Starting in October, 1996, the State Public Defender began to appoint Terry L. Nussberger to represent defendants on criminal appeals. As of September 12, 2000, when Mr. Nussberger’s name was removed by mutual agreement from the list of certified attorneys, Mr. Nussberger had received 16 appellate appointments. In 13 of the 16 cases, Mr. Nussberger eventually filed a no merit report with the Wisconsin Court of Appeals.

Under Public Defender policy, unless permission is received in advance from the State Public Defender, appointed counsel may not submit a Payment Voucher on a matter until the case has reached disposition and counsel has completed representation at that court level. In order to receive payment at that time, counsel must submit both a Payment Voucher that itemizes the services performed and a Disposition Summary that reports on the outcome of the case.

In 12 of the 13 no merit cases, Mr. Nussberger submitted the Payment Voucher and the Disposition Summary prior to the date that the Court of Appeals took action on the no merit report. In most instances, Mr. Nussberger submitted the voucher and summary within one week after filing the no merit report. One of the twelve cases was the focus of the grievance investigation that is described in the second portion of this document.

The Disposition Summary is a form that lists numerous possible case outcomes and instructs counsel to check the applicable disposition. For each of the 11 cases covered by this inquiry, Mr. Nussberger submitted a Disposition Summary on which the following choice was checked:

On each of the Disposition Summaries, Mr. Nussberger placed his signature beneath the following statement:

As mentioned above, contrary to Mr. Nussberger’s signed submissions, in none of the 11 cases had the Court of Appeals acted on the no merit report as of the date Mr. Nussberger submitted the Disposition Summary on the matter. Also, in none of the 11 cases had Mr. Nussberger advised his client of the client’s right to petition for review, and, in fact, Mr. Nussberger could not have done so since the outcome of the case was as yet unknown.

In 10 of the cases, the Court of Appeals eventually accepted Mr. Nussberger’s no merit report. (In the State’s case against Mr. Nussberger’s client, Client No. 11, the no merit report was stricken at the client’s request.) Having already closed his case files, however, upon receipt of the court’s decision, Mr. Nussberger did not inform, or attempt to inform, any of the 10 defendants about the Court of Appeals’ decision on the client’s case or about the client’s right to petition for review.

Section 809.32(3), Stats., provides, in part, that whenever the court accepts counsel’s no merit report, “[t]he attorney shall advise the defendant of the right to file a petition for review to the supreme court.”

Prior to January 27, 1998, Mr. Nussberger filed a premature and inaccurate Disposition Summary in each of the following cases:

a. b. c. d. e.

The records of the Public Defender show that on January 27, 1998, Mr. Nussberger spoke with a member of the Public Defender’s staff regarding the voucher and disposition summary that he had submitted for another client matter, State v. (Client No. 12), a case in which Mr. Nussberger had filed an appeal. Mr. Nussberger filed the appellant’s brief on August 22, 1997, and submitted his voucher and summary on that same day. Mr. Nussberger’s Disposition Summary explained that he would notify the Public Defender of the decision by the Court of Appeals.

The Public Defender staff person informed Mr. Nussberger that appointed counsel are not to request payment on a matter until there has been a final disposition in the case. Mr. Nussberger acknowledged that he had made an error in filing the voucher and summary prior to the Court of Appeals’ decision. Mr. Nussberger stated that he had erred because he was new to appellate work.

Following January 27, 1998, Mr. Nussberger filed a premature and inaccurate Disposition Summary in each of the following cases:

f. g. h. i. j. k.

Public defender policy also requires that if appellate counsel reaches the conclusion that a client has no meritorious issues on appeal, counsel should inform the client that the client has three options: counsel can go ahead and file the no merit report, and the client will have the right to reply; counsel can close the file without an appeal; or counsel can close the file and the client can proceed pro se or with another attorney retained at the defendant’s expense. After consultation, counsel should accede to the wishes of the client.

For each of the 11 matters that are the focus of this inquiry, OLR staff asked Mr. Nussberger to explain when and in what manner, if at all, Mr. Nussberger explained to the defendant the three options available to him and obtained the client’s decision about the manner in which Mr. Nussberger should proceed. Mr. Nussberger did not provide a direct answer to staff’s question. For each case, Mr. Nussberger asserted that he had obtained the client’s consent to the filing of the no merit report. Mr. Nussberger never disclosed, however, whether he had set out all of the options for his clients and had obtained their informed decisions regarding which option to pursue.

