                                                            2019 WI 108

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:              2018AP1263-D


COMPLETE TITLE:        In the Matter of Disciplinary Proceedings
                       Against Donald J. Harman, Attorney at Law:

                       Office of Lawyer Regulation,
                                 Complainant-Respondent,
                            v.
                       Donald J. Harman,
                                 Respondent-Appellant.



                           DISCIPLINARY PROCEEDINGS AGAINST HARMAN

OPINION FILED:         December 18, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:

NOT PARTICIPATING:



ATTORNEYS:

      For the respondent-appellant, there was a brief filed by
Donald J. Harman, La Crosse, WI.

      For the complainant-respondent, there was a brief filed by
Matthew F. Anich and Dallenbach Anich & Wickman SC, Ashland.
                                                                            2019 WI 108
                                                                     NOTICE
                                                       This opinion is subject to further
                                                       editing and modification.   The final
                                                       version will appear in the bound
                                                       volume of the official reports.
No.    2018AP1263-D


STATE OF WISCONSIN                                 :              IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Donald J. Harman, Attorney at Law:

Office of Lawyer Regulation,                                               FILED
                 Complainant-Respondent,                              DEC 18, 2019
      v.                                                                  Sheila T. Reiff
                                                                      Clerk of Supreme Court
Donald J. Harman,

                 Respondent-Appellant.




      ATTORNEY        disciplinary     proceeding.            Attorney's         license

suspended.


      ¶1     PER CURIAM.        Attorney Donald J. Harman has appealed a

report     and    recommendation     filed    by   Referee        Allan     E.   Beatty,

concluding        that   Attorney    Harman    committed          three     counts      of

professional       misconduct    and   recommending         that     his    license      to

practice law in Wisconsin be suspended for six months.                             Rather

than challenging the referee's findings of fact or conclusions of

law, Attorney Harman argues on appeal that the referee should have

recused himself.         Attorney Harman did not request a substitution
of the referee pursuant to SCR 22.13(4).                     When he subsequently
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raised the issue of the referee's participation, he refused to

participate in a scheduled telephone conference at which the

recusal issue would have been addressed.                 Based on these facts, we

find that Attorney Harman waived his objection to the referee's

participation in this matter.

     ¶2     Upon    careful    review      of     this    matter,   we    uphold    the

referee's findings of fact and conclusions of law, and we agree

that a six-month suspension of Attorney Harman's Wisconsin law

license is an appropriate sanction for the misconduct at issue.

We further agree with the referee that, as a condition of the

reinstatement of his license, Attorney Harmon should be required

to satisfy a judgment entered against him.                      We also find it

appropriate to follow our usual custom of imposing the full costs

of this proceeding, which are $7,662.28 as of May 13, 2019, on

Attorney Harman.

     ¶3     Attorney       Harman    was       admitted    to   practice      law    in

Wisconsin    in    1960.      He    has    been    disciplined      on    four   prior

occasions.    In 1987 he was publicly reprimanded for having charged
one client an excessive fee and for failing to turn over another

client's files upon termination of representation, notwithstanding

a court order to do so.             In re Disciplinary Proceedings Against

Harman, 137 Wis. 2d 148, 403 N.W.2d 459 (1987).                           In 1989 he

received a consensual public reprimand for having acted in the

presence of a conflict of interest, failing to maintain complete

trust account records and render proper accounting of funds held

in trust, and failing to cooperate.               Public Reprimand of Donald J.
Harman, April 26, 1989.              In 1998 he received another public
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                                                                    No.   2018AP1263-D



reprimand for failing to act promptly in his client's matter and

failing    to   notify       the    client     of    a   significant      procedural

development.       In re Disciplinary Proceedings Against Harman, 221

Wis. 2d 238, 584 N.W.2d 537 (1998).                  In 2001, Attorney Harman's

license was suspended for six months for eight counts of misconduct

that included trust account violations, dishonesty, presence of a

conflict of interest without obtaining written consent, failing to

keep client confidences, knowingly disobeying the rules of a

tribunal, and on two separate occasions using information obtained

during the representation            of a former client to that former

client's disadvantage.             In re Disciplinary Proceedings Against

Harman, 2001 WI 71, 244 Wis. 2d 438, 628 N.W.2d 351 (2001).

