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ATTORNEY disciplinary
proceeding. Attorney's license
suspended.
¶1 PER CURIAM. In this matter we
review whether discipline reciprocal to that
imposed by the Supreme Court of Minnesota in
December 2007 should be imposed against
Attorney Eric L. Crandall.
¶2 Attorney Crandall was admitted to
the practice of law in this state in
September 1991. He currently maintains a
law practice in New Richmond.
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¶3 Attorney Crandall has been the
subject of professional discipline in this
state on two prior occasions. As will be
discussed more fully below, Attorney
Crandall received a three-month suspension
in February 2006 as discipline reciprocal to
that imposed by the Supreme Court of
Minnesota in July 2005 for, among other
things, neglecting three separate client
matters, failing to communicate with
clients, failing to comply with discovery
rules, and failing to cooperate with a
disciplinary investigation. In re
Disciplinary Proceedings Against Crandall,
2006 WI 6, 287 Wis. 2d 102, 708 N.W.2d 690;
see also In re Petition for
Disciplinary
Action against Crandall, 699 N.W.2d 769
(Minn. 2005). Following that suspension,
his Wisconsin license was reinstated. In
March of this year, this court publicly
reprimanded Attorney Crandall for knowingly
advancing a claim that was unwarranted under
existing law, for failing to act with
reasonable diligence and promptness, for
failing to keep his clients reasonably
informed about the status of their matter,
for failing to return his clients' file in a
timely manner, and for failing to cooperate
with the grievance investigation performed
by the Office of Lawyer Regulation (OLR).
In re Disciplinary Proceedings Against
Crandall, 2008 WI 14, _ Wis. 2d _, 745
N.W.2d 679.
¶4 Pursuant to the practice of the
Supreme Court of Minnesota, the July 2005
disciplinary action suspended Attorney
Crandall's license to practice law in
Minnesota indefinitely, with the proviso
that Attorney Crandall could petition for
reinstatement after 90 days. Although
Attorney Crandall sought reinstatement of
his license to practice law in Wisconsin
following the expiration of his reciprocal
three-month suspension in this state, he
never sought the reinstatement of his
Minnesota license.
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¶5 Attorney Crandall's Minnesota
license remained in suspended status at the
time that the Minnesota disciplinary
authorities filed their most recent
disciplinary petition. It should be noted
that the misconduct that formed the basis
for the most recent disciplinary petition
differed from the misconduct in the three
representations that formed the basis for
the July 2005 Minnesota disciplinary
action. According to the Minnesota
disciplinary materials that the OLR attached
to its complaint in this proceeding, the
misconduct alleged in the most recent
disciplinary complaint in Minnesota involved
Attorney Crandall's failure to act with
diligence and promptness in representing a
client, his failure to communicate with his
clients, his engaging in dishonesty or
misrepresentation, and his failure to
cooperate with the Minnesota disciplinary
investigation. Attorney Crandall did not
contest the disciplinary petition, but
instead entered into a stipulation in which
he admitted the allegations in the
disciplinary petition and joined with the
Minnesota disciplinary authorities in
recommending an extension of the suspension
of his license to practice law in Minnesota
for an additional 30 days.
¶6 In line with its practice of
indefinite suspensions, the Supreme Court of
Minnesota accepted the stipulation and
phrased its December 2007 disciplinary
action as a 30-day extension of his ongoing
suspension. The Supreme Court of Minnesota
stated that Attorney Crandall was not
allowed to petition for reinstatement of his
Minnesota license for a minimum of 30 days
following the date of the December 10, 2007,
order. Thus, the suspension of Attorney
Crandall's Minnesota license lasted for at
least an additional 30 days beyond what it
would have without the December 2007
disciplinary action.
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¶7 On March 6, 2008, the OLR filed a
complaint against Attorney Crandall that
initiated the current disciplinary
proceeding in this court. Counts 1-7 of the
complaint related to matters that were not
the subject of discipline imposed in another
jurisdiction. Count 8 related to the OLR's
request under SCR 22.22 for the imposition
of discipline in Wisconsin reciprocal to the
30-day suspension imposed by the Supreme
Court of Minnesota in December 2007. Count
9 alleged that Attorney Crandall had failed
to notify the OLR of the suspension of his
license to practice law in Minnesota within
20 days of the effective date of that
suspension, in violation of SCR 22.22(1).
