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ATTORNEY disciplinary
proceeding. Attorney
publicly reprimanded.
¶1 PER CURIAM. In this disciplinary
proceeding, we review the report and
recommendation of Referee Timothy L. Vocke
that Attorney Jeffrey R. Kohler be publicly
reprimanded for his professional misconduct
in failing to comply with an opposing
party's discovery request and with court
orders to provide discovery, and in making
misrepresentations to the court that he had
complied.
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¶2 In view of the fact that neither
Attorney Kohler nor the Office of Lawyer
Regulation (OLR) has appealed from the
referee's report and recommendation, our
review will proceed under SCR 22.17(2). In
conducting our review, we must affirm the
referee's findings of fact unless they are
found to be clearly erroneous. See In
re Disciplinary Proceedings Against
Inglimo, 2007 WI 126, ¶5, 305 Wis. 2d 71,
740 N.W.2d 125. We review the referee's
conclusions of law on a de novo basis.
See In re Disciplinary Proceedings
Against Carroll, 2001 WI 130, ¶29, 248
Wis. 2d 662, 636 N.W.2d 718. Finally, we
determine the appropriate level of
discipline given the particular facts of
each case, independent of the referee's
recommendation, but benefiting from it.
See In re Disciplinary Proceedings
Against Widule, 2003 WI 34, ¶44, 261 Wis.
2d 45, 660 N.W.2d 686.
¶3 Attorney Kohler has been licensed to
practice law in Wisconsin since 1984. The
conduct that forms the basis for this
disciplinary proceeding occurred during the
course of Attorney Kohler's work as a part-
time assistant district attorney for
Washburn County.
¶4 On July 2, 2003, W.C. lodged a
complaint against D.G. with the Washburn
County district attorney's office regarding
a construction project for which W.C. had
hired D.G. Based on W.C.'s allegations,
Attorney Kohler issued a criminal complaint
against D.G. alleging that he had committed
felony theft by contractor due to his
failure to pay a materials supplier with
funds given to him by W.C. D.G. retained
Attorney Erwin Steiner to represent him in
the criminal case.
¶5 In addition to the criminal case
against D.G., the materials supplier also
initiated a civil action for damages against
both D.G. and W.C. D.G. then filed a cross-
claim against W.C. in that action. Thus,
the issue of who was responsible for paying
the materials supplier was also being
litigated in the civil action while the
criminal case was proceeding.
¶6 Washburn County Circuit Court Judge
Eugene Harrington conducted a preliminary
examination in the criminal case on August
22, 2003. At the hearing, the state marked
as exhibits the proposal D.G. had made to
W.C. for the construction project and a
check ledger for a U.S. Bank account from
which W.C. had made payments to D.G. The
account was important because it was the
account into which U.S. Bank had placed the
proceeds of a construction loan for the
building project. After hearing the
evidence presented, Judge Harrington
concluded that there was probable cause to
believe that a felony had been committed,
and bound D.G. over for trial.
¶7 On November 20, 2003, Attorney
Steiner filed a Demand for Discovery and
Inspection with the clerk of circuit court
and served a copy on Attorney Kohler on
behalf of the state. Of importance to this
proceeding is Request 14 of that discovery
demand, which requested the state to:
Furnish the defense with copies, both
front and back, of all checks, issued by
[N.C.] or [W.C.] from US Bank, account
number [] and copies of all bank statements
for said account from October 1, 2002
through October 31, 2003, inclusive, and
copies of all documents within the
possession or control of [N.C.] or [W.C.]
which relate to the construction of the
building which is the subject of this
action . . . .
The referee found that the defense had
sought these records to determine whether
W.C. had been acting as his own general
contractor by paying many of the bills for
the construction project directly.
¶8 At a status conference on December
11, 2003, Judge Harrington addressed the
status of the defense's discovery requests.
He acknowledged that the state may have
responded to them informally, but he
directed the state to file and serve a
formal response to the requests. Attorney
Kohler promised that the state would serve a
formal response by the end of the year,
which the court accepted as an appropriate
time. The court then set the matter for a
jury trial on March 11, 2004.
