2012 WI 8
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Supreme Court of Wisconsin |
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Case No.: |
2011AP1700-D |
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Complete Title: |
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In the Matter of Disciplinary Proceedings Against Warren L. Brandt, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Warren L. Brandt, Respondent. |
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DISCIPLINARY PROCEEDINGS AGAINST BRANDT |
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Opinion Filed: |
February 9, 2012 |
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Submitted on Briefs: |
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Oral Argument: |
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Source of Appeal: |
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Court: |
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County: |
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Judge: |
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Justices: |
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Concurred: |
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Dissented: |
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Not Participating: |
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Attorneys: |
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2012 WI 8
notice
This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.
ATTORNEY disciplinary proceeding. Attorney's license suspended.
¶1 PER CURIAM. On July 26, 2011, the Office of
Lawyer Regulation (OLR) filed a complaint alleging that Attorney Warren L.
Brandt violated SCR 20:8.4(b)[1]
by engaging in conduct resulting in the felony conviction in Minnesota of
first-degree driving while intoxicated within ten years of the first of three
or more qualified prior impaired driving incidents, contrary to Minnesota
Statutes § 169A.24.1(1).
¶2 On
October 3, 2011, the parties executed a joint stipulation, so we consider the
OLR's complaint and the stipulation without the appointment of a referee
pursuant to SCR 22.12(1).[2] Upon careful consideration, we adopt the
stipulation. We agree that the
seriousness of Attorney Brandt's misconduct warrants the suspension of his
license to practice law in Wisconsin for a period of four months. We also find it appropriate to impose various
conditions on the resumption of Attorney Brandt's license to practice law
following the suspension. The OLR is not
seeking costs in this proceeding, and we agree that Attorney Brandt should not
be required to pay costs.
¶3 Attorney
Brandt was admitted to practice law in Wisconsin in 1978. He states his current address as being in St.
Croix Falls.
¶4 In
1994 Attorney Brandt consented to the imposition of a private reprimand for
using information relating to one client to the disadvantage of that client in
a later divorce action, and failing to obtain the consent of his former clients
prior to questioning one of them in open court during a subsequent divorce
case.
¶5 In
2003 Attorney Brandt received a public reprimand for failing to keep a client
reasonably informed about the status of a matter and failing to promptly comply
with reasonable requests for information; failing to cooperate with the
investigation; making false or misleading communications about himself and his
services; and failing to identify on his office letterhead the jurisdictional
limitation of an attorney not licensed to practice law in Wisconsin who was
listed as being "of counsel." See
In re Disciplinary Proceedings Against Brandt, 2003 WI 138, 266
Wis. 2d 47, 670 N.W.2d 552.
¶6 In
2004 a referee imposed a consensual private reprimand upon Attorney Brandt for
failing to provide competent representation of clients in a civil dispute
relating to property damage and failing to return the clients' file after the
clients requested he do so.
¶7 In
2009 Attorney Brandt received another public reprimand for failing to
periodically review his trust account bank statements, cancelled checks, and
other records in connection with a non-lawyer employee's management of his
trust account, thereby enabling the non-lawyer employee to convert funds
belonging to clients and third parties, and for engaging in conduct that
resulted in his criminal convictions in Wisconsin for third and fourth offense
operating while intoxicated and his previous conviction in Minnesota of
first-degree driving while intoxicated within ten years of the first of three
or more qualified prior impaired driving incidents. This court imposed various conditions upon
Attorney Brandt, including undergoing alcohol and drug assessment and
refraining from the consumption of alcohol and other nonprescription
drugs. See In re Disciplinary
Proceedings Against Brandt, 2009 WI 43, 317 Wis. 2d 266, 766 N.W.2d 194.
¶8 In
a criminal complaint dated January 26, 2010, Attorney Brandt was charged in
Washington County, Minnesota, with one felony count of first-degree driving
while intoxicated within ten years of the first of three or more qualified
prior impaired driving incidents, in violation of Minnesota Statute
§ 169A.24.1(1). He was also charged
with a second felony count violation of the same statute for being in control
of a motor vehicle with an alcohol concentration of .08 or more within ten
years of the first of three or more qualified prior impaired driving
incidents. State of Minnesota v.
