author: NETTESHEIM, P.J.

text:
    State of Wisconsin, Plaintiff-Appellant, v. Paul R. Maxey, Defendant-Respondent.
    Court of Appeals

      No. 02-1171-CR.

      Submitted on briefs January 9, 2003.

      Decided April 30, 2003.

    2003 WI App 94
    (Also reported in 663 N.W.2d 811.)

      On behalf of the plaintiff-appellant, the cause was submitted on the brief of James E. Doyle, attorney general, and Daniel J. O'Brien, assistant attorney general.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Douglas I. Henderson of Kenosha.
    Before Nettesheim, PJ., Brown and Anderson, JJ.
   NETTESHEIM, P.J.

¶ 1. We have previously granted the State's petition for leave to appeal from a trial court order forbidding the State from seeking multiple penalty enhancement against Paul R. Maxey on a charge of unlawful possession of a controlled substance (marijuana) pursuant to Wis. Stat. § 961.41(3g) (1999-2000). The State is seeking to enhance Maxey's potential sentence under the repeat drug offender provisions of Wis. Stat. § 961.48(2) of the Uniform Controlled Substances Act and under the habitual criminal provisions of Wis. Stat. § 939.62(1)(b). Based principally on the Wisconsin Supreme Court's recent decision in State v. Delaney, 2003 WI 9, 259 Wis. 2d 77, 658 N.W.2d 416, we reverse the trial court's order.

FACTS AND PROCEDURAL HISTORY

¶ 2. The history of this case is undisputed. On November 28, 2001, the State filed a complaint against Maxey alleging the unlawful possession of marijuana. The complaint additionally alleged that Maxey had previously been convicted of two prior felonies, possession of heroin and possession of cocaine, on August 28, 1998. Although possession of marijuana is ordinarily a misdemeanor pursuant to Wis. Stat. § 961.41'(3g)(e), the allegation of the prior drug convictions elevated the charge to a felony pursuant to Wis. Stat. § 961.48(2). Following Maxey's waiver of a preliminary hearing, the State filed an information repeating the allegations set forth in the complaint, and Maxey entered a plea of not guilty.

¶ 3. Maxey then filed a motion challenging the State's multiple penalty enhancer allegations. Among other relief, Maxey sought an order directing the State to choose either the repeat drug offender allegation or the habitual criminal allegation. Relying principally on this court's decision in State v. Ray, 166 Wis. 2d 855, 481 N.W.2d 288 (Ct. App. 1992), the trial court granted Maxey's motion and limited the State to a single penalty enhancer. After the trial court's ruling, Maxey entered a plea of no contest to the charge understanding that the State would seek appellate review of the trial court's order. The State followed with the instant petition for leave to appeal and we previously granted the petition. The trial court has deferred sentencing until the completion of this appeal.

¶ 4. Following the briefing in this matter, we placed this case on hold pending the Wisconsin Supreme Court's decision in Delaney.

DISCUSSION

Standard of Review

¶ 5. Maxey's argument requires us to construe the language of Wis. Stat. §§ 961.48(2) and 939.62(l)(b), raising questions of law that we review independently. See State v. Wideman, 206 Wis. 2d 91, 94, 556 N.W.2d 737 (1996). The purpose of statutory construction is to determine and give effect to the legislative intent, which is ascertained by considering the language of the statute, and if necessary the scope, history, context, subject matter and object intended to be remedied or accomplished. Ray, 166 Wis. 2d at 872. When construing multiple statutes, we seek to harmonize them. Id. at 873. "It is a cardinal rule of statutory construction that conflicts between statutes are not favored and will be held not to exist if the statutes may otherwise be reasonably construed." Wyss v. Albee, 193 Wis. 2d 101, 110, 532 N.W.2d 444 (1995).

¶ 6. We first look to the language of a statute and attempt to interpret it based on "the plain meaning of its terms." State v. Williquette, 129 Wis. 2d 239, 248, 385 N.W.2d 145 (1986). Only when statutory language is ambiguous may we examine other construction aids such as legislative history, scope, context, and subject matter. State v. Waalen, 130 Wis. 2d 18, 24, 386 N.W.2d 47 (1986). A statute is ambiguous if reasonable persons could disagree as to its meaning. Williquette, 129 Wis. 2d at 248.

¶ 7. As noted above, if the statute is clear and unambiguous, we need not look beyond the statutory language to ascertain its meaning. However, we may construe a clear and unambiguous statute "if a literal application would lead to an absurd or unreasonable result." Coca-Cola Bottling Co. of Wis. v. La Follette, 106 Wis. 2d 162, 170, 316 N.W.2d 129 (Ct. App. 1982).

Statutory Analysis

¶ 8. Wisconsin Stat. § 961.48(2) of the Uniform Controlled Substances Act states, in relevant part:

If any person is charged under sub. (2m) with a 2nd or subsequent offense under this chapter that is specified in s. 961.41... (3g).. . and he or she is convicted of that 2nd or subsequent offense, any applicable minimum and maximum fines and minimum and maximum periods of imprisonment under s. 961.41.. . (3g). . . (e) . .. are doubled.

¶ 9. Wisconsin Stat. § 939.62(l)(b) states, in relevant part:

If the actor is a repeater, as that term is defined in sub. (2), and the present conviction is for any crime for which imprisonment may be imposed . . . the maximum term of imprisonment prescribed by law for that crime may be increased as follows:
(b) A maximum term of more than one year but not more than 10 years may be increased by not more than ... 6 years if the prior conviction was for a felony.

¶ 10. The question before us is whether the State may use Maxey's two prior felony convictions to invoke both of these penalty enhancer schemes. We begin with the supreme court's recent decision in Delaney, an opinion not yet issued when the trial court made its ruling.

¶ 11. The State charged Delaney with operating a motor vehicle while intoxicated (OWI) as a third-time offender pursuant to Wis. Stat. § 346.65(2)(c) of the motor vehicle code. Delaney, 259 Wis. 2d 77, ¶ 3. In addition, the State charged Delaney as a habitual criminal pursuant to Wis. Stat. § 939.62 based upon a prior felony conviction for attempted possession of marijuana with intent to deliver. Delaney, 259 Wis. 2d 77, ¶ 3. Delaney conceded that he was properly charged as a repeat offender under the motor vehicle code, but he challenged the application of the habitual criminal penalty enhancer under § 939.62. Delaney, 259 Wis. 2d 77, ¶ 4. The trial court rejected this challenge, as did the court of appeals. Id., ¶¶ 4, 8.

¶ 12. The supreme court agreed with the trial court and the court of appeals that the multiple penalty enhancement against Delaney was proper. The court held that the plain language of Wis. Stat. § 939.62 "does not exclude OWI offenses under [Wis. Stat.] § 346.63(1) from the scope of crimes to which the penalty enhancer applies." Delaney, 259 Wis. 2d 77, ¶ 17. The court first looked to Delaney's present conviction. The court held that Delaney's conviction for OWI qualified as a "present conviction" under the language of § 939.62(1) because it was a conviction "for any crime for which imprisonment may be imposed, except for an escape under [Wis. Stat.] s. 946.42 or a failure to report under [Wis. Stat.] s. 946.425." Delaney, 259 Wis. 2d 77, ¶ 19 (citing Wis. Stat. § 939.62(1)).

¶ 13. Next the supreme court looked to Delaney's prior drug related conviction to determine if it qualified as a predicate conviction for an enhanced sentence under Wis. Stat. § 939.62. Delaney argued that his prior conviction did not qualify, citing to § 939.62(3), which defines "felony" and "misdemeanor" for purposes of § 939.62. Delaney, 259 Wis. 2d 77, ¶ 21. Noting that this statute exempts motor vehicle offenses from these definitions, Delaney argued that he was improperly sentenced as a habitual criminal under § 939.62. Delaney, 259 Wis. 2d 77, ¶ 21. The supreme court disagreed. The court noted that the motor vehicle exemption is used only in the context of the defendant's prior convictions. Id., ¶ 22. Since Delaney's prior conviction was a drug related offense, not a motor vehicle offense, the court concluded that Delaney was properly sentenced as a habitual criminal under § 939.62. Delaney, 259 Wis. 2d 77, ¶ 24.

¶ 14. In summary, the law of Wis. Stat. § 939.62 as explained in Delaney is as follows. A defendant is eligible for an enhanced sentence as a habitual criminal if: (1) the present conviction is for any crime allowing for imprisonment except escape or a failure to report; and (2) the prior conviction is for any felony or misdemeanor except motor vehicle offenses and offenses prosecuted in the juvenile court.

¶ 15. The allegations of the information in this case clearly qualify Maxey as eligible for penalty enhancement under this law. The information alleges that Maxey possessed a controlled substance and the statute provides for imprisonment as a possible penalty, thus satisfying the "any crime" and "imprisonment" requirements of Wis. Stat. § 939.62(1). In addition, Maxey's prior convictions are adult drug related offenses, not motor vehicle or juvenile offenses, thus satisfying the prior conviction requirements of § 939.62(l)(b) and (3)(a). Indeed, we do not read Maxey to dispute that he facially qualifies for an enhanced penalty under § 939.62.

