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ATTORNEY disciplinary proceeding.
Attorney's license suspended.
¶1 PER CURIAM. We review a report and
recommendation of Referee William Eich
approving a stipulation filed by the Office
of Lawyer Regulation (OLR) and Attorney
Michael D. Petersen. In the stipulation,
Attorney Petersen stipulated to the facts
underlying the nine counts of misconduct
alleged in the OLR's complaint and joined
the OLR in jointly recommending a one-year
suspension of Attorney Petersen's license to
practice law in Wisconsin. The referee
agreed that a one-year suspension was an
appropriate sanction for Attorney Petersen's
misconduct.
¶2 Upon careful review of the matter,
we uphold the referee's findings of fact and
conclusions of law and agree that a one-year
suspension is an appropriate sanction. As
is our normal practice, we also find it
appropriate to impose the full costs of this
disciplinary proceeding, which are $2,110.29
as of May 24, 2017, on Attorney Petersen.
Since Attorney Petersen has already made
restitution to his client, the OLR does not
seek a restitution order.
¶3 Attorney Petersen was admitted to
practice law in Wisconsin in 2008. He
practices in Appleton. He has no prior
disciplinary history.
¶4 On March 21, 2016, the OLR filed a
complaint against Attorney Petersen alleging
nine counts of misconduct. Attorney
Petersen filed an answer on May 19, 2016.
The referee was appointed on June 6, 2016.
The parties' stipulation was filed on
October 21, 2016.
¶5 As part of the stipulation, Attorney
Petersen admitted the facts alleged in the
OLR's complaint. All nine counts of
misconduct arose out of Attorney Petersen's
representation of K.F. In November 2012,
K.F. retained Attorney Petersen to represent
him in two legal matters. K.F.'s father,
R.F., hired and paid Attorney Petersen and
assisted K.F. in communicating with Attorney
Petersen throughout the representation.
¶6 In May 2014, Attorney Petersen
reached a plea agreement with Outagamie
County Assistant District Attorney (ADA)
Andrew Maier whereby K.F. would plead to a
Class C felony – attempted armed robbery –
and two misdemeanor charges would be
dismissed. Attorney Petersen failed to
truthfully inform K.F. about the terms of
the state's plea offer.
¶7 K.F. decided he was willing to enter
a plea to a Class H felony – theft from a
person. The plea hearing was held on May
23, 2015. Attorney Petersen misled K.F. by
telling him to plead no contest to the Class
C felony and that the charge would be
amended after the hearing to a reduced
charge of the Class H felony. K.F. believed
he was entering a plea to the Class H
felony.
¶8 Immediately after the plea hearing,
when K.F. reviewed the paperwork provided to
him in court, K.F. called R.F., who was then
with Attorney Petersen, to inform them that
the charges and paperwork were incorrect.
Attorney Petersen assured K.F. and R.F. that
the charge would be amended within two
weeks.
¶9 Despite knowing that the charge
would not be amended, Attorney Petersen
repeatedly misrepresented to K.F. and R.F.
in the following months that he was working
with ADA Maier and the judge to obtain the
paperwork to get the charge amended.
¶10 On June 4, 2014, Attorney Petersen
told R.F. that the clerk of court had
amended the felony charge. This
representation was untrue. The following
day, R.F. emailed Attorney Petersen asking
for an update on the amended charge.
Attorney Petersen responded by email
informing R.F. that he had called ADA Maier
and ADA Maier was going to check on the
status of the amendment because that was
something only the district attorney could
file. Attorney Petersen's representation
was untrue as he had never called ADA Maier.
¶11 Attorney Petersen falsely
represented to R.F. that ADA Maier had
agreed in writing to amend the charge. He
claimed he had received an email from ADA
Maier and had forwarded it R.F. R.F. never
received any such email.
¶12 At a meeting on or about June 11,
2014, R.F. asked Attorney Petersen for a
copy of the email that Attorney Petersen
claimed he had received from ADA Maier
saying that ADA Maier had agreed to amend
the charges. Attorney Petersen provided
R.F. with a copy of an email he claimed he
received on June 6, 2014, in which ADA Maier
purportedly wrote, "After we talked this
morning and I reviewed the defendant's file,
the charge was amended down from a (sic)
Armed Robbery to theft from a Person as
PTAC." ADA Maier did not author this email,
nor had he agreed to amend K.F.'s
conviction. Attorney Petersen falsified the
ADA Maier email, which he provided to R.F.
