                                                                2015 WI 68

                     SUPREME COURT           OF    WISCONSIN
CASE NO.:                2012AP1845-D
COMPLETE TITLE:          In the Matter of Disciplinary Proceedings
                         Against David J. Winkel, Attorney at Law:

                         Office of Lawyer Regulation,
                                   Complainant-Respondent,
                              v.
                         David J. Winkel,
                                   Respondent-Appellant.


                               DISCIPLINARY PROCEEDINGS AGAINST WINKEL

OPINION FILED:           July 7, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:           February 5, 2015

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:            ABRAHAMSON, J. concurs (Opinion filed).
   DISSENTED:            ROGGENSACK, C. J., joined by ZIEGLER, J.
                         dissent(Opinion filed).
                         GABLEMAN, J. dissents (Opinion filed).
  NOT PARTICIPATING:


ATTORNEYS:
       For the respondent-appellant, there were briefs by Patrick
F. Koenen and Hinshaw & Culbertson LLP, Appleton.                   Oral argument
by Patrick F. Koenen.




       For       the    complainant-respondent,     there     was   a   brief   by
Matthew         F.    Anich   and   Dallenbach,   Anich   &   Wickman,      S.C.,
Ashland.         Oral argument by Matthew F. Anich.
                                                                      2015 WI 68
                                                              NOTICE
                                                This opinion is subject to further
                                                editing and modification.   The final
                                                version will appear in the bound
                                                volume of the official reports.
No.    2012AP1845-D


STATE OF WISCONSIN                         :             IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against David J. Winkel, Attorney at Law:

Office of Lawyer Regulation,                                       FILED
             Complainant-Respondent,
                                                               JUL 7, 2015
      v.
                                                                 Diane M. Fremgen
                                                              Clerk of Supreme Court
David J. Winkel,

             Respondent-Appellant.




      ATTORNEY      disciplinary     proceeding.       Attorney's         license
suspended.


      ¶1     PER   CURIAM.   Attorney   David     J.   Winkel      appeals      the
report of Reserve Judge Robert E. Kinney, referee, recommending
discipline of a four-month license suspension and the imposition
of costs.     The referee found that Attorney Winkel committed all
of the five charged counts of misconduct that were tried at a
hearing before the referee.          The ethical violations which the
referee determined Attorney Winkel committed include incompetent
representation,      lack    of    diligence,      failure       to      properly
                                                                      No.     2012AP1845-D



communicate       with    his    client,      and    willful    failure      to   provide
relevant       information,       fully       answer      questions,        or    furnish
documents in the course of an Office of Lawyer Regulation (OLR)
investigation.
        ¶2     After our independent review of the record, we approve
the referee's findings of fact and conclusions of law and adopt
them.        We conclude that Attorney Winkel's misconduct warrants a
four-month license suspension.                    We require Attorney Winkel to
pay the full costs of this disciplinary proceeding, which total
$42,634.13 as of February 25, 2015.
        ¶3     Attorney    Winkel      was        licensed     to   practice      law    in
Wisconsin in 1984 and practices in Neenah.                          Attorney Winkel's

prior disciplinary history includes a public reprimand in 1998
for failing to adequately prepare to represent his clients and
to    explain     their     legal      matters       to     them,   for      failing     to
competently       represent       a    client       in    an   estate       matter,     for
misrepresenting that he had prepared a document, for failing to
respond to successor counsel's requests for information and for
the     client's     file,       and    for       failing      to   respond       to    the
disciplinary investigation.              See In re Disciplinary Proceedings
Against Winkel, 217 Wis. 2d 339, 577 N.W.2d 9 (1998).                             Attorney
Winkel was publicly reprimanded again in 2005 for submitting a
fee     request     to     the     Social         Security     Administration           that
misrepresented the amount of time spent by his firm in handling
a case on behalf of a client.                     In re Disciplinary Proceedings
Against Winkel, 2005 WI 165, 286 Wis. 2d 533, 706 N.W.2d 661.


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                                                                             No.    2012AP1845-D



     ¶4        In August 2012, the OLR filed a six-count complaint
against Attorney Winkel.                   This court appointed Reserve Judge
Kinney    as    referee.        The       referee     dismissed        one    count       of    the
complaint upon stipulation of the parties.                           The referee held an
evidentiary hearing on the remaining five counts over three days
in October and November 2013.                 Both sides submitted post-hearing
briefs.
     ¶5        In    March     2014,        the     referee       submitted          a    report
containing      his     findings      of    fact,     conclusions            of    law,    and    a
recommendation for discipline.                    The referee's findings of fact
and conclusions of law are summarized below.
     ¶6        All counts in this case arise out of Attorney Winkel's

representation          of   P.L.,     an    inmate        in    the    Wisconsin         prison
system.    P.L. hurt his leg during recreational activities in the
prison    yard.          A   methicillin—resistant               staphylococcus           aureus
(MRSA) infection later developed in the leg.
     ¶7        P.L. was taken to the prison's Health Services Unit
(HSU).         There,    the    nurse       observed       the    leg,       gave    him       some
antibiotics,         and,    using    a     marker,    drew      a     circle       around      the
visible sore on his leg.              She then advised P.L. to return to the
HSU if the infection progressed outside the circle.
     ¶8        The   next    morning,        P.L.    saw    that       the    infection        had
progressed outside the circle.                    At about 11:00 a.m., P.L. called
a guard and explained the situation.                       At about 11:30 a.m., the

guard contacted the HSU, and a nurse ("Nurse Jane Doe") told the
guard to have P.L. fill out a "blue slip."                              "Blue slips" are
completed by inmates to request routine health care services.
                                              3
                                                                          No.       2012AP1845-D



