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ATTORNEY disciplinary
proceeding. Attorney's license
suspended.
¶1 PER CURIAM. This is a companion
case to In re Disciplinary Proceedings
Against Addison, 2012 WI 38 (No.
2010AP3014-
D), which is being released at the same time
as this opinion. Both cases involve the
same underlying set of facts and one or more
criminal convictions arising from those
facts. As in that proceeding, we are called
upon here to decide whether to impose
discipline reciprocal to that imposed by the
Supreme Court of Illinois, which in this
case would be a 30-day suspension of the
license of Attorney Benjamin C. Butler to
practice law in Wisconsin. Although
Attorney Butler's admitted conduct, like the
conduct of Attorney Stephan Addison, is both
unprofessional and unseemly, and although we
may have imposed a more severe level of
discipline if the Office of Lawyer
Regulation (OLR) had prosecuted this matter
directly in the first instance rather than
filing a reciprocal discipline complaint,
given the standards in our rules that apply
to reciprocal discipline situations, we
determine that we must impose the same 30-
day license suspension in this matter as the
Supreme Court of Illinois imposed. We do
not impose costs on Attorney Butler, given
his agreement that reciprocal discipline
should be imposed, which obviated the need
for the appointment of a referee and the
costs of a full disciplinary proceeding.
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¶2 On December 14, 2010, the OLR filed
a formal disciplinary complaint against
Attorney Butler requesting the imposition of
reciprocal discipline and a motion
requesting the court to issue an order to
show cause to Attorney Butler. On March 31,
2011, the court ordered Attorney Butler to
inform the court of any claim, predicated on
the grounds set forth in SCR 22.22(3), why
the imposition of discipline identical to
that imposed by the Supreme Court of
Illinois would be unwarranted, and of the
factual basis for any such claim. On April
11, 2011, Attorney Butler filed a response
stating that he was not making any claim
under SCR 22.22(3) and that he was not
raising any objection to the imposition of
discipline identical to that imposed in
Illinois.
¶3 Because this matter involves
allegations of serious misconduct that
occurred in Wisconsin and led to Attorney
Butler being criminally convicted in a
Wisconsin court following his no-contest
plea in December 2006, on September 23,
2011, this court issued an order directing
the OLR to advise the court as to why it had
chosen in this matter to seek the imposition
of reciprocal discipline under SCR 22.22
rather than to conduct its own investigation
and pursue its own disciplinary complaint
under SCRs 22.11 through 22.16.
¶4 The OLR filed a response to the
court's order on October 12, 2011. Its
response states that it first learned of the
criminal charges against Attorneys Butler
and Addison in December 2005. It opened
grievance investigations against them at
that time, but placed those investigations
on hold pending the result of the criminal
actions in Green Lake County, Wisconsin.
The OLR's response indicates that, for a
number of reasons, it will commonly place
investigations in which there are pending
criminal charges on hold until those
criminal charges have been resolved.
¶5 In this situation, after the OLR
received notice of the convictions and
sentences imposed on Attorneys Butler and
Addison in December 2006, it reopened its
investigations. Approximately one month
later, however, it was notified that the
Illinois Attorney Registration and
Disciplinary Commission (the Illinois
Commission) had also opened a grievance
investigation against Attorneys Butler and
Addison. The Illinois Commission expressly
informed the OLR that it had set aside
resources to conduct an investigation that
would go beyond the record compiled in the
criminal case and that it intended to
conduct supplemental interviews of the
victim and other witnesses.
¶6 The OLR's response states that after
it was informed of the Illinois Commission's
investigation, the OLR director made the
decision to allow the Illinois Commission to
take the lead role in investigating the
conduct of Attorneys Butler and Addison and
in seeking discipline because both attorneys
were practicing law primarily in Illinois
for Illinois law firms. The OLR further
explains that it wanted to avoid the
duplicative use of investigatory resources
in the two jurisdictions. It states that it
is common for it and other lawyer regulatory
agencies in other jurisdictions to allow
the "primary jurisdiction," i.e., the
jurisdiction in which the attorney is
primarily practicing, to investigate and
impose discipline in the first instance,
with the other applicable jurisdictions then
seeking the imposition of reciprocal
discipline.
¶7 The OLR's response further asserts
that it communicated periodically with the
Illinois Commission during the more than
three years in which the Illinois Commission
conducted its investigation and its
prosecution of the Illinois disciplinary
action. The OLR notes that it was
ultimately able to review the more than
1,700 pages of discovery from the criminal
actions that Attorneys Butler and Addison
provided to the Illinois Commission, plus
copies of a video discovery deposition of a
witness, the discovery depositions of the
two respondent attorneys, expert witness
information, and other video and audio
evidence. In addition, the Illinois
Commission provided to the OLR another 1,400
pages of documents from its own
investigation. The OLR asserts that,
following the conclusion of the Illinois
disciplinary proceeding, it reviewed and
evaluated these voluminous documents before
it reached the determination not to conduct
its own investigation and instead to seek
the imposition of reciprocal discipline.
