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ATTORNEY disciplinary
proceeding. Attorney's license
suspended.
¶1 PER CURIAM. This is the sixth
disciplinary proceeding involving Attorney
Alan D. Eisenberg. In this matter Attorney
Eisenberg has appealed from the report of
the referee, Attorney John R. Decker, in
which the referee recommended that the
period of ineligibility for Attorney
Eisenberg to petition for reinstatement from
the prior revocation of his license to
practice law be extended for a period of two
years, and that Attorney Eisenberg be
ordered to pay the full costs of this
disciplinary proceeding, which were
$27,689.29 as of November 19, 2012.
¶2 After fully reviewing this matter,
we reject Attorney Eisenberg's arguments on
appeal. We accept the referee's findings of
fact and agree that those facts provide
clear, satisfactory, and convincing evidence
that Attorney Eisenberg committed five
violations of the Rules of Professional
Conduct for Attorneys. We further agree
with the referee that those violations
require the imposition of an additional two-
year suspension, which shall run consecutive
to the existing five-year period in which
Attorney Eisenberg is prohibited from
petitioning for the reinstatement of his
license to practice law in Wisconsin due to
the prior revocation of his license. We
also determine that Attorney Eisenberg
should be required to pay the full costs of
this proceeding.
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¶3 Attorney Eisenberg was admitted to
the practice of law in this state in 1966.
He has been the subject of professional
discipline on five prior occasions. In 1970
this court suspended Attorney Eisenberg's
license for a period of one year due to his
unprofessional conduct. In re
Disciplinary
Proceedings Against Eisenberg, 48 Wis. 2d
364, 180 N.W.2d 529 (1970) (Eisenberg I).
In 1988 we imposed a two-year suspension for
a lengthy list of ethical violations,
including multiple false statements. In
re
Disciplinary Proceedings Against
Eisenberg,
144 Wis. 2d 284, 423 N.W.2d 867 (1988)
(Eisenberg II). In 1996 Attorney
Eisenberg
received a public reprimand for failing to
close out a client trust account and thereby
to wrap up his law practice during the
suspension imposed in Eisenberg II.
Public
Reprimand of Alan D. Eisenberg, No. 1996-3
(Eisenberg III). In 2004 we again
suspended
Attorney Eisenberg's license for a period of
one year for misconduct that included, among
other things, directing his staff to
fabricate billing records, which he then
incorporated into an affidavit that he
personally signed, disrupting an
administrative hearing with "rude, abusive,
controlling, [and] disrespectful" behavior,
and entering into a prohibited transaction
with a client. In re Disciplinary
Proceedings Against Eisenberg, 2004 WI 14,
¶¶19 and 24-25, 269 Wis. 2d 43, 675 N.W.2d
747 (Eisenberg IV). Finally, in 2010 we
revoked Attorney Eisenberg's license for
misconduct in filing and maintaining a
frivolous lawsuit that served merely to
harass or maliciously injure the opposing
party. In re Disciplinary Proceedings
Against Eisenberg, 2010 WI 11, 322 Wis. 2d
518, 778 N.W.2d 645 (Eisenberg V).
Under
this court's rules, Attorney Eisenberg will
not be eligible to petition for the
reinstatement of his license until April 1,
2015. See SCR 22.29(2) ("A petition for
reinstatement of a license that is revoked
may be filed at any time commencing five
years after the effective date of
revocation.").
¶4 The OLR filed its complaint in this
matter in February 2009. The proceedings
before the referee did not move forward for
a period of time given the pendency of the
disciplinary proceeding that resulted in the
Eisenberg V decision. Attorney
Eisenberg
subsequently filed two motions to dismiss
this matter, but both were denied by the
referee. He also filed a motion in this
court requesting that Referee Decker be
disqualified and that a new referee be
appointed to decide the disqualification
issue. This court denied his request for
the appointment of a different referee to
decide the disqualification motion and
referred the recusal/disqualification motion
to Referee Decker for a decision. The
referee subsequently denied that motion.
After the passage of a considerable amount
of time between sessions of an evidentiary
hearing, the referee issued his report and
recommendation. Attorney Eisenberg
appealed, and oral argument on his appeal
was conducted in November 2012.
