                                                             2014 WI 31

                  SUPREME COURT         OF   WISCONSIN
CASE NO.:              2011AP2758-D
COMPLETE TITLE:        In the Matter of Disciplinary Proceedings
                       Against Kenneth R. Kratz, Attorney at Law:

                       Office of Lawyer Regulation,
                                 Complainant,
                            v.
                       Kenneth R. Kratz,
                                 Respondent.



                            DISCIPLINARY PROCEEDINGS AGAINST KRATZ

OPINION FILED:         June 6, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:          ABRAHAMSON, C.J., concurs. (Opinion filed.)
   CONCUR/DISSENT:     PROSSER, J., concurs in part; dissents in part.
                       (Opinion filed.)
  NOT PARTICIPATING:

ATTORNEYS:
                                                                         2014 WI 31
                                                               NOTICE
                                                 This opinion is subject to further
                                                 editing and modification.   The final
                                                 version will appear in the bound
                                                 volume of the official reports.
No.    2011AP2758-D


STATE OF WISCONSIN                          :             IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Kenneth R. Kratz, Attorney at Law:

Office of Lawyer Regulation,                                        FILED
           Complainant,
                                                                JUN 6, 2014
      v.
                                                                  Diane M. Fremgen
                                                               Clerk of Supreme Court
Kenneth R. Kratz,

           Respondent.




      ATTORNEY     disciplinary      proceeding.        Attorney's         license

suspended.



      ¶1   PER    CURIAM.   We    review   the    report     of    the    referee,

Reserve Judge Robert E. Kinney, recommending the court suspend

Attorney Kenneth R. Kratz's license to practice law for a period

of four months.     No appeal has been filed.

      ¶2   We approve and adopt the referee's findings of fact

and conclusions of law.          We conclude that the seriousness of

Attorney     Kratz's   misconduct    warrants       a    four-month        license
suspension.      We require that Attorney Kratz pay the full costs
                                                                  No.   2011AP2758-D



of the proceeding, which totaled $23,904.10 as of August 20,

2012.

    ¶3       Attorney Kratz has been licensed to practice law in

Wisconsin since 1985.           He was appointed District Attorney of

Calumet County, Wisconsin, in 1992 and served in that position

until   he   resigned   in     October   2010.       Before   serving       as   the

Calumet County District Attorney, Attorney Kratz served as an

Assistant District Attorney in La Crosse, Wisconsin.

    ¶4       Attorney Kratz has no previous disciplinary history.

    ¶5       The   disciplinary      complaint     before   us,    filed    by   the

Office of Lawyer Regulation (OLR) on November 30, 2011,1 involves

allegations that Attorney Kratz sent inappropriate text messages

to a domestic abuse crime victim, S.V.G., while serving as the

prosecutor of the perpetrator of the domestic abuse crime.                       The

complaint further alleges that Attorney Kratz made inappropriate

verbal statements to two social workers with the Calumet County

Human   Services     Department,      S.S.   and    R.H.      This      course    of

behavior served as the basis of six counts of misconduct, to
which Attorney Kratz has pled no contest.

    ¶6       The OLR's complaint included an additional five counts

of misconduct.       One of those counts concerned Attorney Kratz's

text messages to S.V.G.; the remaining four counts alleged that

Attorney     Kratz   engaged    in   inappropriate      behavior        toward   two

additional women, J.W. and M.R.              The OLR moved for, and the

    1
       Because the OLR filed its complaint prior to January 1,
2012, all references will be to the Supreme Court Rules in
effect prior to January 1, 2012.

                                         2
                                                                               No.     2011AP2758-D



referee granted, the dismissal of three of these five counts on

June 14, 2012, a few days before the start of the disciplinary

hearing on June 19, 2012.                The OLR moved for, and the referee

granted, the dismissal of the other two counts at the outset of

the disciplinary hearing.                 Attorney Kratz entered no contest

pleas to the remaining six counts.

    ¶7       Of     the     six         counts          of     misconduct             to      which

Attorney Kratz       pled       no    contest,      three       counts         concern       S.V.G.

According     to     the     OLR's       complaint,            on     August          12,     2009,

Attorney Kratz,       while          serving       as        Calumet       County          District

Attorney, filed a felony criminal complaint against S.R.K. of

Kaukauna, Wisconsin.             According to the complaint, S.R.K. beat

and strangled S.V.G., a former live-in partner and mother of

S.R.K.'s    child.         The       complaint      charged         one    felony       count    of

strangulation        and        suffocation          (pursuant            to         Wis.     Stat.

§ 940.235(1)) and one count of disorderly conduct (pursuant to

Wis. Stat. § 947.01).

    ¶8       Shortly after the preliminary hearing in this matter,
S.V.G. met with Attorney Kratz alone in a conference room at the

district    attorney's          office.         S.V.G.        requested          the       meeting,

exercising    her     right      to     consult      with       the       district         attorney

"concerning the disposition of a case involving a crime of which

he or she was a victim . . . ."                    See Wis. Stat. § 950.04(1v)(zm)

(2009-10).

    ¶9       During       the        meeting,       S.V.G.       volunteered               personal

information to Attorney Kratz, stating that she did not have a
current boyfriend, that she suffered from low self-esteem, that
                                               3
                                                                   No.     2011AP2758-D



she lived with her mother, and that she was struggling as a

single mother.

       ¶10    According to S.V.G., she understood during her meeting

with Attorney Kratz that he would be prosecuting S.R.K.                        S.V.G.

also   relayed    details      of   her       relationship   with        S.R.K.,   and

indicated      that   S.R.K.     had    previously     abused      her,     including

beatings and strangulation.             Attorney Kratz asked S.V.G. if she

objected to reducing the felony charge to a misdemeanor.                       S.V.G.

objected to the suggestion.              At the conclusion of the meeting,

Attorney Kratz and S.V.G. exchanged cell phone numbers.

       ¶11    After     S.V.G.         left     Attorney      Kratz's         office,

Attorney Kratz        began   texting     S.V.G.     from    his    personal       cell

phone.       Attorney Kratz sent her three messages on October 20,

2009, the same day they met, his last message stating, "I wish

you weren't one of this office[']s clients.                     You'd be a cool

person to know!"

       ¶12    On October 21, 2009, Attorney Kratz sent S.V.G. 19

messages, including asking her: "Are you the kind of girl that
likes secret contact with an older married elected DA . . . the

riskier the better?           Or do you want to stop right know [sic]

before any issues?"

       ¶13    On October 22, 2009, Attorney Kratz sent S.V.G. eight

more messages, telling her that she was "beautiful," "pretty,"

that "I'm the atty.           I have the $350,000 house.             I have the 6

figure career. You may be the tall, young, hot nymph, but I am

the prize!      Start convincing," and that "I would not expect you


                                          4
                                                                        No.        2011AP2758-D



to be the other woman.             I would want you to be so hot and treat

me so well that you'd be THE woman.                R U that good?"

       ¶14   According        to    S.V.G.,       Attorney          Kratz's          personal

overtures were unwelcome and offensive, and she was concerned

that if she failed to respond to Attorney Kratz, he might take

action    with     respect    to    the    case    against       S.R.K.        that     could

potentially adversely affect S.V.G.