¶8 Because the record in this
proceeding still did not contain information
regarding the factual basis for the felony
to which Attorney Butler pled no contest, we
issued a second order directing the OLR to
state the factual basis for the felony
charge and to provide public documents from
the criminal case that related to the
factual basis. The OLR's response contained
a stipulation filed in the Green Lake County
action at the time Attorney Butler entered
his plea to a reduced charge, as well as the
transcripts of the plea and sentencing
hearings. The content of the criminal
stipulation will be discussed later in this
opinion.
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¶9 Given that this matter has been
presented to us in the context of a request
for the imposition of reciprocal discipline,
we are constrained to follow the rules that
we have adopted for such proceedings.
See
SCR 22.22. We therefore shall impose the
identical discipline imposed in the other
jurisdiction unless we determine that one of
the three exceptions set forth in SCR 22.22
(3) applies. In assessing whether one of
those exceptions applies, we further are
limited to the record in this matter, which
primarily consists of the OLR's complaint,
the documents from the Illinois disciplinary
proceeding that have been filed by the OLR,
and the documents relating to Attorney
Butler's no contest plea in the Green Lake
County criminal action that have also been
submitted by the OLR. In particular, the
stipulations entered in the Green Lake
County criminal case and in the Illinois
disciplinary proceeding are the only sources
in the record of this proceeding of
facts
that have been proven or stipulated
regarding the underlying events. The
factual recitation that follows is primarily
taken from those stipulations.
¶10 Attorney Butler was admitted to the
practice of law in Wisconsin in August
2004. He was also admitted to the practice
of law in Illinois in 2004. Attorney Butler
initially practiced law in Illinois with a
large Chicago firm, but was required to
resign as a result of his criminal
conviction, which is described below. As of
the time of the stipulation in the Illinois
disciplinary proceeding, Attorney Butler was
operating a solo legal practice in Chicago
and was associated with a law firm there as
an independent contractor. His license to
practice law in Wisconsin is currently
administratively suspended for failure to
comply with mandatory continuing legal
education (CLE) reporting requirements and
for failure to pay bar dues and
assessments. He has not previously been the
subject of professional discipline.
¶11 Prior to August 5, 2005, Attorney
Butler made plans with Attorney Addison, a
law school classmate, for a weekend reunion
at a summer house in Green Lake, Wisconsin,
that was owned by Attorney Addison's
family. On Friday, August 5, 2005,
Attorneys Butler and Addison picked up
supplies for the weekend, including
alcoholic beverages such as beer, vodka, and
whiskey. From that Friday afternoon through
the daytime hours of Saturday, Attorneys
Butler and Addison and their friends
socialized and drank alcohol. At
approximately 11:00 p.m. on August 6th, they
drove to a tavern in Green Lake, where they
consumed additional alcoholic beverages. At
approximately 1:00 a.m. on Sunday, August
7th, the group drove to another tavern in
Ripon, where they continued to consume
alcoholic beverages.
¶12 Shortly before the 2:00 a.m. bar
closing time, Attorney Addison met a woman,
D.P., on the dance floor. After the bar
closed, D.P. agreed to drive Attorneys
Addison and Butler back to Green Lake to the
Addison summer house.
¶13 The Illinois stipulation of facts
continues that a few blocks from the Addison
summer home, D.P. pulled her car into a boat
landing and placed the vehicle in park. The
stipulation does not provide details of what
occurred next. It merely states that
Attorney Butler, "while intoxicated, engaged
in sexual activity with [D.P.] while both
were on the hood of a motor vehicle that was
parked on a public boat ramp in Green Lake,
Wisconsin." D.P. subsequently complained to
the police about the actions of Attorneys
Butler and Addison, and Attorney Butler gave
a statement to law enforcement in response
to her complaint.
¶14 The State of Wisconsin initially
charged Attorney Butler with three criminal
offenses in Green Lake County circuit
court: first-degree sexual assault, as
party to a crime; false imprisonment; and
misdemeanor battery. State v. Butler,
Green
Lake County Case No. 05CF91.
¶15 Ultimately, the State filed an
amended information that charged Attorney
Butler with one count of felony second-
degree reckless endangerment, contrary to
Wis. Stat. § 941.30(2). Attorney Butler
then pled no contest to the single count set
forth in the amended information. The
stipulation in the criminal case set forth
the factual basis for the second-degree
reckless endangerment charge as follows:
As a factual basis for the
acceptance of the Defendant's plea, the
parties stipulate and agree that on August
7, 2005 in Green Lake County, Wisconsin, Mr.