Mr. Nussberger provided copies of his correspondence with certain of his clients. None of that correspondence sets out the no merit options or memorializes conversations in which the options were conveyed and discussed. Mr. Nussberger’s correspondence with Client No. 4 and Client No. 2 suggests that Mr. Nussberger regarded it as his prerogative, rather than the client’s, to decide whether a no merit report should be filed.

In a letter to Client No. 4 dated October 17, 1997, Mr. Nussberger wrote, in part:

On October 20, 1997, Mr. Nussberger filed a no merit report in Client No. 4’s case. Mr. Nussberger’s payment voucher does not record any contact between Mr. Nussberger and Client No. 4 in the interim.

In a letter to Client No. 2 dated August 15, 1997, Mr. Nussberger wrote, in part:

In a letter to Client No. 2 dated September 2, 1997, Mr. Nussberger wrote, in part:

On September 9, 1997, Mr. Nussberger filed a no merit report in Client No. 2’s case. Mr. Nussberger’s payment voucher does not record any contact between Mr. Nussberger and Client No. 2 in the interim.

In a decision dated July 31, 2000, the Wisconsin Court of Appeals noted that Mr. Nussberger’s client, Client No. 11, had asked the court to discharge Mr. Nussberger and strike his no merit report. Client No. 11 stated that he had asked Mr. Nussberger not to file the no merit report until Client No. 11 had read and approved it and that Mr. Nussberger did not comply with that request. The court stated that Client No. 11 had stated sufficient grounds for discharging counsel and proceeding on his appeal pro se. The court gave Client No. 11 fourteen days to clarify and confirm that he wanted to discharge counsel. On August 18, 2000, the court discharged Mr. Nussberger and struck his no merit report.

Mr. Nussberger’s payment voucher for Client No. 11’s case shows that he submitted the no merit report to the court on June 6, 2000, the same day that he drafted it.

In his response to the OLR inquiry, Mr. Nussberger denied that Client No. 11 had asked Mr. Nussberger not to file the no merit report. Mr. Nussberger was silent, however, regarding Client No. 11’s assertion that he had requested the opportunity to review and approve the brief prior to its submission to the court.

Regarding his duty under sec. 809.34(3), Stats., to inform clients of their right to file a petition for review to the Wisconsin Supreme Court, Mr. Nussberger states he erroneously assumed that his duty to inform only applied in cases in which there was a contested issue with respect to the brief. Mr. Nussberger also stated that it was by mistake that he prematurely submitted the Disposition Summaries and Payment Vouchers. Mr. Nussberger stated that after the briefs were filed, the files for these appellate cases were inadvertently placed with a stack of files of trial court level cases that were ready to be billed to the Public Defender.

In failing to explain to his clients that they had three options available to them regarding the filing of no merit reports, Mr. Nussberger violated SCR 20:1.4(b), which requires a lawyer to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. In addition, having concluded that neither Client No. 4 nor Client No. 2 had any meritorious issues on appeal, in failing to set out for them the options available to them and to inform them that the choice of direction lay with them, and not Mr. Nussberger, Mr. Nussberger again violated SCR 20:1.4(b).

After Mr. Nussberger’s no merit reports were filed with and accepted by the Court of Appeals, by failing to apprise his clients of those developments in their respective cases, Mr. Nussberger violated SCR 20:1.4(a), which states, “A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.”

Further, Mr. Nussberger violated SCR 20:1.4(b) when, after the Court of Appeals’ acceptance of his no merit reports, he failed to notify his clients about their right to petition for review. In failing to notify his clients about their right to petition for review, Mr. Nussberger also violated sec. 809.32(3), a statute that regulates the conduct of lawyers, and, consequently, violated SCR 20:8.4(f), which makes it professional misconduct for a lawyer to violate such a statute.

In filing five Disposition Summaries with the office of the Public Defender between June 5, 1997 and October 21, 1997, that erroneously stated the Court of Appeals had accepted Mr. Nussberger’s no merit report and Mr. Nussberger had notified his client of the client’s right to file a petition for review, Mr. Nussberger engaged in conduct involving misrepresentation, contrary to SCR 20:8.4(c). Having been cautioned on January 27, 1998 against the filing of premature Payment Vouchers and Disposition Summaries, in filing six Disposition Summaries thereafter that erroneously stated the Court of Appeals had accepted Mr. Nussberger’s no merit report and Mr. Nussberger had notified his client of his client’s right to file a petition for review, Mr. Nussberger further engaged in conduct involving misrepresentation, contrary to SCR 20:8.4(c).

