source: Caselaw Access Project

author: ANN WALSH BRADLEY, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent-Petitioner, v. Brian D. Seefeldt, Defendant-Appellant.
    Supreme Court

      No. 01-1969-CR.

      Oral argument February 18, 2003.

    Decided May 28, 2003.

    2003 WI 47
    (Also reported in 661 N.W.2d 822.)

      For the plaintiff-respondent-petitioner the cause was argued by Michael R. Klos, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.
    For the defendant-appellant there was a brief and oral argument by Donald T. Lang, assistant state public defender.
   ANN WALSH BRADLEY, J.

¶ 1. The petitioner, State of Wisconsin, seeks review of a published court of appeals decision that reversed a judgment of conviction against Brian D. Seefeldt. The State contends that the court of appeals erred in concluding that Seefeldt's second trial violated his constitutional protection against double jeopardy. Because the State did not meet its burden of showing a manifest necessity for the termination of the first trial, we determine that the circuit court erred in granting the State's motion for mistrial. Accordingly, we agree with the court of appeals that the second trial violated Seefeldt's protection against double jeopardy. We therefore affirm.

I

¶ 2. Seefeldt was a passenger in a car that was stopped by police officers. His girlfriend, Michelle Bart, was the driver of the car. A police officer testified that he stopped the vehicle and ordered Bart and Seefeldt to exit the vehicle. When they did not exit, the officer reached into the car and attempted to remove the keys. At that point, Bart put the car into gear and a high-speed chase ensued. The chase ended when the car spun out of control and became stuck in a snow bank.

¶ 3. A search of the car and Seefeldt revealed a revolver, some ammunition, brass knuckles, marijuana, cocaine, and drug paraphernalia. Seefeldt was charged with one count of possession with intent to deliver marijuana, one count of possession of drug paraphernalia, one count of possession of cocaine with intent to deliver, and two counts of carrying a concealed weapon.

¶ 4. During opening statements in Seefeldts first jury trial, the prosecutor notified the jurors that Bart would be providing testimony and described Bart as follows:

She is a person who you will hear about and obviously recognize, in terms of her dress, had been held accountable for her actions. She will tell you that she saw Mr. Seefeldt sell cocaine. She will tell you that she saw Mr. Seefeldt bring five pounds of marijuana to this community.

¶ 5. Defense counsel also referenced Bart in his opening statement and made a comment regarding the existence of multiple warrants for Bart's arrest:

Now, the evidence is also going to show that the second car was being driven by this Michelle, Brian's girlfriend. Now, at that point. .. the officers exit the car. Apparently they had their guns drawn on this vehicle. Michelle Bart had, at that time, I believe, 15 warrants for her arrest that were out there from around the state of Wisconsin, mostly from writing bad checks in places.

¶ 6. The State objected to the statement regarding the 15 warrants and moved for a mistrial, claiming that defense counsel had violated a pretrial order prohibiting the introduction of other acts evidence without first seeking a ruling on the admissibility of the evidence. The pretrial order was not transcribed or otherwise memorialized in the record.

¶ 7. During a hearing to determine whether a mistrial should be ordered, the State noted that most of the warrants were for ordinance violations. It contended that the defense counsel's statement improperly presented other acts evidence to the jury and was sufficiently prejudicial to warrant a mistrial.

¶ 8. Defense counsel countered that the statement did not constitute impermissible other acts evidence because the warrants provided a motive for Bart's decision to flee. According to defense counsel, this information was necessary to bolster Seefeldt's defense theory that Bart was the party who made the decision to flee and not Seefeldt. The existence of the warrants explained why Bart would engage in a high speed chase to avoid being arrested. Counsel asserted that because the nature of the warrants could be explained by the prosecution during trial, the statement regarding the warrants was not prejudicial.

¶ 9. The court determined that defense counsel had violated the pretrial order and that a curative instruction could not remove the prejudicial impact of the statement. As a result, it granted the State's motion for mistrial. It also granted the State's motion to disqualify Seefeldt's retained counsel. Subsequently, replacement counsel was appointed and a new trial was commenced. The jury in the second trial found Seefeldt guilty of the lesser offense of possession of marijuana and on each of the other four charges.

¶ 10. At a postconviction hearing, Seefeldt's post-conviction counsel argued that the mistrial order was too extreme a remedy. He also asserted that the record was ambiguous as to what the original defense counsel had been told prior to the commencement of trial regarding the use of other acts evidence. The circuit court responded that it "may be ambiguous to you but it was not ambiguous to the Prosecutor, to the Court, and to [the original defense counsel]." Seefeldt's postconviction motion was summarily denied and he appealed.

¶ 11. The court of appeals addressed the issue of whether the second trial violated Seefeldt's protection against double jeopardy. Citing State v. Barthels, 174 Wis. 2d 173, 184, 495 N.W.2d 341 (1993), the court determined that it should give strict and searching scrutiny to the circuit court's mistrial order because the mistrial request was made by the prosecutor over the objection of the defense. State v. Seefeldt, 2002 WI App 149, ¶ 15, 256 Wis. 2d 410, 647 N.W.2d 894. Using this standard, it concluded that the State failed to demonstrate a manifest necessity to ~erminate the first trial. Id. at ¶ 29. According to the court, there was no showing of a manifest necessity because evidence regarding the existence of the 15 warrants ultimately would have been admissible during trial. Id. at ¶ 27. Thus, the jury was not tainted and there was no manifest necessity to terminate the trial. Id.