       ¶15   On October 22, 2009, S.V.G. reported Attorney Kratz's

text messages to the Kaukauna Police Department.

       ¶16   After      photographing       the    text       messages        on     S.V.G.'s

telephone    and     taking    S.V.G.'s     statement,          the   Kaukauna         Police

Department       referred     the    matter       to    the     State     of        Wisconsin

Department of Justice (DOJ).

       ¶17   After reviewing the text messages and the report of

the Kaukauna Police Department, the DOJ determined that there

had    not   been       any    criminal         activity.           Nonetheless,             DOJ

representatives         strongly    suggested      to    Attorney       Kratz        that     he

step aside from the prosecution of S.R.K. and self-report his
conduct to the OLR.

       ¶18   Attorney       Kratz    facilitated          the    appointment            of    a

special prosecutor to take over the S.R.K. case.                         Attorney Kratz

also    agreed     to    resign     as    chairman       of   the     Wisconsin         Crime

Victims' Rights Board.

       ¶19   In a December 4, 2009 letter to the OLR that included

the    transcribed      messages     to    and    from    S.V.G.,       Attorney        Kratz

admitted that he sought a personal "friendship" with S.V.G.                                  He
expressed regret and embarrassment for his conduct and admitted
                                            5
                                                                             No.       2011AP2758-D



that he had violated S.V.G.'s trust.                         Attorney Kratz also noted

that    he     was     undergoing             therapy      "to     answer       why       a    career

prosecutor,         with     a   spotless        record      and    sterling          reputation,

would    risk       his     professional         esteem      on    such     a    disrespectful

communication with a crime victim."

       ¶20     On September 15, 2010, the Associated Press published

a   story    regarding           Attorney       Kratz's      text    messages          to      S.V.G.

Attorney Kratz issued a statement admitting that he sent the

texts and was embarrassed at his lack of judgment.

       ¶21     On September 17, 2010, the executive committee of the

Wisconsin      District          Attorneys       Association         issued      a     letter        to

Attorney Kratz calling for his resignation.

       ¶22     After       then-Governor          James      Doyle     initiated              removal

proceedings against him pursuant to Chapter 17 of the Wisconsin

Statutes, Attorney Kratz resigned his position as Calumet County

District Attorney on October 4, 2010.

       ¶23     Two        counts         of      the       OLR's      complaint               involve

Attorney Kratz's verbal statements to S.S., a social worker with
the Calumet County Human Services Department.

       ¶24     In    October        of    2009,        Attorney      Kratz       prosecuted           a

termination of parental rights case in which S.S. was a witness.

Prior to testifying, S.S. commented to Attorney Kratz that she

was nervous about testifying.                     In response to S.S.'s concerns,

Attorney Kratz stated to S.S. that he "won't cum in your mouth."

Later that day Attorney Kratz remarked to S.S. that he wanted

the    trial    to     be    over    because          he   was    leaving       on    a       trip   to


                                                  6
                                                                            No.     2011AP2758-D



Las Vegas,        where       he   could       have   "big    boobed       women        serve   me

drinks."

       ¶25       One     count        of       the     OLR's        complaint           involves

Attorney Kratz's verbal statement to R.H., also a social worker

with the Calumet County Human Services Department.                                      During a

court proceeding, Attorney Kratz commented in court to R.H. that

a reporter had "big beautiful breasts."

       ¶26       On the first day of the scheduled disciplinary hearing

in this matter, Attorney Kratz entered pleas of no contest to

six    counts      of    misconduct         stemming     from       his    behavior       toward

S.V.G.,      S.S.,      and    R.H.        The    referee     found       that    an    adequate

factual basis existed on each of the six counts, and accepted

the no contest pleas.

       ¶27       The    referee     concluded         that,    by    seeking       a    personal

relationship           with   S.V.G.,      a     domestic     abuse       crime    victim       and

witness, while serving as the prosecutor of the perpetrator of

the domestic abuse crime, thereby creating a significant risk

that       the   representation        of      the    State    of    Wisconsin          would    be
materially limited by his own personal interests, Attorney Kratz

engaged in a concurrent conflict of interest in violation of

SCR 20:1.7(a).2
       2
           SCR 20:1.7(a) states:

            Except as provided in par. (b), a lawyer shall
       not represent a client if the representation involves
       a concurrent conflict of interest. A concurrent
       conflict of interest exists if:

            (1) the representation of one client                                 will    be
       directly adverse to another client; or

                                                  7
                                                                 No.        2011AP2758-D



     ¶28    The referee also concluded that, by seeking a personal

relationship      with    S.V.G.,    a    domestic   abuse    crime     victim      and

witness,    and    by    sending    her    text    messages    carrying         sexual

overtones,    while      prosecuting      the   perpetrator    of   the       domestic

abuse crime, Attorney Kratz engaged in offensive personality, in

violation of SCR 20:8.4(g)3 and SCR 40.15.4

     ¶29    The     referee        also     concluded    that,         by      sending

deliberate, unwelcome, and unsolicited sexually suggestive text

messages to S.V.G., a domestic abuse crime victim and witness,

while prosecuting the perpetrator of the domestic abuse crime,




          (2) there   is  a   significant  risk   that  the
     representation of one or more clients will be
     materially limited by the lawyer's responsibilities to
     another client, a former client or a third person or
     by a personal interest of the lawyer.
     3
       SCR 20:8.4(g) states it is professional misconduct for a
lawyer to "violate the attorney's oath; . . . ."
     4
         SCR 40.15, "Attorney's oath," states, in pertinent part:

          The oath or affirmation to be taken to qualify
     for admission to the practice of law shall be in
     substantially the following form:

            . . . .

          I will abstain from all offensive personality and
     advance no fact prejudicial to the honor or reputation
     of a party or witness, unless required by the justice
     of the cause with which I am charged; . . . .

                                           8
                                                                           No.     2011AP2758-D



Attorney    Kratz    harassed        S.V.G.       on   the    basis    of        her    sex,    in

violation of SCR 20:8.4(i).5

     ¶30    The referee also concluded that, by stating to S.S., a

Calumet County social worker and witness in a termination of

parental rights case, that he "won't cum in your mouth" and that

he wished the trial to be over because he was traveling to

Las Vegas    where       he    could     have      "big      boobed    women           serve    me

drinks,"    and     by    making     these        comments     while       acting        in     his

capacity    as    Calumet       County   District         Attorney,        Attorney        Kratz

engaged in offensive personality in violation of SCR 20:8.4(g)

and SCR 40.15.

     ¶31    The referee also concluded that, by stating to S.S., a

Calumet County social worker and witness in a termination of

parental rights case, that he "won't cum in your mouth" and that

he wished the trial to be over because he was traveling to

Las Vegas    where       he    could     have      "big      boobed    women           serve    me

drinks,"    and     by    making     these        comments     while       acting        in     his

capacity    as    Calumet       County   District         Attorney,        Attorney        Kratz
harassed    S.S.     on       the   basis     of       her   sex,     in     violation          of

SCR 20:8.4(i).

     ¶32    Finally,          the   referee       concluded      that,       by        making    a

comment during a court proceeding to R.H., a Calumet County


     5
       SCR 20:8.4(i) states it is professional misconduct for a
lawyer to "harass a person on the basis of sex, race, age,
creed, religion, color, national origin, disability, sexual
preference or marital status in connection with the lawyer's
professional activities.    Legitimate advocacy respecting the
foregoing factors does not violate par. (i)."