In an unrelated matter, on September 21, 1999, Mr. Nussberger was appointed to represent a man for an appeal following the revocation of his probation and the imposition of a prison sentence. On September 22, 1999, the State Public Defender’s office wrote to Mr. Nussberger and informed him of his appointment. The letter urged Mr. Nussberger to examine the entire file to make sure all transcripts were ordered from the proper court reporter. Mr. Nussberger was instructed not to submit a payment voucher until the case was closed and all work completed. As described in the preceding grievance, Mr. Nussberger was required to submit both a Payment Voucher that itemized the services performed and a Disposition Summary that reported on the outcome of the case.

Attached to the State Public Defender’s letter to Mr. Nussberger was a document containing the policies and instructions for appointed counsel. That document informed Mr. Nussberger that he was expected to make at least one visit for a personal interview if the client was incarcerated in Wisconsin.

In October, 1999, the client wrote to Mr. Nussberger and asked him to visit him in jail. Mr. Nussberger promptly replied by letter, stating that he needed to know what issues the client wished to raise on appeal and that Mr. Nussberger was waiting for the transcripts. Notwithstanding the client’s request, however, Mr. Nussberger never met with the client during the representation.

In mid-November, 1999, a court reporter sent Mr. Nussberger a transcript of a hearing in the client’s case that was held on August 6, 1999. That transcript indicated that a sentencing hearing would be held on August 12, 1999. A transcript of the August 12 sentencing hearing was not prepared, however, and Mr. Nussberger did not request that it be prepared.

In early December, 1999, the client wrote and asked Mr. Nussberger to update him on the case, particularly since they had not met at the jail. The client stated that he had been transferred to the Dodge Correctional Institution in early November, 1999, and that he expected to be transferred to the prison in Black River Falls during December, 1999. The client asked Mr. Nussberger to write back soon. Mr. Nussberger did not reply, although he billed the State Public Defender’s Office .2 hours for reviewing the letter.

On January 14, 2000, the client wrote to the State Public Defender’s office, complaining that he had written twice to Mr. Nussberger without response. On January 31, 2000, an official from the State Public Defender’s office sent the client’s letter to Mr. Nussberger and asked him to respond to the client, with a copy to the State Public Defender’s office, within ten days.

In early February, 2000, Mr. Nussberger filed a document with the Court of Appeals, stating that the transcripts had been delivered and filed. At that time, the clerk of the trial court sent Mr. Nussberger a record index for the file to be forwarded to the Court of Appeals. The index did not mention the transcript for the sentencing hearing of August 12, 1999.

On February 3, 2000, Mr. Nussberger wrote to the client, with a copy to the State Public Defender official, stating that he had filed a notice of appeal on January 6, 2000. Mr. Nussberger stated that all transcripts had been received and that a brief would have to be filed within 60 days. Mr. Nussberger was in error in that he had not received the transcript of the sentencing hearing. He was also in error as the brief was due 40 days after the clerk of court transmitted the record to the court of appeals, unless it was a no merit brief, in which case it would be due 180 days after receipt of the transcripts. Further, Mr. Nussberger sent the letter to the client’s previous jail address, despite the client having informed him that he had been moved to prison.

On February 15, 2000, the State Public Defender official called Mr. Nussberger and pointed out the error in Mr. Nussberger’s February 3 letter regarding the deadlines for filing briefs, and Mr. Nussberger indicated that he would send a letter of correction to the client. The official inquired if Mr. Nussberger had met with the client, and Mr. Nussberger replied there had been communications. The official told Mr. Nussberger that the State Public Defender’s Office expects a meeting or at least a phone call, if a meeting was impractical, and Mr. Nussberger indicated that he would set that up. Mr. Nussberger, however, never met with the client or spoke with him by telephone.