     ¶4     On July 6, 2018, the Office of Lawyer Regulation (OLR)

filed a complaint alleging three counts of misconduct with respect

to Attorney Harman's representation of W.Z. in a divorce proceeding

in LaCrosse County. Attorney Harman represented W.Z. from February

11, 2016 until April 3, 2017.                 He did not charge W.Z. for his

representation.       The petitioner in the divorce action, R.Z., was
represented     by    Attorney      Rochelle        Jones    of   Legal   Action   of

Wisconsin, Inc.

     ¶5     On September 11, 2015, a domestic abuse injunction was

entered against W.Z.         On February 11, 2016, LaCrosse County Family

Court Commissioner (FCC) Elizabeth A. Wright issued a temporary

order in the divorce requiring the parties to file joint federal

and state income tax returns with the tax refunds to be equally

divided    after     being    processed       through       Attorney   Jones'   trust
account.
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     ¶6   On April 20, 2016, with no motion or order to show cause

pending, Attorney Harman sent an unsolicited letter to FCC Wright

asking her to "dismiss the injunction sua sponte and vacate the

order awarding custody of the two children to [R.Z.]."         The letter

informed the family court commissioner that Attorney Harman and

his client "are also asking that the police investigate [R.Z.'s]

lies" and said if police were satisfied that R.Z. did lie, she

should be charged with obstruction.

     ¶7   Attorney Harman's April 20, 2016 letter to FCC Wright

enclosed a "claim of [W.Z.'s]," apparently provided in an attempt

to satisfy the requirements of Wis. Stat. § 893.80.           The "claim"

alleged that W.Z. had been damaged through the negligence of an

officer of the LaCrosse Police Department, the office of the

LaCrosse County District Attorney, the office of the Wisconsin

State Public Defender, and Legal Action of Wisconsin, Inc., acting

through Attorney Jones.     The claim sought damages of $550,000.

     ¶8   On April 25, 2016, Attorney Harman sent an additional

unsolicited   letter   to   FCC   Wright,   with   various    enclosures,
including medical records of W.Z. and purported "transcripts" of

conversations between W.Z. and his wife.      Attorney Harman's letter

stated:

     I challenge [R.Z.] or [the assistant district attorney]
     or [an attorney with the Office of the State Public
     Defender] to show me where in the medical records of
     [W.Z.] any opinion of any doctor that [W.Z.] has a mental
     illness and/or that a doctor prescribed medication for
     his mental illness.
     ¶9   On April 25, 2016, Attorney Jones sent Attorney Harman
a letter enclosing the Z.'s state income tax refund check in the

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                                                     No.   2018AP1263-D



amount of $871, as well as the Z.'s federal income tax refund check

in the amount of $8,803, with a request that Attorney Harman have

his client endorse both checks and return them to Attorney Jones'

office so she could deposit them in her client trust account and

distribute the funds, pursuant to the February 11, 2016 temporary

order in the divorce.

     ¶10    On May 2, 2016, Attorney Harman sent another unsolicited

letter to FCC Wright to "present information to you about [R.Z.'s]

untruthfulness."     Among other things, the letter said, "[R.Z.]

should have her child visits supervised so as to try and insulate

her children from a mother who has no moral compass and whose life

is driven by sex, greed and a desire to dominate others."     None of

Attorney Harman's letters to FCC Wright constituted motions for

relief and the letters failed to conform to basic requirements of

Wisconsin civil procedure rules.

     ¶11    On May 16, 2016, Attorney Harman filed a motion on W.Z.'s

behalf in the divorce action seeking dismissal of the domestic

abuse injunction which had been entered in a separate case.         On
June 17, 2016, Attorney Harman sent yet another letter to FCC

Wright along with a purported "transcript" of a conversation

between W.Z. and his daughter with an employee of "The Parenting

Place."    The June 17, 2016 letter concluded, "I have reported three

instances of [R.Z.'s] inappropriate behavior.      As a result I am

asking the Family Court Commissioner what corrective action she

would recommend be taken with respect to [R.Z.]."

     ¶12    On June 27, 2016, Attorney Jones filed a notice of motion
and motion for remedial contempt and a supporting affidavit in the
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                                                             No.     2018AP1263-D



divorce action relating to W.Z.'s failure to endorse and return

the tax refund checks as required under the terms of the February

11, 2016 temporary order.         At the same time, Attorney Jones filed

a   response     opposing    Attorney       Harman's   motion,     request    for

dismissal   of    motion    and   request     for   costs.   Attorney        Jones

requested sanctions against Attorney Harman as well as costs

associated with defending the action.