Warren Lee Brandt, Washington County Case No. 82-CR10-349. Both charges arose out of a traffic stop
conducted in the early morning hours of January 26, 2010, by a Washington
County sheriff's deputy. The criminal
complaint referred to Attorney Brandt's prior drunk driving conviction in
Minnesota and his prior drunk driving convictions in Wisconsin, all of which
occurred within ten years of January 26, 2010. Attorney Brandt's blood alcohol level at the
time of his January 26, 2010, operation of a motor vehicle was well over the
legal limit.
¶9 On
June 2, 2010, Attorney Brandt signed a Petition to Enter Plea of Guilty in
Felony or Gross Misdemeanor in the Minnesota case. The plea agreement called for Attorney Brandt
to enter a plea of guilty to the second felony charge, with the first charge
being dismissed.
¶10 On
September 3, 2010, the Minnesota court sentenced Attorney Brandt for his felony
conviction. The sentencing order
provided for 36 months commitment to the Commissioner of Corrections. That term was stayed and Attorney Brandt was
placed on seven years of probation with conditions of 180 days in jail, work
release, and a $900 fine plus costs and various conditions relating to
treatment and counseling.
¶11 The
OLR's complaint alleged that Attorney Brandt's conduct resulting in his felony
drunk driving conviction in Minnesota was a serious criminal act that reflects
adversely on his honesty, trustworthiness, or fitness as a lawyer in other
respects.
¶12 The
parties' stipulation states that the terms of the stipulation were not
bargained for or negotiated between the parties. The stipulation consists of Attorney Brandt's
admission of the facts and misconduct alleged by the OLR in its complaint and
Attorney Brandt's agreement to the level of discipline that the OLR director is
seeking in the matter. Attorney Brandt represents
and verifies that he fully understands the misconduct allegations; he fully
understands the ramifications should the court impose the stipulated level of
discipline; he fully understands his right to contest the matter; he fully
understands his right to consult with and retain counsel and waives the right
to counsel; and he avers that his entry into the stipulation is made knowingly
and voluntarily.
¶13 With
respect to the appropriate level of discipline for Attorney Brandt's misconduct,
the parties agreed that a four-month suspension of Attorney Brandt's license to
practice law in Wisconsin is appropriate, along with the following conditions:
A. Alcohol assessment conducted by a person of the OLR's choosing, with the costs for the same paid by Attorney Brandt;
B. Attorney Brandt's compliance with all treatment recommendations;
C. Attorney Brandt providing properly executed medical authorizations as requested by the OLR; and
D. Cooperative participation by Attorney Brandt in a monitoring program approved by the OLR.
¶14 The
OLR's memorandum in support of the stipulation notes that Attorney Brandt
completed a chemical health assessment with the Washington County (Minnesota)
Human Services Department in September 2009.
During the assessment Attorney Brandt reported no alcohol use since
September 2006, and the assessment gave Attorney Brandt's diagnosis as
"alcohol dependency in remission."
Approximately four months later, Attorney Brandt was charged with felony
drunk driving in Minnesota. The OLR says
given the concept of progressive discipline, combined with the fact that
Attorney Brandt failed to comply with this court's condition that he refrain
from the consumption of alcohol and the fact that protection of the public is
paramount, a four-month suspension is an appropriate sanction.
¶15 Supreme court rule 22.12(2) provides that if this court approves a stipulation, it shall adopt the stipulated facts and conclusions of law and impose the stipulated discipline. Supreme court rule 22.12(3) provides that if this court rejects the stipulation, a referee will be appointed and the matter shall proceed as a complaint filed without a stipulation.