Butler and Mr. Addison engaged in physical
contact with [D.P.] in such a manner that
[D.P.'s] safety was endangered and that she
could have been injured while having contact
with the defendants on the hood of an
automobile from which she could have
fallen.
¶16 The circuit court imposed and stayed
a sentence of 18 months of initial
confinement and 24 months of extended
supervision. The court placed Attorney
Butler on probation for a period of three
years and ordered him to complete 300 hours
of community service. According to the
Report and Recommendation of the Illinois
Commission's Hearing Board, Attorney Butler
completed his community service by providing
pro bono legal services to a number of non-
profit agencies. Indeed, he provided more
than 300 additional hours of pro bono work
beyond the 300 hours that were required of
him. Attorney Butler was released from
probation in December 2009.
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¶17 A disciplinary proceeding was
initiated against Attorney Butler in
Illinois as a result of his actions in
August 2005 and his subsequent criminal
conviction. Attorney Butler ultimately
entered into a stipulation in that
proceeding setting forth the facts described
above and requesting the imposition of a 30-
day suspension of his Illinois law license
as discipline for his misconduct. The
Illinois Hearing Board accepted the
stipulation and recommended that Attorney
Butler's Illinois law license be suspended
for 30 days for professional misconduct that
consisted of (1) violating Rule 8.4(a)(3) of
the Illinois Rules of Professional Conduct
(IRPC) by committing a criminal act that
reflects adversely on his honesty,
trustworthiness or fitness as a lawyer in
other respects; (2) engaging in conduct that
is prejudicial to the administration of
justice, in violation of IRPC Rule 8.4(a)
(5); and (3) engaging in conduct which tends
to defeat the administration of justice or
bring the courts or legal profession into
disrepute, in violation of Illinois Supreme
Court Rule 770.
¶18 The Illinois Report also included
some stipulated evidence offered in
mitigation. Specifically, the Illinois
Report noted that Attorney Butler had not
been previously disciplined, had expressed
great remorse and shame, and had cooperated
with the Illinois disciplinary process. The
Illinois Report also stated that if the
matter had proceeded to a contested hearing,
Attorney Butler would have presented
character witness testimony from at least
six witnesses, including a former University
of Wisconsin Law School professor and other
attorneys familiar with his work and his
reputation as an honest and truthful
lawyer. The Illinois Report indicated that
no aggravating evidence had been offered.
¶19 The Illinois Hearing Board stated
Attorney Butler should receive a slightly
shorter suspension than Attorney Addison
because he was convicted of a lesser number
of criminal offenses.
¶20 The Supreme Court of Illinois
accepted the recommendation of the Illinois
Hearing Board and suspended Attorney
Butler's license to practice law in that
state for 30 days.
¶21 The OLR's complaint in this matter
asks that Attorney Butler's license to
practice law in Wisconsin be suspended for
an identical period of 30 days as reciprocal
discipline under SCR 22.22(3). As noted
above, Attorney Butler does not object to
the OLR's request.
¶22 The initial allegations made against
both Attorney Addison and Attorney Butler in
the respective criminal complaints against
them were extremely troubling. Those
allegations, however, have not been proven,
and we are bound by the facts as they have
been proven or stipulated in the record
before us. In the criminal action the state
eliminated any charge of sexual assault,
false imprisonment, or battery. Thus, there
is no finding of fact in any proceeding,
whether criminal or disciplinary, in this
state or in Illinois, that Attorney Butler
engaged in sexually assaultive conduct.
Although Attorney Butler was convicted of a
felony that involves placing another person
in danger of death or great bodily harm, the
stipulated factual basis for that crime was
that Attorney Butler's contact with the
victim created a risk that she might have
fallen off the hood of an automobile and
become injured. While the Illinois Hearing
Board properly concluded that the criminal
charge to which Attorney Butler ultimately
pled no contest is a serious matter that
reflects adversely on his trustworthiness or
fitness as a lawyer in other respects, we
must base our decision on these facts as
they have been stipulated and not on what
the factual findings might possibly have
been.
¶23 Moreover, it is important to
remember that this matter is being presented
to us in the context of a reciprocal
discipline matter, not as a review of a
referee's report or a stipulation in the
first instance. As commonly occurs in such
situations, the OLR allowed the Illinois
Commission to take the lead in investigating
and prosecuting Attorney Butler's
professional misconduct because Illinois was
his primary place of practice and Illinois
committed significant resources to
investigating the matter. According to the
OLR, it maintained communication with the
Illinois Commission throughout the three-
year pendency of the Illinois investigation
and disciplinary proceeding. In addition,
it reviewed the voluminous documents
provided by the Illinois Commission before
it ultimately determined to seek the
imposition of reciprocal discipline.