     ¶13    On July 6, 2016, Attorney Harman filed a counterclaim

for annulment on W.Z.'s behalf in the Z. divorce.                  The grounds

asserted for an annulment in the counterclaim were frivolous.

     ¶14    On August 9, 2016, Attorney Harman sent another letter

to FCC Wright, this time including letters to a clinical therapist,

a nurse practitioner, a generalized response from the therapist,

and a printout defining mental illness.

     ¶15    On August 18, 2016, FCC Wright issued an order denying

W.Z.'s motion seeking relief from the domestic abuse injunction,

finding the motion unwarranted under the law and frivolous.                   The

order also denied W.Z.'s motion to dismiss the temporary order
that had been entered on February 11, 2016.             The order stated the

family court commissioner did not have authority to enter a

judgment of annulment, and the FCC declined to enter a ruling

regarding W.Z.'s counterclaim for an annulment that had been filed

on July 6, 2016.      The order denied W.Z.'s motion requesting the

imposition of sanctions against Attorney Jones, finding the motion

not in accordance with the law and frivolous.           The order also found

W.Z. and Attorney Harman in contempt of the February 11, 2016
temporary order relating to the parties' income tax refunds and
                                        6
                                                                  No.    2018AP1263-D



found that W.Z. had willfully withheld the refund checks.                   The FCC

deferred a ruling as to the amount of R.Z.'s award of fees, costs,

and sanctions pending her attorney filing a petition for fees with

a supporting affidavit.

      ¶16     Attorney Harman sent a letter dated August 9, 2016 to

FCC Wright saying, "please consider the following factual material

in   making    your    decision    about       dismissing   the   Domestic     Abuse

Injunction now in force against [W.Z.] that allows one half hour

of visitation with his children one week, and two visits every

other week."

      ¶17     On August 10, 2016, W.Z. purged the contempt by endorsing

the federal and state income tax refund checks and providing them

to Attorney Jones.

      ¶18     On August 19, 2016, Attorney Harman filed requests for

de novo hearings in the Z. divorce along with a request for

substitution of LaCrosse County Circuit Court Judge Levine.                      The

substitution request was untimely and was denied.

      ¶19     On    August   24,   2016,       Judge   Levine   issued    an   order
dismissing W.Z.'s motions for de novo hearings due to his failure

to appear.         The order noted that W.Z.'s de novo motion regarding

the domestic abuse injunction case was untimely.                  The order also

stated that upon receipt of affidavits in support of an award for

fees, costs, and sanctions, W.Z. would have 10 days to object to

the amount of fees requested by R.Z.'s attorney.                   Attorney Jones

and her supervisor from Legal Action of Wisconsin filed affidavits

that same day.


                                           7
                                                            No.    2018AP1263-D



     ¶20    After sending FCC Wright the April 20, 2016, April 25,

2016, May 2, 2016, June 17, 2016, and August 9, 2016 letters with

voluminous    enclosures,    Attorney     Harman    sent   Judge    Levine    a

September 2, 2016 letter alleging that FCC Wright was "precluded

from hearing the Motion to Rescind the Domestic Abuse Injunction

because she was to avoid an impropriety as per SCR 60.3 [sic] when

she knew that respondent had filed a claim against her prior to

the motion hearing."

     ¶21    In the September 2, 2016 letter, Attorney Harman also

responded    to   the   court's   order   finding   W.Z.   and     himself   in

contempt.    The letter stated that Attorney Harman had held the tax

refund checks until FCC Wright denied his motion and that his

client had not participated in making the decision to hold the tax

refund check.     Attorney Harman further stated he was never given

written notice of the change of hearing date for the de novo

hearing before Judge Levine.

     ¶22    After alleging in the September 2, 2016 letter to Judge

Levine that FCC Wright was precluded from acting in the Z. divorce,
on September 7, 2016, Attorney Harman sent FCC Wright a letter

suggesting that W.Z. meet with the child support agency without

R.Z. being present, saying "what can we do to facilitate such a

meeting?"

     ¶23    On September 6, 2016, Attorney Harman sent a letter with

enclosures,   including     various   pictures     and   text   messages,    to

Attorney Jones and FCC Wright claiming that R.Z. was falsely

advertising herself as divorced.


                                      8
                                                          No.   2018AP1263-D



    ¶24    A hearing was held before FCC Wright on September 12,

2016 with respect to W.Z.'s request for dismissal of the domestic

abuse injunction; his request to dismiss the temporary order; his

request for a judgment of annulment; and R.Z.'s request for

attorney's    fees   for   having   to   respond   to   Attorney   Harman's

submissions.