                                              9
                                                                            No.     2011AP2758-D



social worker, that a reporter had "big beautiful breasts," and

by making this comment while acting in his capacity as Calumet

County District Attorney, Attorney Kratz engaged in offensive

personality, in violation of SCR 20:8.4(g) and SCR 40.15.

       ¶33     At the June 19, 2012 disciplinary hearing, the referee

heard      testimony        and   received       exhibits       on    the    issue     of   the

appropriate discipline.                The referee also received post-hearing

briefing on the subject.

       ¶34     In     its    post-hearing            brief,     the    OLR        argued    that

Attorney Kratz's license should be suspended for six months.

The     OLR    emphasized         that    Attorney        Kratz's      conduct        involved

multiple       women,       all   of     them        in   vulnerable        or     subordinate

positions.          The OLR argued that Attorney Kratz did not intend to

remove himself as prosecutor in the S.V.G. matter until DOJ

officials asked him to do so after S.V.G. reported his actions

to the police.            The OLR also argued that Attorney Kratz refused

to take responsibility for his offensive statements to S.S. and

R.H.       The OLR further argued that because Attorney Kratz blamed
his misconduct on various addictions yet offered no competent

medical testimony that he had recovered from his addictions, a

six-month suspension would be appropriate given that it would

require       him    to     petition     the     court        for    reinstatement         under

SCR 22.28(3).6


       6
       SCR 22.28(3) states, "The license of an attorney that is
revoked or suspended for misconduct for six months or more shall
be reinstated pursuant to the procedure set forth in SCR 22.29
to 22.33 and only by order of the supreme court."

                                                10
                                                                No.   2011AP2758-D



       ¶35    In his post-hearing brief, Attorney Kratz argued that

a public reprimand was warranted.                 In support of his argument

that    a    license   suspension    was    not    warranted,   Attorney   Kratz

downplayed      the    seriousness    of   his    misconduct    toward   S.V.G.,

S.S., and R.H.

       ¶36    Regarding his texts to S.V.G., Attorney Kratz admitted

they constituted wrongful behavior, but "disagree[d] with the

OLR's       characterization   that    the       messages   contained    'sexual

overtones' (as no message included one single sexually explicit

term, nor was any sexual conduct or sex act ever suggested)."

Attorney Kratz also described his conduct upon learning that

S.V.G. objected to his texts as praiseworthy.               He wrote:

       [U]pon even the hint of a conflict of interest, or
       reports of unsettling reaction by [S.V.G.], immediate
       steps were taken to eliminate even the perception of
       continued violation; timely self-report to the OLR for
       imposition of sanction (if required); and aggressive
       steps to ensure this stupidity never, ever repeated
       itself. That is the attorney response that this Court
       should praise, rather than punish.
       ¶37    Regarding his verbal comments to social worker S.S.

that he "won't cum in [her] mouth" and looked forward to having

"big boobed women serve [him] drinks," Attorney Kratz wrote that

he "recognized the disrespectful phrase used, and apologized to

the Social Worker at the first opportunity."




                                       11
                                                               No.   2011AP2758-D



      ¶38   Regarding his statement to social worker R.H. that a

"reporter"7 had "big beautiful breasts," Attorney Kratz wrote in

his   post-hearing   brief      that    this     comment    "never   occurred."

Attorney Kratz argued that "the reporter referred to, although

admittedly   beautiful,    does    NOT       have   large   breasts . . . this

single important factor has been relied upon by Respondent to

conclude the comment never was made, or at the very least, [was]

misinterpreted by [R.H.]."             Attorney Kratz conceded, however,

that "given the posture of this case, the tribunal is free to

include the facts of the [R.H.] comment, and provide it such

weight in the sanctions recommendations as deemed necessary."

      ¶39   As a mitigating factor, Attorney Kratz wrote in his

post-hearing brief that at the time of the events in question,

he    "suffered   from    the    combination        of   Sexually    Compulsive

Disorder (SCD) and prescription drug dependence"——conditions for

which he has sought treatment.               He also claimed that he wanted

"to settle the case" early in the disciplinary process, but the

OLR refused to do so, in part because it is "apparently more
concerned with how 'they look' in the zealous pursuit of an

attorney 'pelt,' rather than what result 'should' be reached."


      7
       What kind of "reporter" Attorney Kratz was referencing was
the source of some confusion in the proceedings before the
referee. In its complaint, the OLR referred to the reporter as
a "court reporter."       Three weeks before the disciplinary
hearing, the OLR moved to amend its complaint to refer to "a
reporter," as opposed to a "court reporter."         The referee
granted the OLR's motion to amend.    In his post-hearing brief,
Attorney Kratz described the reporter in question as a "TV
reporter."

                                        12
                                                                              No.     2011AP2758-D



      ¶40     On    July     30,    2012,    the      referee         filed    a     report    and

recommendation.         In considering the appropriate discipline, the

referee weighed various aggravating and mitigating factors.

      ¶41     The     referee       noted        as     aggravating            factors        that

Attorney Kratz acted with a selfish motive; that S.V.G. was a

vulnerable     victim;        and    that       Attorney     Kratz's          misconduct       was

particularly        inexcusable       in    light      of    his       considerable          legal

experience and his previous leadership on issues pertaining to

victims' rights.

      ¶42     The      referee             assigned          neutral                weight      to

Attorney Kratz's           self-report          to    the    OLR       of     his     misconduct

involving S.V.G.            The referee wrote that "at the time of the

respondent's self-report, the cat was already out of the bag, so

to   speak.         S.V.G.    had    gone       to    the    police,        the      police   had

contacted the Wisconsin Department of Justice, and that agency

urged the respondent to self-report to the OLR."                                     The referee

found that these circumstances "significantly undercut any claim

of virtuousness by self-reporting."
      ¶43     The    referee       noted    a    variety         of   mitigating        factors,

which, in summary fashion, are as follows:                             Attorney Kratz has

no prior disciplinary history; he apologized to S.S. for his

vulgar comment shortly after making it; he has never attempted

to justify or defend his conduct toward S.V.G.; he cooperated

with the disciplinary proceedings; he previously enjoyed a good

professional        reputation       and    engaged         in    significant          volunteer

activities within the legal profession; he has been diagnosed
with and sought treatment for narcissistic personality disorder
                                                13
                                                                             No.        2011AP2758-D



and sexual addiction; he was abusing the sleeping aid Ambien,

the painkiller Vicodin, and the anti-anxiety drug Xanax at the

time of the misconduct; he subsequently sought treatment for his

substance      abuse      issues;       he       voluntarily           obtained         a       mentor

attorney      through    the     State       Bar's      Wisconsin       Lawyer          Assistance

Program       (WisLAP),         who        reported            being        impressed             with

Attorney Kratz's character and commitment to recovery; and he

had    suffered       substantial          collateral          consequences             from       his

misconduct, including considerable negative publicity, the loss

of    his    district    attorney       position,           and    significant           financial

difficulties.

       ¶44    After      weighing          these       aggravating          and         mitigating

factors, the referee recommended that Attorney Kratz's license

to practice law should be suspended for a period of four months.