¶ 12. Accordingly, the court determined that Seefeldt's second trial violated his constitutional protection against double jeopardy. Id. at 29. It reversed the judgment of conviction, and because the double jeopardy issue was dispositive, it did not address the other issues raised by Seefeldt. Id. at ¶ 28-29.

II

¶ 13. This case presents us with an opportunity to examine the constitutional protection against double jeopardy as it applies to the commencement of a second trial after the circuit court terminates the first trial prior to judgment. Specifically, we must determine whether the circuit court erred when it determined that the State met its burden of showing the requisite manifest necessity to support the mistrial order that terminated Seefeldt's first trial. A circuit court's exercise of discretion in ordering a mistrial is accorded a level of deference that varies depending on the particular facts of the case. Barthels, 174 Wis. 2d at 184. Regardless of the level of deference to be applied, an appellate court must, at a minimum, satisfy itself that the circuit court exercised sound discretion in ordering a mistrial. Arizona v. Washington, 434 U.S. 497, 514 (1978).

¶ 14. We describe first the constitutional protection against double jeopardy and the manifest necessity standard used to determine whether a mistrial should be ordered. We then examine the level of deference that may be applied to a circuit court's mistrial order. Finally, we conclude that, regardless of the level of deference to be applied in this case, the circuit court erred in terminating Seefeldt's first trial. Accordingly, the second trial violated his protection against double jeopardy.

H — I HH I — I

¶ 15. The Fifth Amendment to the U.S. Constitution and Article I, Section 8 of the Wisconsin Constitution protect a criminal defendant from being placed in jeopardy twice for the same offense. The underlying purpose for this protection against double jeopardy is to prevent the State from using its resources and power to make repeated attempts to convict a person for the same offense. Green v. United States, 355 U.S. 184, 187-188 (1957); Barthels, 174 Wis. 2d at 181.

¶ 16. "Jeopardy" means exposure to the risk of determination of guilt. State v. Comstock, 168 Wis. 2d 915, 937, 485 N.W.2d 354 (1992). It attaches in a jury trial when the selection of the jury has been completed and the jury is sworn. Id. Accordingly, the protection against double jeopardy includes a defendant's "valued right to have his trial completed by a particular tribunal." Wade v. Hunter, 336 U.S. 684, 689 (1949); Washington, 434 U.S. at 503.

¶ 17. The protection against double jeopardy limits the ability of the State to request that a trial be terminated and restarted. This protection is important because the unrestricted ability of the State to terminate and restart a trial increases the financial and emotional burden on the defendant, extends the period during which the defendant is stigmatized by an unresolved accusation of wrongdoing and may increase the risk that an innocent defendant may be convicted. Washington, 434 U.S. at 502.

¶ 18. However, the prohibition against retrial is not a mechanical rule to be applied to prevent any second trial after the first trial is terminated prior to judgment. Illinois v. Somerville, 410 U.S. 458, 462 (1973). We have recognized that criminal trials can be complicated and lengthy. Barthels, 174 Wis. 2d at 173. Numerous technical or otherwise unforeseen eventualities may arise that necessitate terminating a trial. Id. Treating the prohibition against retrial as a mechanical rule that prevents a second trial in all circumstances would " 'be too high a price to pay for the added assurance of personal security and freedom from governmental harassment which such a mechanical rule would provide.'" Id. (quoting United States v. Jorn, 400 U.S. 470, 479-480 (1971)).

¶ 19. A defendant's right to have his or her trial concluded by a particular tribunal can be, under certain circumstances, subordinated to the public interest in affording the State one full and fair opportunity to present its evidence to an impartial jury. Washington, 434 U.S. at 505. Nevertheless, given the importance of the constitutional protection against double jeopardy, the State bears the burden of demonstrating a "manifest necessity" for any mistrial ordered over the objection of the defendant. Id. If a trial is terminated without manifest necessity and over the defendant's objection, the State is not permitted to commence a second trial against the defendant. "Manifest necessity" means a "high degree" of necessity. Id.; Barthels, 174 Wis. 2d at 183.

IV

¶ 20. In this case, the judge granted the State's motion for a mistrial after the jury had been sworn. Seefeldt had objected to the State's motion. Accordingly, the granting of the mistrial implicated the interests protected by the double jeopardy clause. The State was thus required to demonstrate that there was a manifest necessity to terminate the first trial. Before reviewing the record to analyze whether the State satisfied its burden, we first address the level of deference that attends a circuit court's mistrial order. We ultimately conclude, however, that regardless of the level of deference to be applied in this case, the circuit court did not exercise sound discretion in ordering the mistrial.

¶ 21. The State argues that the court of appeals erred in concluding that "strict and searching scrutiny" was warranted simply because the mistrial request was made by the prosecutor over the objection of defense counsel. Seefeldt, on the other hand, cites the following language from Barthels to support his position that strict scrutiny should be applied any time a prosecutor requests a mistrial:

If, however, the prosecutor requests the mistrial, or the judge determines that the defendant's request was occasioned by prosecutorial overreaching or laxness, then this court gives stricter and more searching scrutiny to the judge's decision to grant a mistrial.

Barthels, 174 Wis. 2d at 173.

