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ATTORNEY disciplinary proceeding.
Attorney's license suspended.
¶1 PER CURIAM. Attorney Wendy Alison
Nora appeals from the report of the referee,
Attorney Lisa C. Goldman, who found that
Attorney Nora had committed four violations
of the Rules of Professional Conduct for
Attorneys and recommended that Attorney
Nora's license to practice law in Wisconsin
be suspended for one year.
¶2 Having heard oral argument and
having fully reviewed this matter, we
conclude that the referee's factual findings
are not clearly erroneous and that those
findings support the legal conclusion that
Attorney Nora committed the four counts of
professional misconduct alleged in the
Office of Lawyer Regulation's (OLR) amended
complaint. We further determine that the
serious nature of Attorney Nora's misconduct
and her continued refusal to acknowledge her
improper use of the judicial system requires
a one-year suspension of her license to
practice law in this state.
¶3 Attorney Nora was admitted to the
practice of law in this state in June 1975.
She was also licensed to practice law in the
state of Minnesota in 1985. She currently
practices law under the name Access Legal
Services in Minneapolis, Minnesota.
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¶4 Attorney Nora has been the subject
of professional discipline in this state on
one prior occasion. In 1993 this court
suspended Attorney Nora's license to
practice law in Wisconsin for 30 days, as
discipline reciprocal to that imposed by the
Supreme Court of Minnesota. In re
Disciplinary Proceedings Against Nora, 173
Wis. 2d 660, 495 N.W.2d 99 (1993) (Nora
I).
¶5 The allegations of misconduct in
this case arise out of a foreclosure action
in the Dane County circuit court against a
residential property owned by Attorney Nora
(the foreclosure action) and three
subsequent civil actions filed by Attorney
Nora against the circuit court judge and
opposing counsel involved in the foreclosure
action. An understanding of some of the
procedural history of the foreclosure
action, as found by the referee or which is
undisputed, is necessary to understand the
misconduct findings against Attorney Nora.
¶6 On March 3, 2009, the law firm of
Gray and Associates, S.C. (the Gray firm)
filed a foreclosure action against Attorney
Nora's residential property on behalf of
Residential Funding Corporation (RFC), which
was a related entity of GMAC Mortgage Group
LLC. Shortly after the initiation of the
foreclosure action, the law firm of Bass &
Moglowsky, S.C. (the Bass firm) also
appeared as co-counsel on behalf of RFC.
Judge Juan B. Colas was assigned to preside
over the foreclosure action.
¶7 In July 2009, after Attorney Nora
had filed a number of motions and an answer
to the complaint, Attorney David Potteiger
of the Bass firm filed a motion for summary
judgment on the issue of the foreclosure of
the mortgage by RFC.
¶8 In August 2009 there were
discussions between Attorney Nora and
RFC/GMAC regarding the execution of a
possible Foreclosure Repayment Agreement
(the Agreement) that RFC/GMAC had offered to
Attorney Nora. The following facts were
found by the referee based on Attorney
Nora's admission of the facts alleged in the
OLR's amended complaint, either through
admissions in Attorney Nora's answer to the
amended complaint or through an oral
admission during argument on OLR's motion
for summary judgment.
¶9 On August 23, 2009, Attorney Nora
executed a copy of the Agreement, but she
had modified a number of material terms.
Specifically, she had written into the
Agreement that she reserved the right to
challenge the amount that remained due on
the note and that she also reserved the
right to assert counterclaims against
RFC/GMAC.
¶10 After consulting with his client, on
August 25, 2009, Attorney Potteiger
"informed [Attorney] Nora in writing that
the reservation of her counterclaims found
in [Attorney] Nora's Foreclosure Repayment
Agreement counteroffer was rejected" and
that "no settlement offer existed."
Specifically, Attorney Potteiger explained
in an affidavit that he had sent an email to
Attorney Nora at 4:20 p.m. on August 25,
2009, advising her of his client's rejection
of her counteroffer. At the time that the
referee held a hearing on the OLR's summary
judgment motion, Attorney Nora did not claim
that she had failed to receive Attorney
Potteiger's August 25, 2009 email.
