4. On May 17, 2001, the Office of Lawyer Regulation (OLR) filed a complaint against Attorney Dumke alleging the one count of professional misconduct described above. Despite repeated notifications and requests, Attorney Dumke did not file an answer to the complaint, nor did he respond to numerous attempts to contact him about it. Consequently, the OLR filed a motion for default judgment and served Attorney Dumke with that motion. In addition, the referee appointed in this matter, Attorney Rose Marie Baron, repeatedly, but unsuccessfully, attempted to contact Attorney Dumke by letter and telephone advising him of an upcoming telephonic scheduling conference and asking that he contact her and provide a telephone number where he could be reached for that conference call. Attorney Dumke, however, did not do so and did not participate in the telephonic scheduling conference that was held. As a result, the referee entered a default judgment pursuant to SCR 22.15(1), based on Attorney Dumke's failure to file an answer to the OLR complaint, his failure to participate in the scheduling conference and his failure to otherwise cooperate in the disciplinary proceedings.

6. The referee's findings and conclusions tracked the OLR's complaint which alleged Attorney Dumke's misconduct relating to his representation of a client, Robert P., who had been convicted in 1986 of first-degree sexual assault and sentenced to 16 years in prison. On October 1, 1996, before Robert P. had reached his mandatory release date, the state filed a petition under Wis. Stat. ch. 980 alleging that Robert P. was a sexually violent person. Robert P. then retained Attorney Dumke to represent him in the sexual predator proceedings. Robert P.'s mother paid Attorney Dumke a retainer fee of $5000.

7. After a probable cause hearing on the ch. 980 petition, Robert P. was placed in secure custody at the Wisconsin Resource Center. Attorney Dumke requested a lengthy continuance of the matter asserting that he wanted an expert to review the state's report supporting the ch. 980 petition concerning his client. Attorney Dumke stated that he would inform the court when he was ready to proceed in the matter. His request for a continuance was granted on November 15, 1996.

8. Circuit court records reflect that no further activity in the ch. 980 proceedings against Robert P. occurred during the first half of 1997. Subsequently the Robert P. matter was assigned to Dane County Circuit Judge Sarah O'Brien and scheduled for trial to commence on October 30, 1997. On that scheduled trial date Robert P. appeared represented by Attorney Dumke. Robert P. then waived his right to trial and admitted the allegations in the sexual predator petition. As a result, Robert P. was found to be subject to commitment under ch. 980. At a subsequent dispositional hearing, Robert P., again represented by Attorney Dumke, stipulated to being confined at a secure mental health facility for treatment.

9. In November 1998 Attorney Dumke withdrew from the Robert P. matter. Successor counsel was appointed and an appeal was filed. Robert P.'s new counsel also filed a motion asking the appellate court to remand the matter to the circuit court for a hearing on a claim of ineffective assistance of counsel against Attorney Dumke. That remand motion was granted and an evidentiary hearing on that claim was held in the circuit court at which Attorney Dumke, Robert P., and two experts testified.

10. The OLR disciplinary complaint against Attorney Dumke in this matter alleged, and the referee so found, that before being retained by Robert P., Attorney Dumke had not previously represented a ch. 980 client or otherwise handled a ch. 980 case. Attorney Dumke knew, however, that his client was entitled to an expert witness in the ch. 980 proceedings and also knew that his client was entitled to a court-appointed expert. The OLR's complaint against Attorney Dumke alleged, and the referee so found, that Robert P.'s mother told Attorney Dumke that she would be willing to hire an expert on her son's behalf if one were needed. Attorney Dumke, however, never arranged for an expert to testify on Robert P.'s behalf in the ch. 980 proceeding.

11. The referee also found that Attorney Dumke was unfamiliar with the testing methods and risk analysis on which the state's experts in the ch. 980 proceedings had based their opinions that Robert P. was a sexually violent person. Furthermore, the referee determined that Attorney Dumke had no experience in cross examining experts on those subjects and that he never reviewed with Robert P. the risk factor analysis or other instruments used by the state's experts in ch. 980 cases. Also, the referee found that Attorney Dumke never obtained an expert or submitted any documents or reports to an expert to review either for evaluative or testimonial purposes, or to help him prepare for cross examination of the state's experts.

12. The OLR disciplinary complaint against Attorney Dumke further alleged, and the referee so found, that Attorney Dumke had failed to adequately investigate the sexual predator petition against his client, Robert P. In this respect, at the hearing on the ineffective assistance of counsel claim, Judge O'Brien ruled that given the nature of the ch. 980 evidence and in light of Attorney Dumke's inexperience with that kind of evidence, he could not have performed an adequate investigation or preparation without hiring an expert for the ch. 980 proceeding.

13. In addition, the OLR alleged, and the referee so found, that Attorney Dumke's rationale for not hiring an expert in the Robert P. matter——i.e. that it was "too risky" because the expert might provide an unfavorable opinion——was flawed because if Attorney Dumke had retained an expert on behalf of his client, that expert would not be required to disclose unfavorable results unless the expert testified.

14. Furthermore, the referee in this matter determined that Attorney Dumke had failed to adequately advise Robert P. of the advantages and disadvantages of proceeding to trial on the ch. 980 petition. The referee noted that at the hearing on the ineffective assistance of counsel claim, Robert P. asserted that if he had been informed by Attorney Dumke that there was a basis upon which to challenge the state's experts' opinions and reports at trial, Robert P. would have elected to have a trial on the ch. 980 petition.

15. The referee also observed that following the evidentiary hearing on the ineffective assistance of counsel claim, the state filed a post-hearing brief in the circuit court conceding that Robert P. should be granted a new dispositional hearing in the ch. 980 matter in the interest of justice.

18. The referee rejected the OLR's recommendation that as an appropriate sanction, Attorney Dumke's license should be suspended for one year; instead, the referee determined that Dumke's failure to file an answer and to respond to repeated correspondence from the OLR should be taken into account and should be given great weight in assessing the appropriate discipline to be recommended. Thus, the referee recommended that, under the circumstances, Attorney James Dumke's license to practice law in this state should be suspended for a period of two years. The referee explained:

20. We adopt the referee's findings of fact and agree with the conclusions of law set forth in the referee's report. In addition, we accept the referee's recommended two-year license suspension as an appropriate sanction reflecting the serious nature of Attorney Dumke's misconduct. Attorney Dumke's misconduct in failing to provide competent representation to his client and his failure to cooperate with the OLR investigation and proceedings are serious failings warranting a suspension of his license. We believe that a two-year suspension of Attorney Dumke's license to practice law is an appropriate discipline for his professional misconduct established in this proceeding. It is also appropriate that Attorney Dumke be required to pay the costs of this proceeding, as the referee recommended. Accordingly,

21. IT IS ORDERED that the license of James H. Dumke to practice law in Wisconsin is suspended for two years commencing this date.

22. IT IS FURTHER ORDERED that within 60 days of the date of this order, James H. Dumke pay to the Office of Lawyer Regulation the costs of this proceeding totaling $1151.68. 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 James H. Dumke to practice law in Wisconsin shall remain suspended until further order of the court.