¶ 22. The State acknowledges that this ambiguous language could be construed to require strict scrutiny in all cases where the prosecutor requests the mistrial. It argues, however, that such a reading would be inconsistent with Washington. According to the State, a trial court's order granting a mistrial on motion of the prosecutor should be afforded great deference unless the prosecutor's request is preceded by misconduct, recklessness or overreaching designed to gain a tactical advantage. The State notes that Barthels correctly accorded strict scrutiny to the circuit court's exercise of discretion because the prosecutor had acted recklessly in proceeding to trial without securing critical evidence and the prosecutor's reckless conduct precipitated the motion for a mistrial.

¶ 23. In Washington, the U.S. Supreme Court described the level of deference to be used by an appellate court in reviewing a mistrial order. Similar to the case at bar, the trial judge in Washington granted a prosecutor's motion for a mistrial because defense counsel made improper remarks during his opening statement. However, unlike the case at bar, there was no legal theory under which the remarks could be deemed relevant and admissible at trial. Washington, 434 U.S. at 510-511.

¶ 24. Following the opening statements in Washington, the prosecutor moved for a mistrial and a colloquy among the trial judge and the attorneys ensued. The trial judge withheld ruling on the mistrial motion until the following day when he heard additional arguments. After giving the parties a full opportunity to explain their arguments, the trial judge ordered a mistrial. Id. at 500-01.

¶ 25. In discussing the appropriate level of deference to apply in reviewing the mistrial order, the Washington court noted that the question of whether a manifest necessity has been shown is answered more easily in some kinds of cases than in others. Id. at 507. It described two ends of the spectrum of deference. At one end are those cases in which the basis for the mistrial is the unavailability of critical prosecution evidence or there is reason to believe that the prosecutor is using the State's superior resources to harass the defendant or to achieve a tactical advantage. In such cases, an appellate court applies the strictest scrutiny to a trial judge's mistrial order. Id. at 508.

¶ 26. At the other end of the spectrum are cases in which the basis for the mistrial is the trial judge's belief that the jury is unable to reach a verdict. Often in such cases, the jury has been unable to reach a verdict after protracted and exhausting deliberations. Great deference is accorded to a trial court's exercise of discretion because the trial judge is best able to assess the risk that a verdict may result from pressures inherent in the situation rather than the considered judgment of all the jurors. Id. at 509.

¶ 27. Having described the ends of the spectrum, the Washington court then returned to the case before it in which the mistrial was ordered because defense counsel made improper comments during his opening statement. It determined that the situation before the trial judge was similar to a deadlocked jury. The court stated that it was "persuaded that, along the spectrum of trial problems which may warrant a mistrial and which vary in their amenability to appellate scrutiny, the difficulty which led to the mistrial in this case also falls in an area where the trial judge's determination is entitled to special respect." Id. at 510.

¶ 28. However, the conclusion that the trial judge's decision was entitled to great deference did not end the inquiry. Rather, because of the constitutional implications of double jeopardy, the Washington court recognized its obligation to satisfy itself that the trial judge exercised "sound discretion" in declaring a mistrial. The court concluded that sound discretion was exercised. Id. at 514. The trial judge had not acted hastily in response to the prosecutor's request for a mistrial. Rather, he gave both defense counsel and the prosecutor a full opportunity to explain their positions. The court found that the trial judge "acted responsibly and deliberately, and accorded careful consideration to the [defendant's] interest in having the trial concluded in a single proceeding." Id. at 515.

¶ 29. In Barthels, the Wisconsin Supreme Court applied the principles of Washington regarding appellate review of a mistrial order. The basis for the mistrial in Barthels was the prosecution's inability to produce a key medical witness. In reviewing the mistrial order, the court recognized that a trial judge is in the best position to determine whether circumstances warrant the granting of a mistrial. Barthels, 174 Wis. 2d at 183. However, it also recognized that the level of deference to be applied in reviewing this discretionary determination "varies according to the facts of the case." Id. at 184.

¶ 30. Citing Washington, the court noted that the most stringent scrutiny is used by an appellate court when a mistrial is ordered because of the unavailability of critical prosecution evidence. Id. (citing Washington, 434 U.S. at 508). Accordingly, the court examined the circuit court's mistrial order with "marked strictness." Id. at 185.

¶ 31. The Barthels court determined that the prosecutor did not act reasonably or take reasonable precautions in assuring the presence of the witness. Id. at 188-89. It therefore concluded that the circuit court erred in declaring a mistrial merely upon being informed of the unexcused absence of a witness. Id. at 189. The court also concluded that the circuit court failed to exercise appropriate discretion because it did not consider other alternatives to a mistrial. Id.

¶ 32. In examining the mistrial order terminating Seefeldt's first trial, the court of appeals cited Barthels as support for its determination to give "strict and searching scrutiny" to the circuit court's decision to grant a mistrial. Seefeldt, 256 Wis. 2d 410, ¶ 15. It stated that where "the prosecutor requests the mistrial, we give strict and searching scrutiny to the trial court's decision to grant a mistrial." Id.

¶ 33. To the extent Barthels can be read to require strict scrutiny in all cases in which the prosecutor requests a mistrial, such a rule is clearly overbroad and inconsistent with the approach set forth in Washington. Indeed, the court in Washington accorded great deference to a mistrial order that resulted from a prosecution motion.

¶ 34. We note that the difficulty that led to the mistrial in the case at bar was similar to the difficulty that led to the mistrial analyzed in Washington. However, we need not discern where along the spectrum the exact level of deference lies in this case, because, regardless of the level of deference, we determine that the circuit court did not exercise sound discretion in ordering the mistrial.

