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ATTORNEY disciplinary proceeding.
Attorney's license suspended.
¶1 PER CURIAM. The Office of Lawyer
Regulation (OLR) has filed a complaint and
motion pursuant to SCR 22.22 asking this
court to impose reciprocal discipline
against Attorney Peter James Nickitas
identical to the 30-day suspension imposed
by the Supreme Court of Minnesota.
¶2 On September 16, 2013, in response
to the OLR's motion, this court issued an
order directing Attorney Nickitas to show
cause in writing by September 30, 2013, why
the imposition of discipline reciprocal to
that imposed by the Supreme Court of
Minnesota would be unwarranted. On
September 19, 2013, Attorney Nickitas filed
a response attaching a copy of a letter he
had previously sent to the OLR. Attorney
Nickitas does not object to the imposition
of reciprocal discipline; however, he
requests that the 30-day suspension be
applied retroactively so as to run
coterminous with the term of the Minnesota
suspension. On October 16, 2013, the OLR
filed a response opposing a retroactive
suspension. Upon review of the matter, we
decline to make the 30-day suspension
retroactive.
¶3 Attorney Nickitas was admitted to
practice law in Wisconsin in 1991. He is
also admitted to practice law in Minnesota.
His most recent address furnished to the
State Bar of Wisconsin is in Minneapolis,
Minnesota.
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¶4 Attorney Nickitas' professional
disciplinary history in Wisconsin consists
of a 90-day suspension imposed in 2006,
reciprocal to a similar suspension in
Minnesota. Attorney Nickitas' misconduct in
that case involved a consensual sexual
relationship with a client; entering into
multiple business transactions with a client
without written disclosure of the potential
conflicts and without providing for fair and
reasonable terms for his client; failing to
timely appeal a final judgment and
subsequently filing motions previously
decided by the unappealed judgment; and
failing to notify the OLR of the Minnesota
suspension. In re Disciplinary
Proceedings
Against Nickitas, 2006 WI 20, 289 Wis. 2d
18, 710 N.W.2d 464.
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¶5 On May 7, 2013, the Supreme Court of
Minnesota suspended Attorney Nickitas'
Minnesota law license for 30 days for
undertaking representation despite a
conflict of interest; engaging in
inappropriate conduct toward opposing
counsel; and bringing a claim in bad faith
and for an improper purpose. The Supreme
Court of Minnesota found that these actions
violated Rules 1.7(a)(2), 3.1, 4.4(a), and
8.4(d) of the Minnesota Rules of
Professional Conduct. Attorney Nickitas
admitted substantially all allegations and
agreed that a 30-day suspension was
appropriate.
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¶6 Supreme Court Rule 22.22(3) provides
that this court "shall impose the identical
discipline or license suspension
unless . . . the procedure in the other
jurisdiction was so lacking in notice or
opportunity to be heard as to constitute a
deprivation of due process"; "there was such
an infirmity of proof establishing the
misconduct . . . that the supreme court
could not accept as final the conclusion in
respect to the misconduct . . ."; or "the
misconduct justifies substantially different
discipline in this state."
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¶7 Attorney Nickitas has not alleged
that any of the three exceptions exist and,
as noted, he does not oppose the imposition
of reciprocal discipline. His only argument
is that the 30-day suspension in Wisconsin
should be made retroactive to the term of
the Minnesota suspension. In support of
this argument Attorney Nickitas says that
the United States District Court for the
Western District of Wisconsin reciprocally
suspended him from May 24, 2013 through June
30, 2013, and reinstated him upon the
conditional reinstatement by the Supreme
Court of Minnesota which occurred on June
20, 2013. He says at the time of the
Minnesota suspension he had one case pending
in Wisconsin circuit court and found
substitute counsel to handle that case for
him during the term of the Minnesota and
Western District suspensions. Attorney
Nickitas argues that to suspend him once
again in Wisconsin, after he had already
served a suspension in the Western District
and voluntarily withdrew from all pending
Wisconsin state cases for more than 30 days
as if he were suspended would be unfair and
would also prejudice a client he is
currently representing in both a Wisconsin
circuit court and federal court.
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¶8 The OLR opposes a retroactive
suspension, saying a lawyer's voluntary
cessation of practice does not result in the
court backdating the suspension. See,
e.g.,
In re Disciplinary Proceedings Against
Frank, 206 Wis. 2d 233, 241, 556 N.W.2d
717
(1996). The OLR argues that in the event
the suspension were not made retroactive,
this court would not be effectively doubling
the discipline since Attorney Nickitas had
the ability to continue to practice in
Wisconsin during the term of his Minnesota
suspension. The OLR says Attorney Nickitas'
purported voluntary cessation of practice in
Wisconsin during the term of the Minnesota
suspension does not warrant retroactive
application of the suspension imposed by
this court. We agree with the OLR's
reasoning. Suspensions are generally not
imposed retroactively. There are no special
circumstances in this case that would
warrant a retroactive suspension.
¶9 IT IS ORDERED that the license of
Peter James Nickitas to practice law in
Wisconsin is suspended for a period of 30
days, effective April 18, 2014.
¶10 IT IS FURTHER ORDERED that Peter
James Nickitas 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.
¶11 IT IS FURTHER ORDERED that
compliance with all conditions of this order
is required for reinstatement. See SCR
22.28
(2).
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