"Blue slips" are only collected once a day at the end of the
day,     and    they     are    not    intended       to     be    used       in     emergency
situations.
        ¶9     P.L. continued to demand medical attention.                           At around
4:00 p.m., P.L. was taken to the HSU where he was seen by a
physician.       The physician directed that P.L. be transported to a
local    hospital.          Within     two    hours   of     being      admitted       to    the
hospital, surgery was performed to drain the MRSA infection in
P.L.'s leg.          P.L. remained in the hospital as an in—patient for
seven        days,   all     the     while    being        administered            intravenous
antibiotics to control the MRSA infection.
        ¶10    P.L., acting pro se, filed an Eighth Amendment ("cruel

and unusual punishment") civil rights case in the United States
District       Court   for     the    Western     District        of    Wisconsin.          P.L.
sought monetary damages based on his claim that, by delaying his
treatment, prison officials had been deliberately indifferent to
his serious medical need.
        ¶11    P.L. hired Attorney Winkel to represent him in his
Eight Amendment civil rights suit.                     P.L. knew Attorney Winkel
because       Attorney      Winkel    had    represented          him    on   a     number    of
previous occasions.
        ¶12    Under    a    written    fee     agreement,        P.L.    agreed       to    pay
Attorney Winkel an hourly rate of $200 per hour in this matter,
but the hourly fee would only be charged if P.L. was entitled to

attorney fees from the defendants.                         If P.L. was not awarded
attorney       fees,     Attorney       Winkel     would      receive         40%      of    any
recovery.        P.L. paid Attorney Winkel an advance of $2,500 to be
                                              4
                                                                            No.     2012AP1845-D



used to cover expert witness fees and discovery costs.                                  The fee
agreement required that at the conclusion of the representation,
Attorney      Winkel        would     return        all   unearned         fees    and    costs
advanced by P.L.
        ¶13   Attorney Winkel formally appeared on P.L.'s behalf but
did    little     else      of   value.        Attorney       Winkel       never   identified
certain unnamed defendants, such as the identity of "Nurse Jane
Doe"——the nurse who told the guard to have P.L. submit a "blue
slip" requesting routine health care services.                              Attorney Winkel
also     failed        to    timely       disclose        P.L.'s      expert       witnesses.
Instead, over two months after the expert disclosure deadline
had     passed,    Attorney         Winkel      filed     a    motion       to     extend     the

deadline, along with a late-filed expert disclosure.
        ¶14   Defendants         moved    to     strike       Attorney      Winkel's      late-
filed    expert        disclosure.         Defendants         also    moved       for    summary
judgment.
        ¶15   Attorney Winkel was in a poor position to respond to
the defendants' summary judgment motion.                             Attorney Winkel had
not    conducted        depositions       of    defendants,          had    not    served     any
discovery demands, had not served any requests for production of
documents,      had      not     served    any      interrogatories,             and    had   not
ascertained the identities of the unnamed defendants.                                   He also
had    failed     to    timely      answer     the    defendants'          interrogatories,
even though the defendants had granted him an extension in which

to do so.
        ¶16   Four days after the summary judgment response brief
was due, Attorney Winkel filed a document entitled "Objection to
                                                5
                                                            No.   2012AP1845-D



Motion for Summary Judgment."          This document failed to respond
in any material way to the defendants' summary judgment motion.
     ¶17    The   district   court,    in   a   September   29,   2009   order
written    by   Magistrate   Judge    Crocker,   granted    the   defendants'
motion for summary judgment, denied Attorney Winkel's motion to
extend the expert disclosure deadline, denied the defendants'
motion to strike Attorney Winkel's expert witness disclosure as
moot, and directed the clerk of court to enter judgment in favor
of defendants and to close the case.              In the summary judgment
order, Magistrate Judge Crocker stated:

          Plaintiff's case has been doomed by his failure,
     through his attorney, to meet several deadlines or to
     respond properly to defendants' motion for summary
     judgment. . . .

          . . . . Plaintiff has never sought to amend his
     complaint to include the names of the [unnamed]
     defendants.    It is impossible to pursue a claim
     against unnamed defendants. Despite defendants having
     raised this issue on summary judgment, plaintiff did
     not respond to it. . . .

          Further,   the    deadline    to   disclose    expert
     witnesses——the type of witnesses who might be critical
     in an Eighth Amendment medical treatment lawsuit——
     passed   without    plaintiff    disclosing    any    such
     witnesses. Instead of seeking an extension of the
     deadline   before     it    passed,    plaintiff    waited
     until . . . over two months after the deadline, to
     file a motion seeking to amend the briefing schedule
     by   extending    the    expert    disclosure    deadline.
     Plaintiff's attorney's explanation for the delay is
     that it was "very difficult" to find a doctor.
     Perhaps this is true, but it is unpersuasive.          One
     might logically expect that locating a qualified
     physician and obtaining a useful expert opinion would
     have been at the top of plaintiff's "To Do" list,
     perhaps even ahead of "File Complaint."


                                       6
                                                                      No.    2012AP1845-D


          Regardless of the delay in finding and disclosing
     an expert, extending the expert disclosure deadline
     would not help plaintiff. The expert doctor's proposed
     testimony would be irrelevant to the constitutional
     issues in this civil rights lawsuit.         Plaintiff's
     attorney notes that plaintiff's newly found doctor
     expert will testify regarding "whether there was any
     negligence   in   [the]   medical   care"  provided   by
     defendants. However, establishing a violation of a
     prisoner's rights under the Eighth Amendment requires
     deliberate indifference on part of the officials, and
     deliberate   indifference   entails   more  than   "mere
     negligence." . . .