V

¶ 35. As recognized in Washington, a determination that the trial judge's mistrial order is entitled to great deference does not end the inquiry. Washington, 434 U.S. at 514. More is needed. Considering the double jeopardy interests, the reviewing court must still satisfy itself that the trial judge exercised "sound discretion" in concluding that the State satisfied its burden of showing a "manifest necessity" for the mistrial.

¶ 36. Sound discretion means acting in a rational and responsible manner. Sound discretion includes, without limitation, acting in a deliberate manner taking sufficient time in responding to a prosecutor's request for a mistrial. It requires giving both parties a full opportunity to explain their positions and considering alternatives such as a curative instruction or sanctioning counsel. Sound discretion is not exercised when the circuit court fails to consider the facts of record under the relevant law, bases its conclusion on an error of law or does not reason its way to a rational conclusion. See State v. Davis, 2001 WI 136, ¶ 28, 248 Wis. 2d 986, 637 N.W.2d 62.

120]

¶ 37. Sound discretion also requires that the trial judge ensure that the record reflects there is an adequate basis for a finding of manifest necessity. As such, sound discretion is more than a review to ensure the absence of a mistake of law or fact. Rather, a review for sound discretion encompasses an assurance that an adequate basis for the finding of manifest necessity is on the record.

¶ 38. We conclude that the trial judge did not exercise sound discretion for two reasons. First, the existence of Bart's 15 warrants would likely have been admissible during trial and the record does not reflect that the judge considered whether the evidence would ultimately be admissible. Second, the trial judge did not provide sufficient opportunity for the parties to present, and for the judge to consider, arguments regarding whether a mistrial should be ordered and the possible alternatives to a mistrial. As a result, the record does not contain an adequate basis for a finding of manifest necessity.

¶ 39. The facts indicate that Seefeldt would have been able to present evidence of Bart's 15 warrants at trial. While Wis. Stat. § 904.04(2) (1999-2000) prevents the admission of other acts evidence to prove a character trait in order to show that the person acted in conformity with the character trait, it does not exclude the evidence when offered for other purposes, such as motive. Seefeldt asserts that the existence of the warrants explained why Bart would engage in a high speéd chase to avoid being arrested. Seefeldt also asserts that the warrants demonstrate her motive to shift blame and curry favor with the authorities by implicating Seefeldt. The State concedes that the warrant evidence, in some form, would probably have been admissible to show Bart's potential motive and bias.

¶ 40. We recognize that it appears that defense counsel violated a pretrial order when he made the statement regarding Bart's 15 warrants. However, this is not a basis for a mistrial unless the violation creates that high degree of necessity required by the double jeopardy clause. While the trial judge may have been understandably troubled by defense counsel's violation of the pretrial order, the judge proceeded to order a mistrial without accurately assessing the admissibility of the reference to the 15 warrants. This assessment is critical in determining whether manifest necessity exists because, if the warrants were admissible, there is insufficient jury taint to create the requisite manifest necessity.

¶ 41. Further, although the trial judge expressed his belief that no cautionary instruction could cure the improper comment, this belief seems to be unfounded because the evidence was likely admissible. Other than the statement of this belief, the record does not reflect that the trial judge explored alternatives to granting a mistrial, such as imposing sanctions on defense counsel. As we stated in Barthels, a judge "should consider alternatives to a mistrial before depriving the defendant of the right to have the original tribunal render a final verdict." Barthels, at 185.

¶ 42. We also note the short time frame between the making of the statement regarding the 15 warrants and the order of the mistrial. After a brief hearing that took place immediately after the statement was made, the trial judge ordered the mistrial. This approach was significantly different from that taken in Washington, in which the trial judge delayed his ruling until the next day when both parties were permitted a full opportunity to explain their position on the propriety of a mistrial. Washington, 434 U.S. at 500-501, 515.

¶ 43. In sum, we conclude that, because the State did not meet its burden of showing a manifest necessity for the termination of Seefeldt's first trial, the circuit court erred in granting the State's motion for mistrial. We agree with the court of appeals that Seefeldt's second trial violated his constitutional protection against double jeopardy. Accordingly, we affirm.

By the Court. — The decision of the court of appeals is affirmed.

        State v. Seefeldt, 2002 WI App 149, 256 Wis. 2d 410, 647 N.W.2d 894 (reversing a judgment and order of the circuit court of Fond du Lac County, Steven W Weinke, Judge). The court of appeals also reversed the circuit court's order denying postcon-viction relief.

       Seefeldt also argues that his right to counsel of his choice was violated when the trial court granted the prosecutor's request to remove his retained counsel from the case, his due process rights were violated when the prosecutor elicited testimony disclosing that Seefeldt invoked his right to counsel, and his right to a fair trial was violated when the prosecutor made an improper comment during closing arguments. Because the double jeopardy issue is dispositive, we need not address these issues.

       Wisconsin Stat. § 904.04(2) provides:
      (2) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. This subsection does not exclude the evidence when offered for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

       The Fifth Amendment to the U.S. Constitution provides: "... nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb;.. .." Article I, Section 8 of the Wisconsin Constitution provides that"... no person for the same offense may be put twice in jeopardy of punishment, . ..." In construing Wisconsin's protection against double jeopardy, we are guided by the rulings of the U.S. Supreme Court. State v. Barthels, 174 Wis. 2d 173, 181, 495 N.W.2d 341 (1993).


author: PER CURIAM.

text:
    In the Matter of Disciplinary Proceedings Against James Paul O'Neil, Attorney at Law: Office of Lawyer Regulation, Complainant, v. James Paul O'Neil, Respondent.
    Supreme Court

      No. 02-1029-D.