¶5 The OLR's complaint in this
proceeding relates to two separate
representations. The referee ultimately
found the following facts regarding the
underlying matters.
¶6 In the first matter, Attorney
Eisenberg represented a man, T.H., regarding
the euthanization of a pet dog. Prior to
undertaking this representation, Attorney
Eisenberg had previously represented a
plaintiff dog owner in a civil action
against a neighbor, an off-duty police
officer who had shot the plaintiff's dog.
Attorney Eisenberg had argued on behalf of
the plaintiff in that case that the
plaintiff dog owner had a legal claim for
negligent infliction of emotional distress.
This court ultimately ruled in that case
that the plaintiff could not state a claim
for negligent infliction of emotional
distress because such a claim requires that
the person seeking compensation must have
witnessed the death of a close relative, and
under the law of this state a pet dog is
considered the personal property of the
owner and not a close relative. Rabideau
v.
City of Racine, 2001 WI 57, 243 Wis. 2d
486,
627 N.W.2d 795. From his work on the
Rabideau case, Attorney Eisenberg was
aware
of the legal categorization of pet dogs as
personal property.
¶7 T.H. had formerly been married to
S.H., and they had owned a Labrador
retriever during their marriage. After T.H.
moved out of the family residence and while
the divorce proceeding was pending, the dog
resided with S.H. and the couple's son, but
not with T.H. S.H. and T.H. entered into a
marital settlement agreement (MSA), which
was ultimately incorporated into the
judgment of divorce. In the MSA, T.H.
expressly agreed that S.H. would be awarded,
inter alia, all "personal belongings
and
other personal property currently in her
possession at the time of the final
hearing," and that T.H. was divested of any
right or legal interest in any of the
property awarded to S.H. This MSA was never
modified. The dog was therefore awarded to
S.H. in the divorce judgment.
¶8 S.H. had the dog euthanized at a
veterinary hospital in August 2000. T.H.
learned of this fact a short time later. He
then retained Attorney Eisenberg regarding a
potential claim.
¶9 Despite his knowledge of the legal
characterization of pet animals as personal
property and of the terms of the MSA and the
divorce judgment, which awarded all personal
property in her possession to S.H., Attorney
Eisenberg filed a large-claim civil action
on T.H.'s behalf on the theory that T.H. was
the lawful owner of the dog. Although the
referee found that the initial belief in
Attorney Eisenberg's office was that S.H.
had been responsible, with or without her
mother's assistance, for the euthanization
of the dog, Attorney Eisenberg did not name
S.H. as a defendant. Apparently for
strategic reasons Attorney Eisenberg named
B.S., who was S.H.'s mother and T.H.'s
former mother-in-law, as the sole
defendant.
¶10 Attorney Eisenberg subsequently
claimed that the veterinary hospital had
told him that it had been B.S. who (1) had
brought the dog to the hospital, (2) had
falsely claimed that she was the owner, and
(3) had demanded that the dog be
euthanized. The referee found that this
claim was "incredible and false." Attorney
Eisenberg also claimed that S.H. had
admitted to him in a later telephone
conversation that her mother had been the
individual responsible for the euthanization
of the dog. The referee also found this to
be a "fabrication" by Attorney Eisenberg.
¶11 In April 2001 counsel for B.S.
sought to take the deposition of T.H., but
was unable to do so because T.H. refused to
answer counsel's questions and Attorney
Eisenberg refused to instruct T.H. to
answer. B.S.'s counsel attempted to resolve
the discovery dispute in a telephone call
with Attorney Eisenberg, but Attorney
Eisenberg continued to refuse to instruct
his client to answer. Instead, Attorney
Eisenberg questioned opposing counsel about
the facts of the case and then hung up after
calling opposing counsel a liar.
¶12 B.S. was forced to bring a motion to
compel discovery. Attorney Eisenberg did
not appear for the hearing on the motion.
Instead, 25 minutes after the scheduled
start time for the hearing, Attorney
Eisenberg called an associate attorney in
his firm who had graduated from law school
just one month earlier and instructed her to
appear in his stead. Consequently, the
court and opposing counsel were forced to
wait 35 minutes before the associate reached
the courtroom. The circuit court granted
the motion to compel and ordered that
Attorney Eisenberg pay the opposing side's
costs and attorney fees, including the fees
for the 35 minutes spent waiting for
Attorney Eisenberg or his associate to
appear.