           Plaintiff also failed to timely respond to
     defendants' motion for summary judgment. . . . Despite
     having 30 days to respond to defendants' motion,
     plaintiff did not file anything regarding defendants'
     motion until August 28, 2009.     The document filed,
     "Objection to Motion for Summary Judgment," fails to
     respond in any material way to defendants' motion.
     . . .
(Docket citations omitted; emphasis added by Magistrate Judge

Crocker.)
     ¶18     Despite      the   issuance        of   this    order,    P.L.    remained
unaware for many weeks that the defendants had moved for summary
judgment,    or    that    Magistrate       Judge     Crocker        had    granted   the
defendants' motion for summary judgment.                          Several weeks after
the court had entered summary judgment against his case, P.L.
asked Attorney Winkel to try to settle the case for between
$5,000 and $10,000.         A few weeks later, P.L. sent another letter
to Attorney Winkel asking what had happened to the scheduled
trial date, which had just passed.                   P.L. asked Attorney Winkel
whether     he    had   settled      the    case     or     had    gotten    the   trial
postponed without P.L.'s permission.                   P.L. also asked Attorney
Winkel    what    discovery     he    had   obtained,        and     whether   Attorney


                                            7
                                                          No.   2012AP1845-D



Winkel had determined which nurse had been working at the prison
on the day in question.
       Attorney Winkel wrote back to P.L. with the following:

            I see that you were unable to obtain any useful
       opinions from the hospital; which is the same problem
       I had. You and I talked about this. I could not get
       any   offers   from  the  state  because   we  had  no
       ammunition.   Sometimes, a party cannot prove in court
       what we know to be true. This is one of those cases.

            As such, enclosed please find a check from my
       trust account for the balance of your money for the
       lawsuit, since we do not have adequate evidence to
       make it worthwhile to pursue the matter any further,
       nor can we get over Motions for Summary Judgments.

            This will hopefully allow you to concentrate on
       your remaining time and getting out on a good note.
(Emphasis in original.)        Attorney Winkel handwrote on the bottom
of the letter a note that states:          "I paid [the medical expert]
$400, and CBS 6.59 [for collect phone calls], leaving $2,093.41
for you.      Sorry we couldn't get a settlement offer."

       ¶19    In a subsequent letter to Attorney Winkel, P.L. wrote
that     he    had   never    authorized   Attorney    Winkel    to     cease

litigation; that he wanted the case reopened; and that he wanted
copies of all discovery so that he could represent himself.

       ¶20    On December 21, 2009, P.L. sent a letter to United
States    District    Court   Judge   Barbara   B.   Crabb,   stating    that
Attorney Winkel had stopped litigating the case without P.L.'s
consent and that he wanted to litigate the case pro se.                 A pro
se case analyst from the Western District wrote back to P.L.,
explaining that the case was closed and enclosing a copy of the
docket sheet and final order.

                                      8
                                                                          No.     2012AP1845-D



        ¶21   P.L. ultimately filed a grievance with the OLR against
Attorney Winkel.             In his response to the grievance, Attorney
Winkel told the OLR that he had personally mailed P.L. a copy of
defendants'         motion     for      summary          judgment,      as      well       as     a
handwritten note asking P.L. if he wanted Attorney Winkel to
arrange       for    medical        testimony          to    rebut      the      defendants'
arguments.          Attorney       Winkel   also         told    the   OLR    that        he    had
informed P.L. that the case was dismissed and no trial would be
held.
        ¶22   In    August     2012,     the     OLR     filed    a    complaint       against
Attorney      Winkel.         As     relevant       here,       the    complaint       charged
Attorney Winkel with the following counts of misconduct.
              •    Count     One:           By      failing       to    properly          oppose
                   defendants'       motion        for    summary      judgment,          and    by
                   failing     to       display        the      knowledge       and       skills
                   necessary       to    competently         represent        P.L.     in       the
                   Eighth Amendment civil rights case, Attorney Winkel
                   violated Supreme Court Rule (SCR) 20:1.1.1
              •    Count Two:        By failing to oppose defendants' motion
                   for summary judgment by the court—ordered deadline,
                   by failing to file an expert witness disclosure by
                   the   court-ordered         deadline,         by    failing       to     amend
                   plaintiff's complaint to reflect the name of the

        1
       SCR 20:1.1 provides that "[a] lawyer shall provide
competent representation to a client.    Competent representation
requires   the   legal   knowledge,   skill,   thoroughness   and
preparation reasonably necessary for the representation."



                                               9
                                                                 No.    2012AP1845-D



             "Jane Doe" defendant, and by failing to conduct any
             meaningful discovery in P.L.'s case, Attorney Winkel
             violated SCR 20:1.3.2
         •   Count       Three:      By     failing     to    inform      P.L.     of
             defendants' motion for summary judgment, by failing
             to inform P.L. that the court granted defendants'
             motion for summary judgment, by failing to provide
             P.L. with copies of defendants' motion for summary
             judgment and the order granting defendants' summary
             judgment, and by failing to keep P.L. apprised of
             the status of the case, Attorney Winkel violated
             SCR 20:1.4(a)(3).3
         •   Count Five:        By concealing from P.L. that defendants
             made    a    motion   for    summary     judgment    and    that     the
             court       granted   defendants'      motion,    leading     to    the
             dismissal of the action, Attorney Winkel violated
             SCR 20:8.4(c).4
         •   Count       Six:      Having     concealed       from      P.L.     that
             defendants made a motion for summary judgment and
             that the court granted defendants' motion, leading

    2
       SCR 20:1.3 provides that "[a] lawyer shall act with
reasonable diligence and promptness in representing a client."
    3
       SCR 20:1.4(a)(3) provides that a lawyer shall "keep the
client reasonably informed about the status of the matter."
    4
       SCR 20:8.4(c) provides that it is professional misconduct
for a lawyer to "engage in conduct involving dishonesty, fraud,
deceit or misrepresentation."