      Decided May 28, 2003.

    2003 WI 48
    (Also reported in 661 N.W.2d 813.)
   PER CURIAM.

¶ 1. We review the recommendation of the referee, Konrad T. Tuchscherer, that Attorney James Paul O'Neil receive a public reprimand for professional misconduct consisting of revealing information relating to his representation of a client without the client's consent, and that he be required to pay the costs of the proceeding.

¶ 2. We determine that a public reprimand is appropriate discipline for Attorney O'Neil's misconduct. We also order him to pay the costs of this proceeding.

¶ 3. Attorney O'Neil was admitted to practice law in Wisconsin in 1988 and practices in Green Bay. On November 21, 1995, this court suspended Attorney O'Neil's license to practice law for 12 months as the result of misconduct involving dishonesty, fraud, deceit, and misrepresentation. In re Disciplinary Proceedings Against O'Neil, 197 Wis. 2d 224, 539 N.W.2d 881 (1995). Attorney O'Neil's license was reinstated on February 26, 1997.

¶ 4. On May 6, 1999, Attorney O'Neil was retained by Erik Gracia to file a divorce action against his wife, Colleen Gracia. Mr. Gracia paid Attorney O'Neil a $1000 retainer and provided him with copies of various financial records. Attorney O'Neil contacted the Brown County Family Court Commissioner's Office to schedule a date for a temporary hearing and prepared the necessary pleadings to commence a divorce action.

¶ 5. On May 11, 1999, Gracia filed the divorce petition and gave Attorney O'Neil the required filing fee. That same day, before the divorce petition was filed, Colleen Gracia was found dead. Newspaper accounts indicated that investigators initially thought the cause of her death was suicide, but two weeks later an autopsy established the cause of death as homicide by asphyxiation.

¶ 6. On May 12, 1999, Gracia called Attorney O'Neil to notify him of his wife's death and to request a refund of his retainer. Attorney O'Neil was out of the office that day but learned of Mrs. Gracia's death in a phone call to his office.

¶ 7. On May 14, 1999, Detective Zittel from the Green Bay Police Department contacted Attorney O'Neil's office and spoke to both Attorney O'Neil and his secretary. The police report indicates that Attorney O'Neil told the detective that Erik Gracia said the reason he wanted a divorce was that his wife had a boyfriend. The police report also indicates that Attorney O'Neil told the detective that Gracia said he and his wife were splitting up their property and that Gracia did not want any confrontation in the divorce and wanted the case to go smoothly.

¶ 8. The police report also indicates that Attorney O'Neil told Detective Zittel that when Erik Gracia came into his office his mother was with him. Attorney O'Neil also told the detective that when he spoke to Erik Gracia the day after his wife's death Gracia told Attorney O'Neil to stop the divorce and refund the retainer money. The police report further indicates that the detective asked Attorney O'Neil if he would jot down any conversations he might have in the future with Erik Gracia, and Attorney O'Neil said he would do so. Although Attorney O'Neil denied the accuracy of some statements attributed to him, he admitted meeting with the detective and discussing the matter with him. Attorney O'Neil did not request Gracia's consent to provide information relating to his representation of Gracia to the police.

¶ 9. On May 18, 1999, Gracia telephoned Attorney O'Neil and inquired about representation in defense of potential criminal proceedings. Attorney O'Neil referred Gracia to an attorney not associated with O'Neil's firm. This was the last contact Attorney O'Neil had with Gracia.

¶ 10. On June 8, 1999, the Brown County Circuit Court issued a subpoena for Attorney O'Neil's file for the Gracia divorce. The subpoena stated that, pursuant to an official felony criminal investigation, Attorney O'Neil was "requested" to furnish copies of "any file notes, records, and all other information concerning your work on behalf of Erik Garcia [sic] in his pending divorce action with Colleen Garcia [sic]." In an affidavit supporting the subpoena the prosecutor stated a belief that Gracia had provided information to Attorney O'Neil that was relevant to the circumstances surrounding Colleen Gracia's death. The subpoena was served on Attorney O'Neil on June 10, 1999. Attorney O'Neil did not request Gracia's consent to turn over the file or provide information to the police. On June 14, 1999, Attorney O'Neil turned over to police investigators the entire Gracia file, including notes, bank account records, and other financial information.

¶ 11. The police report indicates that during a June 14, 1999, interview Attorney O'Neil told a police investigator that when he initially met with Gracia, Gracia said he wanted Attorney O'Neil to set up custody arrangements and visitation with Colleen Gracia for their daughter and that Gracia did not want to talk to Colleen. Attorney O'Neil told the investigator he thought it was strange that Gracia could not at least talk to his wife about these things. Attorney O'Neil also told the investigator that Gracia said Colleen had taken a second job to help pay for daycare for their daughter and this made Gracia mad.

¶ 12. Attorney O'Neil told the police investigator that Gracia said he was not looking for any type of reconciliation with Colleen and that he just wanted to get divorced and get it over with. Attorney O'Neil told police that during his initial interview with Gracia he probably would have told Gracia he would be obligated to pay 17 percent of his income for child support, along with other expenses. Attorney O'Neil said Gracia neglected to tell him about his past record of domestic abuse. In looking over the financial form that Gracia had filled out Attorney O'Neil noted that Gracia made approximately $1100 a month after taxes and that his expenses were almost double his monthly income. While Attorney O'Neil denied making some of the statements attributed to him in the investigator's report, he admitted meeting with the police investigator on June 14, 1999, and discussing the Gracia divorce case.