¶13 On June 23, 2014, R.F. emailed
Attorney Petersen requesting an update on
the amended charges. In response, Attorney
Petersen spoke with R.F. and told him not to
be concerned about the amendment of the
charge. He said the district attorney had
processed the paperwork and it was with the
judge for processing. These representations
were untrue.
¶14 On June 24, 2014, Attorney Petersen
filed a motion for sentence credit. On July
10, 2014, the court signed an order granting
K.F.'s sentence credit.
¶15 On July 18, 2014, Attorney Petersen
sent R.F. an email saying he had talked
directly with the judge that morning and the
judge had assured Attorney Petersen that the
paperwork would be completed by the next
Friday. The email also said that ADA Maier
was available and that both Attorney
Petersen and ADA Maier had explained the
situation and lack of objections to amending
the charge to the judge. These
representations were untrue.
¶16 On more than one occasion in August
2014, R.F. sent Attorney Petersen emails
inquiring about the status of the amended
charge. Attorney Petersen did not respond
until August 22, 2104, when he emailed R.F.
saying he was waiting to hear from the court
about the amendment. Attorney Petersen
claimed, "the judge refuses to talk to me
about this case unless ADA Andrew Maier is
present, and he has been out of town
recently and returns tomorrow." These
representations were untrue.
¶17 On September 5, 2014, R.F. and
Attorney Petersen exchanged emails about
filing an appeal. R.F. asked Attorney
Petersen to call him because he had numerous
questions and was not sure if an appeal
should be filed if the amended charges would
soon be recorded. Attorney Petersen spoke
with R.F. and mentioned writing a letter to
the judge or the district attorney about the
delay.
¶18 On September 22, 2014, R.F. emailed
Attorney Petersen about the continued delays
and said he was considering contacting the
Attorney General, the State Bar, or the
judge directly. On September 26, 2014,
Attorney Petersen caused the clerk to
schedule a motion hearing on the court's
calendar for October 7, 2014, although no
corresponding motion was filed. Attorney
Petersen told R.F. that the purpose for the
hearing was to amend K.F.'s conviction.
Attorney Petersen later cancelled the
hearing and told R.F. that the matter could
be handled over the phone and that the
amended charge would soon appear in the
online court record. These representations
about the hearing were untrue.
¶19 On October 24, 2014, Attorney
Petersen sent R.F., via email, a document
entitled Order Amending Conviction and
Sentence. R.F. was not able to open the
email attachment. Attorney Petersen sent
the email from his personal account rather
than his law office account. Attorney
Petersen later told R.F. he had a signed
copy of the order amending the charges. On
October 31, 2014, R.F. went to Attorney
Petersen's office and picked up a document
entitled Order Amending Conviction and
Sentence. He took the document to the
Outagamie County courthouse to confirm it
had in fact been entered in K.F.'s case.
The clerk's office pointed out the order was
not filed stamped by the court. The clerk's
office spoke with the judge's judicial
assistant, who verified the purported order
was not in K.F.'s court file. After
speaking to the judge, the judicial
assistant called Attorney Petersen to
inquire about the order. Attorney Petersen
went to the courthouse and examined the
order but did not admit he had created it.
¶20 On October 31, 2014, Attorney
Petersen called R.F. R.F. told Attorney
Petersen it was odd that the order had not
been filed stamped by the court. Attorney
Petersen claimed the order copied for R.F.
had been in his mailbox at the courthouse on
October 24, 2014, and that the order had not
gone through and that Stanley Correctional
Institution had rejected the order because
it contained the word "modified" rather than
"amended."
¶21 On November 3, 2014, Attorney
Petersen wrote to the court to explain the
origins of the order. Attorney Petersen was
not truthful and did not admit he had
falsified the order. Instead, Attorney
Petersen claimed he had copied both an
unsigned version of the order and the
court's prior signed order for sentence
credit to give to R.F. and suggested that
the signature from the signed order had
somehow been transposed in the copying
process. Attorney Petersen said, " . . . it
is possible that I inadvertently created the
order. I do not believe anything criminal
was done by my client's father."