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¶8 The OLR's complaint included a
motion requesting the court to issue an
order directing Attorney Crandall to show
cause based upon the grounds set forth in
SCR 22.22(3) why the imposition of
discipline identical to that imposed in
Minnesota would be unwarranted. The court
issued such an order to show cause on March
7, 2008.
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¶9 The court's order to show cause
apparently reached Attorney Crandall before
he was personally served with the OLR's
complaint and motion. On March 17, 2008,
Attorney Crandall filed a letter stating
that since he had not seen the OLR's
complaint or motion, he requested that the
order to show cause be dismissed on due
process grounds for lack of service of the
underlying complaint and motion or that he
be given additional time to respond. His
March 17, 2008, letter also objected to the
imposition of reciprocal discipline by
claiming that this court has no legal
authority to punish conduct that occurred
outside the borders of this state.
¶10 On March 19, 2008, the court issued
an order directing the OLR to respond to
Attorney Crandall's March 17, 2008, letter,
including the allegations of lack of
service. On March 20, 2008, the OLR
responded that it had been informed that
Attorney Crandall had been personally served
with the complaint and the motion for an
order to show cause on March 18, 2008. With
respect to Attorney Crandall's objection
based on the allegedly unconstitutional
extraterritorial application of Wisconsin
law, the OLR requested that the objection be
rejected as patently meritless or that it be
given additional time to brief the issue.
¶11 On March 21, 2008, the court issued
an order directing Attorney Crandall to
advise the court in writing by March 27,
2008, whether he acknowledged the service of
the OLR's complaint and motion, and whether
he was withdrawing his motion to dismiss
based on lack of service. The order further
stated that if Attorney Crandall was not
withdrawing that motion, he was required to
provide specific argument and authority in
support of his motion to dismiss. The order
also extended the time for Attorney Crandall
to respond to the order to show cause until
April 7, 2008, and directed Attorney
Crandall to include any constitutional
arguments against the imposition of
reciprocal discipline in his response to the
order to show cause.
¶12 Attorney Crandall did not file any
document by March 27, 2008, contesting that
he had been served on March 18, 2008, or
providing specific argument in support of
his motion to dismiss the order to show
cause due to lack of proper service.
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¶13 On April 7, 2008, Attorney Crandall
filed his response to the order to show
cause. His response initially objected to
the inclusion of the counts relating to
reciprocal discipline (Counts 8-9) in the
OLR's complaint since the first 7 counts
addressed claims of alleged professional
misconduct that must be addressed through
the normal process of referral to a referee
for fact-finding and a recommendation, and
then review by this court. Attorney
Crandall's response also challenged the
imposition of reciprocal discipline because
the copies of the Minnesota disciplinary
materials attached to the OLR's complaint
were not certified copies, as required by
SCR 22.22(2)(a). In addition, the response
contended that because Attorney Crandall had
not sought reinstatement of his Minnesota
license, the December 2007 disciplinary
action by the Supreme Court of Minnesota
could not be said to be new discipline that
could form the basis for reciprocal
discipline in Wisconsin. Finally, Attorney
Crandall repeated his argument that this
court was prohibited by the United States
Constitution and the Wisconsin Constitution
from punishing conduct that occurred in
another jurisdiction. Among other things,
he pointed to Article VII, § 8 of the
Wisconsin Constitution, which states that
Wisconsin's circuit courts have original
jurisdiction in all civil and criminal
matters "within this state," and to various
decisions of this court and federal courts
to the effect that a state's statutes do not
have effect beyond the borders of the
enacting state. See, e.g., State
Farm Mut.
Auto. Ins. Co. v. Campbell, 538 U.S. 408,
421 (2003) (state cannot punish defendant
for conduct that was lawful where it
occurred); State v. Sorenson, 218 Wis.
295,
260 N.W. 662 (1935) (effect of legislative
acts limited to borders of state in which
enacted).