    ¶25    On September 13, 2016, Judge Levine entered a $4,400

judgment in favor of Legal Action of Wisconsin for having to

respond to Attorney Harman's various motions in the Z. divorce.

    ¶26    Attorney Harman sent a letter dated September 14, 2016

to FCC Wright commenting on the award of attorney's fees to

Attorney Jones and noting his continued objection to FCC Wright

participating in the proceedings.

    ¶27    On October 12, 2016, Nunc Pro Tunc September 12, 2016,

FCC Wright issued an order stemming from the September 12, 2016

hearing.     The order stated:

    The respondent's request for dismissal of the domestic
    abuse injunction is frivolous, on grounds that the court
    has no authority in the divorce action to dismiss an
    injunction issued in a separate matter; the respondent's
    request to dismiss the temporary order is frivolous,
    because the available remedies were to either file a
    request for a de novo hearing or a motion to amend the
    temporary order; the respondent's request to the family
    court for a judgment of annulment is frivolous because
    the family court commissioner has no authority to enter
    such a judgment; the respondent's request for sanctions
    against the petitioner's attorney is frivolous because
    petitioner's   pleadings    complied    with   statutory
    requirements and the respondent failed to state with any
    specificity any impropriety with those pleadings; the
    petitioner's attorney had to respond to a 618-page
    submission of the respondent containing duplicative
    documents, Chinese text, improper transcripts, and

                                     9
                                                    No.   2018AP1263-D


     personal information about the parties irrelevant to the
     matter; Attorney Jones correctly filed a motion for
     contempt for respondent's failure, until the September
     12, 2016 hearing, to comply with the 2015 tax refund
     provisions of the February 11, 2016 temporary order
     (attributing this to Harman having failed to obtain his
     client's endorsement on the refund checks and then
     return them to Attorney Jones); [W.Z.] is not personally
     responsible for any of the aforesaid actions; and the
     petitioner's request for attorneys fees in the amount of
     $4,400 is reasonable.
     ¶28   Attorney Harman was ordered to pay the $4,400 within 60

days.    To date, the judgment remains unpaid.

     ¶29   In May 2017, Attorney Harman sent a letter to Attorney

Jones and included two satisfactions of judgments relating to the

obligations owed by Attorney Harman and W.Z.        Attorney Jones

responded that since Attorney Harman was no longer the attorney of

record for W.Z., she could not discuss any issues that pertained

to him.     Attorney Jones also informed Attorney Harman that a

satisfaction of judgment as to Attorney Harman's obligation was

not possible since he had not paid anything on the judgment, nor

had he made any arrangements to do so.

     ¶30   The OLR's complaint alleged the following counts of
misconduct with respect to Attorney Harman's representation of

W.Z.:

     Count One: By seeking relief from and providing evidence
     to   the  family   court  commissioner    in  a   manner
     inconsistent with proper civil procedures and deemed
     frivolous by the family court commissioner, Attorney
     Harman violated SCR 20:1.1.1

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

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     Count Two:   By failing until at least the August 10,
     2016 hearing2 to comply with the tax refund provisions
     of the February 11, 2016 temporary order, Attorney
     Harman violated SCR 20:3.4(c).3

     Count Three: By failing to comply with the court's order
     that he personally pay the $4,400 judgment to Legal
     Action of Wisconsin for attorney fees in LaCrosse County
     Case 2016FA22, Attorney Harman violated SCR 20:3.4(c).
     ¶31    The referee was appointed on July 24, 2018.            On August

27, 2018, Attorney Harman filed a motion to dismiss the OLR's

complaint along with a supporting affidavit.           He filed an answer

and an affirmative defense on August 31, 2018.          The answer denied

the three paragraphs of the OLR's complaint stating the counts of

misconduct.     The answer did not deny, or even mention, any of the

paragraphs in the complaint setting forth the facts of Attorney

Harman's representation of W.Z.        The answer accused FCC Wright of

"impropriety" and alleged that she ignored the civil rights claim

filed against her by W.Z.      Attached to the answer was a copy of a

June 5, 2018 letter from the Executive Director of the State of

Wisconsin Judicial Commission to Attorney Harman acknowledging

receipt    of   Attorney   Harman's   correspondence    to   the    Judicial

Commission accusing FCC Wright and Judge Levine of misconduct.