                                      10
                                                                         No.     2012AP1845-D



                    to the dismissal of the action, and by thereafter
                    representing to the OLR that he had informed P.L. of
                    the     aforesaid     events,      Attorney         Winkel     violated
                    SCR 22.03(6),5 enforced under SCR 20:8.4(h).6
        ¶23       After a three-day hearing, the referee determined that
Attorney Winkel had committed each of the above five counts of
misconduct.            The    referee's     reasoning       may    be     summarized       as
follows.
        ¶24       As to Counts One and Two (incompetent representation
and lack of diligence), the referee found that Attorney Winkel
had    never       before    litigated     a    deliberate        indifference         claim;
that,        although      Attorney      Winkel     claimed       to     have     performed

research, he did not copy any cases, make any notes, or bill any
time        for   legal   research;      and    that   he   used       the     wrong    legal
standard in his expert witness disclosure.                         The referee noted
that        Attorney      Winkel's      filings     with    the        district     court——
particularly his motion to extend already-expired deadlines and
his "objection" to the defendants' summary judgment motion——gave


        5
       SCR 22.03(6) provides that "[i]n the course of the
investigation, the respondent's wilful failure to provide
relevant information, to answer questions fully, or to furnish
documents and the respondent's misrepresentation in a disclosure
are misconduct, regardless of the merits of the matters asserted
in the grievance."
        6
       SCR 20:8.4(h) provides that it is professional misconduct
for a lawyer to "fail to cooperate in the investigation of a
grievance filed with the office of lawyer regulation as required
by SCR 21.15(4), SCR 22.001(9)(b), SCR 22.03(2), SCR 22.03(6),
or SCR 22.04(1)."



                                               11
                                                                            No.     2012AP1845-D



the impression that he "did not know what he was doing, that he
was over his head."                   The referee noted that there were many
actions that Attorney Winkel could have taken to advance P.L.'s
case (e.g., he could have filed an expert affidavit, medical
literature, and a brief explaining that MRSA infections require
immediate medical attention), but he failed to do anything of
substance.      The referee wrote that while Attorney Winkel may not
have been able to defeat defendants' summary judgment motion, he
needed to do more than what he did in order to provide competent
representation.
       ¶25   The    referee           next    addressed       Counts    Three       and    Five,
which involve Attorney Winkel's failure to properly communicate

with P.L.       Attorney Winkel told the referee that he had sent
P.L.   all     of   the    important          case    documents,       as   proven        by    his
writings on a series of post-it notes directing his secretary to
send   the     documents         to    P.L.      The     referee       rejected       Attorney
Winkel's     claim.         The        referee       noted    that     Attorney       Winkel's
secretary      testified         at     deposition       that     she       neither       had     a
recollection of sending the documents, nor could she discern
from   the     post-it      notes        whether       they    had     been       sent.         The
secretary also testified at deposition and at the hearing that
she    could    not       tell    if     any     of     thirteen       different          crucial
documents had been sent to P.L.                      The referee noted that Attorney
Winkel's post-it note "system" had only a "veneer of documentary

evidence,"      and   was        not    the    type     of    contemporaneous             written
evidence on which attorneys and judges customarily rely as proof
of mailing.
                                                12
                                                                        No.    2012AP1845-D



      ¶26   The referee also remarked that one particular letter
from Attorney Winkel showed both his dishonesty and his failure
to adequately communicate with P.L.              In a letter to P.L. written
after the district court had granted summary judgment to the
defendants, Attorney Winkel stated that "we do not have adequate
evidence to make it worthwhile to pursue the matter any further,
nor can we get over Motions for Summary Judgments."                           The referee
reasoned    that     Attorney       Winkel    would   not        have     written     this
statement if he had previously advised P.L. of the truth of the
matter:     that the case had been dismissed on summary judgment
many weeks earlier.           The referee further reasoned that, given
P.L.'s litigious nature, Attorney Winkel had an incentive to

gloss over the already-dismissed status of the case in order to
avoid a legal malpractice claim.
      ¶27   The referee next moved to Count Six, which charged
Attorney    Winkel     with     willfully      failing      to     provide       relevant
information, fully answer questions, or furnish documents in the
course of an OLR investigation.               The referee noted that in his
answers to the OLR's requests for admission, Attorney Winkel
denied that:       (1) he failed to provide P.L. with a copy of
defendants' motion for summary judgment; (2) he failed to inform
P.L. that the district court had granted defendants' motion for
summary judgment; and (3) he failed to provide P.L. with a copy
of the order granting defendants' motion for summary judgment.

The   referee   held    that       Attorney   Winkel's      denials           amounted   to
misrepresentation      and     a    willful    failure      to     provide       relevant
information to the OLR.
                                         13
                                                                               No.       2012AP1845-D



      ¶28     With that, the referee concluded that Attorney Winkel
engaged in professional misconduct as set forth in Counts One,
Two, Three, Five, and Six.
      ¶29     The    referee       next     addressed         the    issue         of    sanctions.
The   referee       found     the     following         aggravating            factors       to     be
present:       the        existence       of    a    prior        disciplinary           record;     a
pattern of misconduct; the presence of multiple offenses; an
intentional failure to comply with disciplinary rules or orders;
the submission of false evidence, statements, or other deceptive
practices      during        the     disciplinary             process;         a        refusal     to
acknowledge         the     wrongful           nature        of     conduct;            substantial
experience in law practice at the time in question; and harm to

a   client.         Of    these    aggravating          factors,         the    one      that     most
concerned      the        referee     was       Attorney          Winkel's           tendency       to
misrepresent         the    truth.          This      tendency           was    noticeable         in
Attorney Winkel's previous two disciplinary matters, the referee
noted.      See Winkel, 2005 WI 165; Winkel, 217 Wis. 2d 339.
      ¶30     On the mitigating side, the referee found only one
factor:       the        remoteness    in      time     of    Attorney         Winkel's         prior
offenses.
      ¶31     The referee noted the range of sanctions imposed in
previous,      arguably           similar        cases:             In     re        Disciplinary
Proceedings Against Harris, 2013 WI 8, 345 Wis. 2d 239, 825 N.W.
2d 285 (five-month suspension for failing to inform client of
dismissal of matter and misrepresenting status of matter that
had been dismissed); and In re Disciplinary Proceedings Against
Hammis, 2011 WI 3, 331 Wis. 2d 19, 793 N.W. 2d 884 (four-month
                                                14
                                                                      No.       2012AP1845-D