¶ 13. Police investigators noted that one of the legal forms in the Gracia file had been signed by Gracia the day of Colleen's murder and had been notarized by Attorney O'Neil's secretary. Attorney O'Neil, without seeking Gracia's consent, gave the police investigators permission to talk with his secretary about the times and dates she had contact with Gracia in the O'Neil law office. The investigators did contact Attorney O'Neil's secretary who supplied them with the information they requested.

¶ 14. On July 28, 1999, criminal charges were filed against Gracia. He was subsequently convicted of first-degree intentional homicide in the death of his wife and is currently serving a life sentence.

¶ 15. The complaint filed by the Office of Lawyer Regulation (OLR) alleged that Attorney O'Neil never considered asserting the attorney-client privilege on behalf of Gracia, that he acknowledged he should have done so, and that he claimed to have provided the information to law enforcement investigators because he felt that by doing so he was best serving his client's interests. The complaint alleged that Gracia contended the statements made by Attorney O'Neil to law enforcement investigators were used in the decision to issue criminal charges and that financial information that was disclosed from the divorce file was used by the prosecution to help establish a motive for the crime.

¶ 16. The referee filed his report and recommendation on February 19, 2003. The referee's report notes that prior to the Gracia murder trial the Brown County District Attorney agreed not to use any of the information received from Attorney O'Neil when filing the original and amended criminal complaints and, in fact, no documents received from Attorney O'Neil were used at Gracia's trial. The referee's report also notes that neither Attorney O'Neil nor any member of his staff was called as a witness at the trial and none of the information disclosed by Attorney O'Neil was used in the prosecution of Gracia's case. The referee also notes that Gracia did not raise any issues about Attorney O'Neil's representation in his criminal appeal. In its opinion affirming Gracia's judgment of conviction the court of appeals pointed to the overwhelming circumstantial evidence of Gracia's guilt, including his inconsistent statements, DNA evidence, and admissions against interest.

¶ 17. The OLR's complaint alleged that Attorney O'Neil violated SCR 20:1.6. The referee's report notes that, in defense of his admitted violation of the rule, Attorney O'Neil suggested he was trying to help Gracia by divulging information in his client's file which showed that the divorce was amicable and that the Gracias were attempting to split up the marital property without a contest. The referee also notes that Attorney O'Neil claimed he did not know he was violating SCR 20:1.6 when he made the disclosures to police. The referee's report states that Attorney O'Neil said since the filing of the grievance he has become familiar with SCR 20:1.6, has advised his staff with respect to the importance of confidentiality, and attended a seminar on the subject.

¶ 18. The referee concluded that by disclosing his client's file and discussing its contents with the Green Bay Police Department, Attorney O'Neil revealed information relating to representation of a client without the client's consent, in violation of SCR 20:1.6. The referee concluded that although Attorney O'Neil was previously suspended from practicing law for 12 months, and although the violations committed in the instant case were unrelated to those resulting in the previous suspension, and there did not appear to be a pattern of misconduct, the time period between Attorney O'Neil being reinstated to practice and the commitment of the violation in this matter was only 27 months.

¶ 19. The referee concluded that although misconduct occurred, it was not of a significantly serious nature given the mitigating circumstances. The referee also concluded there was no need to protect the public from Attorney O'Neil since he has indicated he now understands SCR 20:1.6 and has said he will conduct his practice accordingly. The referee also noted that Attorney O'Neil cooperated fully with the OLR and for the most part made full and free disclosures showing a cooperative attitude toward the proceedings. The referee recommended that Attorney O'Neil be given a public reprimand and that he be required to pay the costs of the proceeding, which totaled $11,438.82 as of March 12, 2003.

¶ 20. We adopt the referee's findings of fact and conclusions of law. Attorney O'Neil's misconduct with respect to his disclosure of information relating to representation of a client without the client's consent is a serious failing. As discipline for the professional misconduct we impose a public reprimand and order Attorney O'Neil to pay the costs of this proceeding, as recommended by the referee.

¶ 21. IT IS ORDERED that Attorney James Paul O'Neil be publicly reprimanded for his professional misconduct.

¶ 22. IT IS FURTHER ORDERED that within 60 days of the date of this order Attorney James Paul O'Neil shall pay to the Office of Lawyer Regulation the costs of this proceeding in the amount of $11,438.82. If the costs are not paid within the time specified, and absent a showing to this court of his inability to pay the costs within that time, the license of Attorney James Paul O'Neil to practice law in Wisconsin shall be suspended until further order of the court.

¶ 23. WILLIAM A. BABLITCH, DAVID T. PROSSER, and DIANE S. SYKES, JJ., dissent as to the amount of costs and find the costs to be excessive.

       SCR 20:1.6 provides: Confidentiality of information.
      (a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b), (c) and (d).

        (b) A lawyer shall reveal such information to the extent the lawyer reasonably believes necessary to prevent the client from committing a criminal or fraudulent act that the lawyer reasonably believes is likely to result in death or substantial bodily harm or in substantial injury to the financial interest or property of another.
      (c) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:
      (1) to rectify the consequences of a client's criminal or fraudulent act in the furtherance of which the lawyer's services had been used;
      (2) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client.
      (d) This rule does not prohibit a lawyer from revealing the name or identity of a client to comply with ss. 19.43 and 19.44, Stats. 1985-86, the code of ethics for public officials and employees.


text:
    In the Matter of Disciplinary Proceedings Against Jane Edgar, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Jane Edgar, Respondent.
    Supreme Court

      No. 02-2962-D.