     2 There is an October 12, 2016 order (Nunc Pro Tunc September
12, 2016) that refers to finding Attorney Harman in contempt until
a September 12, 2016 hearing. However, there is also an August
18, 2016 order indicating that W.Z. purged the contempt by
endorsing and giving the checks to Attorney Jones during an August
10, 2016 hearing.
     3 SCR 20:3.4(c) provides:    "A lawyer shall not knowingly
disobey an obligation under the rules of a tribunal, except for an
open refusal based on an assertion that no valid obligation
exists."

                                      11
                                                    No.    2018AP1263-D



     ¶32   Since Attorney Harman's answer did not deny any of the

factual allegations contained in the complaint, the OLR filed a

motion for summary judgment on September 21, 2018.        The referee

sent an email to the OLR's counsel and Attorney Harman on September

26, 2018 to set a date for a telephonic scheduling conference.

     ¶33   On September 26, 2018, although he had not requested a

substitution of the referee within ten days of the referee's

appointment, as required by SCR 22.13(4), Attorney Harman sent the

referee and the OLR's counsel an email saying,

     I will ask that you recuse yor self [sic] on the grounds
     that OLR primary witness the FCC Wright was a former co-
     employee, or a relationship where you were in charge of
     the office and the FCC was working for you. The Judicial
     Code requires that you abstain from further proceedings.
     ¶34   The referee sent an email to Attorney Harman and the

OLR's counsel on September 26, 2018, stating that a telephone

scheduling conference would be held at 9:00 a.m. on October 3,

2018.   The email stated that the recusal issue would be addressed

during the scheduling conference.

     ¶35   On October 2, 2018, Attorney Harman sent an email to the

referee and the OLR's counsel saying he would not participate in

the telephone scheduling conference and that, "I think that Ref

Beatty wants to get me to a phine [sic] call sohe [sic] can say I

waived my right to object to his effort to act as Referee."

     ¶36   The referee responded by sending an October 2, 2018 email

to Attorney Harman and the OLR's counsel saying:

     You are required to participate in phone conferences
     relating to your disciplinary matter. If you choose not
     to participate, then decisions may be made with you in

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                                                          No.    2018AP1263-D


     default.   As I have indicated in previous emails, we
     will discuss in tomorrow's phone conference how to
     address the issues you have raised.     If you do not
     participate, those issues may be considered waived.
     Further, email is not the proper forum for addressing
     the merits of issues in this case.      I urge you to
     participate in tomorrow's phone conference.
     ¶37    On October 3, 2018, at 9:00 a.m., as instructed by the

referee, the OLR's counsel initiated a telephone conference call

by first calling Attorney Harman's office.         There was no answer at

Attorney Harman's office, so the OLR's counsel left a telephone

message for Attorney Harman.       The OLR's counsel then called the

referee    to   complete   the   scheduled   telephone   conference      and

reported that he had called Attorney Harman's office but no one

had answered the phone.

     ¶38    Following Attorney Harman's refusal to participate in

the October 3, 2018 telephone scheduling conference, the referee

signed an order finding that Attorney Harman's choice not to

participate in the telephone scheduling conference represented

egregious conduct on Attorney Harman's part.          The referee denied

Attorney Harman's motion to dismiss and granted the OLR's motion

for summary judgment.      The referee stated that he would decide the

appropriate     sanction   based   on    written   submissions    from   the

parties, to be simultaneously filed by November 1, 2018.                 The

referee stated if Attorney Harman filed a written request for a

hearing on the issue of sanction within 15 days of the date of the

order, the referee would schedule such a hearing.               The referee

stated he did not want to schedule a hearing if Attorney Harman

was not going to show up.



                                    13
                                                                    No.    2018AP1263-D



     ¶39    On October 4, 2018, Attorney Harman sent an email to the

referee and the OLR's counsel.            The subject of the email was "Void

order."     The email stated, "a provision of the Judicial Code

prohibits     Judges      from    appearing       in   cases   involving       former

employees' naughty naughty Al baby [sic]."

     ¶40    Attorney Harman did not request a hearing on the issue

of sanction, so no hearing was scheduled.                  Both sides submitted

written briefs regarding the sanction recommendation.

     ¶41    The referee issued his report and recommendation on

November 28, 2018.         The referee found that the OLR had proved by

clear, satisfactory, and convincing evidence that Attorney Harman

committed each of the violations alleged in the OLR's complaint.

The referee found that a six-month suspension of Attorney Harman's

Wisconsin    law       license    was    an    appropriate     sanction      for   his

misconduct.

