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ATTORNEY disciplinary
proceeding. Attorney publicly
reprimanded.
¶1 PER CURIAM. We review the report
and recommendation of the referee, Richard
C. Ninneman, approving a stipulation filed
by the Office of Lawyer Regulation (OLR) and
Attorney Eric S. Brittain regarding Attorney
Brittain's professional misconduct in the
handling of two client matters. The OLR and
Attorney Brittain stipulate that Attorney
Brittain committed professional misconduct.
The referee concluded that the appropriate
sanction for the misconduct is a public
reprimand. Upon careful consideration, we
adopt the stipulated facts and the referee's
conclusions of law. We also agree that a
public reprimand is an appropriate level of
discipline, and we deem it appropriate to
order Attorney Brittain to pay the full
costs of the proceeding, which are $3,348.31
as of January 31, 2013.
¶2 Attorney Brittain was licensed to
practice law in Wisconsin in 2003, and most
recently practiced in Glendale, Wisconsin.
He has not previously been the subject of
professional discipline.
¶3 On June 5, 2012, the OLR filed a
complaint alleging four counts of misconduct
arising out of Attorney Brittain's
representation of clients in two criminal
matters. In the first matter, Attorney
Brittain was retained to defend V.K., who
was charged with misdemeanor battery and
disorderly conduct in Waukesha County.
Judge J. Mac Davis initially served as the
presiding judge in the matter.
¶4 On November 25, 2008, Attorney
Brittain appeared in court for the first day
of a scheduled jury trial and made an
opening statement on behalf of V.K. In the
course of the opening statement Attorney
Brittain told the jury, "I want to talk
about violence. And, well, what it is like
to be in an environment where people yell
and scream. And I know that environment
because I grew up in one, and my mom was
very erratic, very emotionally unstable."
Judge Davis immediately interrupted and
admonished Attorney Brittain that it was
inappropriate to reflect on personal matters
in an opening statement. After Judge Davis
asked that he refocus his remarks, Attorney
Brittain approached his client, put his
hands on his client's shoulders, and told
the jury, "I know . . . a brave man when I
see one."
¶5 Judge Davis immediately interrupted
again and admonished Attorney Brittain that
his conduct was inappropriate. Judge Davis
directed Attorney Brittain to return to the
lectern and instructed that he was not
allowed to vouch for his client and that he
should not put his hands on his client or
talk about his client's character in that
fashion.
¶6 Continuing his opening statement,
Attorney Brittain told the jury:
Imagine what it is to be
falsely accused of something, and to know
what a conviction would mean to you,
especially if you have a two-year[-]old son
and your wife is emotionally unstable and
erratic, and you're falsely accused, what
that means.
I'm going to tell you what
happened that day. I'm going to tell you
about [the defendant]. I'm going to do it
in the first person narrative as if I am
[the defendant] so that you can know what
happened.
¶7 Judge Davis again interrupted and
said the court would not allow Attorney
Brittain to make an opening statement in the
form of a first person narrative. After
Attorney Brittain said he would renew an
earlier motion seeking Judge Davis's recusal
based on alleged bias, Judge Davis excused
the jury. In the conference that followed
outside the presence of the jury, Judge
Davis said Attorney Brittain was raising his
voice and sticking his finger in the face of
the assistant district attorney who was
prosecuting the case. Attorney Brittain
disagreed with Judge Davis's statements. He
also continued to challenge rulings made by
Judge Davis as to the form of the opening
statement. Judge Davis reaffirmed his
earlier rulings and instructed Attorney
Brittain not to give any first person
remarks, not to vouch for his client's
credibility, and not to talk about his
personal life experiences.
¶8 After the jury returned to the
courtroom, Judge Davis sustained two more
objections by the assistant district
attorney based on Attorney Brittain making
inappropriate comments during his opening
statement. After Judge Davis sustained the
second objection, Attorney Brittain turned
to look at Judge Davis, paused, and then
said to the jury, "And so, [l]adies and [g]
entleman, under a lot of——a lot of
obstacles, we are here today."
¶9 After opening statements were
concluded, Judge Davis again excused the
jury and found Attorney Brittain in summary
contempt of court for the comment
about "obstacles." Judge Davis sanctioned
Attorney Brittain with a forfeiture of $50.
On February 16, 2009, the court entered the
written order of contempt against Attorney
Brittain based on the oral contempt order of
November 25, 2008. Attorney Brittain
appealed the contempt order. The court of
appeals affirmed Judge Davis's order holding
Attorney Brittain in contempt.