¶11 At approximately 9:44 a.m. on August
26, 2009, Attorney Nora sent a letter and a
copy of the Agreement to Judge Colas via
facsimile transmission. Her letter said
that as a result of the Agreement,
proceedings in the foreclosure action "are
stayed." Even if the Agreement was not then
in effect, Attorney Nora's letter implied
that an agreement was imminent, which still
required the foreclosure action to be
stayed. The referee found that this was a
knowing misrepresentation, as Attorney Nora
knew when she sent the letter that her
counteroffer had been rejected and the offer
of an Agreement had been withdrawn by RFC.
¶12 On September 21, 2009, Judge Colas
denied Attorney Nora's request to schedule
oral argument on RFC's summary judgment
motion, but extended the time for her to
file a response until October 1, 2009.
Rather than file a summary judgment
response, however, three days before that
response was due Attorney Nora filed a
personal bankruptcy petition, which stayed
the foreclosure action.
¶13 The bankruptcy stay was lifted on
December 18, 2009, which meant that the
remaining few days to file a response to the
summary judgment motion in the foreclosure
action resumed running. Attorney Nora,
however, did not file a response to RFC's
summary judgment motion. On January 6,
2010, Attorney Potteiger notified Judge
Colas in writing (with a copy to Attorney
Nora) that the bankruptcy stay had been
lifted. Attorney Potteiger sent a
subsequent letter to Judge Colas indicating
that, in light of the lifting of the stay
and Attorney Nora's failure to file a
response, the court could consider the
summary judgment motion as being unopposed.
Between January 14-22, 2010, Attorney Nora
filed a number of motions and what she
labeled as a "verified response" to the
summary judgment motion. On February 9,
2010, Judge Colas granted RFC's motion for
summary judgment allowing foreclosure of
Attorney Nora's residential property. He
struck Attorney Nora's "verified response"
both because it was untimely and because it
was a "mixture of argument, motions, and
allegations of fact" rather than a brief
with properly developed arguments and
supporting affidavits. Attorney Nora did
not appeal the grant of summary judgment of
foreclosure.
¶14 On February 22, 2010, after the
grant of summary judgment, Attorney Nora
filed a request in the foreclosure action
seeking accommodations on account of an
alleged disability. She subsequently
requested Judge Colas to appoint a guardian
ad litem (GAL) for her. On March 29, 2010,
Judge Colas denied Attorney Nora's request
for reconsideration of his order granting
summary judgment of foreclosure to RFC and
her request for the appointment of a GAL.
His order noted that all essential legal
work in the case had concluded prior to
Attorney Nora's request for an accommodation
or the appointment of a GAL, that she had
failed to present evidence meeting the
standard for the appointment of a GAL, and
that she had offered no legal authority for
applying her accommodation and GAL requests
retroactively to allow her to relitigate the
summary judgment motion. Judge Colas denied
a subsequent motion by Attorney Nora in
which she sought reconsideration of the
denial of her request for a GAL and sought
the recusal of Judge Colas.
¶15 On November 15, 2010, almost eight
months after Judge Colas had granted summary
judgment against Attorney Nora, she sued him
personally in the United States District
Court for the Western District of Wisconsin
(the Western District Court), alleging that
he had violated the Americans with
Disabilities Act (ADA), as revised. Her
claim essentially was that Judge Colas had
violated her federal statutory rights to
disability accommodations due to an alleged
back injury by not granting her extensions
of time to respond to RFC's filings in the
foreclosure action. As part of her request
for relief, she asked the federal court to
remove Judge Colas from the foreclosure
action and to vacate the summary judgment
order of foreclosure. Within a week of
filing the federal complaint against Judge
Colas, she filed a motion in the state
foreclosure action to disqualify Judge Colas
from continuing to preside on the ground
that he was now an adverse party to Attorney
Nora in a lawsuit. Attorney Nora ultimately
dismissed the federal action in March 2011.
¶16 The referee found that there had
been no good faith basis for Attorney Nora's
federal ADA claim against Judge Colas.
