5. The standard of review before this court is that the referee's findings of fact are affirmed unless clearly erroneous but conclusions of law are reviewed on a de novo basis. See In re Disciplinary Proceedings Against Kalal, 2002 WI 45, 252 Wis. 2d 261, 643 N.W.2d 466. The referee's credibility determinations are intertwined with his findings of fact. See In re Disciplinary Proceedings Against Charlton, 174 Wis. 2d 844, 498 N.W.2d 380 (1993).

6. Count One alleges a violation of SCR 20:1.16 (d) (upon termination of representation the lawyer must take steps to protect the client's interests). Count Two alleges a violation of former SCR 22.07(2) (an attorney has to disclose all relevant information to the OLR), and SCR 20:8.4(c) (prohibits conduct involving dishonesty, fraud, deceit, or misrepresentation).

7. These two counts involve B.S., a divorce client, who elected to have one of Attorney Eisenberg's associates continue to represent her after that attorney left his firm. However, there was a dispute between the two attorneys on how much of the $5000 retainer should be forwarded on along with the file. The associate claimed $2775.69 of the retainer was unearned whereas Attorney Eisenberg claimed that all of the retainer had already been earned by his office. Attorney Eisenberg signed an affidavit seeking the entire retainer plus additional funds which he presented to the Milwaukee County Circuit Court presiding over the divorce. That court did not take action to resolve the fee dispute.

8. The referee took testimony on these counts from Attorney Eisenberg, his legal secretary, another of his employees, and the former attorney. Based on this testimony the referee found that Attorney Eisenberg had his staff "fabricate . . . bogus billings" which he incorporated into his court affidavit and which misrepresented the amount of the retainer that was earned. The referee also found that he failed to timely surrender the divorce file and the unearned retainer to the former associate.

9. Accordingly, the referee concluded as a matter of law that Attorney Eisenberg had violated the rules specified in the two counts.

11. We adopt the findings of fact and conclusions of law of the referee with respect to these two counts. Although mindful of Attorney Eisenberg's defense, we cannot conclude that the referee's findings, particularly since they rely heavily on the credibility of the witnesses, are clearly erroneous. Furthermore, assuming the findings to be accurate, they clearly support the conclusion that there was a violation of the rules specified in these two counts.

12. Count Three alleges that Attorney Eisenberg again violated SCR 20:8.4(c). Count Four alleges a violation of SCR 20:3.3(a)(1) (a lawyer shall not knowingly make a false statement of fact to a tribunal).

13. These counts arose out of an incident in which Attorney Eisenberg submitted an affidavit in support of an application to appear pro hac vice in California which indicated he had never been previously suspended from legal practice. The referee took testimony from Attorney Eisenberg, his secretary, and the California attorney who had prepared the affidavit and faxed it to Attorney Eisenberg's office.

14. The testimony of the three indicated that California rules only required an attorney to verify that he was not currently under suspension, although the application and affidavit prepared by the California attorney did require Eisenberg to verify whether he had ever been suspended or disbarred by any court. The secretary testified that she took the application and affidavit into Attorney Eisenberg's office, he was busy with another matter, and only a few minutes were spent in the process of having him sign it. Attorney Eisenberg conceded that he should have read the application and affidavit before signing it but contended that he was busy and it was simply an inadvertent error and he did not intentionally misrepresent his disciplinary history.

16. In reviewing the record of this matter, we concede that there is no direct evidence of an intent to misrepresent. We further concede the possibility that a different trier of fact might have reached different findings and conclusions on this matter. However, the law typically recognizes that it is unable to look into a person's mind to find intent and it must be determined from the person's acts and words and the circumstances of the situation. We also are constrained by the clearly erroneous standard and cannot conclude that the referee's findings and conclusions, based heavily on his assessment of Attorney Eisenberg's lack of credibility, meets the standard. Accordingly, we adopt the referee's findings of fact and conclusions of law with respect to these counts.

17. Count Six involves a violation of SCR 20:3.5 (c) (a lawyer shall not engage in conduct intending to disrupt a tribunal) and SCR 20:3.9 (appearances before administrative tribunals are covered under SCR 20:3.5(c)). Count Seven alleges a violation of SCR 20:8.4 (g) (attorney shall not violate the attorney's oath), and SCR 40:15 (that portion of the attorney's oath which requires abstention from all offensive personality).

18. These two counts arise out of Attorney Eisenberg's appearance before a Wisconsin Department of Transportation hearing examiner in which he is alleged to have essentially taken over the hearing, refused to obey the procedural rules of the tribunal, and then left with his client before the hearing was over, all deemed to be conduct intending to disrupt the hearing.

19. The referee took testimony from the hearing examiner and Attorney Eisenberg, and also admitted into evidence the tape of the hearing. The referee concluded that Attorney Eisenberg was "rude, abusive, controlling, disrespectful," had "essentially high-jacked the hearing by ignoring [the examiner's] instructions, telling her to be quiet, and doing what he wanted to do," and "act[ed] much like a spoiled child." Accordingly, the referee concluded as a matter of law that there had been a violation in accord with the two counts.

20. We adopt the referee's findings of fact and conclusions of law with respect to these two counts. We note in particular that Attorney Eisenberg in his arguments to this court has not specifically attacked any of the findings or conclusions with respect to these counts. Rather, he has conceded that his behavior was "combative" for which he has expressed apology.

21. Count Eight alleges a violation of SCR 20:1.8 (a) (a lawyer is not to enter into a business transaction with a client except under certain circumstances).