As described in the preceding grievance, Public Defender policy requires appellate counsel who conclude that a client has no meritorious issues on appeal to inform the client of the three options that are available to him or her and to accede to the wishes of the client after consultation. On or about March 17, 2000, Mr. Nussberger prepared and filed a no merit brief even though he had not informed the client of his conclusions that there were no meritorious issues to appeal, nor had Mr. Nussberger informed the client of his three options and learned how the client wished to proceed. Moreover, Mr. Nussberger had not received or reviewed a transcript of the client’s sentencing hearing prior to preparing the brief, when the only appealable issue was the sentence.

Mr. Nussberger sent a copy of the no merit brief to the client on March 16, 2000, at his former address in jail, along with a cover letter stating,

The no merit brief that Mr. Nussberger sent to the client was returned to Mr. Nussberger’s office, showing that the client’s address was unknown. Mr. Nussberger subsequently filed an affidavit indicating that the client’s copy of the brief was undeliverable.

As described in the preceding grievance, more than one and one-half years prior to Mr. Nussberger’s appointment, on January 27, 1998, a member of the State Public Defender’s staff had instructed Mr. Nussberger not to request payment on a matter until there had been a final disposition. Notwithstanding the instructions he had previously received, on March 20, 2000, Mr. Nussberger submitted his payment voucher and disposition summary to the State Public Defender’s office. The disposition summary, signed by Mr. Nussberger, had a check mark indicating,

The Court of Appeals had not received the no merit report nor released Mr. Nussberger from further representation when Mr. Nussberger submitted the disposition summary. Moreover, Mr. Nussberger could not have informed his client of his option to petition the Wisconsin Supreme Court for review prior to the Court of Appeals’ issuing a decision.

On March 21, 2000, the Clerk of the Court of Appeals wrote to the client at his previous jail address, stating that he had thirty days to file any response to the no merit brief. The letter stated that upon receipt of the client’s response, the Clerk would transmit to the court the record, the no merit brief and any response the client had filed.

Mr. Nussberger eventually sent the client a copy of the no merit brief in late June, 2000, at the Jackson Correctional Institution. When the client again complained to the State Public Defender official in late June, 2000 that Mr. Nussberger had not responded to letters, the official discovered the voucher and disposition summary that Mr. Nussberger had submitted in March. On July 3, 2000, the official called the court of appeals and learned that the court had not yet issued a decision on the no merit report.

On June 29, 2000, the client wrote to Mr. Nussberger and asked about the meaning of the no merit brief and for an explanation of what was going on in his appellate case. On July 6, 2000, Mr. Nussberger sent the client a two-line response that defined a no merit brief but gave no explanation about the status of the case.

Also on July 6, 2000, the State Public Defender official wrote to Mr. Nussberger, inquiring whether he had interviewed the client, as Mr. Nussberger had promised. The official pointed out that Mr. Nussberger’s voucher showed no phone call or visit with the client. The official expressed concern how the brief could be undeliverable when his client was incarcerated in the Wisconsin prison system and about the untrue statement on the disposition summary. The official also stated that Mr. Nussberger had submitted his voucher three days after writing the no merit report. The official asserted that the court of appeals obviously could not have accepted the report and released Mr. Nussberger from further representation within three days, nor could Mr. Nussberger have informed his client of his option to petition for review prior to receiving the court of appeals’ decision. The official said he had checked with the court of appeals, which still had not issued a decision on whether to accept Mr. Nussberger’s report. The official stated he had grave concerns about either Mr. Nussberger’s veracity or understanding of basic appellate procedure.

On July 11, 2000, Mr. Nussberger wrote to the State Public Defender official, stating that he had had contact with the client following Mr. Nussberger’s telephone conversation with the official on February 15, 2000. Mr. Nussberger indicated that the voucher was prepared prematurely by error and that when he signed the voucher, he did not realize that the brief was just being filed. Mr. Nussberger told the official that he submitted his voucher when Mr. Nussberger was recovering from a skull fracture. While Mr. Nussberger asserts he communicated with the client following the February 15, 2000 telephone conversation with the official, the District Committee that investigated this grievance determined there is no record of any such contact with the client, other than Mr. Nussberger’s sending the brief to the client at his old address.

On July 12, 2000, Mr. Nussberger sent the client a copy of the cover letter he had previously sent to the client dated March 16, 2000. When the client replied, asserting that Mr. Nussberger had filed the no merit report without the client’s knowledge, Mr. Nussberger replied by telling him how to file an objection with the Court of Appeals.