¶13 When the deposition of T.H. resumed,
B.S.'s counsel presented T.H. with
documentation from the veterinary hospital
which showed that S.H., not his former
mother-in-law, had signed the consent form
for the dog to be euthanized. T.H.
indicated that he had never seen the form
before and acknowledged that it
made "everything irrelevant." T.H. also
acknowledged that the dog had bitten people
in a few incidents over the years and that
he had been convicted on a municipal charge
of cruelty to animals for an incident
involving the dog.
¶14 The circuit court ultimately granted
B.S.'s summary judgment motion and dismissed
the case. Finding that both T.H. and
Attorney Eisenberg had no basis in law or
fact to assert that T.H. had any ownership
interest in the dog at the time it had been
euthanized, the circuit court also ruled
that the action had been frivolous and
ordered Attorney Eisenberg and T.H. to pay
B.S. the sum of $3,680.70, plus costs.
Ultimately, in September 2001 this sanction
order was reduced to a judgment in the
amount of $3,785.70 against Attorney
Eisenberg and T.H., jointly and severally.
¶15 Attorney Eisenberg did not make any
payments toward the judgment for a number of
years. He initially filed a motion for
reconsideration, which was denied. He then
filed an appeal, which was dismissed as
untimely. Almost five years after the
judgment had been entered, Attorney
Eisenberg filed a motion to vacate and
dismiss the judgment because he wanted "to
do certain things financially" and "to move
on with certain things in his life." That
motion was denied, and the denial was upheld
on appeal. Finally, in January 2008, more
than six years after the entry of the
sanction order and judgment, Attorney
Eisenberg tendered a check to B.S. in
satisfaction of the judgment.
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¶16 On the basis of these facts, the
referee concluded that by alleging that T.H.
was the "owner" of the dog when T.H. had
agreed to relinquish any claim to ownership
in the MSA and the divorce judgment,
Attorney Eisenberg knowingly advanced a
factual position where the basis for doing
so was frivolous, in violation of SCR 20:3.1
(a)(2). Second, the referee determined that
Attorney Eisenberg had violated SCR 20:3.4
(a) and (d) by encouraging his client to
make objections to legally proper questions
in his deposition, by disrupting the
deposition with deceitful and inflammatory
representations about the examining
attorney, and by opposing a motion to compel
discovery in bad faith. Finally, the
referee concluded that Attorney Eisenberg's
failure to comply with the court's sanction
order and judgment for a period of several
years constituted a violation of SCR 20:3.4
(c).
¶17 The second matter at issue in this
disciplinary proceeding involves Attorney
Eisenberg's financial arrangement with a
nonlawyer in the representation of a
claimant in a worker's compensation
proceeding. Under the applicable statutes
and the rules of the Department of Workforce
Development (DWD), nonlawyers are permitted
to represent worker's compensation claimants
in negotiating settlements with insurers and
to appear before an administrative law judge
(ALJ) on behalf of a claimant if they meet
certain requirements, including obtaining a
license from the DWD. Wis. Stat. § 102.17(1)
(c). A nonlawyer who does not have the
necessary license or meet the requirements
must work with a licensed attorney, who
represents the claimant. If multiple
attorneys have represented a claimant in
succession and they are unable to agree on
how the fees are to be allocated, it is the
ALJ who allocates fees among the various
attorneys. When an attorney is involved,
the DWD directs fees to be paid only to
attorneys. Thus, nonattorney individuals
who are not authorized to appear before an
ALJ and who work on a worker's compensation
matter must have an affiliation with an
attorney of record and receive compensation
from the attorney.