In support of his recommendation for a lighter sanction than

that proposed by the OLR, the referee emphasized the number and

weight of the mitigating factors in this case.                              The referee also

suggested that a four-month suspension was consistent with the
discipline       imposed        in     two       cases      that       he    believed             were

particularly        analogous         to     this       case.      In       re     Disciplinary

Proceedings Against Beatse, 2006 WI 115, 297 Wis. 2d 292, 722

N.W.2d 385 (assistant district attorney publicly reprimanded for

having      spent   numerous         hours    viewing        pornography          on     his      work

computer,      lied     about    the       source      of    the    pornography             and    the

extent of his viewing, used the state's e-mail system to send

and    receive        sexually        explicit         e-mail      messages,            and       made
inappropriate         comments        to     a        county      employee         in       a     work
                                                 14
                                                                             No.   2011AP2758-D



environment); In re Disciplinary Proceedings Against Ridgeway,

158 Wis. 2d 452, 462 N.W.2d 671 (1990) (assistant state public

defender       suspended         for    six       months    for     having    initiated     and

engaged in sexual contact with a client he was representing as a

public       defender,         and     for    having       encouraged     that     client    to

violate       the    terms       of    her        probation    by      providing    her     with

alcoholic beverages).

       ¶45     No appeal has been filed, so this matter is submitted

to the court pursuant to SCR 22.17(2).8                             We affirm a referee's

findings of fact unless they are found to be clearly erroneous.

In re Disciplinary Proceedings Against Inglimo, 2007 WI 126, ¶5,

305 Wis. 2d 2d 71, 740                  N.W.2d 125.           We review the referee's

conclusions of law on a de novo basis.                            Id.     We determine the

appropriate level of discipline given 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.

       ¶46     After       reviewing         the    record,       we    conclude    that    the
referee's factual findings are supported by the record, and we

adopt       them.         We   also     adopt       the    referee's       conclusion       that


       8
           SCR 22.17(2) states as follows:

            If no appeal is filed timely, the supreme court
       shall review the referee's report; adopt, reject or
       modify the referee's findings and conclusions or
       remand the matter to the referee for additional
       findings;   and   determine  and   impose  appropriate
       discipline.   The court, on its own motion, may order
       the parties to file briefs in the matter.

                                                   15
                                                                       No.   2011AP2758-D



Attorney Kratz committed the six counts of misconduct described

above.

       ¶47       With respect to the appropriate level of discipline,

we   agree       with   the       referee   that     a    four-month    suspension      is

necessary        discipline       for   Attorney      Kratz's   misconduct      in    this

matter.      Attorney Kratz's conduct toward S.V.G. was appalling.

Through      a    series     of    wheedling       text   messages,    Attorney      Kratz

attempted to convince S.V.G., a domestic abuse crime victim and

witness, to enter into a sexual relationship with him while he

was prosecuting the perpetrator of the domestic crime.                            S.V.G.

felt leveraged by Attorney Kratz's sexual entreaties; she feared

that if she failed to respond to him, he might take action in

her domestic abuse case that could potentially adversely affect

her.     This was exploitative behavior, harassing behavior, and a

crass placement of his personal interests above those of his

client, the State of Wisconsin.                     Attorney Kratz's comments to

social worker S.S. while she served as a witness in one of his

cases——that he "won't cum in [her] mouth" and looked forward to
"big boobed women" serving him drinks in Las Vegas——crossed the

line separating the unprofessional from the acutely offensive

and harassing.          Attorney Kratz's statement to social worker R.H.

during a court proceeding, in which he voiced approval of a

reporter's "big beautiful breasts," was sufficiently boorish as

to constitute misconduct.               In short, whatever his qualities and

accomplishments         as    a     lawyer,    Attorney      Kratz     proved   himself

during the period in question to be sanctionably sophomoric.


                                              16
                                                                    No.   2011AP2758-D



       ¶48     Attorney Kratz has rationalized his poor behavior by

confessing to various addictions:                     to Ambien, to Vicodin, to

Xanax, and to sex, though he fails to point to either medical

records or expert medical testimony that would explain the exact

nature and severity of his conditions, or how they may have

affected his ability to conform his behavior to ethical rules.

But regardless of how we view Attorney Kratz's behavior——as an

involuntary byproduct of addiction, or as a willful blindness to

professional standards——the ugly picture painted by the record

remains       the    same.   The    recommended        four-month    suspension    is

deserved.9

       ¶49     We turn next to the issue of costs.                The OLR filed its

statement of costs on August 20, 2012, listing $23,904.10 in

costs.       Supreme Court Rule 22.24(2) required Attorney Kratz to

file any objection to the OLR's statement of costs within 21

days       after    service——or    on   or    about    September    10,   2012.    On

November       14,     2012——over       two       months   past    the    deadline——

Attorney Kratz filed an objection to the statement of costs,
along with a motion asking the court to accept his late filing.




       9
       We note that the referee additionally recommended that
Attorney Kratz's license to practice law in this state should be
conditioned   on  his   continued  participation  in   a  WisLAP
monitoring program.    We further note that in April 2014, the
WisLAP coordinator wrote to advise the court that Attorney Kratz
had successfully completed a two-year voluntary monitoring
contract with WisLAP.    In light of Attorney Kratz's successful
completion of his WisLAP monitoring contract, we decline to
order continued WisLAP monitoring.

                                             17
                                                                    No.     2011AP2758-D



Attorney Kratz offered no explanation for the lateness of his

filing.

       ¶50        We reject Attorney Kratz's unexcused late filing.                  Our

deadlines are not mere suggestions.                    Filing documents with this

court over two months late with no semblance of a reasonable

excuse       has    its   consequences.          As    the   Seventh      Circuit    has

explained:

            We live in a world of deadlines.    If we're late
       for the start of the game or the movie, or late for
       the departure of the plane or the train, things go
       forward without us.      The practice of law is no
       exception. A good judge sets deadlines, and the judge
       has a right to assume that deadlines will be honored.
Spears       v.    City   of   Indianapolis,      74    F.3d 153,    157    (7th     Cir.

1996).

       ¶51        Even if we were to consider Attorney Kratz's objection

to costs on its merits, it falls well short of convincing us to

impose        anything     other    than        full    costs.         If    anything,

Attorney Kratz's untimely objection to costs hurts more than it

helps his cause.

       ¶52        In his untimely objection, Attorney Kratz insists that

he should pay no costs whatsoever.                     The OLR asks us to impose

full        costs     consistent    with    our        standard     practice        under

SCR 22.24(1m).10

       10
       SCR 22.24(1m)(effective from July 1, 2006 to December 31,
2011) provides:

            The court's general policy is that upon a finding
       of misconduct it is appropriate to impose all costs,
       including the expenses of counsel for the office of
       lawyer regulation, upon the respondent.      In cases
       involving extraordinary circumstances the court may,
                                           18
                                                                         No.        2011AP2758-D



    ¶53     The    referee        has   recommended       an   equal       split       of     the

costs.      In his report, the referee stated that although the

court's     general       policy    is    to     impose    all      costs           against     a

respondent upon a finding of misconduct, "[o]ne of the relevant

factors set forth in SCR 22.24(1m) warrants deviation from the

standard    rule."         That    factor,       according     to    the       referee,        is

SCR 22.24(1m)(a):          "[t]he number of counts charged, contested,

and proven."        The referee noted that the OLR spent "more than

the usual time and effort" in locating and arranging for the

testimony of the two grievants, J.W. and M.R., whose claims

formed    the     basis    for     four    misconduct        counts       that        the     OLR

dismissed    at    or     shortly       before    the   start       of    the        scheduled

disciplinary hearing.             The referee explained that although it is

"not at all unusual" for the OLR to dismiss claims during the



    in the exercise of its discretion, reduce the amount
    of costs imposed upon a respondent. In exercising its
    discretion regarding the assessment of costs, the
    court will consider the submissions of the parties and
    all of the following factors:

         (a)        The number of counts charged, contested, and
    proven.