¶ 16. Rather, Maxey's contention is that he cannot be subjected to multiple sentence enhancement as a repeat drug offender under Wis. Stat. § 961.48(2) and as a habitual criminal under Wis. Stat. § 939.62(l)(b). Addressing a similar argument in the context of a present conviction for OWI, the Delaney court said:

Under the well-established canon of expressio unius est exclusio alterius (the expression of one thing excludes another), where the legislature specifically enumerates certain exceptions to a statute, we conclude, based on that rule, that the legislature intended to exclude any other exception.
Applying the above canon to the case at hand, if the legislature intended to exempt present motor vehicle offenses from the definition of "any crime," it either would have clarified its intention by adding the "felony" and "misdemeanor" language to Wis. Stat. § 939.62(1), rather than referring to "any crime," or it would have added a specific motor vehicle offense exemption to § 939.62(1). However, the legislature has elected not to do so. The legislature only barred the application of § 939.62 where the present conviction is for an escape or failure to report, and where the prior conviction relied on to trigger the enhancement statute is for a motor vehicle offense.

Delaney, 259 Wis. 2d 77; ¶¶ 22-23 (citations omitted). Accordingly, the supreme court held that Delaney was properly sentenced as a repeater under both Wis. Stat. § 346.65(2)(c) of the motor vehicle code and § 939.62. Delaney, 259 Wis. 2d 77, ¶ 25, ¶ 36.

¶ 17. The same logic applies in this case. Under Wis. Stat. § 939.62, Maxey's present conviction is not for escape or a failure to report; and his past convictions are not motor vehicle offenses or matters processed in the juvenile court. Instead, all of his convictions, past and present, are for drug related offenses. If the legislature had intended to exempt such convictions from the definition of "any crime" when describing a defendant's present conviction, it would have done so. Similarly, if the legislature had intended to exempt such convictions from the definition of "felony" and "misdemeanor" when describing a defendant's past convictions, it would have done so. In addition, nothing in the language of § 939.62 states or suggests that the State's invocation of the habitual criminal provisions of the statute serves to bar application of other statutory penalty enhancement schemes.

¶ 18. The same logic applies when we look to the drug repeater provisions of Wis. Stat. § 961.48. This statute clearly and unambiguously states that if the present charge represents a second or subsequent offense of possession of a controlled substance under Wis. Stat. § 961.41(3g), any applicable minimum and maximum fines and terms of imprisonment are doubled. Unlike Wis. Stat. § 939.62, this statute has no exceptions or exemptions for the defendant's present or past convictions. In addition, nothing in .the language of § 961.48 states or suggests that the State's invocation of the repeat drug offender provisions of the statute serves to bar application of other statutory penalty enhancement schemes.

¶ 19. In barring the multiple penalty enhancement, the trial court relied principally on this court's opinion in Ray. There, the defendant's drug related sentence was enhanced under Wis. Stat. § 161.48(2) (now § 961.48) and under the general repeater statute, Wis. Stat. § 939.62, based upon a single prior drug related conviction. Ray, 166 Wis. 2d at 871, 873. The State conceded error and the court of appeals struck down the multiple enhancement. Id. at 872, 873-74. The court stated, "[A]bsent express legislative intent, we conclude that the legislature's purpose is fulfilled by applying only one of the sections to a second or subsequent offense of a repeater defendant." Id. at 872. The court also held that the repeater provisions of the Uniform Controlled Substances Act represented the more specific statute over the general repeater provisions of § 939.62. Ray, 166 Wis. 2d at 873.

¶ 20. However, the supreme court distinguished Ray in Delaney. The court stated that Ray involved but one prior conviction whereas Delaney had multiple prior convictions:

The factual situation in Ray is not the same as here. Unlike the situation in Ray, where the State attempted to use one prior conviction to support two penalty enhancers, here the Wis. Stat. § 346.645 enhancer was based on Delaney's prior OWI conviction and refusal to submit to a chemical test. The § 939.62 enhancer was based on Delaney's attempted possession of THC conviction; therefore, the decision in Ray is inapplicable here.

Delaney, 259 Wis. 2d 77, ¶ 31.

¶ 21. The same situation exists here. The complaint alleges two prior convictions against Maxey. The State seeks to use one of the convictions to support the drug repeater allegation under Wis. Stat. § 961.48(2) and the other conviction to support the habitual criminal repeater allegation under § 939.62(1)(b). Delaney expressly permits this charging and sentencing scheme.

¶ 22. The Delaney court also rejected the argument, premised on Ray, that the motor vehicle code was the more specific repeater statute and therefore should prevail over the general repeater provisions of Wis. Stat. § 939.62. The supreme court said, "The court of appeals in Ray carefully limited its decision to the situation before it." Delaney, 259 Wis. 2d 77, ¶ 31. Moreover, this principle of statutory construction only comes into play when the two statutes at issue are in conflict. State v. Anthony D.B., 2000 WI 94, ¶ 11, 237 Wis. 2d 1, 614 N.W.2d 435. Absent such conflict, we seek to harmonize the two statutes. Ray, 166 Wis.2d at 873. In Delaney, the supreme court held that there is no conflict between the penalty enhancer schemes set out in the motor vehicle code and § 939.62 and therefore the court gave effect to both statutes. Delaney, 259 Wis. 2d 77, ¶¶ 1, 17. We do the same in this case. We hold that there is no conflict between penalty enhancer schemes set out in the Uniform Controlled Substances Act and § 939.62, and we give effect to both.

CONCLUSION

¶ 23. We hold that the repeat drug offender provisions of Wis. Stat. § 961.48(2) and the habitual criminal repeater provisions of Wis. Stat. § 939.62(l)(b) may be applied against Maxey. We reverse the order requiring the State to elect one of the enhancer provisions.

By the Court. — Order reversed and cause remanded.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       This case is governed by the original truth-in-sentencing law, 1997 Wis. Act 283, not the provisions of the follow-up legislation, 2001 Wis. Act 109, which did not become effective until February 1, 2003.

       WISCONSIN Stat. § 961.48(2) provides, in relevant part, "A person convicted of a 2nd or subsequent offense under s. 961.41(3g)(c), (d) or (e), is guilty of a felony and the person may be imprisoned in state prison." We note that § 961.48(2) was repealed by 2001 Wis. Act 109, Part B, effective February 1, 2003.

       The trial court did allude to the court of appeals decision in State v. Delaney, No. 01-1051, unpublished slip op. (Wis. App. Jan. 23, 2002). However, as the trial court noted, that decision was unpublished. Understandably then, the court placed greater reliance on State v. Ray, 166 Wis. 2d 855, 481 N.W.2d 288 (Ct. App. 1992), a published opinion from the court of appeals.

       The trial court noted that the Ray decision did not clearly state whether the multiple enhancement was based on a single prior conviction or, as in this case, multiple prior convictions. The trial court hinted that its decision might well be different if it could distinguish Ray on this point. Unable to resolve this uncertainty, the court felt obligated to follow Ray's holding that the multiple enhancement was prohibited.
      We agree with the trial court that Ray could have been more express on this question. We do note, however, that when discussing the case law from other jurisdictions in accord with its ruling, the Ray court stated, "Those jurisdictions have held that both enhancement statutes may not be applied together for one conviction." Ray, 166 Wis. 2d at 873 (emphasis added). In our unpublished opinion in Delaney, we construed that language to indicate that Ray involved but one prior conviction, and we distinguished Ray on that basis. Delaney, unpublished slip op. at ¶ 39. The supreme court reached the same conclusion.


source: Caselaw Access Project

author: PER CURIAM. DAVID T. PROSSER, J.

license: Public Domain

text:
    In the Matter of Disciplinary Proceedings Against Marvin E. Marks, Attorney at Law: Office of Lawyer Regulation, Complainant-Respondent-Cross-Appellant, v. Marvin E. Marks, Respondent-Appellant-Cross-Respondent.
    Supreme Court

      No. 01-2284-D.

      Oral argument January 23, 2003.

    — Decided July 16, 2003.

    2003 WI 114
    (Also reported in 665 N.W.2d 836.)

      For the respondent-appellant-cross respondent there were briefs by Daniel W. Hildebrand and DeWitt Ross & Stevens, S.C., Madison, and oral argument by Daniel W. Hildebrand.

    For the complainant-respondent-cross appellant there were briefs by Richard R Mozinski and Ra-dosevich, Mozinski, Cashman & Olson, LLP, Manito-woc, and oral argument by Richard P. Mozinski.

   PER CURIAM.

¶ 1. Attorney Marvin E. Marks appeals from the recommendation of the referee that his license to practice law in Wisconsin be suspended for 60 days for having asserted he maintained a lien on settlement proceeds in violation of SCR 20:8.4(c). The Office of Lawyer Regulation (OLR) cross-appeals from the referee's decision to dismiss two claims that were filed against Attorney Marks under the Michigan Rules of Professional Conduct.

¶ 2. We determine that a 60-day suspension is appropriate discipline under the facts of this case. We further conclude that the referee erred by dismissing the Michigan disciplinary counts. However, we are of the opinion that remanding this matter would not serve the interests of judicial efficiency. The OLR has indicated that its recommendation with respect to discipline would not change, even if violations of the Michigan rules of disciplinary conduct were established, and there has already been substantial delay in the prosecution of this matter.