¶18 J.M.Z. was an unlicensed medical
doctor who provided case management and
evaluation services for a number of law
firms and lawyers. Because he was not
authorized to appear before an ALJ in
worker's compensation matters, he worked
with claimants in such matters in
conjunction with licensed attorneys. He
apparently referred a worker's compensation
claimant, G.M., to a law firm where he
worked. The lawyer with whom J.M.Z. worked
on such cases subsequently left the firm and
started his own firm. J.M.Z. also
subsequently left that firm and developed a
referral relationship with the lawyer in his
new practice. One of the cases that J.M.Z.
referred from the prior firm to the lawyer's
new firm was G.M.'s case. A dispute,
however, developed between J.M.Z. and the
lawyer over J.M.Z.'s belief that the lawyer
was not paying him the amounts J.M.Z.
believed he was owed on referred cases,
including G.M.'s worker's compensation case.
¶19 Ultimately, J.M.Z. ceased working
with the attorney and developed an
association with Attorney Eisenberg.
Although J.M.Z. was not a lawyer, Attorney
Eisenberg testified in this disciplinary
proceeding that J.M.Z. had "pulled" G.M.'s
case out of the other lawyer's firm and had
brought the case along with him to Attorney
Eisenberg's firm. Attorney Eisenberg was
then substituted as counsel of record. He
testified, however, that "there was almost
nothing left that needed to be done" on the
case and that "[a]ll my office did was busy
work."
¶20 When G.M.'s claim was settled, the
prior attorney filed an attorney's lien
against the settlement proceeds. According
to Attorney Eisenberg, J.M.Z. told Attorney
Eisenberg that he wanted to get the money he
thought was owed to him. A letter, dated
September 4, 2007, which Attorney Eisenberg
described as a "letter of protection," was
sent under Attorney Eisenberg's handwritten
signature to advise the ALJ of Attorney
Eisenberg's and J.M.Z.'s claim against the
settlement monies under a statutory lien for
attorney fees. The September 4, 2007 letter
was received by the ALJ the following day.
The September 4, 2007 letter described the
history of G.M.'s case and its travels
through the various law firms. It stated
that J.M.Z. had actually done the lion's
share of the work on G.M.'s case, much of
which had occurred prior to J.M.Z.'s
affiliation with Attorney Eisenberg.
Although Attorney Eisenberg has acknowledged
that his firm was required to do very little
work on the case, the final paragraph of the
letter argued that his firm should receive
the overwhelming majority of the legal
fees. That paragraph also describes an
agreement between Attorney Eisenberg and
J.M.Z. regarding G.M.'s case:
For the above reasons, it seems most
equitable that the Law Offices of Alan D.
Eisenberg receive all but $1,000.00 in legal
fees and $250.00 in costs, or a net amount
of $23,288.29. Please note that the present
agreement between Attorney Alan D. Eisenberg
and [J.M.Z.] involves a 50/50 split between
them once a matter has been adjudicated and
settled. This is identical to the former
agreement between [J.M.Z.] and [the prior
attorney].
¶21 Apparently still upset with the
prior attorney, J.M.Z. sent a copy of
Attorney Eisenberg's September 4, 2007
letter to the OLR apparently as part of his
complaint about the prior attorney. After
speaking with J.M.Z. about his arrangements
with the various attorneys, an OLR
investigator sent a letter to Attorney
Eisenberg regarding the investigator's
contact with J.M.Z. and Attorney Eisenberg's
relationship with J.M.Z. In a subsequent
telephone conversation involving the OLR
investigator, Attorney Eisenberg and J.M.Z.,
Attorney Eisenberg denied, contrary to the
statement in his September 4, 2007 letter,
that there was a fee-splitting agreement
between himself and J.M.Z.
¶22 Two days after this telephone
conversation, Attorney Eisenberg sent a
second version of the "letter of protection"
(the September 26, 2007 letter) to the ALJ.
The referee found that this September 26,
2007 letter was identical to the first
letter, with the sole exception that the
final two sentences referring to the 50/50
fee split between J.M.Z. and Attorney
Eisenberg and between J.M.Z. and the prior
attorney had been deleted. This letter was
also received by the ALJ.
¶23 In subsequent communications with
the OLR's investigator, Attorney Eisenberg
claimed that he had never entered into any
fee-splitting agreement with J.M.Z., that he
had not dictated the September 4, 2007
letter, that no rough draft of that letter
had ever been given to him for review, and
indeed that the September 4, 2007 letter had
been voided and never sent to the ALJ.