¶16 In the 2009 disciplinary proceeding that resulted in Attorney Brandt's most recent public reprimand, Attorney Brandt acknowledged that he is addicted to alcohol. He made excuses for the drunk driving convictions at issue in that case by claiming they were related to the stress of the OLR's investigation and the fact that he had been a victim of criminal activity by a former non-lawyer employee who converted approximately $104,000 from his business and trust accounts to her own use.
¶17 In the 2009 case this court noted the question of whether to impose a fourth reprimand or a suspension was a very close call. We concluded, based on the circumstances of that case, that another public reprimand, coupled with conditions recommended by the referee, which included abstaining from alcohol consumption, was an appropriate sanction. Justice Bradley dissented, expressing concern about the steps Attorney Brandt had taken in order to maintain sobriety. She believed an appropriate sanction would have been in the range of a 60-day to six-month suspension. It appears that Justice Bradley's concerns were well-founded since Attorney Brandt was arrested for drunk driving in Minnesota less than eight months after this court imposed the public reprimand in June of 2009.
¶18 One
of the conditions imposed on Attorney Brandt's continued practice of law in the
2009 reprimand was a requirement that he refrain from the consumption of
alcohol and other non-prescription drugs.
On December 7, 2011, the OLR and Attorney Brandt were directed to show
cause to the court, in writing, why Attorney Brandt's resumed and continued
practice of law should not be subject to a similar condition. Attorney Brandt has not responded to the
order to show cause.
¶19 The
OLR responded on December 20, 2011, by saying that in making his sanction
recommendation, the OLR director assumed that abstinence would be a treatment
recommendation of the alcohol assessor and that abstinence would also be a
condition of Attorney Brandt's participation in the monitoring program. The OLR notes that Attorney Brandt is under a
seven-year probationary term which contains a condition of absolute sobriety. The OLR also notes that Minnesota statutes
allow for conditions of probation to be changed or eliminated and for probation
to be terminated early. The OLR asks the
court to include, as a condition of Attorney Brandt's resumed and continued
practice of law, that he refrain from the consumption of alcohol and any
mood-altering drugs without a valid prescription while subject to the treatment
recommendation of the assessor, or while subject to the monitoring program, or
while on probation, whichever is longer.
¶20 Upon careful consideration, we adopt the stipulated facts and conclusions. We also agree that a four-month suspension of Attorney Brandt's license to practice law in Wisconsin is appropriate and we deem it appropriate to impose the conditions proposed in the parties' stipulation, as well as the added condition detailed in the OLR's December 20, 2011, response to the order to show cause.
¶21 The level of discipline imposed in cases involving lawyer misconduct is generally progressive in nature. See, e.g., In re Disciplinary Proceedings Against Nussberger, 2006 WI 111, ¶27, 296 Wis. 2d 47, 719 N.W.2d 501. Having previously been the recipient of two private reprimands and two public reprimands, we deem it appropriate to impose a harsher level of discipline in this matter, particularly since the nature of the misconduct here is similar to the misconduct at issue in the 2009 case.
¶22 IT IS ORDERED that the license of Warren L. Brandt to practice law in Wisconsin is suspended for a period of four months, effective March 12, 2012.
¶23 IT IS FURTHER ORDERED that during the period of his suspension, Warren L. Brandt shall comply with the following conditions:
A. Participate in an alcohol assessment conducted by a person of the Office of Lawyer Regulation's choosing, with the costs for the same paid by Warren L. Brandt;
B. Comply with all treatment recommendations;
C. Provide properly executed medical authorizations as requested by the Office of Lawyer Regulation;
D. Cooperatively participate in a monitoring program approved by the Office of Lawyer Regulation; and.
E. Refrain from the consumption of alcohol and any mood-altering drugs without a valid prescription while subject to the treatment recommendations of the assessor, or while subject to the monitoring program, or while on probation, whichever is longer.
¶24 IT IS FURTHER ORDERED that Warren L. Brandt shall comply with the requirements of SCR 22.26 pertaining to activities following suspension.
[1] SCR 20:8.4(b) states it is professional misconduct for a lawyer to "commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; . . . ."
[2] SCR 22.12(1) states:
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.