¶ 3. Attorney Marks was admitted to practice in Wisconsin in 1983. He is also a member of the Michigan State Bar. Approximately 75 percent of his practice is based in Michigan and he maintains his office in Michigan.

¶ 4. In 1992 Marks was issued a private reprimand for violating SCR 20:3.1(a)(1), for commencing an action that was unwarranted under existing law. In June 1994 he received a public reprimand for violating SCR 20:3.4(c), because he failed to pay a $10,000 judgment entered against him in connection with filing the aforementioned frivolous action. In July 1999, while this matter was pending, Marks received another private reprimand for conduct constituting a conflict of interest in violation of SCR 20:1.7(b) and SCR 20:1.9(a).

¶ 5. The facts of this matter are largely undisputed. On October 18, 1996, Donald Koivisto (Mr. Koivisto) retained Marks to represent him in a personal injury action. Mr. Koivisto's wife had just been killed in an automobile accident in Iron County, Wisconsin. His daughter and granddaughter were injured in the accident. The driver of the other vehicle was a Michigan resident.

¶ 6. Mr. Koivisto signed a Percentage Fee Agreement (Fee Agreement) that provided for a contingency fee of 25 percent of the amount recovered unless the matter went to trial, in which case the fee would be 33 and 1/3 percent. Marks explained the fee options and Mr. Koivisto elected a contingency fee arrangement rather than an hourly fee. On October 24, 1996, Mr. Koivisto's daughter signed a similar Fee Agreement on behalf of her minor daughter. Paragraph 5 of both Fee Agreements provided as follows:

If for any reason, the Attorney-Client relationship was to be terminated prior to settlement, compromise, or judgment, etc., without good cause on client's behalf, the client hereby agrees to pay attorney for the value of legal services received by the client for attorney on an hourly rate schedule of $100.00 per hour plus expenses. Said fee will he immediately due and payable.

¶ 7. It is undisputed that Marks diligently pursued his clients' cases from October 18 through October 25. He drafted letters, contacted insurers, contacted the district attorney's office and the sheriffs department, met with his clients, and began to prepare pleadings. Mr. Koivisto acknowledges that Marks was diligently pursuing the matter.

¶ 8. However, on October 25, 1996, Mr. Koivisto contacted Attorney Michael Fauerbach and asked Fauerbach to represent him instead. Mr. Koivisto signed a Fee Agreement with Fauerbach, providing for a contingency fee of 30 percent. With Fauerbach present, Mr. Koivisto then called Marks to tell him he was transferring the case to Fauerbach.

¶ 9. A series of phone calls ensued. Marks ásked why Mr. Koivisto was transferring the case and Mr. Koivisto explained that Fauerbach's law firm had more lawyers and an investigator. Fauerbach denies that he solicited the case or that he advised Mr. Koivisto how to respond to Marks' questions.

¶ 10. The same day Marks wrote to Fauerbach, via facsimile, expressing surprise at the transfer of the case and stating that he did not think Fauerbach's law firm could move the case along more quickly.

¶ 11. The next day Marks wrote directly to Mr. Koivisto, expressing surprise, outlining the work he had performed to date, and stating that he hoped to continue working with Mr. Koivisto. He also retained Attorney Roy Polich to represent him because he believed Fauerbach had improperly and intentionally interfered with the Fee Agreement between Mr. Koivisto and himself.

¶ 12. On October 28 Fauerbach responded to Marks via facsimile. Fauerbach denied soliciting the case and denied making negative comments about Marks or Marks' law firm. He asked Marks to send him the Koivisto file, as well as an itemized statement of the time spent on it.

¶ 13. The same day Attorney Polich wrote to Fauerbach on Marks' behalf, stating that Marks believed Fauerbach had acted unethically and had intentionally interfered with Marks' contract with Mr. Koivisto.

¶ 14. Fauerbach responded to Attorney Polich denying the allegations and attaching an affidavit executed by Mr. Koivisto that averred that the Fauerbach firm had not provided him with the reasons he thought Fauerbach's firm would do a better job on the case. That same day Mr. Koivisto's daughter terminated Marks' representation and transferred her daughter's matter to Fauerbach. She signed a contingency Fee Agreement with Fauerbach on or about November 1, 1996.

¶ 15. On October 31, 1996, Marks submitted an invoice to Mr. Koivisto for $1812.24, detailing the work performed on the matter and stating that the bill was due November 15, 1996. The same day, Matt Zielke, of Frankenmuth Insurance, wrote to Marks explaining that he understood that Fauerbach was now representing the Koivistos. Zielke asked Marks to advise him, in writing, if Marks maintained a lien on any settlement of the Koivisto claims.

¶ 16. On November 6, 1996, Carol Coursey of American National Property & Casualty Company wrote to Marks stating that she understood that Fauer-bach was now representing the Koivistos and asking for a letter of withdrawal so she could review it to determine whether Marks had any liens on the settlement of the Koivisto claims.

¶ 17. About this time Fauerbach wrote to Marks requesting Mr. Koivisto's file "for the fourth time" and advising Marks that he was now representing Mr. Koivisto's daughter. This was the first written notice Fauerbach sent regarding this representation. Mr. Koivisto's daughter testified she did not contact Marks personally to tell him she was transferring the case to Fauerbach. In the same letter, Fauerbach advised Marks that Mr. Koivisto had consulted Fauerbach about Marks' invoice, and stated that it was difficult to render advice with respect to the bill without having seen the materials generated in the file.

¶ 18. On November 6,1996, Marks advised Fauer-bach that he required signed releases from Mr. Koivisto and his daughter before he would release the files, as they contained confidential client information. He also indicated that he had not been advised how his lien for his attorney fees would be protected.

¶ 19. The same day Fauerbach sent Marks a facsimile, requesting that Marks deliver the Koivisto files to Fauerbach's office in Ironwood, Wisconsin. He suggested that Marks would be paid from the proceeds of the case and confirmed that he had told Mr. Koivisto he would reduce his 30 percent contingency fee by the amount of Marks' charges.

¶ 20. On November 11 Fauerbach sent, via facsimile, the signed releases, stating that "[b]efore any final decision is made regarding your fees we would like to see the file materials that have been generated." Marks interpreted this letter as questioning his fees and thus as contrary to the Fee Agreement, which required immediate payment.

¶ 21. The same day Marks wrote to Fauerbach, indicating that he had sent the Koivisto files. He also stated that he would be suing the Fauerbach firm for interference with contract. Fauerbach subsequently acknowledged receipt of the files.

¶ 22. On November 14 Marks wrote letters to the two insurance adjusters, Zielke and Coursey, stating that his office "maintains a lien on each of your files out of the settlement of the claims in the amount of 25%." The letter enclosed copies of the Fee Agreements signed by the Koivistos.

¶ 23. On November 19 Fauerbach advised Marks that Mr. Koivisto would pay the $1812.24 legal bill, provided Marks agreed to sign a release with respect to the Koivisto matters, and agreed to drop any claimed "lien" related to these matters. Marks refused to sign the release, later explaining that the Fee Agreement did not require Marks to sign any release to be entitled to payment of his legal fees.

¶ 24. On November 21 Marks wrote to Coursey, advising her that his office maintained a lien on the proceeds of 25 percent of any recovery in the Koivisto matters. As of that date his bill for legal services had not been paid.

¶ 25. On December 2 Fauerbach filed a motion in Iron County Circuit Court in Wisconsin for an order determining that Marks was not entitled to any legal fees other than those set forth in the previously submitted invoice (the "Wisconsin action").

¶ 26. On December 11 Marks filed suit against Fauerbach, the Koivistos, and the insurers in Gogebic County Circuit Court, Michigan, alleging interference with contract and asserting a "charging lien" (the "Michigan action").

¶ 27. On December 12 there was a court hearing in the Wisconsin action. The trial court concluded that Marks was entitled to recover his fees in the amount of $1812.24. The court therefore directed Marks to endorse two settlement checks that had been received from the insurers, each in the amount of $1000. Marks endorsed the checks on December 18 as follows: "Signed as Per Court Order of 12/12/96, with exception."

¶ 28. On December 20 Marks sent a second invoice to Mr. Koivisto, billing him for an additional $420.37 in legal fees and stating that these additional fees were due December 31. The total amount of the legal fees claimed by Marks now totaled $2232.61.

¶ 29. On January 6,1997, Marks received a check in the amount of $1812.24 from the Iron County Registrar as payment for his legal fees. The funds were derived from the two settlement checks that Marks had endorsed at the court's direction. Marks returned the check indicating he believed accepting it would constitute a release of his claims against Fauerbach.

¶ 30. On March 26 the insurance adjuster, Zielke, wrote to Fauerbach, advising him that Frankenmuth Insurance would settle the Koivisto claims for its policy limit of $100,000, in exchange for a release. Because Marks had refused to accept the check for his legal fees, Fauerbach obtained a court order directing Marks to endorse the anticipated settlement check if his name was identified as a payee.

¶ 31. On April 21 Fauerbach contacted Zielke and told him that the settlement check should be issued without Marks' name on it. Zielke responded that if he were to issue the settlement check without Marks' name on it, he would require an unlimited indemnification from Fauerbach. Fauerbach was unwilling to offer unlimited indemnification and told Zielke to simply issue the settlement check with Marks' name on it.