suspension for billing the State Public Defender for work the
lawyer    did     not   actually       perform,    continuing        to    practice       law
after receiving notice of administrative suspension, willingly
misleading a sitting judge about whether or not he had a valid
law license, failing to refund unearned fees, and failing to
respond to the OLR); and In re Disciplinary Proceedings Against
Lister, 2010 WI 108, 329 Wis. 2d 289, 787 N.W.2d 820 (60-day
suspension for failing to pursue client's federal civil rights
action,     failing       to    inform    client      that    court       had    dismissed
lawsuit, failing to promptly respond to numerous requests from
successor       counsel    to    forward      client's   case       file,       failing    to
refund to client unused balance of retainer fee, and failing to

return messages left by the OLR).
     ¶32     Ultimately, the referee recommended the imposition of
a four-month suspension——two months longer than what the OLR had
proposed     in    its     complaint.           The    referee       wrote       that     the
"aggravating factor which is most concerning to me is [Attorney
Winkel's]       submission      of    false     evidence,     false       statements       or
other deceptive practices during the disciplinary hearing.                              This
factor would be very serious even if [Attorney Winkel] had no
prior disciplinary history.                Unfortunately, however, his prior
disciplinary        history          involves     this       very     same       type     of
misconduct."        The referee continued:

          I observed [Attorney Winkel's] testimony over
     most of three (3) days.      In the opinion of this
     referee, he did not help himself.   While his answers
     were generally carefully worded, they were oftentimes
     non-responsive.    Simple questions were met with
     circumlocution and prevarication. [Attorney Winkel's]

                                           15
                                                               No.    2012AP1845-D


       own attorney asked him at his deposition whether two
       particular   documents  had   been mailed  to  [P.L.]
       [Attorney Winkel's] answer, that he did not know, and
       he had no contemporaneous evidence on the subject, is
       buried in layers of obfuscation.

            Most   disturbingly  . . .    there   are  major
       contradictions between [Attorney Winkel's] deposition
       testimony and his hearing testimony. It is as if the
       time between the deposition and the hearing was used
       to shore up and correct perceived shortcomings in his
       deposition testimony.

            The OLR's recommendation of a 60-day suspension
       may have been appropriate before the hearing started;
       by the time it ended it was definitely not sufficient.
       Were I to recommend a 60-day suspension here I would
       be undercutting the values of truthfulness and honesty
       which are at the very heart of the legal system.
(Footnotes and citations omitted.)
       ¶33   Attorney Winkel appeals.         In conducting our review, we
will affirm the referee's findings of fact unless they are found
to    be   clearly   erroneous,    but   we    will   review    the    referee's
conclusions of law on a de novo basis.                See In re Disciplinary
Proceedings Against Inglimo, 2007 WI 126, ¶5, 305 Wis. 2d 71,
740 N.W.2d 125.       The court may impose whatever sanction it sees
fit   regardless     of   the   referee's     recommendation.         See   In   re
Disciplinary Proceedings Against Widule, 2003 WI 34, ¶44, 261
Wis. 2d 45, 660 N.W.2d 686.
       ¶34   On appeal, Attorney Winkel does not challenge any of
the factual findings that underlie the counts of misconduct or
the legal conclusions of misconduct.            Attorney Winkel challenges
only whether the referee's recommended sanction of a four-month
suspension is appropriate.



                                      16
                                                                                No.    2012AP1845-D



       ¶35     Attorney      Winkel       maintains            that    his   conduct        warrants
only a public reprimand.                      In support of this claim, Attorney
Winkel    levies       a   number        of    broad-based            attacks    on     the    OLR's
disciplinary hearing process.                     Attorney Winkel argues, first,
that his disciplinary proceeding should have been bifurcated to
decide    the    merits          issue    separate         from        the   determination           of
sanctions;      otherwise,         he    says,       it    was        impossible      for     him    to
effectively contest guilt and introduce mitigating evidence at
the    same    hearing.           Attorney      Winkel         argues,       second,     that       the
referee       should   not       have    learned          of    his     disciplinary         history
before deciding the merits of a disciplinary case; he theorizes
that     the    referee's          knowledge         of        his     disciplinary         history

possibly tainted the referee's fact-finding.                                  Attorney Winkel
argues, third, that the referee erred by increasing his sanction
recommendation based on a finding that Attorney Winkel provided
unreliable testimony during the disciplinary hearing; he argues
that any suspicion of untruthfulness on his part could only be
considered       in        the     context        of       a      brand-new           disciplinary
proceeding.
       ¶36     In addition to these systemic challenges to the OLR's
disciplinary process, Attorney Winkel levels various criticisms
at the referee's performance.                    Attorney Winkel argues that the
referee failed to give him credit for returning to P.L. the
unused portion of the advance fee payment; failed to appreciate

that he has acknowledged his deficiencies in handling P.L.'s
case; and failed to note that he did not personally benefit from
his misconduct.             He posits, as a mitigating factor, that his
                                                17
                                                                   No.     2012AP1845-D



misconduct did no harm given that——as Attorney Winkel's counsel
stated in appellate briefing and at oral argument——there was "no
merit" to P.L.'s Eighth Amendment civil rights case.                          Finally,
Attorney Winkel argues that the referee failed to appreciate
that he has already been admonished by the district court in its
summary judgment order; that he has had to incur significant
legal bills in his defense in this disciplinary matter; and that
a suspension will hurt him, his clients, and his staff.
        ¶37   We reject all of Attorney Winkel's arguments, starting
first    with       his   systemic    challenges    to    the    OLR     disciplinary
process.        Attorney Winkel has forfeited any argument that the
disciplinary hearing should have been bifurcated to decide the

merits issue separate from the determination of sanctions.                          If
Attorney Winkel truly believed that the referee——an experienced
judge and referee——was incapable of differentiating mitigating
evidence from admissions of misconduct, he should have asked the
referee to hold a bifurcated hearing.                He did not; he points to
nowhere in the record where such a request was preserved.                       It is
too late to complain about it now.                       See In re Disciplinary
Proceedings Against Netzer, 2014 WI 7, ¶45, 352 Wis. 2d 310, 841
N.W.2d 820; see also United States v. Boyd, 86 F.3d 719, 722
(7th Cir. 1996) (defendant cannot "plant an error and grow a
risk-free trial").
        ¶38   We are also unpersuaded by Attorney Winkel's argument
that    it    was    improper   for    the     referee   to     learn    of   Attorney
Winkel's disciplinary history before deciding the merits of this
case.     Attorney Winkel speculates that perhaps the referee, in
                                          18
                                                                      No.    2012AP1845-D