Attorney Nora alleged that in the state
foreclosure action, he had denied her
disability accommodations, but the referee
found that she had not asked Judge Colas for
disability accommodations prior to his grant
of summary judgment nor had she properly
responded to RFC's summary judgment motion
despite having months to do so. Moreover,
although Attorney Nora claimed that she had
initiated the federal action in order to
obtain disability accommodations in the
foreclosure action, the referee stated that
Attorney Nora admitted that she was no
longer experiencing a disability at the time
she filed the federal action, as evidenced
by the fact that she never sought disability
accommodations in the federal action. The
referee found that Attorney Nora's federal
action against Judge Colas, especially her
request that the federal court remove him
from the foreclosure action and void the
grant of summary judgment, had not been
brought for a legitimate purpose, but rather
to harass Judge Colas and to obstruct the
foreclosure of her property.
¶17 On November 29, 2010, the day before
the scheduled sheriff's sale of her Madison
property and two weeks after she had
initiated her federal lawsuit against Judge
Colas, Attorney Nora sent an email to
Attorney Potteiger, the Bass firm, another
lawyer, and the Gray firm, threatening to
sue them in federal court if they did not
cancel the sheriff's sale. She filed a
federal complaint in the Western District
Court the same day alleging, among other
things, that the opposing attorneys had
violated the federal Racketeer Influenced
and Corrupt Organizations Act (RICO), by,
among other things, creating a fraudulent
assignment of her mortgage and note to RFC
and bringing the foreclosure action based on
those fraudulent assignments. In her prayer
for relief, Attorney Nora asked the federal
court essentially to void the state court
foreclosure judgment and to award her title
to her home free and clear of any lien by
RFC and GMAC. She also sought an injunction
against the sheriff's sale and what the
referee characterized as "exorbitant"
compensatory and punitive damages.
¶18 Some of the defendant attorneys and
law firms were forced to hire counsel to
defend against Attorney Nora's complaint.
On September 30, 2012, the Western District
Court granted the defendants' motions to
dismiss, holding that Attorney Nora's claims
were barred by both the Rooker-Feldman
doctrine and claim preclusion. Attorney
Nora appealed, and the United States Court
of Appeals for the Seventh Circuit affirmed.
¶19 The referee in this disciplinary
case found that, based on Attorney Nora's 40
years of experience as an attorney and her
comments during the summary judgment
hearing, she understood the Rooker-
Feldman
doctrine before she filed any of her federal
court actions. The referee further found
that Attorney Nora did not have a good faith
basis for filing the RICO district court
action against the defendants in the Western
District Court and that she had filed that
action in order to harass them for taking
away her Madison residence.
¶20 On March 18, 2013, nearly six months
after the Western District Court had ruled
that her claims against her former opposing
counsel could not be brought in federal
court, Attorney Nora filed an adversarial
proceeding against many of the same
defendants in a bankruptcy proceeding in the
United States Bankruptcy Court for the
Southern District of New York (the Southern
District Bankruptcy Court). The referee
found that the allegations in Attorney
Nora's complaints in the RICO district court
action and the Southern District adversarial
proceeding were almost identical, that
Attorney Nora knew that the adversarial
proceeding was barred by the Rooker-
Feldman
doctrine, and that she had initiated the
adversarial proceeding to harass her former
opposing counsel and to reverse the state
court foreclosure judgment.
¶21 After nearly eight months, Attorney
Nora dismissed her Southern District
adversarial proceeding as part of a
settlement with the defendant attorneys and
law firms. The referee found that the
defendant attorneys spent a considerable
amount of time and money defending both the
RICO district court action and the Southern
District adversarial proceeding.
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¶22 On the basis of these factual
findings, either as admitted by Attorney
Nora or as found by the referee after an
evidentiary hearing, the referee concluded
that the OLR had proven all four counts of
misconduct alleged in its amended complaint
by clear, satisfactory, and convincing
evidence. Specifically, the referee
determined with respect to Count 2 that
Attorney Nora's August 26, 2009, facsimile
transmission to Judge Colas alleging that
her execution of a modified version of the
Agreement stayed the foreclosure action
constituted a false statement of material
fact made to a tribunal, in violation of SCR
20:3.3(a)(1). On Count 1, the referee
concluded that in bringing the federal
lawsuit against Judge Colas, Attorney Nora
had knowingly advanced a claim that was
unwarranted under existing law (or a good
faith argument for an extension,
modification, or reversal of the law) and
had filed a suit when she knew that the
action would serve merely to harass or
maliciously injure another, in violation of
SCR 20:3.1(a). With respect to Counts 3 and
4, the referee also concluded that Attorney
Nora's two federal complaints against her
former opposing counsel had likewise
constituted violations of SCR 20:3.1(a).