¶ 32. Upon receipt of the settlement check, Fauer-bach asked Marks to endorse it. Marks refused.

¶ 33. Meanwhile, on April 8 Marks filed a brief in the Michigan action, opposing Fauerbach's motion to dismiss the Michigan claim and arguing that he was legally entitled to maintain a lien on the Koivisto settlement.

¶ 34. On April 28 Marks amended his complaint in the Michigan action to add a slander claim against Fauerbach. He did not amend that portion of the complaint that stated that his legal fees had not been paid.

¶ 35. On June 9 Marks' lawyer advised the Koivis-tos that Marks would settle the lien claim and endorse the settlement check, provided that only the Koivistos (and not Fauerbach) received the settlement monies. Mr. Koivisto expressed frustration that he had been forced to pay approximately $1200 in legal fees in connection with defending against the Michigan action. Marks agreed to reduce his legal bill of $2232.61 by $1200, to reflect the fees paid by Mr. Koivisto in connection with the Michigan action. Marks also agreed to dismiss the insurers and the Koivistos from the Michigan action, and further agreed to limit his claim against Fauerbach to $25,000.

¶ 36. This settlement agreement was formalized and signed on June 20, 1997. On July 11 the Michigan court signed the related order and Marks endorsed the $100,000 settlement check without further delay.

¶ 37. On July 18 Fauerbach sent a check for $75,000 to Mr. Koivisto. Fauerbach also directed the Iron County Wisconsin Registrar to return the $1812 check (previously refused by Marks) to Mr. Koivisto.

¶ 38. In January 1998 the parties stipulated to dismissal of all claims in the Michigan action, including Marks' appeal from an order granting summary judgment against him. The Fauerbach firm received the $25,000 fee, previously held in an escrow account.

¶ 39. On October 9,1998, Mr. Koivisto and Fauer-bach filed a grievance with OLR against Marks. Nearly three years later, on August 29, 2001, the OLR filed a complaint against Marks alleging three counts:

(1) Marks violated SCR 20:8.4(c), or, in the alternative, Michigan Rule of Professional Conduct (MRPC) 8.4(b) by issuing correspondence to two insurers in November 1996, claiming a lien on 25% of the proceeds of the -wrongful death and personal injury claims asserted by the Koivisto family (Count 1);
(2) Marks violated MRPC 3.1 by filing a complaint and amended complaint in Michigan Circuit Court asserting a breach of contract claim after the Koivistos terminated Marks' representation (Count 2);
(3) Marks violated MRPC 8.4(b) by filing an amended complaint alleging in the Michigan lawsuit that Donald had not paid Marks' billing statement when the amount had been tendered (Count 3).

¶ 40. Marks answered, denying the charges. He subsequently moved to dismiss the complaint on the grounds it alleged violations of Michigan disciplinary rules or, in the alternative, sought a stay of the proceedings to permit the OLR to refer the matter to the Michigan disciplinary authority. The OLR opposed the motion.

¶ 41. Following briefing and oral argument the referee granted Marks' motion to dismiss the complaint as to Count 1 (the Michigan alternative), Count 2, and Count 3, each of which alleged violations of the Michigan disciplinary rules. Subsequently, Marks filed a motion in limine to suppress evidence that he violated the Michigan rules. The referee granted the motion but permitted the OLR to introduce evidence that Marks alleged the existence of a "charging lien" in the Michigan action.

¶ 42. The trial on the remaining count, the alleged violation of SCR 20:8.4(c), occurred on June 3, 2002. The referee issued a report and recommendation on June 27, 2002, concluding that Marks violated SCR 20:8.4(c), and recommending a 60-day suspension. Both parties now appeal.

¶ 43. The parties agree that the referee's findings of fact will be upheld unless they are clearly erroneous and that the referee's conclusions of law are to be reviewed de novo. In re Disciplinary Proceedings Against Swartwout, 116 Wis. 2d 380, 342 N.W2d 406 (1984).

¶ 44. The first issue presented for review is whether Marks violated SCR 20:8.4(c) by notifying two insurance companies that he maintained a lien on the proceeds for 25 percent of his former client's recovery in a personal injury wrongful death claim.

¶ 45. First, the referee was required to decide whether Michigan or Wisconsin rules should apply to this claim, as it was pled by OLR in the alternative. The referee determined that the predominant effect of Marks' alleged misconduct occurred in Wisconsin because it affected the Koivistos, who are Wisconsin residents. The referee thus concluded that Wisconsin law applied to this claim. Neither party appears to dispute that the Wisconsin disciplinary rule was properly applied to this count.

¶ 46. Turning to the substantive question presented, the referee made certain findings of fact, then made the following conclusions of law:

1. The Koivistos had the right to discharge respondent as their attorney in connection with their wrongful death and personal injury claims;
2. Respondent's hen claim was wrongful because the fee agreement was not in existence in November 1996 when he wrote the two insurance companies involved nor was it in existence in December 1996 or April 1997 when he asserted his lien claims in the Michigan action. McBride v. Wausau Insurance Companies, 176 Wis. 2d 382, 500 N.W2d 387 (Ct. App. 1993).
3. Respondent's insistence on claiming a lien impaired Attorney Fauerbach's representation of the Koivistos and delayed payment of the proceeds he ultimately recovered for the Koivistos;
4. Respondent was guilty of misrepresentation in stating he held a lien against the two insurance companies involved in this matter in his letters to them on November 14, 1996 and November 21, 1996.
5. Respondent violated SCR 8.4(c). by engaging in conduct involving dishonesty, fraud, deceit or misrepresentation when he wrote letters to the two insurance companies in November 1996 stating that he held a lien against them and the Koivistos on any settlement proceeds the Koivis-tos might receive in settlement of their claims.

¶ 47. Marks disputes the referee's conclusion that he violated SCR 20:8.4(c) when he wrote the two insurers to advise them that he maintained a 25 percent lien on the proceeds of the Koivisto settlements. Essentially, Marks contends that he may have been wrong about having such a lien, but that he did not intentionally deceive anyone because he believed he was legally justified in asserting the lien claims.

¶ 48. We cannot agree. The circumstances of this case support the referee's conclusion that Marks violated SCR 20:8.4(c) when he wrote letters to the two insurance companies in November 1996 stating that he held a lien against any proceeds the Koivistos might receive in settlement of their claims.

¶ 49. At argument the question was raised whether the findings of fact made by the referee support the conclusion that Marks' engaged in misrepresentation in violation of SCR 20:8.4(c). Counsel for Marks correctly asserts that this court will not make a finding that the referee could have made but did not. See In re Disciplinary Proceedings Against Wood, 122 Wis. 2d 610, 363 N.W2d 220 (1985); see also Disciplinary Proceedings Against Swartwout, 116 Wis. 2d 380, 342 N.W2d 406 (1984) (court will not conduct de novo review of record or independently make factual findings).

¶ 50. Our review would be simpler had the referee made more explicit findings to support his conclusion that Marks' conduct constituted misrepresentation in violation of SCR 20:8.4(c). However, it is unnecessary to either plead or prove the tort of misrepresentation in order to establish by clear and convincing evidence that an attorney has violated a rule of professional conduct, proscribing attorney conduct involving dishonesty, fraud, deceit or misrepresentation. In re Disciplinary Proceedings Against Schalow, 131 Wis. 2d 1, 13, 388 N.W.2d 176 (1986).

¶ 51. We conclude that the referee's findings do support the conclusion that Marks' conduct constituted misrepresentation in violation of SCR 20:8.4(c). The referee found that the Koivistos executed the Fee Agreement, that they opted to terminate Marks' representation, that Marks submitted an invoice for the legal fees and expenses incurred during the period of his representation, and that subsequently, Marks represented to two insurance companies that he maintained a 25 percent hen on any settlement ultimately obtained by the Koivistos. Marks did not release that hen claim until more than a year later, in June 1997. The circumstances as reflected in the referee's findings establish that Marks' conduct rose to the level of misrepresentation in violation of SCR 20:8.4(c).

¶ 52. While Marks may have legitimately maintained a claim for the legal services he rendered before the date of his termination, he nonetheless represented to the insurers that he was entitled to fully 25 percent of any recovery ultimately obtained by the Koivistos. Such a representation is simply contrary to the express terms of the Fee Agreement. Paragraph One of the Fee Agreement provided that the Koivistos would pay Marks "25 percent of the total value of the property (settlement, compromise, or judgment) recovered for the client by the Attorney." Paragraphs Two and Three described various costs and expenses for which the client would be responsible. Paragraph Four provided that the client would "render to the attorney, an attorney's lien on the proceeds of any settlement,. ..

¶ 53. However, an entirely separate provision of the Fee Agreement sets forth the procedure for compensating Attorney Marks in the event the lawyer-client relationship was terminated. Paragraph Five provides:

If for any reason, the Attorney-Client relationship was to be terminated prior to settlement, compromise or judgment, etc., without good cause on client's behalf, the client hereby agrees to pay attorney for the value of legal services received by the client for attorney on an hourly rate schedule of $100.00 per hour plus expenses. Said fee will be immediately due and payable.

¶ 54. This is the provision applicable to Marks' claim for legal fees. As the OLR correctly asserts: "Marks knew ... when he wrote his letters of November 14, 1996 and November 21, 1996 . . . that any fee due him by the Koivistos was not to be calculated on a contingency fee basis."