¶24 The referee explicitly and
specifically found that Attorney Eisenberg's
denial of having entered into a fee-
splitting agreement with J.M.Z. and his
claim that the September 4, 2007 letter had
not been sent to the ALJ were false. The
referee further found that, although there
indeed had been a fee-splitting agreement,
which had been communicated to the ALJ,
there was no evidence that fees had actually
been split between Attorney Eisenberg and
J.M.Z. pursuant to their agreement after its
existence had been disclosed to the OLR.
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¶25 Based on these facts regarding the
representation of G.M. and the resulting OLR
investigation, the referee concluded that
Attorney Eisenberg had committed two
violations of the Rules of Professional
Conduct for Attorneys. First, by agreeing
to serve as a conduit to share fees that he
did not earn with a nonlawyer, and by
agreeing to split fees on a 50/50 basis with
a nonlawyer, Attorney Eisenberg violated SCR
20:5.4(a), which is enforced via SCR 20:8.4
(a). Second, by falsely stating to the OLR
that he had never entered into a fee-
splitting agreement with J.M.Z. and that his
September 4, 2007 letter had never been sent
to the ALJ, Attorney Eisenberg violated SCR
22.03(6), which is enforced via SCR 20:8.4
(h).
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¶26 In his report the referee also
commented on Attorney Eisenberg's conduct
and demeanor during the disciplinary
proceedings before the referee. The referee
noted that Attorney Eisenberg gave multiple
varying accounts of a number of events,
which often tended to minimize his own
involvement and to cast blame on others.
The referee commented that Attorney
Eisenberg had on numerous occasions leveled
inaccurate criticisms against the OLR's
director and the attorney representing the
OLR, even making a false accusation that the
OLR's counsel had made a false statement to
the referee. The referee found that the
statement made by OLR's counsel was
supported by deposition testimony and
documentary evidence. In addition, the
referee stated that Attorney Eisenberg
had "attempted to engineer a false picture
of the proceedings" by making numerous false
claims on the record, including that OLR's
counsel and the referee had mocked and
laughed at him during the evidentiary
hearing. The referee further found that
Attorney Eisenberg had leveled untrue and
unfair attacks on B.S. in an unsuccessful
attempt to discredit her. Moreover, as in
other cases, the referee noted that Attorney
Eisenberg had repeatedly complained that he
was being singled out for harsh treatment by
the OLR, going so far as to claim that the
OLR was engaged in a "jihad" against him.
The referee summarized Attorney Eisenberg's
attitude and conduct throughout this
disciplinary proceeding as follows: "In
sum, [Attorney] Eisenberg refused to
acknowledge any fault or wrongdoing
whatsoever, and remained accusatory,
hostile, and defiant throughout."
¶27 With respect to the appropriate
level of discipline, the referee rejected
Attorney Eisenberg's argument that the
claims against him were de minimis
and
should not result in any discipline. The
referee concluded that Attorney Eisenberg's
violations were not based on mere
technicalities, but to the contrary, were
serious and substantive ethical violations.
The referee also concluded that the OLR's
request for a six-month extension of the
period of ineligibility to seek
reinstatement was not sufficiently supported
by authority and was insufficient under the
facts of this case.
¶28 The referee conducted his own review
of prior disciplinary cases and concluded,
based on those precedents, that a two-year
extension of Attorney Eisenberg's
ineligibility to seek reinstatement was a
proper level of discipline in this case. As
support for this recommendation, the referee
discussed a substantial number of prior
decisions, including, inter alia,
In re
Disciplinary Proceedings Against Horvath,
219 Wis. 2d 334, 579 N.W.2d 240 (1998), in
which an attorney who had been disciplined
on three prior occasions and whose license
remained suspended received an additional
two-year suspension for repeatedly engaging
in deceitful conduct and failing to
cooperate in a disciplinary investigation,
and In re Disciplinary Proceedings Against
Ratzel, 218 Wis. 2d 423, 578 N.W.2d 194
(1998), in which an attorney who had been
disciplined on three prior occasions was
suspended for two years for making
fraudulent claims in litigation and making
misrepresentations to the Board of Attorneys
Professional Responsibility (BAPR) during
its investigation.