     ¶42    The    referee       noted    there    were   multiple        aggravating

factors in this case, including the fact that Attorney Harman has

four prior disciplinary proceedings, the most recent one resulting
in a six-month license suspension.              The referee noted that some of

the same problems evident in the previous disciplinary proceedings

were also present in this one.                 For example, the referee noted

that in its 2001 decision this court agreed with the referee's

observation       that     Attorney      Harman's       pattern     of     misconduct

demonstrated a disregard of the legal system and showed his

willingness       to     ignore    established         procedures     for     dispute

resolution in favor of his perceived personal expediency.


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                                                               No.     2018AP1263-D



       ¶43   The    referee     said   Attorney   Harman     has   continued    to

demonstrate a disregard for and a lack of understanding of the

rules of civil procedure and the rules of disciplinary proceedings.

The    referee     said   Attorney     Harman     persists    in     engaging   in

"litigation by correspondence" and rather than filing motions and

briefs and making arguments, he instead sends letters. The referee

noted that in the Z. divorce, Attorney Harman sent FCC Wright eight

letters between April 20, 2016 and September 14, 2016. The referee

said the correspondence demonstrates Attorney Harman's inability

to accept the finality of judicial officers' decisions as he kept

trying to reargue what had previously been decided.                   The referee

noted that Attorney Harman's one motion seeking to obtain a de

novo review was dismissed due to his non-appearance, and the

referee also noted the judge further found that the motion was

untimely.

       ¶44   The referee said despite the filings in the Z. case being

in the form of correspondence rather than motions, FCC Wright

addressed them as motions and found four of them to be frivolous.
The referee said the one motion Attorney Harman did file, to

dismiss the domestic abuse injunction, was incorrectly filed in

the divorce action rather than in the separate injunction case.

       ¶45   The referee said Attorney Harman showed the same pattern

of litigation by correspondence in this disciplinary proceeding,

litigating by email rather than by motion.             The referee commented

that   having      been   the   respondent   in    four    prior     disciplinary

proceedings, Attorney Harman should be especially knowledgeable
about the rules.
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                                                                  No.     2018AP1263-D



      ¶46   The referee found another aggravating factor in the case

to be the potential harm to W.Z. when Attorney Harman withheld the

income tax refund checks from W.Z., exposing his client to the

possibility of a finding of contempt.              Further, the referee found

it particularly troubling that when Attorney Harman does not like

a judicial officer's decisions, or fears what the decisions could

be, he attacks the judicial officer.               The referee noted that in

the 2001 disciplinary proceeding Attorney Harman alleged that the

referee had a conflict of interest and asked her to recuse herself.

The referee said in the Z. case, Attorney Harman tried to get the

family   court     commissioner    removed,        and   in    this     disciplinary

proceeding, Attorney Harman asked the referee to recuse himself

and then refused to participate in a scheduling conference when

the recusal did not automatically occur.

      ¶47   The referee said Attorney Harman has not demonstrated

acceptance    of     responsibility,         nor   has    he     demonstrated      an

understanding of the issues.          The referee said Attorney Harman's

responses    in    the   disciplinary    proceeding       have    primarily      been
attempts to re-litigate the issues in the Z. divorce.                    The referee

said it does not appear that Attorney Harman is able to move on

from court decisions with which he disagrees.                    The referee also

said it is clear that Attorney Harman failed to provide W.Z. with

competent representation.         The referee said Attorney Harman failed

to   demonstrate    the   legal    knowledge,       skill,     thoroughness,      and

preparation reasonably necessary for that representation, and he

also demonstrated an inability or unwillingness, or both, to follow
required procedures and to focus on the relevant issues.
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                                                  No.     2018AP1263-D



     ¶48   The referee concluded that a six-month suspension of

Attorney Harman's license to practice law in Wisconsin was an

appropriate sanction.   The referee also recommended that, as a

condition to the reinstatement of Attorney Harman's law license,

that he be ordered to satisfy the $4,400 judgment entered against

him in the divorce case, and he be ordered to obtain a neuro-

psychological examination addressing his ability to understand and

conform his conduct to the Rules of Professional Conduct for

Attorneys.

     ¶49   In his appeal, Attorney Harman argues that the OLR

falsely claimed, in its summary judgment motion, that Attorney

Harman did not deny facts in his answer and affirmative defense,

which then allowed the OLR to take a default judgment against him.