¶9 On December 23, 2003, Attorney
Kohler filed a response to the discovery
requests. The response to Request 14 stated
that the response was "pending."
¶10 The court held a pretrial conference
on February 17, 2004. At that time,
Attorney Kohler still had not provided the
documents sought in Request 14. The court
acknowledged that the state had still not
complied with the request, but noted that
the state had promised to provide the
requested documents by noon on February 27,
2004.
¶11 On February 26, 2004, Attorney
Kohler filed a trial exhibit list, with
copies of the exhibits attached. Among the
exhibits were copies of five checks that
W.C. had written to D.G. Three of the five
checks had been drawn on the U.S. Bank
account. The other two checks had been
drawn on other accounts.
¶12 Attorney Kohler did not provide
copies of the other checks that had been
written against the U.S. Bank account nor
the bank statements for that account that
had been requested in Request 14.
¶13 On March 4, 2004, one week before
the scheduled trial date, D.G. filed a
motion to dismiss the criminal charge
against him with prejudice due to the
state's failure to respond to his discovery
requests. In the supporting brief, Attorney
Steiner pointed out that the state had not
disputed its ability to obtain the requested
bank records from W.C.
¶14 A hearing was held on the motion on
March 10, 2004. At that hearing, Attorney
Kohler argued for the first time that the
documents requested in Request 14 were not
relevant. Judge Harrington correctly noted
that relevance was to be determined by the
court. He expressed concern that the state
had not produced the requested records, but
did not grant D.G.'s motion to dismiss.
Stating that the failure to comply with the
discovery request had been unintentional,
the court continued the trial date until
August 17, 2004.
¶15 During the March 10, 2004, hearing,
the attorneys and the court had a lengthy
discussion about which documents Attorney
Kohler was to produce. W.C. was present at
the hearing and was questioned about his
willingness to provide the requested
documents. He agreed to provide to Attorney
Kohler copies of documents from any bank
account that related to the construction of
the building on which D.G. had worked.
Judge Harrington specifically told W.C. that
he needed to produce a copy of a check
register for the U.S. Bank account. Judge
Harrington expressly ordered that the
requested documents be produced by the state
to Attorney Steiner by April 30, 2004. He
directed Attorney Steiner to raise any
problems with the state's production in a
motion to be filed by June 1, 2004.
¶16 Attorney Kohler did not produce any
further documents or information by April
30, 2004, or even throughout the month of
May. On June 1, 2004, Attorney Steiner
filed a renewed motion to dismiss the
criminal charges with prejudice due to the
state's continuing failure to comply with
its discovery obligations.
¶17 On June 14, 2004, Attorney Kohler
sent a letter to Judge Harrington with a
copy to Attorney Steiner. Attached to the
letter were three invoices and three checks
that referenced payments by W.C. directly to
subcontractors. Only one of the three
checks had been drawn on the U.S. Bank
account. Attorney Kohler did not produce
any bank statements, check register, or
copies of other checks relating to the U.S.
Bank account. The text of his letter
stated, in part, "Here are the items the
court ordered [W.C.] to produce with regard
to this case. I believe the court wanted
the originals filed."
¶18 The circuit court held a hearing on
D.G.'s renewed motion to dismiss the
criminal action on July 22, 2004. At that
hearing, Attorney Kohler represented to
Judge Harrington that he had fully complied
with the defense's discovery requests.
Attorney Kohler also made a demand for a
speedy trial on behalf of the state. The
court found that the state had not complied
with all the discovery requests and asked
Attorney Kohler why the court should not
grant the dismissal requested by D.G.
Attorney Kohler responded that he did not
believe the court had the authority to
dismiss the criminal case as a sanction for
the state's discovery violations. Attorney
Kohler also stated, "All I can say is we
have submitted what Mr. Steiner wanted.
Those are the items."
¶19 Judge Harrington took the motion to
dismiss under advisement, indicating that he
wanted to determine whether the state had
complied with the discovery rules and the
court's prior order, to look at the remedies
available to the court, and to "make doubly
sure before I take precipitous action in a
felony file." The court was forced to
remove the August 17, 2004, trial from the
court's calendar.