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¶23 Citing the factors that this court
has set forth for analyzing the appropriate
level of discipline, the referee recommended
that the court suspend Attorney Nora's
license to practice law in this state for a
period of one year. The referee
acknowledged that other attorneys have
committed more numerous violations, but
stated that Attorney Nora's "violations
involving an aggressive strategy to harm
others warrant a suspension necessitating a
petition for reinstatement so some
investigation into her ability to conform
her litigation tactics to appropriate
boundaries occurs." The referee compared
Attorney Nora's misconduct to the filing and
maintaining of a frivolous lawsuit that
resulted in this court imposing a six-month
suspension. In re Disciplinary
Proceedings
Against Widule, 2003 WI 34, 261 Wis. 2d
45,
660 N.W.2d 686. Unlike Attorney Widule,
however, Attorney Nora had a prior
disciplinary suspension for misconduct
(dishonesty and improper litigation tactics)
that the referee concluded was similar to
the misconduct at issue in the present
proceeding. Consequently, the referee
believed that a more severe level of
discipline was warranted for Attorney Nora.
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¶24 When we review a referee's report,
we will affirm a referee's findings of fact
unless they are found 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 determine the appropriate level of
discipline to impose given the particular
facts of each case, independent of the
referee's recommendation, but benefiting
from it. Widule, 261 Wis. 2d 45, ¶44.
¶25 Nearly all of Attorney Nora's
arguments on appeal focus on challenges to
the procedures that the OLR and the referee
followed, both prior to and during this
disciplinary case. The only real challenge
to the substance of the referee's report is
found at the very end of Attorney Nora's
opening brief, where she asserts that the
evidence was insufficient to support the
referee's conclusions of misconduct on Count
1 (Judge Colas lawsuit), Count 3 (RICO
district court action), and Count 4
(Southern District adversarial proceeding).
Before turning to her various procedural
arguments, we will analyze the referee's
conclusions of violations on all four
counts, as that impacts some of Attorney
Nora's procedural arguments.
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¶26 First, we address Count 2. We agree
with the referee that summary judgment on
this count was appropriate. Attorney Nora
admitted all of the allegations in the OLR's
amended complaint, either in her answer or
during argument on the OLR's summary
judgment motion. Specifically, she admitted
that (1) she had changed a material term in
the offer by writing in a reservation of her
claims against the lender and (2) on the day
before she faxed her letter to Judge Colas,
Attorney Potteiger "informed [her] in
writing that the reservation of her
counterclaims found in [Attorney] Nora's
Foreclosure Repayment Agreement counteroffer
was rejected." Attorney Potteiger's
informing her of that fact necessarily
included that she had received his writing
(i.e., his email). Attorney Nora's claim
after summary judgment on Count 2 that she
had not received his email is therefore
unavailing. Her admissions demonstrate that
her letter to Judge Colas contained a
knowingly false statement.
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¶27 Further, Attorney Nora's receipt of
Attorney Potteiger's August 25, 2009 email
is unnecessary to uphold the violation of
SCR 20:3.3(a)(1). Like all law students,
Attorney Nora knew that making material
revisions to a contract offer and then
signing the revised contract offer does not
constitute an acceptance of the offer, but
rather creates a counteroffer that the other
party must affirmatively accept before there
is an agreement. See, e.g., Schwartz
v.
Handorf, 7 Wis. 2d 228, 236, 96 N.W.2d 366
(1959); Fricano v. Bank of America NA,
2016
WI App 11, ¶29, 366 Wis. 2d 748, 875 N.W.2d
143 (". . . an acceptance that varies the
terms of the offer constitutes a rejection
and a counteroffer"). She therefore knew at
the time of her facsimile transmission to
Judge Colas, even without regard to whether
she had received Attorney Potteiger's reply
email, that she had no binding contract.