¶ 55. We thus agree with the referee's conclusion that Marks' letters to the insurers stating that he "maintains a lien on each of your files out of the settlement of the claims in the amount of 25%" constituted misrepresentation in violation of SCR 20:8.4(c).

¶ 56. Next, Marks asserts that the 60-day suspension recommended by the referee is excessive. He suggests that a public reprimand is more appropriate discipline for a violation of SCR 20:8.4(c) based on the facts set forth herein.

¶ 57. Marks has been reprimanded on three prior occasions. Further, as the referee found, Marks' actions delayed Mr. Koivisto's receipt of the settlement. We are not persuaded that this finding is clearly erroneous. We agree with the referee that a 60-day suspension of Marks' license to practice law is appropriate discipline under the circumstances of this case.

¶ 58. We turn to the issue presented by the OLR on cross-appeal: namely, whether the referee erred in dismissing two counts from the disciplinary complaint that alleged violations of the Michigan Rules of Professional Conduct.

¶ 59. The OLR alleged that Marks violated MRPC 3.1 and MRPC 8.4(b). These counts relate to the lawsuit Marks filed in Michigan against the Koivistos, Attorney Fauerbach and the insurers.

¶ 60. This cross-appeal presents a choice of law question and requires the court to interpret SCR 20:8.5, which provides:

SCR 20:8.5. Disciplinary authority; choice of law.
(a) Disciplinary Authority. A lawyer admitted to the bar of this state is subject to the disciplinary authority of this state regardless of where the lawyer's conduct occurs. A lawyer allowed by a court of this state to appear and participate in a proceeding in that court is subject to the disciplinary authority of this state for conduct that occurs in connection with that proceeding. For the same conduct, a lawyer may be subject to the disciplinary authority of both this state and another jurisdiction where the lawyer is admitted to the bar or allowed to appear in a court proceeding.
(b) Choice of Law. In the exercise of the disciplinary authority of this state, the rules of professional conduct to be applied shall be as follows:
(1) for conduct in connection with a proceeding in a court before which a lawyer has been authorized to appear, either by admission to the bar in the jurisdiction or by the court specifically for purposes of that proceeding, the rules to be applied shall be the rules of the jurisdiction in which the court sits, unless the rules of the court provide otherwise.
(2) for any other conduct,
(i) if the lawyer is admitted to the bar of only this state, the rules to be applied shall be the rules of this state.
(ii) if the lawyer is admitted to the bars of this state and another jurisdiction, the rules to be applied shall be the rules of the admitting jurisdiction in which the lawyer principally practices, except that if particular conduct clearly has its predominant effect in another jurisdiction in which the lawyer is admitted to the bar, the rules of that jurisdiction shall be applied to that conduct.

¶ 61. After briefing and oral argument the referee granted Marks' motion to dismiss these two counts and subsequently granted a motion in limine, precluding the OLR from introducing evidence about the alleged Michigan rule violations at trial.

¶ 62. The referee expressed concern about the basis for the OLR's authority to enforce the disciplinary rules of another jurisdiction, as well as concern about possible inconsistencies between the laws and rules of Wisconsin and other states. Ultimately, the referee reasoned that the predominant effect of Marks' alleged misconduct occurred in Wisconsin because it affected the Koivistos, who are Wisconsin residents. The referee thus dismissed the Michigan counts, observing: "[t]he Comment to SCR 20:8.5 makes it clear that in a choice of law situation 'any particular conduct of a lawyer shall be subject to only one set of rules of professional conduct.'"

¶ 63. On appeal the OLR contends that the referee erred and that, under the facts presented, SCR 20:8.5 authorizes the OLR to apply Michigan disciplinary rules. This is an issue of first impression.

¶ 64. There is no dispute that because Marks is a member of the Wisconsin bar he is subject to the disciplinary authority of this state regardless where his alleged misconduct occurred. Marks, who is also a member of the Michigan bar, allegedly filed and litigated a frivolous lawsuit in the Michigan courts. This constituted "conduct in connection with a proceeding in a court before which a lawyer has been authorized to appear. ..." SCR 20:8.5(a)(l). As such, SCR 20:8.5(a)(l) provides that "the rules to be applied shall be the rules of the jurisdiction in which the court sits, unless the rules of the court provide otherwise." Id. (emphasis added). Therefore, we agree with the OLR that it was authorized to proceed under the Michigan disciplinary rules.

¶ 65. We find support for our conclusion in the American Bar Association (ABA) Model Rules of Professional Responsibility. ABA Model Rule 8.5 is identical to SCR 20:8.5. See Ronald D. Rotunda, Professional Responsibility: A Student's Guide (2001 ed.) at 731-32. Referring to ABA Model Rule 8.5(b), Professor Rotunda states:

The goal of [Rule 8.5] is to insure that any particular conduct of a lawyer should be subject to only one set of rules. Both jurisdictions may impose discipline, but they should both be using the same set of rules against which they measure the conduct. Disciplinary authorities should avoid proceeding against a lawyer on the basis of two inconsistent rules. The choice of law issue is: which jurisdiction's ethics should apply to a lawyer admitted in more than one jurisdiction?

Id. at 735. In an example assuming misconduct by a lawyer admitted in state A but committed before a court in state B, Professor Rotunda concludes: "Under the Model Rules, if that lawyer then violates the rules of the court in state B, state A should apply the ethics rules of state B, which are the rules applicable to that case." Id. (emphasis added).

¶ 66. We thus hold that SCR 20:8.5 authorizes the OLR to proceed with a complaint alleging violations of the Michigan Rules of Professional Conduct for alleged misconduct that occurred in a proceeding before a court in the state of Michigan.

¶ 67. Marks, however, suggests that the better practice would be for the OLR to refer this matter to the Michigan disciplinary authorities. He notes that if the Michigan Supreme Court disciplined Marks, this court could then impose reciprocal discipline under SCR 22.22. He contends this would be a more efficient procedure, because Wisconsin disciplinary authorities would not be required to construe the rules and possibly the substantive law of another state.

¶ 68. Even if we agree that may be the better practice, SCR 20:8.5 does authorize the OLR to proceed with a complaint alleging violations of the Michigan Rules of Professional Conduct for alleged misconduct that occurred in a proceeding before a court in the State of Michigan. Therefore, the referee erred by dismissing counts two and three of the OLR complaint.

¶ 69. However, we are of the opinion that remanding this matter would not advance judicial efficiency. The OLR has indicated that its recommendation with respect to discipline would not change, even if violations of the Michigan Rules of Disciplinary Conduct were established, and there has already been substantial delay in the prosecution of this matter.

¶ 70. Finally, we accept the referee's recommendation that Attorney Marks be required to pay the costs of this disciplinary proceeding.

¶ 71. Upon the foregoing reasons,

¶ 72. IT IS ORDERED that the license of Marvin E. Marks to practice law in Wisconsin is suspended for a period of 60 days, effective August 20, 2003.

¶ 73. IT IS FURTHER ORDERED that Marvin E. Marks comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended.

¶ 74. IT IS FURTHER ORDERED that within 60 days of the date of this order Attorney Marvin E. Marks shall pay to the Office of Lawyer Regulation the costs of this proceeding. 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 Marvin E. Marks to practice law in Wisconsin shall be suspended until further order of the court.

¶ 75. WILLIAM A. BABLITCH, J., and JON E WILCOX, J., did not participate.

DAVID T. PROSSER, J.

¶ 76. (dissenting). This case raises disturbing issues about attorney discipline proceedings in Wisconsin. For the reasons stated herein, I respectfully dissent.

¶ 77. The court approves a referee's recommended discipline of Attorney Marvin E. Marks under Wisconsin SCR 20:8.4(c), for engaging in conduct that involved misrepresentation. The referee's Conclusions of Law state:

2. Respondent's lien claim was wrongful because the fee agreement [he had with the Koivisto family] was not in existence in November 1996 when he wrote the two insurance companies involved nor was it in existence in December 1996 or April 1997 when he asserted his lien claims in the Michigan [legal] action. McBride v. Wausau Insurance Companies, 176 Wis. 2d 382, 500 N.W2d 387 Ct. App. 1993).
4. Respondent was guilty of misrepresentation in stating he held a lien against the two insurance companies involved in this matter in his letters to them on November 14, 1996 and November 21, 1996.
5. Respondent violated SCR 8.4(c) by engaging in conduct involving dishonesty, fraud, deceipt [sic] or misrepresentation when he wrote letters to the two insurance companies in November 1996 stating that he held a lien against them and the Koivistos on any settlement proceeds the Koivistos might receive in settlement of their claims.

¶ 78. First, the court acknowledges that the McBride case does not support the referee's legal conclusion. Per curiam op., ¶ 54, n.2.

¶ 79. Second, and more important, the referee made no factual finding that Attorney Marks knew or should have known that he was not justified in asserting a lien claim on November 14 and November 21, 1996.

¶ 80. The court's per curiam opinion, ¶ 47, summarizes the situation: "Essentially, Marks contends that he may have been wrong about having such a lien, but that he did not intentionally deceive anyone because he believed he was legally justified in asserting the lien claims." The per curiam never responds to this contention by asserting that Attorney Marks knew or should have known that he did not have a lien. It dances around this predicament in ¶ 51.