¶20 On August 18, 2004, the circuit
court issued an oral decision on the June 1,
2004, motion to dismiss. The court
explicitly found that Attorney Kohler's June
14, 2004, letter had "failed to provide the
appropriate bank account records." It had
also "failed to provide copies of all
records relating to payment concerning the
construction process." The court
specifically stated that the documents
sought by the defense were relevant and
could produce exculpatory evidence. The
court, however, denied the motion to
dismiss, and set the matter for a further
status conference.
¶21 Despite the court's clear ruling
that the requested documents were relevant,
Attorney Kohler continued to fail to produce
any further documents or information. On
November 12, 2004, D.G. filed another motion
to dismiss alleging a denial of his right to
a speedy trial and prosecutorial
misconduct. In the supporting brief,
Attorney Steiner argued that the state's
failure to comply with its discovery
obligations had caused the delay, and that
the delay had jeopardized D.G.'s ability to
defend against the criminal charges because
the trial in the civil action was scheduled
for the end of November.
¶22 The civil trial did proceed on
November 30, 2004, with Judge Harrington
presiding. After the civil trial was
concluded, Judge Harrington held a status
conference in the criminal case. He first
denied the defense's renewed motion to
dismiss. He then stated that because he had
presided over the civil trial, he would
withdraw from the criminal case.
¶23 On December 15, 2004, Judge
Frederick Henderson was assigned to preside
over the criminal action. The criminal
trial was now scheduled for March 10, 2005.
¶24 On March 4, 2005, D.G. filed another
motion to dismiss. Judge Henderson
conducted a telephone hearing regarding the
motion. Judge Henderson stated that he
understood that Judge Harrington had made
several orders requiring W.C. and the state
to provide certain documents, but that
Attorney Steiner contended that no further
documents had been produced. When asked if
that was correct, Attorney Kohler denied
it. Attorney Kohler stated that W.C.
had "supplied the checks in question that
were to the subcontractors." Attorney
Steiner, however, explained to Judge
Henderson that the construction loan
proceeds had been placed into the U.S. Bank
account, and that the part of the check
register marked at the preliminary hearing
showed at least 36 checks drawn on that
account (although Attorney Steiner had so
far received a total of only five checks).
Nonetheless, later in the hearing Attorney
Kohler specifically stated that "Mr.
Steiner's got all the discovery he's going
to get."
¶25 Judge Henderson went through the
court's prior orders, noting that in an
August 18, 2004, order Judge Harrington had
stated that D.G. was entitled to receive the
requested information, and that Judge
Harrington had denied the state's speedy
trial request because to require D.G. to
proceed to trial without the requested
discovery information would have been a
denial of fundamental fairness. Attorney
Kohler acknowledged that he had not provided
any further documents after the August 18,
2004, order. When asked how he therefore
could have complied with the court's August
18, 2004, order, Attorney Kohler
responded, "All I can say is we gave him all
the subcontractor checks and whenever that
was, it was earlier in the year, and that's
all I know about."
¶26 Judge Henderson concluded that the
state had not met its discovery obligations
and had not complied with the court's orders:
So how can I conclude any different than
the State has failed once again for perhaps
the fourth time that they didn't do what
[Judge] Harrington ordered. What [Judge]
Harrington ordered was to give these bank
records to Steiner, put them in the court
file so there could be a determination as to
whether they're exculpatory.
¶27 Ultimately, the circuit court
dismissed the information against D.G. with
prejudice due to Attorney Kohler's
disobedience of Judge Harrington's orders.