The assertion in her letter that the
foreclosure action was therefore stayed
because of the Foreclosure Repayment
Agreement was a false statement of fact that
Attorney Nora knew to be false.
Accordingly, we accept the referee's
conclusion of a violation of SCR 20:3.3(a)
(1).
¶28 With respect to Attorney Nora's
federal action against Judge Colas, the
referee found that Attorney Nora had not had
a legitimate purpose for filing the
complaint and that she had done so in order
to harass Judge Colas and obstruct the
foreclosure action. Attorney Nora attacks
these findings only by making a general
allegation that the evidence was
insufficient to support a violation and by
asserting that Judge Colas was not protected
by judicial immunity because her request for
retroactive extensions of time due to an
alleged disability were administrative
matters. She does not specifically allege
that the referee's findings are clearly
erroneous.
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¶29 Attorney Nora's assertion about a
lack of judicial immunity, however, is
irrelevant. The referee did not find that
her federal action against Judge Colas was
without merit because he was immune from
suit. The referee found that Attorney Nora
claimed she brought the suit because she
wanted to obtain disability accommodations,
but she did not seek such accommodations
from Judge Colas before he granted summary
judgment against her and she no longer
needed accommodations when she initiated the
federal action. Moreover, the referee found
that Attorney Nora brought the federal claim
against Judge Colas not to gain disability
accommodations, but as a way to force him
off the foreclosure action and to undo his
prior summary judgment ruling, which was
included in her prayer for relief in the
federal action. Given the facts as found by
the referee, we agree that Attorney Nora's
federal action against Judge Colas, at least
to the extent it sought his disqualification
and the vacation of the summary judgment in
the state foreclosure action, was
unwarranted under existing law and was
clearly pursued in an attempt to harass or
maliciously injure another, in violation of
SCR 20:3.1(a).
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¶30 Attorney Nora also alleges that
there was insufficient evidence to support
Counts 3 and 4 regarding her RICO actions
against her former opposing counsel. She
asserts that attorneys who actively
participate in conspiracies that violate
RICO are liable for damages to an injured
party. As in her complaint against Judge
Colas, however, her complaints against her
opposing counsel were not simply seeking an
award of damages, but were attempts to
attack the foreclosure judgment
collaterally. According to the referee,
Attorney Nora initially tried in this
proceeding to present certain arguments as
to why her RICO complaints had been brought
in good faith under existing law, but she
then abandoned those arguments when she
filed her post-hearing brief. The referee
concluded that Attorney Nora lacked
credibility in her claims, that she
understood the Rooker-Feldman doctrine
based
on her own assertions of experience with it,
that she filed the federal RICO actions for
the ulterior purpose of undoing or avoiding
the state foreclosure judgment despite her
knowledge that the doctrine prohibits
subsequent federal actions from overturning
prior state court judgments, and that she
pursued the federal RICO actions to harass
her former opponents. Tellingly, Attorney
Nora does not dispute in her briefs that her
federal RICO actions were intended to undo
or avoid the foreclosure judgment or that
she knew the Rooker-Feldman doctrine
prevented the federal courts from
invalidating that judgment. Accordingly, we
agree with the referee that, based on the
referee's findings, there is sufficient
evidence to conclude that Attorney Nora
violated SCR 20:3.1(a) by pursuing the two
RICO actions against her former opposing
counsel, as alleged in Counts 3 and 4.
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¶31 We now turn to Attorney Nora's
arguments challenging the process by which
the OLR conducted its investigation and
charging decision. She initially argues
that this disciplinary proceeding violated
her rights to free speech and to petition
the government under the First Amendment to
the United States Constitution and Article
I, § 4 of the Wisconsin Constitution because
the OLR intended to punish her on behalf of
her litigation opponents. We reject her
claims. First, she offers absolutely no
evidence to support her bare claim that the
OLR intended to punish her. Second,
Attorney Nora fails to recognize that there
is no First Amendment right to violate
ethical rules in litigation that prohibit
attorneys from making false statements to
tribunals and from using court proceedings
to harass or maliciously injure presiding
judges or opposing counsel. See, e.g.,
Zauderer v. Office of Disciplinary Counsel
of Supreme Court of Ohio, 471 U.S. 626,
638
(1985) ("The States and the Federal
Government are free to prevent the
dissemination of commercial speech that is
false, deceptive, or misleading."); Gertz
v.