The client continued to complain to the State Public Defender’s official that Mr. Nussberger had never visited him. The client also complained to Mr. Nussberger that he had filed the brief without input or consultation with him, and Mr. Nussberger replied with an explanation of the procedure he could use to object to the brief.

On July 20, 2000, the State Public Defender official wrote to Mr. Nussberger, asserting that Mr. Nussberger had not answered his question about whether he had interviewed the client. The official asked Mr. Nussberger to specifically tell him what personal contact he had had with the client. On August 3, 2000, Mr. Nussberger wrote to the official, promising that he would provide a detailed response to the official’s July 20 letter.

On August 15, 2000, the Court of Appeals issued an order noting that the only issue that can be raised in an appeal from a judgment of conviction after revocation is the sentence, but the sentencing transcript had not been prepared in the client’s case. The Court ordered that the transcript be prepared and submitted to the Court. The Court declared it would then determine whether to proceed with an independent review of the record or whether the no merit report would be stricken.

On August 28, 2000, the State Public Defender official wrote to Mr. Nussberger, reminding him that his August 3 letter had promised a response to the official’s July 20 letter, and asking him to explain how he could have evaluated the client’s case without reviewing the sentencing transcript. Mr. Nussberger replied by letter dated September 1, 2000, stating he was “flabbergasted” that there was no transcript of the sentencing hearing. Mr. Nussberger stated that he would petition to reconsider his no merit brief after he received the transcript. Mr. Nussberger asked that his name be removed from the State Public Defender’s list of attorneys who provide appellate work. (Mr. Nussberger’s name was duly removed from the list.) Mr. Nussberger’s September 1, 2000 letter did not address whether he had interviewed the client, nor how he could have reviewed a sentencing after revocation case without reading the sentencing transcript.

On October 3, 2000, the Court of Appeals confirmed the trial court’s sentence after conducting an independent review of the record and finding no appealable issues. On October 9, Mr. Nussberger resubmitted his bill to the Public Defenders Office and indicated that any work he had done since March 20, 2000 was pro bono.

Mr. Nussberger wrote to the client in October and November, 2000, informing him of his right to appeal the Court of Appeals’ decision to the Wisconsin Supreme Court and that the Court of Appeals had discharged Mr. Nussberger as counsel for the client.

In his response to the grievance, Mr. Nussberger stated that he may have prepared the no merit brief without the sentencing transcript because he mistook the sentencing transcript from the original sentencing for the transcript of the sentencing hearing after revocation.

In failing to obtain and review the transcript of the sentencing hearing prior to submitting a no merit report in the client’s case, when the only appealable issue was the sentence that was imposed by the trial court, Mr. Nussberger failed to provide competent representation to the client. Competent representation is defined in SCR 20:1.1 as requiring the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Having concluded that his client had no meritorious issue on appeal, in failing to discuss with the client the options available to him and to inform the client that the choice of direction was the client’s, not Mr. Nussberger’s, Mr. Nussberger violated SCR 20:1.2(a), which requires a lawyer to abide by a client’s decisions concerning the objectives of representation and to consult with the client as to the means by which they are to be pursued and SCR 20:1.4(b), which requires a lawyer to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

In failing to conduct a personal interview with his client either in person or by telephone, as required by State Public Defender policy, Mr. Nussberger violated SCR 20:1.3, which requires a lawyer to act with reasonable diligence and promptness in representing a client.

In failing to respond to a number of letters from his client requesting information on the status of the case and that Mr. Nussberger meet with him, Mr. Nussberger violated SCR 20:1.4(a), which requires a lawyer to keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

Having been cautioned on January 27, 1998 against the filing of premature Payment Vouchers and Disposition Summaries, in filing a Payment Voucher and Disposition Summary on March 20, 2000, that stated that the Court of Appeals had accepted Mr. Nussberger’s no merit report and that Mr. Nussberger had notified his client of the client’s right to file a petition for review, when, in fact, the Court had not yet received Mr. Nussberger’s brief and Mr. Nussberger had not informed his client of his right to petition for review, Mr. Nussberger engaged in conduct involving misrepresentation, contrary to SCR 20:8.4(c).

In accordance with SCR 22.09(3), Attorney Terry L. Nussberger is hereby publicly reprimanded.