            (b)     The nature of the misconduct.

         (c) The level of discipline sought                                    by     the
    parties and recommended by the referee.

         (d) The    respondent's                   cooperation           with         the
    disciplinary process.

            (e)     Prior discipline, if any.

            (f)     Other relevant circumstances.

                                           19
                                                                               No.    2011AP2758-D



course        of     a         disciplinary         proceeding,           it     "would        seem

unfair . . . to impose all the costs on the respondent."

       ¶54     We disagree with both the referee and Attorney Kratz

and impose full costs.                       Under SCR 22.24, the court has the

exclusive      authority             to   decide     the    appropriate         assessment       of

costs against a disciplined lawyer.                          We note that at the time

the    referee       filed       his      report    recommending          halving      the    costs

normally      assessable             against      Attorney       Kratz,    the       referee    was

operating      at        an    informational        disadvantage.              Consistent      with

SCR 22.24(2),            the    OLR       filed    its     statement      of    costs     and    an

itemization of costs several weeks after the referee filed his

report.

       ¶55     Reviewing the costs issue de novo, we disagree with

the    referee's          recommendation           that    the    costs    assessed       against

Attorney       Kratz          should       be     essentially      proportional          to     the

percentage of counts on which the OLR prevailed.                                It is true, as

the referee emphasized, that SCR 22.24(1m)(a) lists as a factor

to consider in reducing costs the "number of counts charged,
contested, and proven."                      Our rules, however, require that to

impose less than full costs on the lawyer disciplined, the court

must first find "extraordinary circumstances."                                  SCR 22.24(1m).

Only     if        and        when     the      court      finds    that        "extraordinary

circumstances" exist in a particular case may the court consult

the factors listed in SCR 22.24(1m)(a) through (f) to guide the

court's imposition of costs.

       ¶56     We    do       not    find       extraordinary      circumstances         present
here.     To begin with, it is not extraordinary for the OLR to
                                                   20
                                                                  No.     2011AP2758-D



prosecute all misconduct counts for which the Preliminary Review

Committee found cause to proceed.                 And, in the words of the

referee, it is "not at all unusual" for the OLR to dismiss

claims during the course of a disciplinary proceeding, as was

the case with the five misconduct counts dismissed here.11                          As

for who should pay the cost of litigating dismissed misconduct

charges——the disciplined lawyer or the other attorneys in this

state——this court has chosen the former, barring "extraordinary

circumstances" which, by definition, we do not normally find.

See    SCR   22.24(1m);   see    also   In   re     Disciplinary        Proceedings

Against Pangman, 216 Wis. 2d 440, 460-61, 574 N.W.2d 232 (1998)

(rejecting objections to full assessments of costs based on an

apportionment      of     the    number      of     misconduct          allegations

established); In re Disciplinary Proceedings Against Johnson,

165 Wis. 2d 14, 20, 477 N.W.2d 54 (1991) (same).

       ¶57   We    also      find       nothing       extraordinary              about

Attorney Kratz's     claim,     stridently        advanced   in     his     untimely

objection to costs, that he was willing to conditionally admit
some    of   the   misconduct     charges    several     months         before    the

scheduled     disciplinary      hearing.     We     reject   the        premise    of

Attorney Kratz's argument:          that he has been dragged through an


       11
       We note that as an appellate court, we know only what the
record contains, and we do not know precisely why the OLR
dismissed the counts that it did. Nor should we: this court's
function is not to armchair quarterback the OLR's litigation
decisions, but to review the record and determine whether the
referee properly concluded that the respondent violated the
ethics code by engaging in misconduct.

                                        21
                                                                       No.        2011AP2758-D



expensive disciplinary process while furiously waving the white

flag of surrender from the very beginning.                         This simply is not

true.

       ¶58    The     primary    basis        for    Attorney     Kratz's     claim       that

these disciplinary proceedings were unnecessary is a single e-

mail, dated about two weeks after the OLR filed its complaint,

from    Attorney       Kratz    to    the     OLR's    counsel.      In     this     e-mail,

Attorney Kratz stated his willingness to enter no contest pleas

to some, but not all, of the counts to which he ultimately pled

no contest.          He offered to enter no contest pleas to the three

counts involving S.V.G. to which he ultimately pled no contest.

He     denied       misconduct       toward    R.H.         He    stated     he     had    "no

recollection" of making the vulgar remarks to S.S. and would

"prefer not to admit to something I do not recall," and he

denied       that     any   "one-time         crude     remarks"     could        constitute

harassment under SCR 20:8.4(i).                     He stated that "[t]his count"——

presumably, the offensive personality count under SCR 20:8.4(g)

and SCR 40.15 concerning S.S.——"could result in a 'no contest'
plea if you want a 2nd 'incident' to hang your hat on, other

than [S.V.G.]"          He stated that although he would accept a six-

month suspension, he wanted the suspension to take effect less

than three weeks later, and to be given "credit" against his

suspension for an over five-month period during which he had

"removed [himself] from the practice of law."                        We note that with

his request for an over five-month credit against his proposed

six-month       suspension,      Attorney           Kratz   was    proposing        that    he
receive a net suspension of about three weeks.                             Attorney Kratz
                                               22
                                                                          No.   2011AP2758-D



explained     that    he    intended         to    move    out    of   state,     and     his

"opportunity to be licensed elsewhere requires my reinstatement

here."

       ¶59   In its reply to Attorney Kratz's untimely objection to

costs, the OLR informs us that it chose not to accept the terms

stated in Attorney Kratz's e-mail.                    The OLR states that it did

not agree with Attorney Kratz's suggestion that the time he

allegedly    refrained         from    practicing         law    should    be   "credited"

against any imposed suspension.                   The OLR also did not agree to

starting the suspension period less than three weeks after the

date of the e-mail.            The OLR further informs us that it reminded

Attorney Kratz that this court prohibits parties in OLR cases

from   engaging      in    plea   bargaining.             See,    e.g.,      Inglimo,     305

Wis. 2d 71, ¶85.          Finally, the OLR tells us that at the time of

Attorney     Kratz's      e-mail,      the    OLR    director       "reconsidered         the

viability of each misconduct count and determined it would be

inappropriate to drop the counts suggested by Attorney Kratz."