Robert Welch, Inc., 418 U.S. 323, 340
(1974)
("But there is no constitutional value in
false statements of fact."); McCoy v.
Court
of Appeals of Wisconsin, Dist. 1, 486 U.S.
429, 436 (1988) ("Neither paid nor appointed
counsel may deliberately mislead the court
with respect to either the facts or the law,
or consume the time and the energies of the
court or the opposing party by advancing
frivolous arguments."); Florida Bar v.
Sayler, 721 So. 2d 1152 (Fla. 1998) ("The
First Amendment does not protect those who
make harassing or threatening remarks about
the judiciary or opposing counsel.").
¶32 Attorney Nora also asserts that she
was deprived of due process and equal
protection during the investigation
conducted by the OLR. Specifically, she
alleges that the OLR violated her due
process rights by improperly using and re-
disclosing her medical information to the
Preliminary Review Panel (PRP). We need not
decide the merits of her claims in the
context of this disciplinary proceeding.
We conclude that this situation is similar
to a claim of error at a preliminary hearing
in a criminal case, which we have refused to
decide when there has been a proper
subsequent trial. State v. Webb, 160
Wis.
2d 622, 628, 467 N.W.2d 108 (1991) ("We do
not decide the question of whether there was
error at the preliminary hearing in this
case, because we hold that a conviction
resulting from a fair and errorless trial in
effect cures any error at the preliminary
hearing."). Similarly, to the extent that
Attorney Nora is alleging an error or
impropriety in the investigation phase, we
conclude that the subsequent holding of a
proper disciplinary hearing cured any
arguable error.
¶33 Attorney Nora also alleges that her
due process rights were violated in the
charging decision. Specifically, she points
to the fact that Attorney Edward A. Hannan,
who was the chair of the Preliminary Review
Committee (PRC), had a conflict of interest
because he was representing parties who were
adverse to Attorney Nora in a civil action
pending in the Waukesha County circuit court
(Bank of America, N.A. v. Brown,
Waukesha
County Case No. 2011CV3333).
¶34 Attorney Nora is not entitled to any
relief regarding this allegation.
Initially, we note that this argument was
raised for the first time on appeal, and we
generally do not address the merits of
untimely issues, especially where raising
the issue could have allowed the parties or
the tribunal to take action to eliminate the
ground for the objection. Terpstra v.
Soiltest, Inc., 63 Wis. 2d 585, 593, 218
N.W.2d 129 (1974). We decline to do so
here.
¶35 Attorney Nora also claims that this
disciplinary proceeding must be invalidated
in its entirety because the referee,
Attorney Lisa C. Goldman, was biased against
her. As examples of this alleged bias,
Attorney Nora points to various decisions
and rulings by Referee Goldman that were
adverse to, and even critical of, Attorney
Nora's requests or positions. Mere adverse
rulings or critical statements based on a
judicial officer's consideration of a
litigant's arguments or evidence and the
officer's experience with a litigant during
a proceeding, however, are usually not
sufficient to demonstrate bias on behalf of
the presiding judicial official. See,
e.g.,
Liteky v. United States, 510 U.S. 540,
555
(1994) ("First, judicial rulings alone
almost never constitute a valid basis for a
bias or partiality motion. . . . Second,
opinions formed by the judge on the basis of
facts introduced or events occurring in the
course of the current proceedings, or of
prior proceedings, do not constitute a basis
for a bias or partiality motion unless they
display a deep-seated favoritism or
antagonism that would make fair judgment
impossible. Thus, judicial remarks during
the course of a trial that are critical or
disapproving of, or even hostile to,
counsel, the parties, or their cases,
ordinarily do not support a bias or
partiality challenge."). We also disagree
with Attorney Nora's claim that Referee
Goldman demonstrated bias by becoming an
advocate for the OLR rather than a neutral
and detached magistrate. The record does
not support this assertion.