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¶28 On the basis of these facts, for
which there was no genuine dispute, the
referee concluded that summary judgment
should be entered and that the OLR had
proven by clear, satisfactory, and
convincing evidence that Attorney Kohler had
committed three violations of the Rules of
Professional Conduct for Attorneys. First,
by failing or refusing to comply with the
circuit court's orders to provide the
discovery items requested in Request 14,
Attorney Kohler had knowingly disobeyed an
obligation under the rules of a tribunal,
which was not an open refusal based on an
assertion that no valid obligation exists,
in violation of SCR 20:3.4(c). Second, the
referee concluded that Attorney Kohler had
violated SCR 20:3.4(d) by failing to make a
reasonably diligent effort to comply with a
legally proper discovery request by an
opposing party. Third, the referee
concluded that by representing to Judge
Henderson during the March 8, 2005,
telephone hearing that he had fully complied
with Judge Harrington's prior discovery
orders, Attorney Kohler had knowingly made a
false statement of fact or law to a
tribunal, in violation of former SCR 20:3.3
(a)(1).
¶29 Following the referee's
pronouncement of his findings of fact and
conclusions of law, Attorney Kohler and the
OLR jointly requested that the referee
recommend a public reprimand, which was the
level of discipline originally requested by
the OLR. The referee agreed that a public
reprimand would be an appropriate level of
discipline in this case. He acknowledged
that Attorney Kohler had never before been
the subject of professional discipline and
that Attorney Kohler's honest admissions to
nearly all of the OLR's allegations had
reduced the time and expense needed for the
proceeding.
¶30 During the teleconference at which
he announced his findings of fact and
conclusions of law, however, the referee
made some rather strong comments about
Attorney Kohler's professional misconduct.
The referee saw absolutely no reason for
Attorney Kohler's failure to provide the
requested discovery. He noted that a
prosecutor, as a minister of justice, has a
duty not just to seek a conviction of the
guilty, but to be fair to each defendant and
to obey an order issued by a court. The
referee described Attorney Kohler's
disobedience of the circuit court's orders
as "extremely egregious conduct," and
indicated that there was evidence of
a "deliberate decision to disobey."
¶31 After our independent review of the
matter, we conclude that the referee's
findings of fact are not clearly erroneous,
and we adopt them. We also agree with the
referee that the facts as found convincingly
demonstrate that Attorney Kohler violated
the Rules of Professional Conduct for
Attorneys, as alleged in the three counts in
the OLR's complaint.
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¶32 Because of concerns about the
appropriate level of discipline, this court
directed the parties to file memoranda
explaining the factual and legal bases for
the stipulated request for a public
reprimand. Both parties filed memoranda
that continued to assert that a public
reprimand was appropriate in this case. The
OLR's memorandum set forth the legal
authorities and the factors present in this
case that the OLR director had considered in
deciding to request a public reprimand. We
have considered those responses, as well as
our own prior disciplinary decisions.
¶33 There is support in our prior
decisions for either a public reprimand or a
60-day suspension in the present case. The
two most analogous prior cases involving
prosecutors appear to be In re
Disciplinary
Proceedings Against Sanders, 173 Wis. 2d
609, 494 N.W.2d 430 (1993), and In re
Disciplinary Proceedings Against Zapf, 126
Wis. 2d 123, 375 N.W.2d 654 (1985). In
Zapf, despite a discovery demand by the
defense, a district attorney in a murder
case failed to disclose the statement of a
witness who heard the defendant make an
incriminating statement. Attorney Zapf then
elicited the defendant's incriminating
statement from the witness at trial. The
referee found that Attorney Zapf had
intentionally failed to disclose the
witness' statement and had planned to use
the statement at trial. Moreover, this
failure to comply with discovery obligations
was not a first occurrence for Attorney
Zapf. Although he had not been disciplined
for two prior discovery lapses, he had been
admonished by the court for those lapses in
the court's decision on the merits of the
case. In a second part of the disciplinary
case, Attorney Zapf had improperly sent to a
criminal defendant copies of correspondence
in which he disparaged defense counsel's
handling of the case, in violation of a rule
against communicating with a party the
lawyer knows to be represented by counsel.
For the failure to provide the witness
statement and the improper communication
with a represented party, we imposed a
public reprimand.