       ¶60   We   decline         to     equate       Attorney         Kratz's      highly
optimistic settlement offer with an extraordinary circumstance

sufficient to justify a reduction in costs.                            Although we have

long allowed lawyers and the OLR to enter into stipulations of

fact and law and jointly request the imposition of a justifiable

level of discipline, we refuse Attorney Kratz's invitation to

undertake the task of evaluating the parties' efforts to reach

such a stipulation; i.e., to review the history of the parties'

case   discussions        in    order    to       determine      who   was      willing   to
stipulate to what, when, and at what consequence; whether a
                                             23
                                                                              No.     2011AP2758-D



stipulated outcome was reasonably achievable; and how much the

SCR 22.24 costs totaled at the relevant point(s) in time.

       ¶61        This    is     not    to    say    that    it    is   impossible          for   an

attorney to limit, or even eliminate, the imposition of costs

under SCR 22.24.                 An attorney may entirely avoid paying the

costs of a proceeding by entering into a comprehensive, court-

approved      stipulation            prior     to    the    appointment       of     a     referee.

See, e.g., In re Disciplinary Proceedings Against Compton, 2010

WI 112, ¶13, 329 Wis. 2d 318, 787 N.W.2d 831 (citing SCR 22.12).

This was not done here.                   After the appointment of a referee, an

attorney may stop the running of SCR 22.24 costs by entering

into     a    stipulation              that   eliminates          the   need        for     further

litigation.            This was not done here.

       ¶62        What was done here, according to the record, is that

Attorney Kratz e-mailed a stipulation proposal written in self-

interested terms, and the OLR rejected it.                                This is not an

"exceptional circumstance":                      to modify a familiar refrain, you

can't always get what you want, or what you need.
       ¶63        We     do    not     find    the       costs    incurred      extraordinary

either.           The     costs        consist      of    about    $15,000      in        fees    and

disbursements from the OLR's counsel; about $5,700 in referee's

fees and mileage expenses; and about $2,900 in court reporting

and other costs.               Attorney Kratz does not argue that these costs

were in any way inflated.                     He does not challenge the billable

rates of the OLR's counsel or the referee, or the time spent by

either       on    any        particular      task.        He    does   not    challenge          any
disbursements or expenses as excessively high.                                He does not do
                                                    24
                                                                     No.    2011AP2758-D



what SCR 22.24(2) instructs:                "explain, with specificity, the

reasons     for    the       objection     [to    costs]    and . . . state         what

he . . . considers to be a reasonable amount of costs."

      ¶64   In     place      of   specificity      Attorney    Kratz      resorts   to

hyperbole.       He writes in his tardy objection to costs:

      As   this  Court   should  by   now   have  undeniably
      determined, there is nothing ORDINARY about this
      disciplinary case brought by the OLR against the
      Respondent, and the assessment of ANY costs against
      the Respondent, as a result of the OLR's insistence on
      a formal hearing, is unjust and borders on the
      intellectually insulting.

      [I]t   was   the   Respondent   himself   who   has  done
      everything, since well before any formal grievance was
      filed with the OLR, to resolve this entire matter with
      professional     humility,    having    immediately   and
      consistently    taken   full   responsibility    for  any
      possible Supreme Court Rule violation . . . .
      ¶65   The record proves otherwise.                In every stage of these

proceedings,       Attorney        Kratz    has     employed    a     tooth-and-nail

litigation approach.            He denied all misconduct in his answer to

the   OLR's        complaint        and    raised     various        constitutional,

jurisdictional, and procedural defenses.                    He accused the OLR of
operating       under    a    conflict     of    interest    and     of    unethically

leaking information.           He moved to dismiss the OLR's complaint on

nine separate grounds; the referee later rejected the motion as

"replete with bare assertions of fact" which were "not properly

before the referee and may not be considered."                        He engaged in

vigorous    discovery         practice,     including       propounding      over    125

interrogatories,         filing     discovery     motions,     and    attempting      to
compel    the     production       of   documents    from    third    parties.       He


                                           25
                                                                        No.     2011AP2758-D



raised       arguments      that       ranged     from     the    incredible             (e.g.,

disputing         his     text       messages     to     S.V.G.       contained          sexual

overtones); to the hyper-technical (claiming the OLR complaint

was barred by the civil doctrines of issue and claim preclusion

because      an     OLR    investigator         initially      declined        to     forward

S.V.G.'s          grievance          for   formal        investigation);            to      the

inconsistent (denying any recollection of making inappropriate

comments to S.S. but claiming credit for having recognized their

inappropriateness and apologized); to the puzzling (arguing that

he could not have told R.H. that a reporter had "big beautiful

breasts" because the reporter in question was beautiful, but not

large breasted).

       ¶66    It     was,       of     course,    Attorney        Kratz's       right       to

vigorously contest the misconduct charges.                            But SCR 22.24(1m)

makes clear that when a lawyer whom this court ultimately finds

guilty of misconduct imposes costs on the disciplinary system,

he or she must expect to pay.                And litigation, as every litigant

knows, is not cheap.             We refuse to transfer the litigation costs
that Attorney Kratz has generated to the other attorneys of the

state who are innocent of any wrongdoing.

       ¶67    In the end, there is nothing "extraordinary" here from

a costs perspective.             Our general rule is to impose full costs

upon     a   finding       of    misconduct,       and    we     do    so     here.         See

SCR 22.24(1m).

       ¶68    IT IS ORDERED that the license of Kenneth R. Kratz to

practice law in Wisconsin is suspended for a period of four
months, effective July 11, 2014.
                                             26
                                                            No.    2011AP2758-D



    ¶69   IT    IS   FURTHER    ORDERED    that   Kenneth   R.    Kratz    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.

    ¶70   IT IS FURTHER ORDERED that within 60 days of the date

of this order, Kenneth R. Kratz shall pay to the Office of

Lawyer Regulation the costs of this proceeding.

    ¶71   IT    IS    FURTHER    ORDERED     that   compliance      with    all

conditions of this order is required for reinstatement.                      See

SCR 22.28(2).




                                     27
                                                              No.   2011AP2758-D.ssa




      ¶72    SHIRLEY S. ABRAHAMSON, C.J.               (concurring).        I join

the per curiam opinion.

      ¶73    The OLR disciplinary system is about 15 years old.

Several anomalies and proposed amendments have been brought to

the court's attention.       It is time for the court to institute a

review of the system rather than to make piecemeal adjustments

at this time.        See my writings in OLR v. Johns, 2014 WI 32, ___

Wis. 2d ___, ___ N.W.2d ___;        OLR v. Osicka, 2014 WI 33, ___

Wis. 2d ___, ___ N.W.2d ___; and OLR v. Osicka, 2014 WI 34, ___

Wis. 2d ___, ___ N.W.2d ___; of even date.

      ¶74    I welcome Justice Prosser's support for an impartial,

objective,    thorough    review   of       OLR   practices    and    procedures,

support he gave at the open rules petition conference in October

2013.   For a history of a proposal for such a review, listen to

the   open   rules    petition   conference       of   October      25,   2013,   in

connection with proposals for change in OLR's practices.

      ¶75    The question of instituting such a review will come
before the court again.       I hope it will get four votes.




                                        1
                                                                       No.    2011AP2758-D.dtp

      ¶76     DAVID T. PROSSER, J.                  (concurring in part, dissenting

in   part).         From    time       to    time    every    government       agency     would

benefit     from     an    impartial,         objective       review    of     the   agency's

practices and procedures.                    There is increasing evidence of the

need for such an evaluation of the Office of Lawyer Regulation

(OLR).      This case highlights some of the problems facing the

agency and why an objective review would be desirable.