¶22 On November 4, 2014, the court
contacted the Appleton Police Department to
report a possible forgery. Sergeant Neal
Rabas was assigned to investigate the
matter.
¶23 On November 10, 2014, Attorney
Petersen met with R.F. at his office.
Unbeknownst to Attorney Petersen, R.F.
recorded the meeting. R.F. questioned
Attorney Petersen about the order given to
him and why it had still not been processed.
Attorney Petersen continued to lie, telling
R.F. there had been an error in the order,
which he had corrected. Attorney Petersen
claimed that he had submitted the corrected
order to ADA Maier for approval the previous
week and that he expected to find out from
ADA Maier that day whether it was approved
and, if so, Attorney Petersen would take it
to the judge for his signature.
¶24 On November 26, 2014, Attorney
Petersen was interviewed by police.
Attorney Petersen denied that he had copied
the judge's signature onto the October 24,
2014 order. Attorney Petersen told Sergeant
Rabas that he had given R.F. an unsigned
Order to Amend Conviction and Sentence and a
copy of the Order for Sentence Credit. When
Sergeant Rabas asked Attorney Petersen if he
thought R.F. had put the judge's signature
on the order, Attorney Petersen replied he
did not know and could not answer that.
¶25 During the interview with Sergeant
Rabas, Attorney Petersen said there was no
agreement with ADA Maier to amend K.F.'s
conviction and that it had become a moot
point. Sergeant Rabas questioned Attorney
Petersen about the email purportedly sent by
ADA Maier in June suggesting that the charge
was amended. Attorney Petersen claimed he
had received the email from ADA Maier but it
only meant the charge would be amended if
K.F. was not able to obtain the programming
he needed in prison. Attorney Petersen did
not admit that he had fabricated ADA Maier's
email.
¶26 Sergeant Rabas revealed to Attorney
Petersen that his November 10, 2014 meeting
was recorded and asked him to explain why he
was now saying there was no agreement to
amend the charge when he had repeatedly told
R.F. the charge would be amended. Attorney
Petersen ended the interview soon thereafter
and said he wanted to speak to an attorney.
¶27 On December 20, 2014, Sergeant Rabas
received a handwritten letter from Attorney
Petersen saying, "I phonied a document to
get Mr. F. off my back." The judge and his
judicial assistant received similar letters
from Attorney Petersen.
¶28 On August 11, 2015, for his conduct
in K.F.'s matter, Attorney Petersen was
charged with one misdemeanor count of
violating Wis. Stat. § 785.04(2)(a) –
contempt of court. On November 19, 2015,
Attorney Petersen pled no contest to the
charge and was convicted. See State
v.
Petersen, Outagamie County circuit court
case no. 2015CM878.
¶29 The OLR's complaint alleged the
following counts of misconduct:
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Count One: By failing to abide by
K.F.'s decision as to the terms of a plea
agreement he was willing to accept in
resolution of the charges against him, and
accepting a plea agreement that was not in
accordance with K.F.'s decision, Attorney
Petersen violated SCR 20:1.2(a).
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Count Two: By failing to truthfully
inform
K.F. about the terms of the State's plea
agreement offer, Attorney Petersen violated
SCR 20:l.4(b).
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Count Three: By misleading K.F.
that the
charge against him would be amended after his
conviction, Attorney Petersen violated SCR
20:8.4(c).
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Count Four: By making numerous
false
statements in emails and oral conversations to
R.F. over the course of five months, Attorney
Petersen violated SCR 20:8.4(c).
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Count Five: By falsifying an email
in order
to mislead R.F. to believe that ADA Maier had
acknowledged an agreement to amend K.F.'s
conviction, Attorney Petersen violated SCR
20:8.4(c).
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Count Six: By fabricating the
Order To Amend
Conviction and Sentence designed to mislead
R.F. and K.F. to believe that the court had
amended K.F.'s conviction, Attorney Petersen
violated SCR 20:8.4(c).
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Count Seven: By knowingly making a
false
statement of material fact to Judge Des
Jardins in the November 3, 2014 letter in
which he told Judge Des Jardins that he had
provided R.F. with an unsigned copy of the
Order Amending Conviction and Sentence and
offering a false explanation that the
appearance of the judge's signature on the
Order may have resulted from a copy machine
error, Attorney Petersen violated SCR
20:3.3(a)(l).