¶34 In Sanders, an assistant
district
attorney made multiple misrepresentations to
a judge, a court scheduling clerk, and
opposing counsel in two separate cases. In
the first case, Attorney Sanders falsely
represented to the scheduling clerk that a
case had been settled so that the clerk
would remove it from a trial schedule. When
the trial judge in that case learned of the
deception, he dismissed the charges against
the defendant. In a second and unrelated
case, Attorney Sanders made
misrepresentations to defense counsel and to
a circuit court regarding the local jail's
policy on work release and regarding
statements by jail personnel concerning the
suitability of a particular defendant for
work release. The misrepresentations in the
second case were made approximately nine
months after the false statement to the
scheduling clerk in the first case.
Attorney Sanders had not previously been the
subject of professional discipline.
Ultimately, this court suspended the license
of Attorney Sanders to practice law in this
state for a period of 60 days.
¶35 Although there are certainly
similarities between the Sanders case
and
the present case, including the making of a
false statement to a trial judge and the
dismissal of a criminal case because of a
prosecutor's misconduct, we ultimately
believe that Attorney Kohler's misconduct
warrants the imposition of a public
reprimand. It appears that, as in Zapf,
the
core of Attorney Kohler's misconduct arose
from his failure to comply with discovery
obligations. Unlike the situation in
Sanders, Attorney Kohler's
misrepresentation
was an attempt to justify his production of
only some of the discovery items requested
by the defense. Further, Attorney Sanders
lied to court personnel in two different
cases, separated in time. This indicates a
pattern of similar misconduct. With
Attorney Kohler, although it occurred on
more than one occasion, all of Attorney
Kohler's misconduct occurred in one case
with respect to one issue.
¶36 In addition, we believe that a
public reprimand will be sufficient to deter
Attorney Kohler and other attorneys from
similar misconduct. In his response
regarding the appropriate level of
discipline, Attorney Kohler noted that he
has never been the subject of professional
discipline in the more than two decades he
has been practicing law. Moreover, he has
practiced during that entire time in the
same community. His practice therefore
depends on the reputation he has developed
over that lengthy period of time. A public
reprimand will therefore have a significant
effect on his reputation and practice and
should serve to prevent him from engaging in
similar conduct in the future.
¶37 Although we determine that a
suspension is not necessary to protect the
public and the judicial system in this
instance, that result should not be
interpreted as indicating that this court is
not troubled by Attorney Kohler's
misconduct. His continuing refusal to obey
the circuit court's discovery orders, even
if he disagreed with them, constitutes a
serious violation of an attorney's
professional obligations. No attorney,
whether prosecutor, criminal defense
counsel, or civil attorney, has the option
to disregard an order of a court, no matter
how much the attorney disagrees with the
order and no matter whether the order
addresses discovery obligations or other
matters. Our system of justice simply would
not function if attorneys could overrule
courts.
¶38 Similarly, no attorney, whether
prosecutor, criminal defense counsel, or
civil attorney, may distort the truth when
presenting argument to a court. As we noted
in another case in which an attorney had
made misrepresentations to this court, "an
attorney's duty of candor toward the
tribunal is central to the truth-seeking
function of any court." In re
Disciplinary
Proceedings Against Kalal, 2002 WI 45, ¶1,
252 Wis. 2d 261, 643 N.W.2d 466. All courts
have a right to expect that the attorneys
appearing before them, regardless of the
zeal they have for their client's cause,
will adhere to the fundamental duty imposed
on them as officers of the court to speak
honestly. Attorney Kohler's
misrepresentation about his compliance with
the circuit court's prior discovery orders
is a serious breach of his obligations as an
officer of the court.
¶39 In summary, we determine that
Attorney Kohler should be publicly
reprimanded for his professional misconduct
in this proceeding. We also conclude that
he should be required to pay the full costs
of this disciplinary proceeding, which were
$6,287.43 as of March 7, 2008.
¶40 IT IS ORDERED that Jeffrey R. Kohler
is publicly reprimanded for his professional
misconduct.
¶41 IT IS FURTHER ORDERED that within 60
days of the date of this order, Jeffrey R.
Kohler pay to the Office of Lawyer
Regulation the costs of this proceeding. 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 Jeffrey R. Kohler
to practice law in Wisconsin shall be
suspended until further order of the court.
¶42 MICHAEL J. GABLEMAN, J., did not
participate.
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