22. This count involves Attorney Eisenberg's attorney/client relationship with a client on a building code violation matter which was followed by the client entering into a listing contract to sell the property through his alternate persona of Alan Eisenberg Real Estate Company. Attorney Eisenberg introduced the client to one of his employees, who was serving in a dual role both as a legal assistant for Attorney Eisenberg's law firm and also as an employee of the real estate company. The client was not advised of the conflict of interest, was not given an opportunity to seek independent advice, and did not waive the conflict in writing.

23. The employee testified that he knew the client was one of Attorney Eisenberg's law clients but that there was no office policy forbidding real estate transactions with law clients. However, Attorney Eisenberg testified that the real estate listing contract which the client signed was not binding until he approved it, which he never did.

24. The referee found that there was no indication that the listing contract was invalid until Attorney Eisenberg approved it, there was no evidence to support a finding that Attorney Eisenberg had no direct knowledge of the listing contract under these circumstances, and Attorney Eisenberg's defense that he simply failed to properly supervise his support staff was not persuasive.

25. We adopt the findings of fact and conclusions of law of the referee. Once again, given the duty imposed on the referee to assess the credibility of the witnesses, we cannot conclude that the findings of fact are clearly erroneous. Furthermore, without question, those findings support the legal conclusion that there was a violation of these two counts.

26. Count Nine alleges the violation of SCR 20:4.4 (a lawyer shall not use means which have no substantial purpose other than to embarrass, delay, or burden a third person in the course of representing a client). Count Ten alleges another violation of SCR 20:8.4(g) in conjunction with SCR 40.1. Count Eleven involves another violation of SCR 20:8.4(c) and also 20:4.1(a) (in the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person).

27. These counts arise out of a series of telephone calls to a police dispatcher made by Attorney Eisenberg from a bar/restaurant in Corvallis, Oregon, where he was appearing pro hac vice for a criminal client. The client had been given a message from a police detective to call him on what turned out to be an unrelated matter. Attorney Eisenberg, allegedly believing the detective was harassing his client, called the number several times eventually reaching the police dispatcher. He told the dispatcher that this was a "life or death emergency," used vulgar language, and demanded to talk to the detective. He did not cooperate with the dispatcher and claimed "I am going to have his [detective's] badge." He also referred to the detective as an "asshole" and a "thug."

28. The referee took testimony from Attorney Eisenberg with respect to these counts and also listened to the tape of the communications. The referee found as a matter of fact that Attorney Eisenberg (1) "threatened, lied, demanded, swore, insulted . . . acted in a rude and obnoxious manner;" (2) knew that there was no emergency of any sort; and (3) had no purpose other than to "just embarrass or burden the dispatchers." The referee further concluded as a matter of law that this situation "evinced the epitome of an offensive personality" and also violated the other two rules.

30. We adopt the referee's findings of fact and conclusions of law with respect to these counts. We have previously rejected the argument that the "offensive personality" language of the Attorney's Oath is unconstitutionally vague or overbroad when applied to an attorney's professional conduct, to the extent Attorney Eisenberg may so contend. See In re Disciplinary Proceedings Against Beaver, 181 Wis. 2d 12, 510 N.W.2d 129 (1994). We further note that State v. Heilprin, 59 Wis. 2d 312, 207 N.W.2d 878 (1973) found an offensive personality to have been present under circumstances, although different from those in this case, which also involved generally rude, discourteous, abusive, aggressive, and hostile statements like the case here. Accordingly, we hold that the conclusions of law of the referee with respect to these three counts are correct.

31. The referee noted as a mitigating factor that Attorney Eisenberg has performed work with community and civic groups. However, as aggravating factors the referee noted his substantial disciplinary history and what the referee characterized as: (1) a propensity to lie under oath; (2) a propensity to minimize culpability by trying to place blame on others, portraying himself as the victim, and claiming there was no real injury; and (3) no demonstration of remorse. The referee further stated:

34. While these latest violations, particularly coupled with the extensive prior disciplinary history, would certainly warrant revocation, we will not impose that sanction. Given Attorney Eisenberg's age, revocation might effectively prohibit him ever practicing law again. Age is not necessarily a mitigating factor. See In re Disciplinary Proceedings Against Fennig, 227 Wis. 2d 379, 595 N.W.2d 710 (1999) (60-day suspension imposed for 70+- year-old attorney rather than public reprimand). But under these circumstances we hope that a shorter period of forfeiture will suffice to deter other attorneys from engaging in similar misconduct and motivate Attorney Eisenberg, if he ever returns to the practice of law, to conduct himself in an ethical manner, without exception. Accordingly, we impose a one-year suspension of Attorney Eisenberg's license.

35. In conclusion, we adopt the findings of fact and conclusions of law of the referee. Attorney Eisenberg's misconduct represents a serious failure to comply with the Rules of Professional Conduct. However, in lieu of the referee's recommendation of revocation, we believe that a one-year suspension is appropriate discipline for this conduct and under these unique circumstances.

36. IT IS ORDERED that the license of Attorney Alan D. Eisenberg to practice law in Wisconsin is suspended for a period of one year, effective April 6, 2004.

37. IT IS FURTHER ORDERED that within 60 days of the date of this order Attorney Eisenberg shall refund to B.S. the unearned retainer of $2775.69.

38. IT IS FURTHER ORDERED that Attorney Eisenberg comply with the provisions of SCR 22.26 concerning the duties of an attorney whose license to practice law has been suspended.