¶ 81. The court's treatment of the problem leads to one of two unpalatable results: either this court has engaged in implicit fact-finding, contrary to our own statements and precedent, or we have concluded that it is not necessary for an attorney to know or have reason to know that something he represents is not correct, in order for us to find the attorney guilty of misrepresentation.

¶ 82. Attorney Marks' purported "misrepresentation" needs to be put in context. There is no dispute that Donald Koivisto entered into a Contingent Fee Agreement with Attorney Marks in connection with Mrs. Koivisto's untimely and wrongful death. That agreement was signed on October 22, 1996. Koivisto's daughter, Nikki, entered into a similar agreement on October 24, 1996. Both agreements contained the following paragraph:

5. If for any reason, the Attorney-Client relationship was to be terminated prior to settlement, compromise, or judgment, etc., without good cause on client's behalf, the client hereby agrees to pay attorney for the value of legal services received by the client for attorney on an hourly rate schedule of $100.00 per hour plus expenses. Said fee will be immediately due and payable.

¶ 83. The referee based his conclusion about Marks' misrepresentation on the premise that "the fee agreement was not in existence in November 1996 when he wrote the two insurance companies." There is no dispute, however, that the hourly rate billed on October 31, 1996, had not been paid on November 14, 1996, when Marks wrote the first letter. On November 11 the Koivistos' new attorney had proposed paying Attorney Marks "after settlement of the Anna Koivisto wrongful death case."

¶ 84. The new attorney also indicated that before any final decision regarding payment of Marks' fees would be made, the attorney wished to see the file materials that had been generated by Marks. In other words, the attorney who acquired the Koivisto case from Marks reserved the right to delay payment of Marks' legal fees and to evaluate Marks' legal work before Marks was paid. These conditions were not part of the two Contingent Fee Agreements, and when Marks was not paid by November 15, he reasonably concluded that the agreements had been breached.

¶ 85. Rightly or wrongly, Marks thought the Koivistos' new attorney had tampered with his contract. He retained a lawyer to represent him in the matter. On November 11 Marks advised the Koivistos' new attorney that he would sue the attorney's firm for interference with contract. All this preceded the November 14 letter.

¶ 86. Prior to the November 21 letter, the new attorney advised Marks that Koivisto would pay Marks' legal bill ¿/Marks agreed to sign a release and drop any claimed lien. The per curiam opinion does not explain what effect this release would have had on Marks' tampering claim. Ultimately, Marks filed suit in Michigan alleging an interference with contract and claiming a "charging lien."

¶ 87. The sum of all this is that Attorney Marks could have believed that he had a lien when he wrote letters to the two insurance companies. Even now in this appeal, Marks' attorney maintains that Marks had a legitimate basis for claiming such a lien.

¶ 88. The per curiam opinion does not decimate this argument, nor does it assert that Marks knew or should have known that he did not have a lien at the time of the November letters, the critical period for this case. Consequently, I do not understand what rule of law on misrepresentation comes out of this case.

¶ 89. Over time Marks became obsessed with pursuing a lost cause. He went too far. I would have no problem issuing a public reprimand on an appropriate charge. But Marks' license to practice law is suspended for two months for conduct involving misrepresentation in November 1996, in violation of SCR 20:8.4(c), which is a charge that was not satisfactorily proved.

¶ 90. Beyond the suspension, this court imposes costs of $22,178.69. These costs are disproportionate to the seriousness of the offense. In part, they reflect OLR's obsession to appeal an issue that it lost before the referee. The issue of costs in attorney discipline cases requires prompt attention, for excessive costs will deter some attorneys from adequately defending themselves and may prevent others from ever returning to the practice of law.

       SCR 20:8.4(c) provides: "It is professional misconduct for a lawyer to: (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation."

       The referee cited McBride v. Wausau Ins. Co., 176 Wis. 2d 382, 500 N.W.2d 387 (Ct. App. 1993) in support of his conclusion of law that the claim was wrongful. Marks asserts that the referee's reliance on McBride is misplaced. We agree that McBride is distinguishable. In McBride the court held that an attorney who was discharged by her client prior to obtaining a settlement was not entitled to recover any portion of the legal fees pursuant to the contingency agreement because she provided such substandard legal services that she effectively breached the fee agreement with her former client. By contrast, there is no dispute that Marks pursued the Koivisto cases diligently during the brief period of his representation, and that he was entitled to recover the fees and costs incurred during that representation. However, the fact that McBride is inappo-site does not alter the referee's conclusion that Marks engaged in misrepresentation when he wrote the letters to the insurers representing he was entitled to a 25 percent lien on the Koivisto settlement proceeds.

       Consistent with that determination we decline to stay this matter pursuant to Wis. Stat. § 801.63, nor will we require the OLR to refer the matter to the Michigan disciplinary authorities.


author: PER CURIAM.

text:
    In the Matter of Disciplinary Proceedings Against Rocky L. Coe, Attorney at Law: Office of Lawyer Regulation, Complainant-Respondent-Cross-Appellant, v. Rocky L. Coe, Respondent-Appellant-Cross-Respondent.
    Supreme Court

      No. 01-2488-D.

      Submitted on briefs April 10, 2003.

    — Decided July 16, 2003.

    2003 WI 117
    (Also reported in 665 N.W.2d 849.)

      For the respondent-appellant-cross respondent there were briefs by Rocky L. Coe, Milwaukee.
    For the complainant-respondent-cross appellant there were briefs by William J. Weigel, litigation counsel, Madison.
   PER CURIAM.

¶ 1. The Office of Lawyer Regulation (OLR) appeals from the report and recommendation of the referee that concluded that the OLR failed to establish that Attorney Rocky Coe violated SCR 20:3.10 in a letter he sent to opposing counsel. Attorney Coe cross-appeals from several aspects of the referee's report and recommendation. He specifically objects to the referee's recommendation that this court admonish Attorney Coe for disrespectful conduct toward the referee.

¶ 2. We adopt the recommendation of the referee and agree that the OLR has failed to establish, under the facts of this case, that Attorney Coe violated SCR 20:3.10. Accordingly, we dismiss the complaint against Attorney Coe. However, the record before us is replete with examples of Attorney Coe's disrespectful and cavalier attitude toward the referee, and the court in general. We hereby admonish him pursuant to SCR 62.02(1).

¶ 3. Attorney Coe was admitted to practice in Wisconsin in 1977. He has no disciplinary history.

¶ 4. In the fall of 2000 Attorney Coe began representing the Opportunities Industrialization Center of Greater Milwaukee, Inc. (OIC) in connection with an ongoing unemployment compensation case and related sexual harassment case in which the OIC was named as defendant.

¶ 5. The plaintiff in the underlying matter had resigned her employment with the OIC. Several months later she filed a claim for unemployment compensation (the "UC case"). She also filed a claim with the State of Wisconsin Equal Rights Division, alleging that she resigned from the OIC because of sexual harassment by an OIC supervisor (the "ERD case").

¶ 6. The initial decision in the UC case was unfavorable to the plaintiff. The plaintiff appealed and the Labor & Industry Review Commission (LIRC) reversed, declaring that she was eligible for unemployment benefits. The OIC, represented by Attorney Coe, appealed the LIRC decision to the Milwaukee County Circuit Court in OIC v. LIRC and Dates, Case No. 00-CV-07743. Meanwhile, in June 2000 the ERD issued a probable cause finding in favor of the plaintiff and against the OIC with regard to her sexual harassment claim.

¶ 7. While both of these matters were pending, Attorney Coe interviewed several potential witnesses. Some of these witnesses had unfavorable things to say about the plaintiff. Without detailing the specific allegations, certain former co-workers and a former boyfriend, who happens to be a married minister, essentially alleged that the plaintiff had concocted the sexual harassment allegations in order to obtain money and alleged further that she had behaved in a manner that did not support her claims of harassment by her former supervisor. Testimony introduced at the evidentiary hearing in the disciplinary matter further indicates that on or about December 4, 2000, the plaintiffs former boyfriend contacted Attorney Coe because he had received a telephone call from one of the plaintiffs lawyers and was anxious about his involvement with the case and concerned that his extramarital relationship with the plaintiff would be publicized.

¶ 8. On December 5, 2000, Attorney Coe sent a letter to the lawyers who represented the plaintiff in the UC matter and the ERD matter. That letter forms the basis for the disciplinary complaint subsequently filed against Attorney Coe by the OLR. The first paragraph of the letter states: "... I am expediting my proposed settlement to humanely put these cases out of their misery." It continues:

if you continue to proceed, thereby dragging more innocent people into this already sordid affair, I will have no choice but to recommend [plaintiff] to the District Attorney for prosecution for perjury and fraud. Moreover, let this be official notice that I am now aware that all of you know or should know of what kind of scamming and lying character you proffer as honest.
Although my client has exerted a lot of energy and expenses defending this ruse, as a gesture of peace during the holidays, I will strongly recommend letting this matter drop, if this is ended now. Otherwise, I am going to the DA.

(Emphasis in original.) Subsequently, a grievance was filed with the OLR regarding this letter.