evaluating the merits of this case, improperly assumed that it
was    more    likely     that     Attorney      Winkel    committed        the   charged
misconduct       simply        because      he     had      previously         committed
misconduct——akin          to     the     forbidden        inference     of        criminal
propensity that a jury might draw from prior bad act evidence.
See Wis. Stat. § 904.04(2).               But this argument does not square
with    the    fact    that    Attorney     Winkel       challenges     none       of    the
referee's factual findings or legal conclusions of misconduct;
his sole challenge in this appeal is to the amount of discipline
that    the    referee     recommended.           We    also   find    absolutely         no
evidence to support what Attorney Winkel seems to imply:                                that
the referee prejudged him and denied him a fair opportunity to

defend against the misconduct charges.
        ¶39    Attorney Winkel is also mistaken in arguing that, in
making a sanctions recommendation, neither the referee nor this
court may consider the referee's finding that some of Attorney
Winkel's hearing testimony was unreliable.                     There is no dispute
that Attorney Winkel's testimony during the disciplinary hearing
would    not    permit    a    separate,    new    misconduct        finding      in    this
proceeding;      due     process    considerations         dictate    that     attorneys
receive fair notice of misconduct charges against them and an
opportunity to respond.                In re Ruffalo, 390 U.S. 544, 550-51
(1968).       Neither can it be disputed, however, that this court is
charged with the responsibility of protecting the public from
attorneys who are not fully truthful.
        ¶40    Thus, this court will not simply ignore the referee's
uncontested      findings      that    Attorney        Winkel's   hearing      testimony
                                           19
                                                                          No.    2012AP1845-D



was plagued with "non-responsive" answers, "circumlocution and
prevarication,"          "layers      of    obfuscation,"          and    conflicts       with
deposition testimony.             Just as in criminal cases, where a trial
court may not add an additional term for perjury to a convicted
defendant's sentence but may consider a defendant's veracity at
trial as part of the exercise of sentencing discretion, so too
is it entirely appropriate for this court to consider Attorney
Winkel's     attitude           toward      the       truth       in     formulating       its
disciplinary sanction.             See Lange v. State, 54 Wis. 2d 569, 575,
196   N.W.2d       680    (1972);        see     also       American     Bar    Association
Standards for Imposing Lawyer Sanctions, § 9.22(f) (listing as
an aggravating factor the "submission of false evidence, false

statements, or other deceptive practices during the disciplinary
process");     see       also    In    re       Disciplinary       Proceedings      Against
Eisenberg, 2013 WI 37, ¶34 n.9, 347 Wis.2d 116, 833 N.W.2d 46
(referee's comments about the respondent attorney's "conduct and
testimony in this proceeding are proper subjects of a referee's
report").
      ¶41    We also are unpersuaded by                     Attorney Winkel's numerous
criticisms of the referee's performance.                          To begin, the referee
did   not   err    in     declining        to    credit      Attorney     Winkel    for    his
return to P.L. of the unused portion of the advance fee payment.
Attorney Winkel was obligated to                           return those funds by the
terms of his fee agreement.
      ¶42    The    referee       similarly          did    not   err    in    declining    to
credit Attorney Winkel for his supposed regret over the way he
handled     P.L.'s       case.        The   referee         was   clearly       troubled    by
                                                20
                                                                                    No.    2012AP1845-D



Attorney Winkel's demeanor during the disciplinary hearing:                                          the
referee      described           portions           of      his     hearing          testimony         as
displaying a sense of "exaggerated indignation" that was both
"specious     and     misplaced";             as    containing         "major        contradictions
between [his] deposition testimony and his hearing testimony";
and as marked by "circumlocution," "prevarication," and "layers
of obfuscation."               Given the facts as they unfolded before the
referee, we do not question the referee's determination that
Attorney     Winkel        has       not   shown      that     he      fully    appreciates           the
wrongful nature of his conduct.
      ¶43     The referee also did not err in declining to view as a
mitigating     factor          Attorney           Winkel's    lack      of     personal        benefit

from his misconduct.                  Attorney Winkel argues in his appellate
brief that he "did not stand to gain anything personally by
making    untimely         filings         or      letting    the      case     get       dismissed."
While this statement may be literally true, we do not find it
particularly comforting, especially given our duty to protect
the   public         from        attorney           misconduct.               See     Preamble         to
SCR Chapter 21.
      ¶44     We     are       similarly           unpersuaded         by     Attorney        Winkel's
argument      that       the     meritless           nature       of    P.L.'s        civil        rights
lawsuit counteracts his own blameworthiness.                                    Attorney Winkel
states      explicitly          in     his        briefs,     and      also     stated        at     oral
argument, that P.L.'s lawsuit had "no merit."                                       It would be an
odd   disciplinary             system        if     maintaining         a     meritless        lawsuit
counted      as      a      mitigating              circumstance,             especially           since


                                                    21
                                                                                  No.        2012AP1845-D



maintaining            a    meritless        lawsuit        is     itself         a     sanctionable
offense.         See SCR 20:3.1.
       ¶45       Finally,       while    we    acknowledge          that      a       suspension        of
Attorney         Winkel's        law    license       may     very     well           hurt     his     law
practice, we have previously made clear that such an effect is
not an appropriate factor in establishing a level of discipline.
See In re Disciplinary Proceedings Against Lamb, 2011 WI 101,
¶31,       338   Wis.      2d    1,    806   N.W.2d     439      ("Any       suspension           of    an
attorney's            license     to     practice       law      is        likely       to      have    a
detrimental impact on the attorney's livelihood.").
       ¶46       In    the      end,   it     appears       that      in    this        disciplinary
proceeding, Attorney Winkel chose a litigation strategy he now

regrets:         an "all or nothing" strategy of going for an outright
exoneration.               The strategy failed, leaving him with a record
that contains little mitigating evidence, an admonishment from a
federal magistrate judge, and a referee's report bristling with
factual findings and credibility determinations adverse to him.
Having lost the battle on the facts, he hopes to win the war on
appeal by attacking the fairness of the OLR disciplinary process
and the referee.             We reject Attorney Winkel's efforts.7



       7
       To the extent we have not addressed each and every one of
the many arguments presented by Attorney Winkel during appellate
briefing and oral argument, such arguments are deemed denied.
See Libertarian Party of Wis. v. State, 199 Wis. 2d 790, 801,
546 N.W.2d 424 (1996) (appellate court need not discuss
arguments unless they have "sufficient merit to warrant
individual attention").