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¶10 The OLR's complaint alleged that by
injecting personal and irrelevant
information about himself during his opening
statement, Attorney Brittain violated SCR
20:3.4(e); by vouching for his client during
his opening statement, Attorney Brittain
violated SCR 20:3.4(e); and by suggesting in
his opening statement that Judge Davis was
creating "obstacles" to the defense,
Attorney Brittain engaged in conduct
intended to disrupt a tribunal, in violation
of SCR 20:3.5(d).
¶11 The other client matter detailed in
the OLR's complaint involved Attorney
Brittain's representation of R.C., who was
charged in Milwaukee County with burglary of
a building or dwelling. Judge Jean DiMotto
served as the presiding judge in the
matter. On November 11, 2009, the matter
came before Judge DiMotto on the defendant's
arraignment.
¶12 After Judge DiMotto had accepted the
defendant's not guilty plea and was prepared
to adjourn the proceeding, Attorney Brittain
initiated a further exchange with the court
regarding discovery demands, including a
request to have access to his client's
vehicle, which the City of Milwaukee Police
Department had impounded, for an expert
inspection. Because there were differences
between the parties as to the discovery
request concerning the vehicle and there was
no motion before the court on that issue,
Judge DiMotto told Attorney Brittain that
the issue was premature and that he should
bring a motion. Judge DiMotto then
indicated the proceeding was closed for the
day.
¶13 Raising his voice, Attorney Brittain
continued to attempt to address the court
about the discovery issues. He repeatedly
disregarded Judge DiMotto's instructions
that the case was done for the day and
said, "You[r] Honor, I believe your behavior
is inappropriate."
¶14 On the morning of December 17, 2009,
the matter came before Judge DiMotto for a
hearing on the defendant's motion to compel
discovery. During the hearing, again
raising his voice, Attorney Brittain asked
Judge DiMotto to recuse herself and called
her statements about his pattern of
behavior "ridiculous." Judge DiMotto
adjourned the hearing at approximately 10:45
a.m. The hearing on the motion reconvened
at 2:05 p.m. that afternoon. In opening the
afternoon portion of the hearing, Judge
DiMotto noted the time and said that the
parties "left on an adjourned basis about
10:45 [a.m.] perhaps this morning."
Attorney Brittain interrupted and objected
to Judge DiMotto's having characterized the
close of the morning's hearing as an
adjournment.
¶15 In support of his motion for
recusal, Attorney Brittain denied that he
had shouted at Judge DiMotto. He said Judge
DiMotto had engaged in behaviors which
were "inappropriate," that she had raised
her voice at him, and he suggested that
Judge DiMotto suffered from a physical or
health issue that affected her "ability to
be appropriate" and which could affect his
client's right to a fair trial.
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¶16 The OLR's complaint alleged that by
engaging in abusive, belligerent, and
obstreperous conduct directed at Judge
DiMotto in the course of representing his
client, Attorney Brittain engaged in conduct
intended to disrupt a tribunal, in violation
of SCR 20:3.5(d).
¶17 Attorney Brittain filed an answer on
July 24, 2012. On December 28, 2012, the
OLR and Attorney Brittain entered into a
stipulation whereby Attorney Brittain
admitted the allegations in the OLR's
complaint. The stipulation noted that the
OLR was requesting that this court publicly
reprimand Attorney Brittain. Attorney
Brittain indicated he did not oppose the
OLR's recommendation. On January 11, 2013,
the referee entered an order approving the
stipulation and recommending that the court
publicly reprimand Attorney Brittain for his
professional misconduct.
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¶18 This court will affirm a referee's
findings of fact unless they are clearly
erroneous, but conclusions of law are
reviewed de novo. See In re
Disciplinary
Proceedings Against Eisenberg, 2004 WI 14,
¶5, 269 Wis. 2d 43, 675 N.W.2d 747. This
court is free to impose whatever discipline
it deems appropriate, regardless of the
referee's recommendation. See in re
Disciplinary Proceedings Against Widule,
2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d
686.
¶19 After careful review of the record,
we adopt the referee's findings of fact and
conclusions of law. We also agree with the
referee that a public reprimand is an
appropriate level of discipline. We further
deem it appropriate to require Attorney
Brittain to pay the full costs of the
proceeding, which are $3,348.31.
¶20 IT IS ORDERED that Eric S. Brittain
is publicly reprimanded for professional
misconduct.
¶21 IT IS FURTHER ORDERED that within 60
days of the date of this order, Eric S.
Brittain shall pay the Office of Lawyer
Regulation the costs of this proceeding.
¶22 IT IS FURTHER ORDERED that the
director of the Office of Lawyer Regulation
shall advise the court if there has not been
full compliance with all conditions of this
order.
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