                                                I

      ¶77     It must be stated at the outset that the misconduct of

Attorney Kenneth Kratz requires discipline.                             I concur in the

recommendation        of    the    referee          that    Attorney    Kratz      receive     a

four-month suspension, which is the suspension approved by the

court.

      ¶78     OLR     wanted       a    six-month          suspension.         A     six-month

suspension would require Attorney Kratz to seek readmission from

this court, a process that often takes the better part of a

year.         A     suspension          of     that    duration        would       have     been

unreasonable.

      ¶79     OLR also asked that Attorney Kratz pay all costs of
the proceeding, namely, $23,904.10, and the court approves these

costs,    contrary         to   the     recommendation         of   the      referee.        The

exorbitant costs requested by OLR——and granted by this court——

require discussion and prompt this partial dissent.

                                                II

      ¶80     OLR     charged          Attorney       Kratz     with      11       counts    of

misconduct.         The first four counts involved S.V.G.                      One of these

counts was later dismissed by OLR.                         The counts involving S.V.G.



                                                1
                                                       No.   2011AP2758-D.dtp

are the reason why Attorney Kratz requires discipline.              They are

described in ¶¶7-22 of the Per Curiam opinion.

    ¶81   Attorney Kratz's conduct was highly inappropriate and

cannot    be   defended.          What     is    important        for    this

concurrence/dissent,   however,    is    that   the   substance    of   these

counts, including all text messages between Attorney Kratz and

S.V.G., were self-reported by Kratz to OLR on December 4, 2009,

making proof of ethical violations easy to accomplish.                  Thus,

one of the first issues to examine is why OLR did not file any

charges against Attorney Kratz until November 30, 2011.

    ¶82   It seems obvious, in retrospect, that Attorney Kratz

suffered a serious breakdown of some sort by October 2009.1                He

had been through considerable stress from 2005 through 2009 as

    1
       The referee in this case, former Oneida County Circuit
Judge Robert E. Kinney, wrote the following in his "Report and
Recommendation" to the court:

    Perhaps the most perplexing aspect of this case is the
    seeming incongruity between some of the respondent's
    professional accomplishments and the inexplicable
    behavior which he engaged in which brings him before
    the Court now. . . .

    The respondent was appointed special prosecutor in the
    case of State v. Steven Avery.       This was a high-
    profile case with state-wide media coverage. . . .
    During this time period, the respondent testified he
    had trouble sleeping and was prescribed the drug
    Ambien. . . .   Shortly thereafter, people observed a
    change   in   his  behavior. . . .    [T]he  respondent
    testified that he had been prescribed Xanax for
    anxiety attacks, and was taking left-over Vicodin
    which had been prescribed earlier after he underwent
    surgery. The respondent testified that he developed a
    dependency on Ambien and Xanax. He testified that he
    believes the use of these drugs diminished his
    inhibitions   and   caused  his  speech   to  be   more
    unfiltered.

                                    2
                                                                        No.    2011AP2758-D.dtp

special prosecutor in the high profile murder trials of Steven

Avery and Brendan Dassey in Manitowoc County.                                Post-conviction

proceedings in Dassey's case were still pending in the fall of

2009, culminating in a five-day hearing in 2010.                              Attorney Kratz

and     his   then-wife       separated            in    October      2009,     during    this

stressful      period,      and    he    began          to   abuse    prescription       drugs.

Whether these stresses and difficulties contributed to Attorney

Kratz's October conduct is speculative, but the stresses and

difficulties are not speculative.

       ¶83    Counts 1, 3, 4, 5, and 6 are based on incidents that

occurred during October 2009.                  No date is given for the incident

in Count 7.

       ¶84    Attorney      Kratz's          unacceptable            text     messages     with

respect to S.V.G. took place over a period of three days in

October 2009, approximately a week after separation from his

wife.     On the third day S.V.G. took the matter to local police.

Within two weeks, Kratz had removed himself from the criminal

case    in    which   S.V.G.       was       the       victim.       After    the   Wisconsin

Department of Justice (DOJ) was notified of Attorney Kratz's
conduct, it pressured Attorney Kratz to resign as chair of the

Wisconsin Crime Victims' Rights Board and to self-report his

misconduct to OLR.                He did the latter on December 4, 2009,

admitting his misconduct and expressing his embarrassment for

it.

       ¶85    When    OLR     received         Attorney          Kratz's      communication,

including all the text messages, it commenced an investigation.

Thereafter, on February 4, 2010, OLR received a grievance from
S.V.G.        On   February       18    an    OLR       investigator        wrote   to   S.V.G.

                                                   3
                                                                No.    2011AP2758-D.dtp

asking that she contact the investigator.                     On March 5, having

received    no   response     from    S.V.G.,       the    investigator       notified

S.V.G. that the matter had been closed.                       Attorney Kratz was

notified of this action.          In sum, three months after it received

all the information necessary to prosecute Attorney Kratz and

barely a month after receiving the grievance from S.V.G., OLR

closed the case.

    ¶86     The record does not indicate why S.V.G. did not follow

up on her grievance.             The record does not indicate why OLR

closed the matter when it had ample evidence to proceed if it

wished to do so.         OLR's letter to S.V.G. stated that Attorney

Kratz's conduct "did not appear to involve possible professional

misconduct."

    ¶87     Six months later, Keith Sellen, director of the OLR,

was contacted by Ryan Foley, a reporter for the Associated Press

(AP).     Sellen later indicated in an affidavit that he had not

been aware of the Kratz matter before the Foley inquiry.

    ¶88     The following day, September 15, 2010, Foley wrote a

news story based on information he obtained from a police report
released    by   the   Kaukauna      Police     Department.           Foley   did   not

reveal     how   he    learned    about       the   police     report     describing

Attorney Kratz's conduct.

    ¶89     Foley's AP story triggered a political firestorm less

than two months before the 2010 general election.                         There were

immediate    calls     for   Attorney     Kratz's         resignation    as    Calumet

County District Attorney.            When Attorney Kratz did not resign,

Governor James Doyle initiated proceedings to remove him from
office.

                                          4
                                                            No.    2011AP2758-D.dtp

     ¶90    The    Kratz    matter became a political issue.2                   Scott

Hassett, the Democratic candidate for attorney general, accused

his opponent, incumbent Attorney General J.B. Van Hollen, of

knowing    about   the     Kratz   matter    for   nearly   a   year      and   doing

"nothing about it."3          Democratic Party Chair Mike Tate accused

Van Hollen of a "cover up" "after discovering the sexually-

harassing text messages fellow Republican and political ally Ken

Kratz sent to a woman whose boyfriend he was trying for nearly

strangling her to death."4

     ¶91    Attorney General Van Hollen responded to these attacks

with assertions that the DOJ pressured Kratz to resign from the

Crime Victims Rights Board and advised him to self-report his

conduct to OLR.          "There are no bones about the fact that the

Office of Lawyer Regulation dropped the ball here," Van Hollen

told the Post-Crescent newspaper in Appleton.5                    He said he was

surprised    to    learn    that   OLR   had   told    S.V.G.      that    Attorney

Kratz's conduct "did not appear to involve possible professional

     2
       Jim Collar, Fallout With Calumet County District Attorney
Ken Kratz Takes On Political Tinge, Appleton Post-Crescent,
September 21, 2010.
     3
       Cf. Challenger Scott Hassett Says Attorney General J.B.
Van Hollen Knew About District Attorney Sexting Case But Did
Nothing About It, Milwaukee Journal Sentinel, October 4, 2010
(citing Scott Hassett email to supporters); see also Van Hollen,
a pretty good AG?, Isthmus, October 8, 2010 at 6.
     4
       Press Release, Democratic Party of Wisconsin, J.B. Van
Hollen's Ken Kratz Coverup Continues, (Sept. 21, 2010) (on file
with author).
     5
       Jim Collar, Wisconsin Attorney General J.B. Van Hollen
Criticizes Office of Lawyer Regulation For Its Handling of Case
Involving Calumet County District Attorney Ken Kratz, Appleton
Post-Crescent, Sept. 22, 2010).