¶29 Finally, the referee recommended
that Attorney Eisenberg be ordered to pay
the full costs of the disciplinary
proceeding.
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¶30 Attorney Eisenberg has appealed from
the referee's report and recommendation.
Our consideration of his appeal and our
review of the referee's findings of fact,
conclusions of law, and sanction
recommendation are conducted according to
long-established standards. Specifically,
we affirm a referee's findings of fact
unless we determine them to be clearly
erroneous, but we review the referee's
conclusions of law on a de novo basis. In
re Disciplinary Proceedings Against
Inglimo,
2007 WI 126, ¶5, 305 Wis. 2d 71, 740 N.W.2d
125. We establish the appropriate level of
discipline in light of the particular facts
of each case, independent of the referee's
recommendation, but benefiting from it.
In
re Disciplinary Proceedings Against
Widule,
2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d
686.
¶31 Attorney Eisenberg's appellate brief
in this court frames the issue on appeal
broadly as whether the referee's
recommendation of an additional two years of
ineligibility to petition for reinstatement
should be approved and adopted by this
court. He does not present any narrower
subissues nor does he organize his various
contentions about this case into discrete
arguments. For the sake of organization, we
will separate his various assertions, to the
extent possible, into matters of process and
matters of substance.
¶32 On the procedural side of the
ledger, Attorney Eisenberg levels several
criticisms against the referee. First, he
points to a number of quotations from the
referee's report, in which the referee
stated, inter alia, that many of
Attorney
Eisenberg's statements in this proceeding
were willfully false, that Attorney
Eisenberg had engaged in "calculated and
repetitive efforts to confuse and confound,"
and that the referee in his decades as a
practicing attorney and referee had never
encountered "a more evasive, inconsistent,
deceitful, and untruthful witness."
¶33 Attorney Eisenberg also complains
about an incident where the referee missed a
hearing, which then had to be rescheduled.
Attorney Eisenberg asserts that this
incident required him to sit in pain
unnecessarily while waiting with a witness
he had brought to the hearing. This
incident was also part of Attorney
Eisenberg's prior interlocutory
disqualification motion in this court.
¶34 Although Attorney Eisenberg points
to these facts in his brief and oral
argument, he never develops any legal
argument from the facts. His previous
motion sought disqualification of the
referee because of the referee's alleged
bias against Attorney Eisenberg, but he does
not develop any such argument in his
appeal. He cites no legal authority of any
sort regarding the standard for
disqualifying a judge or referee due to
bias. He never explains how the facts that
he cites prove that the referee was biased
against him under the applicable standard.
We therefore will not address this matter
further because we will not develop Attorney
Eisenberg's legal argument for him.
¶35 Attorney Eisenberg also criticizes
the OLR and its retained counsel in this
proceeding. First, he implies that the OLR
has pursued this and other disciplinary
cases against him because of some vendetta.
He contends that he has become the "OLR's
piñata." With respect to OLR's counsel, he
contends that during the evidentiary hearing
opposing counsel laughed at and mocked him.
¶36 Attorney Eisenberg also asserts that
the OLR has informed him that it is
withholding nine more counts of misconduct,
which it intends to pursue in the event that
he would petition for the reinstatement of
his license. Citing only an unpublished
court of appeals opinion in a criminal case
that addressed the withholding of requested
evidence, Attorney Eisenberg contends that
the OLR's failure to pursue those nine
additional charges in this proceeding
violates his due process rights.
¶37 We find no merit to any of Attorney
Eisenberg's complaints regarding the OLR and
its counsel as they pertain to this
disciplinary proceeding. We see no evidence
that the OLR is pursuing disciplinary cases
against Attorney Eisenberg simply because of
who he is. Each of the prior disciplinary
cases against Attorney Eisenberg brought by
the OLR or its predecessor, BAPR, resulted
in findings of misconduct and the imposition
of professional discipline by this court.
Pursuing a meritorious case in this instance
against Attorney Eisenberg is not an invalid
exercise of prosecutorial discretion.