¶14 On April 10, 2008, Attorney Crandall
filed his answer and affirmative defenses to
the OLR's complaint. The answer did not
include any affirmative defense relating to
insufficiency of service of process.
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¶15 On May 14, 2008, this court issued
an order regarding the inclusion of
reciprocal discipline counts and "standard"
professional misconduct counts (i.e., those
not arising from discipline imposed in other
jurisdictions) in the same complaint. Given
the contrast between the streamlined process
for considering reciprocal discipline and
the lengthier process for "standard"
professional misconduct counts under SCRs
22.15-.17, we agreed with Attorney
Crandall's position that the reciprocal
discipline counts should not have been
combined in the OLR's complaint with
unrelated counts arising out of other
grievances subject to the standard grievance
procedure. We therefore ordered that the
reciprocal discipline counts (Counts 8-9)
would be considered by this court separately
from Counts 1-7, which were referred to a
referee for further proceedings under SCRs
22.15 and 22.16. We now direct that in all
future situations involving the potential
imposition of reciprocal discipline, any
reciprocal discipline counts should be
brought in a separate proceeding.
¶16 The May 14, 2008, order also denied
Attorney Crandall's motion to dismiss the
order to show cause for lack of service of
the underlying complaint and motion. We
construed Attorney Crandall's failure to
respond to the March 21, 2008, order as a
withdrawal of that motion. Attorney
Crandall has not objected to the denial of
his motion or asked for reconsideration of
that decision.
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¶17 We now turn to the consideration of
reciprocal discipline for the 30-day
suspension imposed in December 2007 by the
Supreme Court of Minnesota. Under SCR 22.22
(3), this court "shall impose the identical
discipline or license suspension
unless . . . [t]he procedure in the other
jurisdiction was so lacking in notice or
opportunity to be heard as to constitute a
deprivation of due process"; "[t]here was
such an infirmity of proof establishing the
misconduct . . . that [this court] could not
accept as final" the other jurisdiction's
finding of professional misconduct; or "[t]
he misconduct justifies substantially
different discipline" in this state.
¶18 Attorney Crandall's response to the
order to show cause does not tie any of his
arguments to the three bases for objecting
to reciprocal discipline in SCR 22.22(3).
Although that fact could be a sufficient
basis for rejecting his arguments, we will
briefly address the merits of his claims.
¶19 Attorney Crandall first argues that
the copies of the Minnesota disciplinary
materials attached to the OLR's complaint
were not certified, as provided in SCR 22.22
(2)(a). Although the rule does provide for
a certified copy of the disciplinary
judgment or order issued by the other
jurisdiction to be attached to the OLR's
complaint, we conclude that the attachment
of non-certified copies in this case does
not require the dismissal of the reciprocal
discipline counts. Any error here was
technical and did not prejudice Attorney
Crandall since he never alleged that the
documents attached to the OLR's complaint
were not authentic copies of the
disciplinary order and filings in the
Supreme Court of Minnesota.
¶20 Next we consider Attorney Crandall's
claim that reciprocal discipline should not
be imposed because the 30-day suspension in
Minnesota was not "new discipline." This
argument is without merit. The order issued
by the Supreme Court of Minnesota noted that
Attorney Crandall's Minnesota license was
already under suspension and therefore the
court extended the suspension for an
additional 30 days before Attorney Crandall
could petition for reinstatement. Thus, the
addition of a new 30-day period before a
petition for reinstatement could be filed
clearly constituted new discipline.
¶21 In addition, although Attorney
Crandall argues that he should not be
punished for not seeking reinstatement of
his Minnesota license immediately upon
expiration of the original 90-day
suspension, he does not explain why the
reinstatement of his Minnesota license would
have caused the Supreme Court of Minnesota
not to impose discipline for the
professional misconduct at issue in that
state's most recent disciplinary
proceeding. Indeed, Attorney Crandall does
not allege that he objected to the
imposition of the recent 30-day suspension
on the ground that his misconduct was
covered by the original 90-day suspension.
Rather, he stipulated to the misconduct and
agreed that an additional 30-day suspension
would be appropriate discipline in the
Minnesota proceeding. Moreover, the
petition upon which the 30-day extension was
based referenced misconduct that was
different than the conduct that led to the
original 90-day Minnesota license suspension
imposed in July 2005.