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Count Eight: By engaging in conduct
involving
dishonesty, fraud, deceit or misrepresentation
when he made false statements to the Appleton
Police Department in the course of its
investigation of the forged Order, Attorney
Petersen violated SCR 20:8.4(c).
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Count Nine: By committing a
criminal act that
reflects adversely on his honesty,
trustworthiness, and fitness as a lawyer
during the course of his representation of
K.F. that resulted in his conviction for
Contempt of Court in violation of Wis. Stat. §
785.04(2)(a), Attorney Petersen violated SCR
20:8.4(b).
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¶30 In the stipulation, Attorney
Petersen stated that he fully understands
the misconduct allegations; fully
understands the ramifications should the
court impose the stipulated level of
discipline; understands that he has the
right to consult with counsel; and states
that his entry into the stipulation is made
knowingly and voluntarily; and represents
his admission of all misconduct recited in
the complaint and his assent to the level
and type of discipline sought by the OLR
Director.
¶31 As previously noted, the parties
agreed that an appropriate level of
discipline for Attorney Petersen's
misconduct is a one-year suspension of his
license to practice law in Wisconsin. The
referee agreed.
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¶32 The referee's May 8, 2017 report and
recommendation found that the OLR met its
burden of proof with respect to all nine
counts of misconduct set forth above. In
discussing the appropriate level of
discipline, the referee noted a number of
aggravating factors. The referee said
Attorney Petersen did not engage in a single
lie to his client but instead told multiple
lies and fabricated documents to conceal
those lies. The referee also noted the
nature of the misconduct and Attorney
Petersen's attempt to shift the blame to
R.F., his client's father. In addition, the
referee pointed out that K.F. was
incarcerated and had placed his trust in
Attorney Petersen, who repeatedly told him
that the felony charges would be amended.
The referee also pointed out that Attorney
Petersen was criminally charged and
convicted of the misdemeanor offense of
contempt of court.
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¶33 With respect to mitigating factors,
the referee pointed out that Attorney Petersen
has no prior disciplinary record. The referee
noted that at the sentencing hearing in the
misdemeanor case, Attorney Petersen's counsel
indicated that Attorney Petersen had a
difficult childhood as the child of alcoholic
parents, with a resulting psychological or
psychiatric factor at play. While Attorney
Petersen sought psychological treatment after
the police became involved in the matter, the
referee noted there is no proof in the
disciplinary case that a medical condition was
causal of the misconduct.
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¶34 The referee said that a final
mitigating factor to be considered is the
imposition of other sanctions or penalties.
Attorney Petersen was sentenced to one year
of probation conditioned on 30 days in jail
with Huber privileges, with 25 of those days
stayed. Attorney Petersen was also ordered
to refund the $5,000 fee to R.F., and
Attorney Petersen was required to provide a
copy of the criminal complaint to every
client he dealt with in the next year, along
with a letter stating:
I am a crook. I am a cheat. I am a
thief.
I am a liar. I was convicted of a crime on
November 9th, 2015. My conviction resulted
from my intentional choice to sell my own
clients down the river and then trying to
cover it up. You may not hire me or have me
legally represent you in any fashion until
you read the Criminal Complaint and Judgment
of Conviction in my Outagamie County
Wisconsin Case no. 15-CM878. This
disclosure is required as one of the
conditions of my probation.
¶35 The referee discussed a number of
prior disciplinary cases that support the
imposition of a one-year suspension. Those
cases include In re Disciplinary
Proceedings
Against Siderits, 2013 WI 2, 345 Wis. 2d
89,
824 N.W.2d 812; In re Disciplinary
Proceedings Against Donovan, 211 Wis. 2d
451, 564 N.W.2d 772 (1997); and In re
Disciplinary Proceedings Against Spangler,
2016 WI 61, 370 Wis. 2d 369, 881 N.W.2d 35.
Attorney Siderits was suspended for one year
for five counts of misconduct, which
included falsifying billable time records in
order to qualify for bonus compensation.