Attorney Harman devotes the bulk of his argument to reiterating

his claim that the referee should have recused himself due to the

fact that for five years both the referee and FCC Wright were

employed at the state public defender's LaCrosse office.    Attorney

Harman also continues to argue that FCC Wright should have recused
herself from the Z. divorce proceeding, because he and his client

had accused her of violating W.Z.'s civil rights.       He says, "it

appears that FCC Wright has imposed her revenge against both

Harman's client and Harman by not recusing herself and not setting

aside the domestic abuse injunction against Harman's client and at

the same time imposing a judgment of $4,400 for attorney's fees

upon Harman."    Attorney Harman accuses the OLR of failing to

disclose exculpatory facts, in violation of Brady v. Maryland, 373
U.S. 83 (1963), which requires a prosecutor to disclose any
                                17
                                                             No.    2018AP1263-D



evidence    favorable      to    the     accused   that   goes     toward   the

creditability of a witness.

     ¶50    Attorney Harman concludes his brief by saying that,

"OLR's     participation        in     this   disciplinary   proceeding      is

oderiferous [sic]."     He says, "if disciplined . . . because of the

antics of the OLR prosecution team, Respondent shall imagine

himself to be like a member of a den of thieves whose members

ousted a fallen member for being honest."

     ¶51    The OLR responds that Attorney Harman's brief should be

stricken because it fails to comply with the requirements of Wis.

Stat. § 809.19(1).      The OLR goes on to argue that Attorney Harman

never moved the referee to recuse himself, nor did he ever move to

disqualify the referee.              In addition, the OLR points out that

Attorney Harman refused to participate in the October 3, 2018

telephone scheduling conference at which the referee indicated he

would address the recusal issue.               For these reasons, the OLR

asserts that Attorney Harman either waived or forfeited his right

to appeal the recusal issue since this court has held that failure
to preserve issues means they are waived.            See, e.g., In re Ambac

Assurance Corp., 2012 WI 22, ¶36, 339 Wis. 2d 48, 810 N.W.2d 450.

     ¶52    Turning to the merits of Attorney Harman's claim that

the referee should have recused himself, the OLR notes that the

referee disclosed on the record the information he believed the

parties might consider relevant to the question of his recusal,

and the referee noted that he and FCC Wright were both attorneys

in the LaCrosse Office of the State Public Defender before Attorney
Wright became the LaCrosse County Family Court Commissioner and
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before the referee retired from the state public defender's office

in 2015.    The OLR notes the referee stated he never held a

supervisory position in the public defender's office and was never

FCC Wright's supervisor.

     ¶53   The OLR says even if Attorney Harman had participated in

the October 3, 2018 telephone scheduling conference and had filed

or made a motion asking the referee to recuse himself, the referee

was not required to do so since the fact that the referee once

worked in the same office with FCC Wright, who was apparently the

person who filed the grievance against Attorney Harman with the

OLR, is not a fact or circumstance where the referee's own interest

may be perceived to impair his impartiality.   In addition, the OLR

says a basic premise of Attorney Harman's contention is apparently

that FCC Wright was the OLR's primary witness.     The OLR says in

fact it had no need to call FCC Wright, or anyone else, as a

witness given that Attorney Harman had already admitted all of the

factual allegations in the complaint.

     ¶54   The OLR says while Attorney Harman argues that he was
denied a due process hearing, the only reason no hearing was held

in this case was that Attorney Harman unilaterally and voluntarily

decided to refuse to participate.       The OLR argues there is no

denial of due process when someone who has had timely notice of a

proceeding fails to appear and present evidence.      The OLR says

even after Attorney Harman refused to participate in the telephone

scheduling conference, the referee still gave him an opportunity

to request a hearing on the issue of appropriate sanction, but
Attorney Harman declined that opportunity.
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     ¶55   Turning to the question of the appropriate level of

discipline, the OLR reiterates that this is Attorney Harman's fifth

disciplinary proceeding, and it notes that the referee identified

a pattern of misconduct which would warrant a six-month suspension.

     ¶56   A referee's findings of fact are affirmed unless clearly

erroneous.    Conclusions of law are reviewed de novo.          See In re

Disciplinary Proceedings Against Eisenberg, 2004 WI 14, ¶5, 269

Wis. 2d 43, 675 N.W.2d 747. The court may impose whatever sanction

it sees fit, regardless of the referee's recommendation.            See In

re Disciplinary Proceedings Against Widule, 2003 WI 34, ¶44, 261

Wis. 2d 45, 660 N.W.2d 686.