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¶22 As for Attorney Crandall's
constitutional arguments that this court
lacks authority or jurisdiction to "punish"
him for misconduct that occurred in
Minnesota, they are based on an improper
understanding of this court's constitutional
obligation to regulate the practice of law
in Wisconsin and of the nature of
professional discipline. The Wisconsin
Constitution vests the judicial authority of
the state in a unified court system, Wis.
Const. art VII, § 2, and gives this court
superintending and administrative authority
over all courts in the state. Wis. Const.
art. VII, § 3(1). As we have noted in prior
cases, because attorneys are an important
part of the administration of justice in the
courts of this state and because the
constitutional grants of authority obligate
this court to ensure that courts function
efficiently and effectively to provide for
the due administration of justice, this
court has the inherent and exclusive
authority and power to regulate and
discipline members of the bar in this
state. See, e.g., Flynn v.
Department of
Admin., 216 Wis. 2d 521, 550, 576 N.W.2d
245
(1998); State ex rel. Fiedler v. Wisconsin
Senate, 155 Wis. 2d 94, 454 N.W.2d 770
(1990); In re Integration of Bar, 5 Wis.
2d
618, 622, 93 N.W.2d 601 (1958) ("The
practice of the law in the broad sense, both
in and out of the courts, is such a
necessary part of and is so inexorably
connected with the exercise of the judicial
power that this court should continue to
exercise its supervisory control of the
practice of the law."); Rubin v. State,
194
Wis. 207, 214-15, 216 N.W. 513 (1927) ("This
power on the part of the courts [to
supervise and discipline attorneys] is not
based upon legislative action. It inheres
in the nature and constitution of judicial
tribunals."). Thus, our imposition of
discipline for professional misconduct that
allegedly occurred in another state does not
accord extraterritorial effect to
Wisconsin's Rules of Professional Conduct
for Attorneys. See SCR ch. 20. Rather,
imposing reciprocal discipline is a means
(1) to ensure that attorneys who have been
granted the privilege to practice law in
this state comport themselves in this state
in a manner that promotes the efficient
administration of the law, and (2) to
protect the citizens of this state who
require the assistance of a competent and
trustworthy attorney.
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¶23 Moreover, the imposition of
professional discipline related to the
practice of law in this state is of a
different nature than punishing an
individual in Wisconsin for a criminal act
wholly committed in another state. The
imposition of discipline does not have as
its purpose to punish the respondent
attorney, but rather to protect the public,
the courts and the legal profession in
Wisconsin from incompetent and unfit
attorneys. See In re Disciplinary
Proceedings Against Hankel, 126 Wis. 2d
390, 394, 376 N.W.2d 848 (1985). The
imposition of professional discipline
protects the public by deterring additional
misconduct either by the disciplined
attorney or by other members of the
Wisconsin bar.
¶24 Consequently, we conclude that the
OLR has established that Attorney Crandall
was the subject of a 30-day suspension
imposed by the Supreme Court of Minnesota
due to his professional misconduct.
Moreover, we determine that none of the
three exceptions in SCR 22.22(3) to the
imposition of reciprocal discipline in this
state applies to Attorney Crandall's
situation. Thus, we determine that Attorney
Crandall's license to practice law in this
state should be suspended under SCR 22.22(3)
for a period of 30 days as reciprocal
discipline to that imposed by the Supreme
Court of Minnesota.
¶25 Because Counts 1-7 of the OLR's
complaint remain pending before a referee
and will be addressed by this court at a
later date, we will not impose costs against
Attorney Crandall at this time.
¶26 IT IS ORDERED that the license of
Eric L. Crandall to practice law in
Wisconsin is suspended for a period of 30
days, effective September 2, 2008.
¶27 IT IS FURTHER ORDERED that Attorney
Crandall shall comply with the requirements
of SCR 22.26 pertaining to the duties of a
person whose license to practice law in
Wisconsin has been suspended.
¶28 DAVID T. PROSSER, J. (concurring).
I concur in the result.
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