                                                 22
                                                                     No.     2012AP1845-D



      ¶47   Turning     specifically         to     the     level    of      discipline
required, we disagree with Attorney Winkel's argument that a
public reprimand will suffice.               We must impose the discipline
needed to protect the public, the courts, and the legal system
from Attorney Winkel's repetition of misconduct, to impress upon
him   the   seriousness      of   his   misconduct,         and     to     deter    other
attorneys     from    engaging    in    similar       misconduct.          See     In   re
Disciplinary Proceedings Against Arthur, 2005 WI 40, ¶78, 279
Wis. 2d 583, 694 N.W.2d 910.             We also must bear in mind that
discipline is generally progressive in nature.                      See, e.g., In re
Disciplinary Proceedings Against Nussberger, 2006 WI 111, ¶27,
296 Wis.2d 47, 719 N.W.2d 501.                Considering these factors, we

conclude that more than a public reprimand is required.                          This is
the third time the court has had occasion to discipline Attorney
Winkel for professional misconduct.                 Clearly, his two previous
public reprimands have not sufficiently impressed upon him the
need to scrupulously adhere to the rules of professional conduct
for   attorneys.       His    course    of        conduct    requires       a    license
suspension.
      ¶48   We further conclude that a suspension greater than the
60-day   minimum     suspension    is   in        order.      In    re     Disciplinary
Proceedings Against Grady, 188 Wis. 2d 98, 108–09, 523 N.W.2d
564 (1994) (explaining that generally the minimum length of a
license suspension is 60 days).               We are particularly concerned
with the pattern of misconduct Attorney Winkel has displayed:
in both this case and in his previous two disciplinary matters,
Attorney Winkel has shown a willingness to bend the truth to
                                        23
                                                                No.     2012AP1845-D



help himself.      We agree with the referee's statement that a 60-
day    minimum    suspension     would      "undercut[]    the        values     of
truthfulness and honesty which are at the very heart of the
legal system."      We therefore conclude, as did the referee, that
a four-month suspension is an appropriate response, justified by
our precedent.         See, e.g., Harris, 345 Wis. 2d 239 (five-month
suspension for lawyer with disciplinary history who failed to
inform client of dismissal of matter, misrepresented the status
of the matter that had been dismissed, and failed to cooperate
with the OLR investigation).
      ¶49   Finally, we turn to the issue of costs.                   The OLR has
requested costs in the total sum of $42,634.13.                       This amount

consists of $37,002.13 in pre-appeal costs, and $5,632.00 in
appellate costs.         Attorney Winkel does not challenge the pre-
appeal costs.      He does, however, challenge the appellate costs,
claiming that they amount to "piling on."             Attorney Winkel also
claims that the OLR's appellate costs were needlessly inflated
by a change in its position regarding the appropriate length of
suspension:      at oral argument, the OLR asked the court to impose
the 60-day suspension that it had requested in its complaint,
whereas in its appellate brief-in-chief, the OLR asked the court
to    approve    the     referee's   recommendation       of     a      four-month
suspension.       Attorney    Winkel     argues   that    the     OLR     probably
performed some appellate work that was "wasteful" in that it was

not consistent with the OLR's ultimate position.
      ¶50   We   deny     Attorney   Winkel's     objection.           Our   rules
require that a respondent who objects to a statement of costs
                                       24
                                                                              No.    2012AP1845-D



"must state what he or she considers to be a reasonable amount
of costs."          SCR 22.24(2).              Attorney Winkel did not do so.                    He
apparently believes that a "reasonable amount" of costs for the
OLR to have incurred on appeal is zero, as he asks this court to
deny the OLR's appellate costs in their entirety.                                We decline to
do so.        As shown by the discussion above, Attorney Winkel has
vigorously      advocated        on        appeal       for   the     imposition     of   only    a
public reprimand.            He has advanced a wide variety of substantive
and     procedural           challenges            to     the       referee's       report      and
recommendation,           all    of        which     the      OLR     has   responded      to    in
briefing and at oral argument.                           The OLR's requested appellate
costs     of    $5,632.00            do    not      strike       us    as   unreasonable         or

unnecessary, nor do we have any reason to believe that they were
materially          driven      up        by   the       OLR's      arguments       as    to    the
appropriate suspension length.
        ¶51    IT IS ORDERED that the license of David J. Winkel to
practice law in Wisconsin is suspended for a period of four
months, effective August 6, 2015.
        ¶52    IT IS FURTHER ORDERED that within 60 days of the date
of this order, David J. Winkel shall pay to the Office of Lawyer
Regulation the costs of this proceeding.
        ¶53    IT    IS   FURTHER          ORDERED       that       David   J.   Winkel        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.




                                                   25
                                                      No.    2012AP1845-D



     ¶54   IT   IS   FURTHER   ORDERED   that   compliance   with    all
conditions of this order is required for reinstatement.              See
SCR 22.28(2).