¶ 9. The OLR made a preliminary evaluation and determined that Attorney Coe's conduct potentially violated the Rules of Professional Conduct, namely, SCR 20:3.10, which prohibits a lawyer from presenting, participating in presenting or threatening to present criminal charges solely to obtain an advantage in a civil matter. The OLR investigated the matter and offered Attorney Coe the opportunity to resolve the matter privately, which he declined. The OLR Director then presented an investigative report to the Preliminary Review Committee, which found cause to proceed with the filing of a complaint against Attorney Coe, alleging a violation of SCR 20:3.10.

¶ 10. A complaint was filed on September 18, 2001, alleging that Attorney Coe "presented, participated in presenting or threatened to present criminal charges solely to obtain an advantage in a civil matter, in violation of SCR 20:3.10."

¶ 11. The Honorable David Friedman was appointed referee on October 1, 2001. Attorney Coe answered, moved to dismiss the complaint, and filed counterclaims against the OLR,. alleging malicious prosecution, abuse of authority, failure to cooperate, and intentional infliction of emotional distress. He demanded the OLR compensate him at a rate of $275/hour for the time he spent responding to the OLR complaint. The OLR moved to dismiss the counterclaims. Attorney Coe opposed the motion and moved for summary judgment on the claims.

¶ 12. The referee found the complaint legally sufficient, dismissed Attorney Coe's counterclaims, and denied Attorney Coe's motion for summary judgment on December 27, 2001. The matter proceeded to an evidentiary hearing. After the hearing and following post-hearing supplemental briefing (to which Attorney Coe objected) the referee issued the report and recommendation on August 7, 2002.

¶ 13. The referee found that Attorney Coe had sent the letter of December 5, 2001, to gain an advantage, but ultimately concluded that Attorney Coe did not threaten criminal prosecution solely to obtain an advantage in a civil matter, and consequently did not violate SCR 20:3.10. Accordingly, the referee recommended this court dismiss the complaint against Attorney Coe. However, the referee also suggested that this court consider admonishing Attorney Coe for his disrespectful conduct toward the office of the referee. Both parties appeal.

¶ 14. The parties agree that the referee's findings of fact will be upheld unless they are clearly erroneous and that the referee's conclusions of law are to be reviewed de novo. In re Disciplinary Proceedings Against Swartwout, 116 Wis. 2d 380, 342 N.W.2d 406 (1984).

¶ 15. We begin with the OLR's appeal, which asserts that certain of the referee's findings of fact were clearly erroneous and that the referee erred in concluding that Attorney Coe did not violate SCR 20:3.10. The OLR is of the opinion that Attorney Coe's letter "represents one of the clearest violations of SCR 20:3.10 imaginable" and contends that the record evidence warrants the conclusion that Attorney Coe did, in fact, violate SCR 20:3.10.

¶ 16. Attorney Coe defended his letter, variously asserting the following positions: (1) he would not gain an advantage from the letter; (2) his letter was facetious; (3) he was trying to "help" adverse counsel avoid ethical violations; (4) he was reminding LIRC to act properly; and, (5) he was protecting an "innocent witness."

¶ 17. The referee found that the first four "justifications" were neither credible nor supported by the evidence. However, the referee was persuaded that Attorney Coe was, at least in part, genuinely trying to protect the privacy of one of his witnesses, the former boyfriend of the plaintiff. The man was married and had emphasized to Attorney Coe the day before the letter was ’sent, that disclosure of his extramarital relationship with the plaintiff would be undesirable.

¶ 18. With respect to the UC case, the referee noted that it was unclear to what extent Attorney Radtke (one of the recipients of the December 5 letter) was involved with the case. In addition, the referee was not persuaded that counsel for the plaintiff could have influenced an advantageous dismissal of the UC case, in that the OIC was appealing the matter. While the OLR objects to these findings as "simply wrong" we cannot, based on the record before us, agree that they are clearly erroneous.

¶ 19. With respect to the ERD case, the referee found that Attorney Coe's purpose in sending the letter was not solely to gain advantage and that he was motivated, at least in part, by a desire to protect his witness.

¶ 20. The OLR maintains this finding is clearly erroneous as well. The OLR contends: "Coe presented no evidence that any witnesses ... were in need of protection." The OLR notes that prior to sending the letter Attorney Coe had never discussed protecting witnesses with opposing counsel. The OLR sets forth in detail the sequence of events that preceded and succeeded the letter to demonstrate that Attorney Coe was not particularly interested in protecting this witness's privacy, including the fact that Attorney Coe had filed the witness's affidavit in the public record as part of the ERD case. Ultimately, the OLR contends that the "record rebuts every purported motivation alleged by Attorney Coe." According to the OLR, "there is no scenario in which Attorney Coe could have been found to be assisting [the witness] in that matter as of December 5, 2000."

¶ 21. We observe that the witness in question testified that he believed that Attorney Coe sent the letter of December 5 in order to protect him. The referee explicitly stated that it found this witness credible. The referee's assessment of this witness and of Attorney Coe's intent in sending the letter required a credibility determination that we are extremely reluctant to disturb on appeal. We are mindful that Attorney Coe's zealous style of advocacy transcends that typically encountered, even in the most aggressive litigator; this may have influenced the referee's findings. We emphasize that in another case a letter with identical wording might well be found to violate SCR 20:3.10. Based on the record before us, however, we must conclude that the referee's finding that Attorney Coe did not send the letter "solely" to obtain an advantage is not clearly erroneous.

¶ 22. As the parties have noted there is little precedent regarding SCR 20:3.10 and these matters are highly fact specific. See, e.g., In re Disciplinary Proceedings Against Johann, 216 Wis. 2d 118, 574 N.W.2d 218 (1998). Because the referee's factual findings on this record are not clearly erroneous we conclude that the referee correctly concluded, as a matter of law, that the OLR failed to establish that Attorney Coe violated SCR 20:3.10 in this matter. We emphasize that our conclusion is limited to the facts of this case.

¶ 23. We turn to Attorney Coe's cross-appeal which is somewhat diffuse in its rather sweeping accusations against the referee and the OLR. On appeal, Attorney Coe claims that the OLR violated his constitutional and/or other substantive rights in prosecuting him, and that its prosecution of him was "malicious." He is angry with the OLR for failing to prosecute the plaintiffs lawyers apparently for undertaking representation of an individual that Attorney Coe deems to be of poor character. He claims that the referee was biased against him and intentionally "covered-up" the OLR's malicious prosecution of him. He complains that the referee's finding that he sent the December 5 letter to obtain an "advantage" was "clearly erroneous." He suggests racial bias played a role in this matter. Attorney Coe also challenges the referee's suggestion that he be admonished for his conduct. We will address these issues as they are advanced in Attorney Coe's brief:

1. Did the OLR violate Rocky L. Coe's constitutional right to freedom of speech and a due process fair trial by finding that Coe sought an advantage and by not addressing the issue of perjury and fraud in his report?
2. Did the referee in his recommendation to admonish Coe despite finding Coe innocent, evidence his personal bias?
3. Did the OLR unethically prosecute Coe using perjury and fraud?
4. Did the OLR by not engaging in discovery or cooperating with Coe, violate his right to due process?
5. Did the OLR in using the perjury and fraud to prosecute Coe, and not Attorney Rotker violate Coe's constitutional right to equal protection under the laws?

¶ 24. With respect to the first issue we note that it was the referee, not the OLR, who found that Attorney Coe sought an advantage in sending the letter of December 5 and who declined to address the issue of "perjury" and "fraud" in the report and recommendation.

¶ 25. In four of the five issues presented to the court, and throughout his briefs and motions, Attorney Coe makes reference to the facts of the underlying matter, including his repeated references to "perjury" and "fraud." Attorney Coe seems to believe that the fact that certain witnesses were prepared to make statements that reflect unfavorably upon the credibility of the plaintiff in the underlying matter is somehow relevant to, or justification for, his own conduct.

¶ 26. We conclude that the referee's discretionary decision not to discuss Attorney Coe's extensive allegations of "perjury" and "fraud" by the plaintiff was entirely proper. Even if true, these allegations would not justify an attempt by counsel to threaten criminal charges solely to obtain an advantage in a civil matter. See SCR 20:3.10.

¶ 27. In any event, Attorney Coe challenges the referee's finding that he sent the letter to "obtain an advantage." He also claims it is "glaring evidence of the referee's zealous bias." We are somewhat perplexed as to why Attorney Coe objects to this finding when the referee ultimately determined that it was inadequate to support a conclusion that Attorney Coe violated SCR 20:3.10. In any event, the referee's finding of fact on this point is not clearly erroneous. As the OLR observes in its brief, the letter was sent to the plaintiffs counsel by Attorney Coe, as defense counsel for the OIC, with the intent to induce the plaintiffs counsel to dismiss her case — in other words, to gain a benefit, or advantage, for Attorney Coe's client. It is readily apparent that Attorney Coe would have obtained a benefit or advantage if the letter had accomplished its objective of inducing the plaintiff to dismiss the ERD case.

¶ 28. We turn to Attorney Coe's assertion that the referee in this matter was guilty of bias. As a preliminary matter, the OLR correctly observes that Attorney Coe's claims regarding the referee's and OLR's handling of this disciplinary matter are not properly before the court on this appeal. However, in the interests of judicial efficiency, we will dispose of them on the merits.