      Decided May 28, 2003.

    2003 WI 49
    (Also reported in 661 N.W.2d 817.)
   PER CURIAM.

¶ 1. We review the stipulation filed by Attorney Jane Edgar and the Office of Lawyer Regulation (OLR) pursuant to SCR 22.12, which sets forth findings of fact and conclusions of law regarding Attorney Edgar's professional misconduct. Attorney Edgar is already under suspension for misconduct committed between 1996 and 1999. In re Disciplinary Proceedings Against Edgar, 230 Wis. 2d 205, 601 N.W.2d 284 (1999). The 23 counts of misconduct that are the subject of this disciplinary proceeding were committed during the same period of time as the matters addressed in the prior disciplinary matter.

¶ 2. The parties have stipulated that a one-year suspension of Attorney Edgar's license to practice law is appropriate discipline for the additional incidents of misconduct described in the stipulation. The parties also agree that the suspension should be imposed retroactively, so that it will run consecutive to the suspension imposed in the prior disciplinary matter. The parties have stipulated further that Attorney Edgar shall pay restitution to four clients as set forth herein, and that Attorney Edgar's reinstatement shall be subject to certain conditions, which are also set forth herein.

¶ 3. We accept the parties' stipulation and recommendation as to the appropriate discipline for Attorney Edgar.

¶ 4. Attorney Edgar was admitted to practice in 1985. She was suspended effective March 22, 1999; for two years for converting $11,000 that belonged to a client and an adverse party in a divorce action, for commingling her own funds and client funds in her law office business account, for making deposits into and disbursements from that account for personal expenses, and for having falsely certified that she had a trust account and that she maintained that trust account and bank records in compliance with the applicable rules governing the conduct of attorneys. Id.

¶ 5. The stipulation submitted to this court describes an additional 23 violations of the Rules of Professional Conduct, many of which were committed in the course of Attorney Edgar's handling of six client matters between 1996 and 1999. The remaining violations relate to her failure to respond to or cooperate with the OLR's investigation into her misconduct.

¶ 6. Attorney Edgar suffers from depression. She claims her depression affected her conduct. Attorney Edgar is under the supervision of a psychiatrist and she receives social security disability benefits due to her depression. She has advised the court that she does not have sufficient personal assets to enable her to pay the restitution she admittedly owes. However, the OLR notes that Attorney Edgar's depression is not technically a mitigating factor with respect to this disciplinary proceeding because she has not medically established that depression was a causal factor in her conduct.

¶ 7. In December 2002 the OLR and Attorney Edgar agreed to resolve this matter and executed a stipulation pursuant to SCR 22.12. The stipulation states that Attorney Edgar failed to take reasonably practicable steps to protect her client's interests in violation of SCR 20:1.16(d) (six counts); failed to keep her client reasonably informed or to comply with the client's reasonable requests for information in violation of 20:1.4(a) (five counts); failed to act with reasonable diligence in representing a client in violation of SCR 20:1.3 (four counts); failed to cooperate with grievance investigations in violation of former SCR 21.03(4) and former SCR 22.07(3) (five counts); failed to render a full accounting in connection with a fee advance in violation of SCR 20:1.15(b) (one count); practiced law while under CLE administrative suspension for a period of three weeks in violation of SCR 31.10(1) (one count); and failed to obtain a written conflict waiver in violation of SCR 20:1.7(a) (one count).

¶ 8. In addition to stipulating to the facts relating to these incidents of misconduct, the parties stipulated to discipline in the form of a one-year suspension of Attorney Edgar's license to practice law in Wisconsin, to run consecutive to her present suspension. The parties also agreed that Attorney Edgar should be required to make restitution of fees and costs collected in four client matters. More specifically, the stipulation provides that Attorney Edgar should be ordered "to make restitution of unrefunded fees/costs in the Day, Goomey, Wudtke and Martin matters." Stipulation at 32 (emphasis in original).

¶ 9. By order dated March 3, 2003, this court directed the parties to clarify the amount of restitution Attorney Edgar should be ordered to pay to each of the four clients identified in the stipulation. The OLR promptly filed a response, clarifying and supporting its position that Attorney Edgar should be required to make restitution to Neal Day in the amount of $1500; to Diane Goorney in the amount of $1000; to Mark Wudtke in the amount of $425; and to Anne L. Martin in the amount of $1700.

¶ 10. On March 17, 2003, Attorney Edgar filed a letter stating that she did not agree with the amounts of restitution proposed by the OLR. She requested an extension of time to search her business records and respond to the OLR's memorandum. The request was granted. The deadline for Attorney Edgar's response has passed and she has filed nothing further with this court.

¶ 11. Attorney Edgar has had repeated opportunities to provide any verification of amounts she earned or expended from these clients. She has failed to do so. The OLR's restitution assessment is consistent with the OLR's grievance investigation, its disciplinary complaint, and the SCR 22.12 stipulation. We therefore adopt the amounts proposed by the OLR as appropriate restitution in this matter.