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misconduct."       "I personally am very concerned with the fact that

the   Office    of    Lawyer   Regulation       determined      that      there    was

nothing wrong with this activity," he added.6

      ¶92   OLR,     having    now    received    a    letter      from        S.V.G.'s

attorney,      Michael    Fox,       reopened    the   Kratz       investigation.

Additional complaints came in.               More than 13 months later, OLR

filed its complaint.

                                        III

      ¶93   From all appearances, OLR was determined to make up

for "dropping the ball."           It selected as outside counsel Thomas

Basting, who filed 11 charges against Attorney Kratz, including

seven counts related to four new matters.                    In one of these

charges,    OLR      essentially     accused     Attorney    Kratz        of     sexual

assault:

           After various phone conversations, Kratz asked to
      visit JW at her apartment.     JW asserts that Kratz
      arrived at her apartment and after threatening JW,
      forced her to have sex. . . .

           On   September   28,   2010,   JW provided   the
      information about Kratz to her probation officer at
      the Department of Corrections (DOC). The DOC reported
      the issue to the DOJ.

           The DOJ interviewed JW who provided a statement.
      The statement JW provided alleges that Kratz, while
      District Attorney of Calumet County, had forcible sex
      with an emotionally vulnerable woman after previously
      prosecuting the woman.

      6
       See interview by Dan Flannery, Executive Editor of
Appleton Post-Crescent, with Wisconsin Attorney General J.B. Van
Hollen                                                          at
http://www.postcrescent.com/article/20100922/APC0101/9220673/Wis
consin-Attorney-General-J-B-Van-Hollen-criticizes-Office-Lawyer-
Regulation-its-handling-case-involving-Calumet-County-District-
Attorney-Ken-Kratz.

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                                                               No.    2011AP2758-D.dtp
(Emphasis added.)
       ¶94    In    filing      this     sensational    charge       pertaining      to

alleged sexual assault, OLR not only discredited Attorney Kratz

but also implicitly criticized the DOJ and local law enforcement

authorities for failing to prosecute him.                      It later quietly

dismissed the charge.

       ¶95    As noted above, OLR also asked that Attorney Kratz be

suspended from the practice of law for six months.

                                           IV

       ¶96    Looking backward, OLR forced Attorney Kratz to defend

his law license to avoid being required to apply for readmission

to   the     bar,   and    to   defend    himself    against    alleged      criminal

conduct.      Attorney Kratz admitted the S.V.G. counts but disputed

that he should be suspended for six months because of them.                          In

time   OLR     dropped     FIVE    counts,      including    the     alleged    sexual

assault count.        The only new charges on which OLR prevailed were

three counts involving tasteless sexual comments that Attorney

Kratz made to two co-workers.                The co-worker in Counts 5 and 6

acknowledged        that     Attorney      Kratz's     comments       were     out    of

character and that Attorney Kratz apologized and told her his

comments were inappropriate and he should not have made them.

The co-worker in Count 7 also said Attorney Kratz's comment was

out of character.

                                            V

       ¶97    In    the    years   following      S.V.G.'s     complaint       to    the

Kaukauna police, Attorney Kratz was forced to resign as Calumet

County District Attorney.              He went through a divorce.              He lost
his home and his car.              He was sued by S.V.G. in the United

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                                                            No.   2011AP2758-D.dtp

States District Court and settled the lawsuit.7                   He filed for

bankruptcy.        It   is    unlikely    that   Attorney   Kratz    is    in   any

position to pay $23,904.10 in court costs.                  These extravagant

costs will pose a serious hardship to Attorney Kratz, cannot be

justified     on   the       basis   of   the    OLR   prosecution,       and   are

manifestly unfair.

                                          VI

     ¶98    The Kratz case underscores the need for a thorough

review of OLR practices and procedures.

     ¶99    First, OLR closed the investigation against Attorney

Kratz without the knowledge of the OLR director, Keith Sellen.

How did that happen?8

     ¶100 Second, after reopening the investigation, OLR took 13

months to file a complaint against Attorney Kratz.                  What is the

justification for this lengthy delay?




     7
       Cf. S.V. v. Kratz, No. 10-C-919, 2011 WL 6151480 (E.D.
Wis. Dec. 12, 2011).      See Sexting lawsuit against former
prosecutor settled, Appleton Post-Crescent, February 13, 2013,
at A3-4.
     8
         Referee Kinney wrote:

     [T]he respondent's letter which self-reported the
     incident involving SVG was received by the OLR on
     December 8, 2009.    The matter was closed on March 5,
     2010 when the investigator received no response to her
     February 18, 2010 letter to SVG.    The respondent was
     advised that the matter was closed at that point. It
     was then reopened by the OLR on September 24, 2010,
     more than 9 months after the respondent self-reported
     the SVG incident. The case simply sat in limbo for 9
     months.   While reports of other violations were then
     received, the closing of the file in March was
     obviously a mistake.

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     ¶101 Third,    after   a   long    investigation,           OLR    filed      three

sensational   counts    against        Attorney      Kratz       that         it   later

dismissed for lack of proof.           Why did OLR's Preliminary Review

Committee permit these counts to be filed?                 Is the Preliminary

Review Committee serving its intended purpose of screening out

improvident   charges   when    it   approves        98   percent        of    the    OLR

staff's recommendations?9

     ¶102 Fourth, OLR expects Attorney Kratz to pay all costs

related to the prosecution of its improvident charges and its

harsh desired level of discipline.               Should a respondent attorney

be expected to pay OLR's costs for charges that are not proven

and a level of discipline sought but not imposed?

     ¶103 Fifth, OLR appears to be unwilling or unable to drop

charges it has filed unless it acknowledges that the charges

cannot be proved.    It could likely have settled the Kratz matter

much sooner if it had been able to bargain for something less

than unconditional surrender.          Should OLR have the authority to

plea bargain with respondents?         If so, under what conditions?

     ¶104 No doubt other questions could be raised about OLR's
handling of the Kratz case.            But apart from this single case,

there are many reasons for this court to launch a thorough——

strictly objective——review of the agency.                  If that review is

undertaken,   something     useful         may     yet    come     out        of     this

unfortunate tragedy.




     9
       A 98 percent approval rate is the percentage OLR Director
Keith Sellen recently cited in his October 25, 2013, testimony
on Rule Petition 13-04 before the supreme court.

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     No.   2011AP2758-D.dtp




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