions for failure to pay State Bar dues,
noncompliance with continuing legal education requirements, and
failure to submit the required trust account certification to
the State Bar shall remain in effect until the reason for each
such suspension has been rectified.
¶35 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Benjamin A. Hanes shall pay to the Office of
Lawyer Regulation the full costs of this proceeding, which are
$7,704.67 as of March 17, 2020.
¶36 IT IS FURTHER ORDERED that, to the extent that he has
not already done so, Benjamin A. Hanes shall comply with the
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No. 2019AP1170-D
provisions of SCR 22.26 concerning the duties of a person whose
license to practice law in Wisconsin has been suspended.
¶37 IT IS FURTHER ORDERED that any future reinstatement of
Benjamin A. Hanes' law license will be conditioned upon:
 Providing evidence and documentation to the Office of
Lawyer Regulation, demonstrating that, at least one
year prior to his petition for reinstatement Benjamin
A. Hanes participated, at his own expense, in an
alcohol and other drug abuse and mental health
assessment by a Wisconsin Lawyers Assistance Program
approved provider.
 Providing evidence demonstrating that he has complied
and remains compliant with any specific written
recommendations for treatment or maintenance as a
result of that assessment, including compliance with
all monitoring requirements, if any, deemed
appropriate by the Wisconsin Lawyers Assistance
Program or other monitor designated by the Office of
Lawyer Regulation, which may include the requirement
to refrain from the consumption of alcohol and any
mood-altering drugs without a valid prescription while
subject to monitoring.
 Providing signed medical releases of confidentiality
for each treatment provider who is providing or has
provided to Benjamin A. Hanes within the last two
years any treatment, assessment, or services related
16
No. 2019AP1170-D
to alcohol or substance abuse, such releases to remain
in effect for two years from the date of signature.
 Acknowledging that any future reinstatement may be
subject to further conditions, including monitoring.
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No. 2019AP1170-D
1