¶ 29. A charge of bias is a serious allegation and should not be made lightly. We have carefully reviewed the record and conclude that Attorney Coe's allegation with respect to Referee Friedman is utterly without support in the record. Indeed, Referee Friedman appears to have conducted himself with the utmost self-control and patience in what must have been a very trying matter.

¶ 30. We also reject Attorney Coe's claim that the OLR "unethically persecute [d]" him using "perjury and fraud" and that the OLR violated his constitutional rights to due process and equal protection. Attorney Coe's allegations against the OLR are both conclusory and unsupported by the evidence in the record.

¶ 31. There is simply no evidence before us that supports Attorney Coe's contention that the OLR engaged in malicious prosecution, that the referee was unfairly biased against him, or that Attorney Coe's fundamental rights were in any way violated by this proceeding. Therefore, the referee did not err in dismissing Attorney Coe's counterclaims.

¶ 32. We appreciate that we may not have specifically addressed each and every one of Attorney Coe's claims on appeal. To the extent we have not addressed an argument raised on appeal, the argument is deemed rejected. State v. Waste Mgmt. of Wis., Inc., 81 Wis. 2d 555, 564, 261 N.W.2d 147 (1978) ("An appellate court is not a performing bear, required to dance to each and every tune played on an appeal.").

¶ 33. We now turn to the referee's suggestion that this court consider admonishing Attorney Coe for his disrespectful conduct toward the referee. The referee emphasizes that he was not personally concerned about Attorney Coe's disparaging comments, but rather about his lack of respect for the position of referee.

¶ 34. The OLR agrees that it is the court's prerogative to admonish Attorney Coe and opines that the recommendation "is well supported." The OLR adds that the recommendation "would appear consistent with precedent interpreting SCR 20:8.2(a)."

¶ 35. The OLR cites a number of the many examples of Attorney Coe's disrespectful attitude toward the referee and/or the court system in general. Only a few will be repeated here. Attorney Coe has stated on the record:

This [referee's] patent and reprehensible masquerade of fairness to support Attorney Rotker and the OLR, is not only an embarrassment to the history of jurisprudence, but is a brutally unconscionable slight....
Ostensibly, the referee was nothing but a cheerleader for the OLR.
Clearly, the referee, in an attempt to keep the gross injustice of this case in the dark, conveniently kept his intellectual light bulb turned off.
Without question, it would he easier for a snowman to put on a gasoline suit and stroll hand in hand with the devil through the flames of hell, than for me to get a fair report from this referee.

¶ 36. Attorney Coe also referred to one of the referee's comments as: "a rare moment of intellectual activity." In addition, in a motion filed with this court, Attorney Coe contended that it was "brutally unconscionable for this Court to allow an attorney with my over 25 years of accomplishments, to be subjected to this 'high tech lynching.'" He calls the referee "mean spirited" for mentioning "his witness" by name in the report and recommendation. He makes reference to the referee's "antebellum condescension."

¶ 37. In a letter to the referee dated July 27, 2002, he stated:

And, I remind you that in your zealous bias for the OLR, you denied me the professional courtesy of a postponement of this April 12, 2002 trumped up trial. Well, you are now nearing almost three months overdue for rendering a decision in a simple one-count hearing. What happened to "Justice delayed, is justice denied"?
Is this more hypocrisy?

¶ 38. Attorney Coe also describes the referee as "personally upset and whining." He adds that the referee "had become intoxicated from his own whine and could not write a complete or clear decision." This is only a sampling of Attorney Coe's rhetoric, which pervades the record, his briefs and motions.

¶ 39. We direct Attorney Coe's attention to SCR 62.02(1), which provides in relevant part:

(1) Judges, court commissioners, lawyers, clerks and court personnel shall at all times do all of the following:
(a) Maintain a cordial and respectful demeanor and be guided by a fundamental sense of integrity and fair play in all their professional activities.
(b) Be civil in their dealings with one another and with the public and conduct all court and court-related proceedings, whether written or oral, including discovery proceedings, with civility and respect for each of the participants.
(c) Abstain from making disparaging, demeaning or sarcastic remarks or comments about one another.
(d) Abstain from any conduct that may be characterized as uncivil, abrasive, abusive, hostile or obstructive.
(h) Conduct themselves in a manner which demonstrates sensitivity to the necessity of preserving decorum and the integrity of the judicial process.

SCR 62.01. (Emphasis added.) Violation of the Standards of Courtesy and Decorum "can . . . carry serious consequences to the merits of a given case." See Geneva Nat'l Cmty. Ass'n v. Friedman, 228 Wis. 2d 572, 584, 598 N.W.2d 600 (Ct. App. 1999); Aspen Servs., Inc. v. IT Corp., 220 Wis. 2d 491, 498, 583 N.W.2d 849, 852 (Ct. App. 1998) ("[Aspen] is mistaken in its belief that the Rules in SCR 62 and SCR 20 cannot be the basis for imposing a sanction for incivility during litigation.").

¶ 40. In addition, we remind Attorney Coe that SCR 62.02(4) provides that "Adherence to standards of professionalism and courtesy, good manners and dignity is the responsibility of each judge, court commissioner, lawyer, clerk, and other personnel of the court who assist the public." The Attorney's Oath also states that each attorney shall "maintain the respect due to courts of justice and judicial officers." SCR 40.15.

¶ 41. Attorney Coe's comments rise to the level of a personal attack on the referee and are unwarranted and unprofessional. Even in zealous advocacy attorneys are required to maintain respect to courts of justice. See Preamble SCR Chapter 20; SCR 62.02(c); In re Cannon, 206 Wis. 374, 407, 240 N.W.2d 441 (1932). His excessive sarcasm and hyperbolic rhetoric are unbecoming to a lawyer, and undermine the decorum and integrity of the judicial process. See SCR 62.02(1). Pursuant to SCR 62.02(1), we hereby formally admonish Attorney Coe for his disrespectful comments made during the course of this disciplinary proceeding. Although this admonishment will not carry additional sanctions in this proceeding, Attorney Coe is strongly advised to curtail his rhetorical style in future court proceedings or risk sanctions pursuant to SCR 62.01.

¶ 42. Finally, both parties seek costs in this case. As the OLR complaint will be dismissed, the OLR is not entitled to recoup its costs in this matter. Attorney Coe's request for costs is denied.

¶ 43. IT IS ORDERED that the referee's report and recommendation of August 7, 2002, is adopted by this court and the complaint against Attorney Rocky Coe alleging a violation of SCR 20: 3.10 is dismissed.

¶ 44. IT IS FURTHER ORDERED that Attorney Rocky Coe is hereby admonished pursuant to SCR 62.02(1) for conduct in violation of the standards articulated therein.

       SCR 20:3.10 provides: "[a] lawyer shall not present, participate in presenting or threaten to present criminal charges solely to obtain an advantage in a civil matter."

       SCR 62.02(1), which provides in relevant part:
      (1) Judges, court commissioners, lawyers, clerks and court personnel shall at all times do all of the following:
      (a) Maintain a cordial and respectful demeanor and be guided by a fundamental sense of integrity and fair play in all their professional activities.
      (b) Be civil in their dealings with one another and with the public and conduct all court and court-related proceedings, whether written or oral, including discovery proceedings, with civility and respect for each of the participants.
      (c) Abstain from making disparaging, demeaning or sarcastic remarks or comments about one another.

      (d) Abstain from any conduct that may be characterized as uncivil, abrasive, abusive, hostile or obstructive.

      (h) Conduct themselves in a manner which demonstrates sensitivity to the necessity of preserving decorum and the integrity of the judicial process.
      (Emphasis added.)

       Both matters involving the plaintiff have been resolved. The plaintiff withdrew her ERD complaint in January 2001. The circuit court later upheld the LIRC decision, declaring the plaintiff eligible for unemployment compensation. The OIC appealed, but the appeal was later dismissed.

       Attorney Coe prematurely attempted to appeal the referee's decision. Subsequently, he filed a "motion to recuse referee" and asked this court to enjoin the OLR from prosecuting this matter. He explained that an injunction was necessary "due to the brutal and unconscionable mental abuse that are being heaped upon [him] under the guise of official lawyer regulation, by a branch of the Supreme Court, the Office of Lawyer Regulation." This filing also contained a generalized complaint against the Supreme Court Rules. The motions were denied.

       On July 22, 2002, Attorney Coe filed a "motion for supervisory writ" in this court, complaining that the report and recommendation had not been filed within 30 days of the deadline established in SCR 22.16(6). The report and recommendation issued while the motion was under advisement and the motion was dismissed as moot. Attorney Coe now renews his complaint regarding the delay in the issuance of the report and recommendation. We observe that the record clearly reflects that the delay was occasioned, at least in part, by the referee's request that the parties prepare post-hearing briefs, including a request that the parties discuss the significance of a supreme court case that actually favored Attorney Coe. See letter of July 2,2002, from Referee David Friedman. There is no evidence that Attorney Coe suffered any prejudice from the brief delay in the issuance of the report and recommendation. Attorney Coe's renewal of this grievance is unwarranted.

       SCR 20:8.2(a) provides that:
      a. A lawyer shall not make a statement that the lawyer knows to he false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.