¶36 Attorney Nora also alleges that
Referee Goldman demonstrated bias by
comparing Attorney Nora's continuing
practice of law to a criminal who keeps
committing crimes after charges have already
been filed. This claim, however, is not
accurate because it takes the referee's
statement out of context. The referee never
called Attorney Nora a criminal or compared
her to a criminal. It is clear from the
context of the referee's statement, which
was made in the course of denying the OLR's
motion for leave to file an amended
complaint to add new, unrelated counts, that
the referee believed such an amendment at
that point in the case would interfere with
the efficient resolution of this ongoing
proceeding. The referee was simply
reasoning by analogy to the question of
amending criminal complaints to add new
alleged crimes. Her point was that when
there can be a new criminal charge based on
conduct that occurred after the initial
criminal complaint has been filed, courts
usually require prosecutors to initiate a
second criminal proceeding rather than
delaying a pending criminal case through an
amendment of that complaint. The referee's
comments about this procedural issue evince
no animus toward Attorney Nora.
¶37 Finally, Attorney Nora claims that
the referee admitted her bias because in her
decision denying Attorney Nora's second
motion for disqualification, the referee
stated that she had "not acted impartially."
This argument borders on the frivolous, as
it is clear from the surrounding text that
the inclusion of the word "not" was an
unintended, typographical error. The
referee unambiguously rejected Attorney
Nora's claims that she was biased. There is
no legal basis for this court to find
otherwise.
¶38 In the end, we find no basis in the
record to overturn Referee Goldman's
subjective determination that she could be
fair in her duties or to conclude that
Referee Goldman was objectively biased.
¶39 We have considered the rest of
Attorney Nora's arguments alleging
prosecutorial misconduct by the OLR and
erroneous procedures by the referee. We
conclude that they are without legal merit,
although we will not address them
specifically in this opinion.
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¶40 We turn now to the issue of the
appropriate sanction for the four counts of
misconduct that we have found. We agree
with the referee's analysis of Attorney
Nora's misconduct in comparison to the
misconduct that resulted in a six-month
suspension for Attorney Widule. Unlike
Attorney Widule, Attorney Nora has been
disciplined previously for misconduct, some
of which was similar in nature. Moreover,
her misconduct in this case is aggravated by
the fact that it was not an isolated
occurrence, but rather was a pattern of
multiple instances of misconduct that
stretched over a substantial period of time.
In addition, her misconduct was not based on
her failure to do something, but on her
affirmative and aggressive attempts to use
the judicial system to obstruct the
foreclosure of her property and to harass
those she apparently deemed responsible for
the loss of that property. She has offered
no basis for this court to conclude that she
recognizes her misconduct or that she would
change her tactics in similar circumstances
in the future. Accordingly, we conclude
that the misconduct at issue here requires a
more severe level of discipline than we
imposed on Attorney Widule. We determine
that a one-year suspension of Attorney
Nora's license to practice law in Wisconsin
is necessary and appropriate under these
circumstances.
¶41 Finally, it seems apparent that
Attorney Nora believes that she must
personally fight abuses or improprieties in
the real estate lending industry. A
lawyer's fight for any cause, however noble
one might think it to be, must be conducted
within the ethical rules that govern the
lawyer's conduct. Attorney Nora must
demonstrate that she understands this
principle and can conform her conduct to the
applicable ethical rules before she may
return to the practice of law in this state.
¶42 IT IS ORDERED that the license of
Wendy Alison Nora to practice law in
Wisconsin is suspended for a period of one
year, effective April 30, 2018.
¶43 IT IS FURTHER ORDERED that the
issues of restitution and the assessment of
costs shall continue to be held in abeyance
for resolution at a subsequent time after
the automatic stay arising from Attorney
Nora's bankruptcy proceeding has been
lifted.
¶44 IT IS FURTHER ORDERED that Wendy
Alison Nora 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.
¶45 IT IS FURTHER ORDERED that
compliance with all conditions of this order
is required for reinstatement from the
suspension imposed herein.
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