¶ 12. Finally, the parties agreed that the following conditions should apply to Attorney Edgar's reinstatement:

(1) that Edgar's reinstatement be contingent upon her demonstrating that she has her depression and any other emotional or psychological problems under control, by her submission to an independent medical examination (IME) by a,health provider approved by the OLR, at her own expense;
(2) that Edgar's licensure following reinstatement be conditioned on Edgar remaining in treatment as recommended by the IME and/or her therapist, monitored by the OLR via obtainment of quarterly reports for a period of two years following her reinstatement;
(3) that Edgar's practice of law be monitored by an attorney approved by the OLR for a period of two years following reinstatement, unless Edgar is either employed by a law firm or practicing with another attorney aware of her disciplinary and medical history.

¶ 13. It is relevant that many of the violations described in the parties' stipulation occurred at the same time as the violations that gave rise to the previous disciplinary matter. Indeed, some of the violations involved the same client matters. Accordingly, the parties suggest the one-year suspension stipulated to herein be made retroactive to March 21, 2001, the date Attorney Edgar's previous two-year license suspension ended. The practical effect of this equates to the court having imposed an aggregate three-year license suspension for Attorney Edgar's cumulative misconduct in these two matters.

¶ 14. We approve the stipulation and adopt the stipulated facts and conclusions of law as set forth therein. We agree that Attorney Edgar's misconduct warrants the suspension of her license to practice law for a period of one year, subject to the conditions set forth herein, and we agree that it is appropriate for the one-year suspension we impose today to commence effective March 21, 2001, in order to run consecutive to the suspension imposed in the prior disciplinary proceeding. We agree further that Attorney Edgar should be required to pay restitution to the four clients identified in the stipulation and we adopt the amounts of restitution proposed by the OLR.

¶ 15. IT IS ORDERED that the license of Attorney Jane Edgar to practice law in Wisconsin is suspended for a period of one year, effective March 22, 2001.

¶ 16. IT IS FURTHER ORDERED that Attorney Jane Edgar comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended.

¶ 17. IT IS FURTHER ORDERED that Attorney Jane Edgar is directed to make restitution of unre-funded fees and or costs to the following former clients, as follows: Neál Day: $1500; Diane Goomey: $1000; Mark Wudtke: $425; and Anne L. Martin: $1700. If restitution is not made within 60 days, the license of Attorney Jane Edgar to practice law in Wisconsin shall remain suspended until further order of the court.

¶ 18. IT IS FURTHER ORDERED that any reinstatement of Attorney Jane Edgar's license to practice law in Wisconsin shall be conditioned upon her satisfying the following conditions:

(1) that Edgar's reinstatement be contingent upon her demonstrating that she has her depression and any other emotional or psychological problems under control, by her submission to an independent medical examination (IME) by a health provider approved by the OLR, at her own expense;
(2) that Edgar's licensure following reinstatement be conditioned on Edgar remaining in treatment as recommended by the IME and/or her therapist, monitored by the OLR via obtainment of quarterly reports for a period of two years following her reinstatement; and
(3) that Edgar's practice of law be monitored by an attorney approved by the OLR for a period of two years following reinstatement, unless Edgar is either employed by a law firm or practicing with another attorney aware of her disciplinary and medical history.

       SCR 22.12 provides: Stipulation.
      (1) The director may file with the complaint a stipulation of the director and the respondent to the facts, conclusions of law regarding misconduct, and discipline to be imposed. The supreme court may consider the complaint and stipulation without the appointment of a referee.
      (2) If the supreme court approves a stipulation, it shall adopt the stipulated fácts and conclusions of law and impose the stipulated discipline.
      (3) If the supreme court rejects the stipulation, a referee shall be appointed and the matter shall proceed as a complaint filed without a stipulation.
      (4) A stipulation rejected by the supreme court has no evidentiary value and is without prejudice to the respondent's defense of the proceeding or the prosecution of the complaint.

       SCR 20:1.16(d) provides:
      (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.

       SCR 20:1.4(a) provides: "(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information."

       SCR 20:1.3 provides: "Diligence. A lawyer shall act with reasonable diligence and promptness in representing a client."

       Former SCR 21.03(4) applies to misconduct committed prior to October 1, 2000. It provided: "(4) Every attorney shall cooperate with the board and the administrator in the investigation, prosecution and disposition of grievances and complaints filed with or by the board or administrator."

       Former SCR 22.07(3) applies to misconduct committed prior to October 1, 2000. It provided:
      (3) The administrator or committee may compel the respondent to answer questions, furnish documents and present any information deemed relevant to the investigation. Failure of the respondent to answer questions, furnish documents or present relevant information is misconduct. The administrator or a committee may compel any other person to produce pertinent books, papers and documents under SCR 22.22.

       SCR 20:1.15(b) provides:
      (b) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person in writing. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall render a full accounting regarding such property.

       SCR 31.10(1) provides:
      (1) If a lawyer fails to comply with the attendance requirement of SCR 31.02, fails to comply with the reporting requirement of SCR 31.03(1), or fails to pay the late fee under SCR 31.03(2), the board shall serve a notice of noncompliance on the lawyer. This notice shall advise the lawyer that the state bar membership of the lawyer shall be automatically suspended for failing to file evidence of compliance or to pay the late fee within 60 days after service of the notice. The board shall certify the names of all lawyers so suspended under this rule to the clerk of the supreme court and to each judge of a court of record in this state. A lawyer shall not engage in the practice of law in Wisconsin while his or her state bar membership is suspended under this rule.

       SCR 20:1.7(a) provides:
      (a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
      (1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
      (2) each client consents in writing after consultation.

       Attorney Edgar has indicated that she no present plans to petition for reinstatement of her license to practice law.