                                  26
                                                                  No.      2012AP1845-D.ssa


      ¶55    SHIRLEY S. ABRAHAMSON, J.                  (concurring).         I join the
per   curiam.      I    write      separately     to     point    out    that      Attorney
Winkel's comments about bifurcating the hearing to determine the
merits of the violation apart from determining sanctions might
be a subject of study for the Lawyer Regulation Committee that I
am proposing.
      ¶56    On February 6, 2015, I filed rule petition 15-01 to
create supreme court rules providing for a Lawyer Regulation
Committee     to   review       the   Rules      of     Professional         Conduct    for

Attorneys (chapters 20 and 22 of the supreme court rules) and
the   organization,         operation,      and       procedures        of   the     lawyer
discipline      system,      including      the        OLR,   District       Committees,
Preliminary        Review       Committee,        Referees,          and      Board     of
Administrative      Oversight,        and   to    create      a   Lawyer      Regulation
Review Committee.           The court unanimously agreed to conduct a
public   hearing       on   this    proposal      in    the   fall      of   2015.      The
subject of bifurcation can be a subject of study for the Lawyer

Regulation Committee, if my rule petition is adopted.




                                            1
                                                                  No.    2012AP1845-D.pdr


       ¶57       PATIENCE DRAKE ROGGENSACK, C.J.                 (dissenting).        The
Office of Lawyer Regulation (OLR) initially requested that we
impose 60 days suspension for the six counts of misconduct that
it alleged.1          The referee recommended four months suspension for
the five counts that OLR proved and for the referee's conclusion
that David J. Winkel was not honest in his testimony.                             At oral
argument, which was held subsequent to the parties receiving the
referee's findings and recommendation, OLR again requested that
we impose 60 days suspension for the five counts of misconduct.

       ¶58       I    respectfully       dissent     because      by     imposing     the
referee's        recommended      four    month    suspension,     which     is    double
what       OLR   sought,    the    majority       appears   to    have    adopted     the
referee's conclusion that Attorney Winkel was not honest in his
testimony at the hearing the referee conducted.                        However, Winkel
was not charged with giving untruthful testimony to the referee.
Therefore, to increase his punishment based on the referee's
conclusion that he was untruthful denies Winkel due process of

law.
       ¶59       To   explain   further,     the    referee      recommended      a   100%
increase in the 60-day suspension that the OLR requested because
the referee believed that Winkel was not honest in his testimony
at the referee's hearing.            In that regard the referee said,

       OLR's recommendation of a 60-day suspension may have
       been appropriate before the hearing started; by the
       time it ended it was definitely not sufficient. Were
       I to recommend a 60-day suspension here I would be

       1
       OLR dismissed Count 4 prior to the hearing before the
referee.


                                             1
                                                                         No.    2012AP1845-D.pdr

        undercutting the values of truthfulness and honesty
        which are at the very heart of the legal system.2
        ¶60      While        the     referee's           comments        about         Winkel's
truthfulness may be a basis for a new disciplinary charge, to
discipline Winkel for a count of misconduct without notice or an
opportunity to be heard violates Winkel's right to due process.

As we have held, an attorney has a constitutional due process
right       in    a   disciplinary        proceeding          to   "prior      notice    of    the
charges, the right to prepare and defend against the charges,
and the right to a full hearing" thereon.                               In re Disciplinary
Proceedings Against Gamino, 2005 WI 168, ¶48, 286 Wis. 2d 558,
707 N.W.2d 132.              Winkel had no notice of a charge that he gave
untruthful testimony, nor the right to defend against it, nor a
hearing          on   whether       the    referee's          conclusion        was     correct.

Because due process is foundational to our disciplinary process,
and because Winkel was not accorded due process, I respectfully
dissent.
        ¶61      I    also    write    because       I   have      an   additional       concern
about       what      is     permitted      when      OLR     proceeds      on    an     ethical

allegation.            My    concern      is   that      by    providing       proof    of    past
disciplinary history of an attorney as he or she attempts to
defend against current charges, it is possible that a referee's
opinion of an attorney's alleged misconduct may be prejudiced.
        ¶62      Here,      the   referee      commented       about     Winkel's       veracity
after his review of Winkel's prior disciplinary history.                                       The



        2
            Referee's report, p. 60.


                                                 2
                                                                      No.    2012AP1845-D.pdr


last disciplinary matter arose from 2003 conduct, 12 years ago.3
However, the referee drew from those two cases as a foundation
for    his     conclusion    in    this        case.        He    also       reviewed       the
underlying      reports     of   the    referees       on   those      two    cases,       even
though the reports were not in the record of this case.4                               As he
was    drawing      his   conclusions,         the     referee        said,    "his     prior
disciplinary history involves this very same type of misconduct.
In this regard, a review of not only the two prior decisions of
this       Court,   but   also    the    underlying         referees'         reports,       is

instructive."5

       ¶63     Winkel's    counsel      noted        the    effect      of    those     prior
proceedings on the referee's consideration of Winkel's defense.
He suggested that, as with a jury, a fact-finding referee should
not be able to employ a defendant's past disciplinary history as
proof of present conduct.               I agree with Winkel's counsel that
past disciplinary history should not be part of prosecution for
a   new     charge,   although     it     is    relevant         in    deciding       on    the

sanction if charges are proved.                   I urge my colleagues on the
court to consider whether we need to amend our SCR ch. 20 and
ch. 22 to address this concern.




       3
       In re Disciplinary Proceedings Against Winkel, 2005 WI
165, ¶2, 286 Wis. 2d 533, 706 N.W.2d 661 (public reprimand); and
In re Disciplinary Proceedings Against Winkel, 217 Wis. 2d 339,
340, 577 N.W.2d 9 (1998) (public reprimand).
       4
           Referee's report pp. 52-54.
       5
           Id., p. 52.


                                           3
                                                     No.   2012AP1845-D.pdr


     ¶64   I   am   authorized   to   state   that    Justice     ANNETTE
KINGSLAND ZIEGLER joins this dissent.




                                  4
                                                        No.    2012AP1845-D.mjg


     ¶65   MICHAEL   J.   GABLEMAN,       J.   (dissenting).       I   dissent
from the Court's opinion.     I agree with Chief Justice Roggensack
that a 60 day suspension is appropriate.




                                      1
    No.   2012AP1845-D.mjg




1