¶38 We further note that in response to
Attorney Eisenberg's claim that OLR's
counsel had laughed at him and mocked him,
the referee indicated that he had not
observed any such conduct and that Attorney
Eisenberg's claim was false. The referee
cited this claim as one example of Attorney
Eisenberg's attempt to "engineer a false
picture of the proceedings."
¶39 With respect to the alleged
additional counts that the OLR is
purportedly withholding until Attorney
Eisenberg files a petition for
reinstatement, we note that Attorney
Eisenberg has not provided factual support
for his claim. Even if his contention is
accurate, any due process claim regarding
the timeliness of prosecuting those claims
would relate only to those claims, if they
were ever pursued. Attorney Eisenberg never
explains how any delay in prosecuting those
other nine claims, which are not before this
court, affects his due process rights with
respect to the five counts of misconduct
that the OLR has pursued and that are before
the court in this proceeding. There simply
can be no due process violation in this case
due to the timeliness of other charges of
professional misconduct that have not been
alleged in this case.
¶40 Attorney Eisenberg's arguments
regarding the substance of the referee's
report are similarly without merit. He
pursues essentially two substantive
arguments in his brief. First, he merely
repeats his version of the facts. For
example, he again claims that he was unaware
of the language in the September 4,
2007 "letter of protection," that he signed
the letter in haste, and that he withdrew
the letter three weeks later. He therefore
implies that he never actually had a fee-
splitting agreement with J.M.Z., as the
letter states. His factual claims, however,
including his assertions regarding the fee-
splitting letter of protection, were
expressly rejected by the referee. Attorney
Eisenberg is obligated to demonstrate how
the referee's factual findings were clearly
erroneous. He has not even attempted to do
so. Simply repeating his version of the
facts in the face of the referee's clear and
unambiguous adverse findings of fact has no
appellate worth.
¶41 After conducting our review, we find
no basis to conclude that the referee's
findings of fact are clearly erroneous, with
one minor exception that has no bearing on
whether Attorney Eisenberg engaged in
professional misconduct. The referee
expressly found that the September 4, 2007
and September 26, 2007 letters signed by
Attorney Eisenberg were identical, except
for the deletion of the final two sentences,
which set forth the fee-splitting agreements
between J.M.Z. and Attorney Eisenberg and
between J.M.Z. and the previous attorney.
While much of the earlier parts of the two
letters are the same, there are some other
differences, although those differences are
not relevant to the fee-splitting charge at
issue in this disciplinary case. Thus, with
the exception of the finding that the two
letters were identical but for the deletion
of the last two sentences, we accept and
adopt the referee's findings of fact.
¶42 The other substantive argument that
can be gleaned from Attorney Eisenberg's
brief and oral argument is that any
violations in these two representations were
de minimis, and therefore should not
be
treated as violations. First, whether the
violations were insubstantial would bear on
the level of discipline that should be
imposed, not on whether the findings of fact
demonstrate that Attorney Eisenberg
committed the rule violations. Second, we
disagree that the violations charged in this
proceeding are de minimis. Alleging
and
pursuing a frivolous claim and then engaging
in bad faith tactics designed to frustrate
the opponent's discovery and defense of that
claim are serious ethical violations.
Moreover, while Attorney Eisenberg did
ultimately satisfy the cost judgment imposed
on him for the frivolous claim against B.S.
in an amount that was substantially greater
than the original judgment, his refusal to
pay that cost judgment for years signified a
cavalier disregard for the circuit court's
orders. Finally, agreeing to split fees
with a nonlawyer and then lying to
investigators about that agreement is
clearly more than a technical violation.
¶43 We note that while Attorney
Eisenberg attempts to downplay the
seriousness of his misconduct, he has not
explicitly argued that the facts as found by
the referee do not satisfy the elements of
the charges against him. Our review of the
matter leads us to agree with the referee
that the facts of this case clearly and
convincingly support a conclusion of
misconduct on each of the five counts at
issue.
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¶44 We turn now to the question of the
proper level of discipline. Of great
importance to this issue is the fact that
this is the sixth time that Attorney
Eisenberg has been the subject of
professional discipline due to misconduct.