Attorney Donovan received a six-month
suspension. While serving as an assistant
district attorney, Attorney Donovan forged
documents submitted in two cases in order to
assist the defendants in those cases. She
also pled no contest to two misdemeanor
counts of forgery. Attorney Spangler
received a six-month suspension for creating
fake documents in two cases to mislead his
clients into believing they had lawsuits
pending when one lawsuit had been dismissed
and the other had never been filed.
¶36 The referee said Attorney Petersen's
conduct was potentially worse than that of
Attorney Siderits because Attorney Petersen
lied to multiple people and was convicted of
illegal conduct directly related to his
practice of law. However, the referee noted
Attorney Petersen incurred the additional
penalty of having to notify prospective
clients of his criminal conviction and
having to provide them with a written
statement designed to discourage clients
from hiring him, effectively preventing him
or at least severely curtailing him from
practicing law. The referee thus concluded
that a one-year suspension was an
appropriate level of discipline. The
referee also recommends that Attorney
Petersen bear the full costs of the
proceeding.
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¶37 This court will adopt a referee
findings of fact, unless they are clearly
erroneous. 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. The court may impose
whatever sanction it sees fit, 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.
¶38 We adopt the referee's findings of
fact and conclusions of law that Attorney
Petersen violated the supreme court rules as
alleged in the nine counts set forth above.
We also agree with the referee that a one-
year suspension of Attorney Petersen's
license to practice law in Wisconsin is an
appropriate level of discipline for the
misconduct.
¶39 Since no two cases are precisely
identical, there is no standard sanction for
any particular misconduct. We agree with
the referee that Attorney Petersen's
misconduct is somewhat analogous to that in
Siderits, where a one-year suspension
was
also imposed. In addition, we also find
that the misconduct is somewhat similar to
that at issue in our recent decision in
Spangler. Like Attorney Spangler,
Attorney
Petersen created a series of false documents
to mislead his client about the status of
his case. Like Attorney Spangler, Attorney
Petersen's deception and lies to K.F. and
R.F. were a betrayal of the trust that the
F.s had placed in him. In addition,
Attorney Petersen tried to blame R.F. for at
least one of the forged documents.
Moreover, unlike Attorney Spangler, Attorney
Petersen's conduct also resulted in a
criminal conviction for contempt of court.
Accordingly, Attorney Petersen's conduct
warrants a suspension in excess of the six-
month suspension imposed in Spangler.
Thus,
we agree with the referee that a one-year
suspension of Attorney Petersen's license to
practice law in Wisconsin is necessary to
protect the public, the courts, and the
legal system from Attorney Petersen's
repetition of misconduct, to impress upon
him the seriousness of his misconduct, and
to deter other attorneys from engaging in
similar misconduct. We also deem it
appropriate, as is our usual custom, to
impose the full costs of this disciplinary
proceeding on Attorney Petersen. Since
Attorney Petersen has made restitution to
R.F., the OLR does not seek a restitution
award and we do not impose such an award.
¶40 IT IS ORDERED that the license of
Michael D. Petersen to practice law in
Wisconsin is suspended for a period of one
year, effective January 26, 2018.
¶41 IT IS FURTHER ORDERED that within 60
days of the date of this order, Michael D.
Petersen shall pay to the Office of Lawyer
Regulation the costs of this proceeding
which are $2,110.29 as of May 24, 2017.
¶42 IT IS FURTHER ORDERED that Michael
D. Petersen 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.
¶43 IT IS FURTHER ORDERED that
compliance with all conditions with this
order is required for reinstatement.
See
SCR 22.28(3).
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¶44 ANN WALSH BRADLEY, J.
(dissenting). Attorney Petersen's
misconduct was egregious. He repeatedly
lied to his client about the terms of the
State's plea offer. He told his client that
certain charges would be amended when
Attorney Petersen knew this was untrue. He
then falsified an email purportedly written
by an Assistant District Attorney in
furtherance of the lies and falsely reported
that the judge agreed with the amended
charges.
¶45 It gets worse. Attorney Petersen
apparently forged a judge's signature on a
fabricated court order, lied to the court
and to the police, all the while continuing
the lies to his client.
¶46 Given the nature and extent of
Attorney Petersen's misconduct, I conclude
that the one-year suspension imposed by the
per curiam opinion is too light.
¶47 Accordingly, I respectfully dissent.
¶48 I am authorized to state that
Justice SHIRLEY S. ABRAHAMSON joins this
dissent.
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