     ¶57   We conclude there has been no showing that any of the

referee's findings of fact are clearly erroneous.         Accordingly, we

adopt them.    We further agree with the referee's conclusions of

law that Attorney Harman violated the supreme court rules set forth

above.

     ¶58   Attorney    Harman   does    not   challenge   the    referee's

findings of fact or his conclusions of law.         Instead, he argues
that the proceeding was unfair, and even violative of due process,

because the referee refused to recuse himself.        As the OLR points

out, SCR 22.13(4) provides that within ten days after notice of

appointment of the referee, either the OLR or the respondent may

file a motion for substitution of the referee, which shall be

granted as a matter of right.     Additional motions shall be granted

for good cause.       Attorney Harman never invoked his right for

substitution of the referee under SCR 22.13.         Instead, he raised
the issue in an email.    When the referee informed the parties that
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the recusal issue would be addressed in the course of a telephone

scheduling conference, Attorney Harman announced he would not

participate in the conference.       Under the circumstances, we find,

as we did in Attorney Harman's 2001 disciplinary proceeding, that

Attorney    Harman    waived   any        objection   to     the    referee's

participation in this matter.

     ¶59   In addition, we reject Attorney Harman's claim that he

was denied due process in the course of this proceeding.               He was

given notice of the telephone scheduling conference and refused to

participate in it.    The consequences of his refusal are his alone.

     ¶60   As to the appropriate level of discipline, we agree with

the referee that a six-month suspension of Attorney Harman's law

license    is   appropriate.    This       is   Attorney    Harman's    fifth

disciplinary proceeding.       In the 2001 proceeding, which also

resulted in a six-month license suspension, we noted that Attorney

Harman's pattern of conduct demonstrated a disregard of the legal

system.    The same holds true here.         Attorney Harman's course of

conduct in his representation of W.Z. resulted in Legal Action of
Wisconsin having to incur the time and expense of responding to a

series of frivolous filings.    Although Attorney Harman was ordered

to pay $4,400 to Legal Action of Wisconsin within 60 days of

September 12, 2016, that amount remains unpaid.            Attorney Harman's

conduct in representing W.Z. was unprofessional, and his continued

attacks on the family court commissioner, the judge, and the

referee in this disciplinary proceeding are also troubling and

demonstrate a lack of respect for the legal system and the judicial
process.
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     ¶61    Although no two disciplinary proceedings are identical,

we find that In re Disciplinary Proceedings Against Mauch, 2010 WI

2, 322 Wis. 2d 79, 777 N.W.2d 637 is somewhat analogous. In Mauch,

as here, the attorney had been disciplined on four separate

occasions.     In imposing a six-month suspension, this court agreed

with the referee that in light of Attorney Mauch's apparent

indifference to the seriousness of the proceedings, a suspension

that would require the attorney to petition for reinstatement will

provide    assurance   that   he   can    be   safely   recommended   to   the

profession, the courts, and the public as a person who is fit and

capable to practice law in this state.           Mauch, 322 Wis. 2d at 90.

The same rationale applies here, and we agree with the referee

that a six-month license suspension is appropriate.               As is our

usual custom, we find it appropriate to assess the full costs of

this proceeding against Attorney Harman.

     ¶62    Finally, we agree with the referee's recommendation

that, as a condition to the reinstatement of his license to

practice law in Wisconsin, Attorney Harman should be ordered to
satisfy the $4,400 judgment entered against him in the Z. divorce

case.     We do not agree with the referee that the reinstatement of

Attorney Harman's license to practice law should be conditioned

upon his obtaining a neuro-psychological examination.

     ¶63    IT IS ORDERED that the license of Donald J. Harman to

practice law in Wisconsin is suspended for a period of six months,

effective January 29, 2020.

     ¶64    IT IS FURTHER ORDERED that, as a condition of the
reinstatement of his license to practice law in Wisconsin, Donald
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J. Harman shall satisfy the $4,400 judgment entered against him in

the Z. divorce case in LaCrosse County.

     ¶65   IT IS FURTHER ORDERED that Donald J. Harman 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.

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

this order, Donald J. Harman shall pay to the Office of Lawyer

Regulation the cost of this proceeding, which are $7,662.28 as of

May 13, 2019.

     ¶67   IT   IS   FURTHER   ORDERED   that   compliance   with    all

conditions with this order is required for reinstatement.            See

SCR 22.29(4).




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