Moreover, there is a recurring pattern of
behavior and disregard for the rules that
govern the privilege of practicing law in
this state. This is not the first time that
Attorney Eisenberg has been found to have
commenced sham or frivolous litigation. It
is also not the first time that he has
provided false statements to the regulatory
authorities investigating his conduct.
Indeed, even during the course of this
disciplinary proceeding, the referee found
that Attorney Eisenberg had repeatedly
changed his story on several issues in an
apparent attempt to avoid discipline for his
misconduct. The referee found that his
claims were nothing more than fabrications.
Further, as we noted above, the misconduct
we have found in this case is serious and
represents a flagrant misuse of the law and
the position of attorney for self-serving
ends. Finally, Attorney Eisenberg has not
demonstrated an acceptance of responsibility
or remorse for his misconduct. To the
contrary, as the referee pointed out, he has
attempted to place blame on everyone else,
including the OLR's counsel and the referee,
and to minimize the seriousness of his
misconduct. We therefore agree with the
referee that our prior precedents and the
particular facts of this case warrant
imposing a two-year suspension, which shall
run consecutive to the period of
ineligibility required by the prior
revocation of Attorney Eisenberg's license
to practice law in this state.
¶45 Finally, we address the issue of the
costs of this proceeding. Attorney
Eisenberg submitted two letters in response
to the OLR's initial statement of costs, in
which he made unsupported claims regarding
the OLR's attorney fees and the referee's
fees. He asked for mediation or arbitration
regarding the OLR's fees or for an
evaluation of the OLR's and the referee's
fee invoices by a third party. A portion of
Attorney Eisenberg's brief in this court and
a significant part of his oral argument was
also directed to arguing that he should not
have to pay any costs. However, when the
OLR filed its supplemental statement of
costs after oral argument, Attorney
Eisenberg did not lodge any objection.
¶46 In addition to claiming that the
referee's and the OLR's fees were inflated,
Attorney Eisenberg also contends that there
was no need for much of the OLR's and the
referee's work because the OLR claimed that
his defenses to the charges in this
proceeding were frivolous. He claims that
he offered to voluntarily refrain from ever
seeking the reinstatement of his license,
which would have eliminated the need for any
further fees, but the OLR refused his
offer. He further states that he has no
financial resources to pay any cost award.
¶47 The general policy of this court,
absent extraordinary circumstances, is to
impose the full costs of a disciplinary
proceeding on the attorney whose misconduct
necessitated the proceeding. SCR 22.24
(1m). An attorney who objects to a
statement of costs filed by the OLR must
state, with specificity, the bases for the
objection and must also provide an amount
that he/she believes to be reasonable under
the circumstances. SCR 22.24(2). Attorney
Eisenberg has not complied with either
requirement. He makes only broad,
unsupported assertions and never indicates
what he believes to be a reasonable amount
of costs. Moreover, to the extent that
Attorney Eisenberg contends that some
expenses incurred by the OLR's counsel or
the referee were unnecessary because the OLR
claimed his defenses were without merit, we
note that Attorney Eisenberg continued to
litigate this matter aggressively, cross-
examining the OLR's witnesses, calling his
own witnesses and appealing the referee's
report and recommendation to this court.
One cannot litigate aggressively and then
criticize the opposing party for doing the
same. We therefore find no extraordinary
circumstances that would warrant deviating
from our general policy. To the extent that
Attorney Eisenberg contends that he is
financially unable to pay the costs of this
proceeding, he has provided no proof of his
financial situation. He may provide
financial information to the OLR and
negotiate a payment plan with that agency.
¶48 IT IS ORDERED that the license of
Alan D. Eisenberg to practice law in
Wisconsin is suspended for a period of two
years, effective April 1, 2015.
¶49 IT IS FURTHER ORDERED that within 60
days of the date of this order, Alan D.
Eisenberg shall pay to the Office of Lawyer
Regulation the costs of this proceeding.
¶50 IT IS FURTHER ORDERED that, to the
extent he has not already done so, Alan D.
Eisenberg shall comply with the provisions
of SCR 22.26 concerning the duties of a
person whose license to practice law in
Wisconsin has been suspended or revoked.
¶51 IT IS FURTHER ORDERED that
compliance with all conditions of this order
is required for reinstatement. See SCR
22.28
(3).
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