¶24 In a reciprocal discipline matter
our rules require us to impose the identical
discipline rendered by the other
jurisdiction unless one of the three listed
exceptions applies. Keeping in mind that
the OLR has not asserted that Attorney
Butler's conduct requires a substantially
different level of discipline in this state,
see SCR 22.22(3)(c), we do not find that
any
exception applies. Consistent with our
rules, therefore, we impose a 30-day
suspension of Attorney Butler's license to
practice law in Wisconsin, as discipline
reciprocal to that imposed in Illinois. In
order to have his license to practice law in
this state reinstated, Attorney Butler will
not only need to comply with the provisions
for reinstating a license following a
disciplinary suspension of less than six
months, he will also need to take the
required steps for reinstatement following a
suspension for failure to comply with CLE
reporting requirements and for reinstatement
following a suspension for failure to pay
bar dues and assessments. Finally, because
Attorney Butler agreed to the imposition of
reciprocal discipline and it was not
necessary to appoint a referee or incur the
costs of a full disciplinary proceeding, we
do not require him to pay the costs of this
proceeding.
¶25 IT IS ORDERED that the license of
Benjamin C. Butler to practice law in
Wisconsin is suspended for a period of 30
days, effective as of the date of this order.
¶26 IT IS FURTHER ORDERED that Benjamin
C. Butler 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.
¶27 ANN WALSH BRADLEY, J., withdrew from
participation.
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¶28 PATIENCE DRAKE ROGGENSACK, J.
(dissenting). I dissent because I would
reject the parties' stipulation asking this
court to suspend Benjamin C. Butler's
license to practice law in Wisconsin for 30
days as reciprocal discipline to that
imposed by Illinois for his admitted acts of
criminal conduct that occurred in Wisconsin,
and I would require the Office of Lawyer
Regulation (OLR) to apply Wisconsin's Rules
of Professional Conduct for Attorneys to
Attorney Butler's misconduct.
¶29 Attorney Butler's conviction was the
result of a plea bargain. The criminal act
which he admitted committing constitutes one
count of second-degree reckless
endangerment, contrary to Wis. Stat. § 941.30
(2), which is a Class G felony.
¶30 In order to accept a plea and
convict a defendant of second-degree
reckless endangerment, the circuit court
must determine that there are facts
sufficient to prove that (1) Attorney Butler
endangered the safety of another human
being; and (2) he did so by criminally
reckless conduct. See Wis JI—Criminal
1347. "Criminal recklessness" is defined in
Wis. Stat. § 939.24(1) as conduct
that "creates an unreasonable and
substantial risk of death or great bodily
harm to another human being and the actor is
aware of that risk."
¶31 Supreme Court Rule (SCR) 22.22(3)
directs this court in reciprocal discipline
matters to impose identical discipline to
that imposed by another state unless the
misconduct justifies substantially different
discipline in this state. SCR 22.22(3)(c).
It seems probable that creating
an "unreasonable and substantial" risk of
great bodily harm when the defendant "is
aware of that risk" would have resulted in
more than a 30-day license suspension if OLR
had begun its own investigation in light of
SCR 20:8.4(b), rather than relying on the
judgment of the State of Illinois.
¶32 My conclusion is supported by
discipline meted out for past criminal
convictions, which we have held violate SCR
20:8.4(b). See In re Disciplinary
Proceedings Against Compton, 2010 WI 112,
¶¶1, 7, 329 Wis. 2d 318, 787 N.W.2d 831 (two
years suspension based on conviction of
possession of narcotic drugs, a Class I
felony, and bail jumping, a Class H felony,
based on the use of those drugs); In re
Disciplinary Proceedings Against Soldon,
2010 WI 27, ¶¶1, 6, 324 Wis. 2d 4, 782
N.W.2d 81 (six months suspension based on
retail theft read-in and conviction of
fleeing a law enforcement officer, a Class I
felony); In re Disciplinary Proceedings
Against George, 2008 WI 21 ¶¶3, 30, 308
Wis.
2d 50, 746 N.W.2d 236 (four years and three
months suspension based on federal
conviction of conspiracy to commit offenses
against federal programs in violation of 18
U.S.C. § 371); In re Disciplinary
Proceedings Against Gral, 2007 WI 22, ¶¶1,
4, 299 Wis. 2d 160, 727 N.W.2d 495
(suspension of three years based on federal
conviction of mail fraud).
¶33 In my view, a conviction based
conduct that creates an unreasonable and
substantial risk of great bodily harm when
the defendant is aware of that risk is at
least as serious as the crimes that form the
bases for the suspensions above. Because I
conclude that the convictions at issue here
would justify substantially different
discipline in Wisconsin than has resulted in
Illinois and that SCR 22.22(3)(c) requires
this court to reject the parties'
stipulation on that basis, I respectfully
dissent.
¶34 I am authorized to state that
Justice N. PATRICK CROOKS joins in this
dissent.
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